Opinion
Review Granted Dec. 17, 1987.
Previously published at 195 Cal.App.3d 120
Stephen R. Enochian and George D. Yaron, Moss & Enochian, Redding, for petitioner.
No appearance for Respondent.
James W. Pincin, Weintraub Genshlea Hardy Erich & Brown, Redding, for real parties in interest.
PUGLIA, Presiding Justice.
Petitioner Edward C. Zarback is a defendant and cross-defendant in the underlying personal injury action. After entering into a compromise and release agreement with the plaintiff, petitioner sought and obtained a ruling from the trial court that the agreement was in "good faith" for purposes of Code of Civil Procedure section 877.6. The superior court, in its order determining the good faith issue, also dismissed a cross-complaint against petitioner which had been brought by real parties in interest and co-defendants Robert Highnote, Steven Cummings, and Dean Beckett, d.b.a. Mountain Distributing. (Hereafter collectively referred to as cross-complainants.) However, the court's dismissal order was expressly made without prejudice to cross-complainants right to file a new pleading "... based on the theory of complete equitable indemnity if such can be brought."
Cross-complainants filed a First Amended Cross-Complaint seeking, inter alia, "total" indemnity from petitioner in the event they were held liable to plaintiff. The amended pleading alleged that any liability incurred by cross-complainants would be "derivative" or "vicarious," and not the result of any active conduct on their part. Petitioner demurred to the amended cross-complaint, arguing that the court's earlier ruling that his settlement with plaintiff was made in good faith barred the new cross-complaint. He relied on Code of Civil Procedure section 877.6, subdivision (c), which states that a good faith compromise between the plaintiff and an alleged tortfeasor "... shall bar any other joint tortfeasor from any further claims against the settling tortfeasor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault." Petitioner's demurrer was overruled, the trial court finding persuasive cross-complainant's contention that subdivision (c) does not preclude a claim for total equitable indemnity. Petitioner now seeks a writ of mandate directing respondent superior court to sustain his general demurrer to the cross-complaint. We shall grant the requested relief.
The nature of the question presented obviates any need for a recitation of the facts giving rise to the instant litigation. It is sufficient for our purposes to note that the appellate courts of this state are divided on the issue of what effect section 877.6, subdivision (c) has on a joint tortfeasor's right to maintain an action for "total" equitable indemnity. At least two reported decisions have found that claims for indemnity survive where a party seeking total indemnity can establish that its liability is vicarious or derivative, and does not arise out of any active fault on the cross-complainant's part. (See Angelus Associates Corp. v. Neonex Leisure Products, Inc. (1985) 167 Cal.App.3d 532, 213 Cal.Rptr. 403; Huizar v. Abex Corp. (1984) 156 Cal.App.3d 534, 203 Cal.Rptr. 47.) However, other decisions have reached a contrary result, concluding that all cross-complaints for indemnity are preempted by a good faith settlement between the plaintiff and cross-defendant, regardless of whether the claim seeks total or partial shifting of responsibility. (See IRM Corp. v. Carlson (1986) 179 Cal.App.3d 94, 224 Cal.Rptr. 438; Standard Pacific of San Diego v. A.A. Baxter Corp. (1986) 176 Cal.App.3d 577, 222 Cal.Rptr. 106.) No published opinions from this court have directly addressed the question.
We note that the Supreme Court has granted review in several cases which have reached conflicting answers to the same question. (See, e.g., Tulco, Inc. v. NARMCO Materials, Inc. (Cal. App.) rev. granted July 2, 1987 (4-G002574, Div. 3); Far West Financial Corp. v. D & S Co. (Cal. App.) rev. granted June 3, 1987 (2-B009457, Div. 3).)
We see no purpose in reiterating the various rationales, policies, and legal analyses relied upon in the above-cited decisions. Instead, for the guidance of the trial courts within this district, we simply indicate our concurrence with the reasoning set forth in IRM Corp. v. Carlson, supra, and Standard Pacific of San Diego v. A.A. Baxter Corp., supra. We are convinced that those opinions correctly hold that all claims set forth in cross-complaints for equitable indemnity against a settling tortfeasor are extinguished by that tortfeasor's good faith settlement with the plaintiff, and that section 877.6, subdivision (c), makes no distinction in its treatment of claims for total as opposed to partial indemnity. As the court in Standard Pacific of San Diego explained, "[t]otal indemnification is nothing more than equitable allocation of all the loss to another party.... Comparative equitable indemnity includes the entire range of possible apportionments, from no right to any indemnity to a right of complete indemnity. Total indemnification is just one end of the spectrum of comparative equitable indemnification." (Id., at pp. 587-588, 222 Cal.Rptr. 106.)
Let a peremptory writ of mandate issue directing respondent superior court to vacate its order overruling petitioner's demurrer to the cross-complaint of real parties in interest enter a new order sustaining that demurrer without leave to amend. Upon finality of this decision, the stay previously issued is dissolved.
EVANS and SIMS, JJ., concur.