County of Ventura v. City of Camarillo

• Decision Date: 17 May 1978
• Citation: 80 Cal.App.3d 1019,144 Cal.Rptr. 296
• Court: California Court of Appeals Court of Appeals
• Parties: COUNTY OF VENTURA, Cross-complainant and Appellant, v. CITY OF CAMARILLO, Cross-defendant and Respondent. Civ. 51873.

Page 296

144 Cal.Rptr. 296

80 Cal.App.3d 1019

COUNTY OF VENTURA, Cross-complainant and Appellant, v. CITY OF CAMARILLO, Cross-defendant and Respondent.

Civ. 51873.

Court of Appeal, Second District, Division 5, California.

May 17, 1978.

As Modified May 31, 1978.

Don Dewberry Professional Corporation, and Don Fesler, Ventura, for cross-complainant and appellant.

Henderson & Smith Law Corporation, and David L. Allen, Ventura, for cross-defendant and respondent.

HASTINGS, Associate Justice.

This is an appeal by County of Ventura, (Ventura), cross-complainant and appellant, from a summary judgment dismissing its cross-complaint against the City of Camarillo (Camarillo), cross-defendant and respondent.

On November 7, 1974, after dark, plaintiff John Larsen was a passenger in a vehicle operated by Joel Capps, who was driving northbound on Springville Road located in Ventura. Capps had turned right onto Springville Road after exiting the Ventura Freeway. At this point Springville Road ran approximately one mile, and dead-ended in a flood control channel known as Beardsley Creek. The first half mile of Springville Road was within the city limits of Camarillo, and the last half mile was in an unincorporated area of Ventura. At the "T" intersection, where Capps turned onto Springville Road from the freeway, Camarillo had erected a sign that stated "NOT A THROUGH STREET." Capps drove his car into Beardsley Creek at the end of Springville Road, injuring Larsen. Larsen sued Ventura, Camarillo, and the City of Oxnard (not involved in this appeal) for negligence. Ventura sued Camarillo by means of a cross-complaint alleging that Camarillo's negligence was the proximate cause of Larsen's injuries.

Camarillo filed a motion for summary judgment on both the complaint and cross-complaint, alleging that it had no control over the road for the last half mile and therefore could not be responsible for its dangerous condition. Ventura filed an opposition to the motion, stating that the complaint alleged that one of the reasons for the accident was the inadequate signing and warning devices. It then stated in its opposition that the sign in question was "in somewhat of a state of disrepair on the date of the alleged accident and unreflectorized." It also stated that driver Capps testified in his deposition that he did not see the sign but had he seen it, he would not have proceeded down Springville Road. Plaintiff Larsen did not oppose the motion. The court granted Camarillo's motion, thereby dismissing it as a defendant to Larsen's action, and as a cross-defendant to Ventura's action.

Ventura then requested that the summary judgment as to it be set aside to enable it to file an amended cross-complaint. This motion was granted and Ventura, relying on American Motorcycle Assn. v. Superior Court, 65 Cal.App.3d 694, 135 Cal.Rptr. 497 (reversed by American Motorcycle Assn. v. Superior Court, 20 Cal.3d 578, 143 Cal.Rptr. 692, 574 P.2d 763, infra ), amended its cross-complaint to seek partial indemnity from Camarillo. Plaintiff Larsen was not involved in these proceedings and Camarillo's dismissal from the principal action remained in force.

Camarillo again filed a motion for summary judgment as to Ventura's amended cross-complaint. Both parties appeared at the hearing through their attorneys. No written opposition to the second motion for summary judgment was filed by Ventura, but Ventura's counsel contends he informed the court that Ventura incorporated its opposition and points and authorities filed earlier in connection with the first motion. The court again granted the motion of Camarillo, and this appeal followed.

Camarillo argues that the dismissal was proper because the record is devoid of evidence that Camarillo had a duty to maintain the sign in question; the condition of the sign was not a proximate cause of the accident as a matter of law; and the alleged defectiveness of the sign did not create a substantial risk of injury but at most created a minor, trivial or insignificant risk.

The opinion of American Motorcycle Assn. v. Superior Court, 20 Cal.3d 578, 143 Cal.Rptr. 692, 574 P.2d 763, has added some new dimensions to the issues first raised by the parties to this appeal. This recent case permits, in appropriate cases, a right of partial indemnity ¹ among multiple tort feasors. Liability is apportioned on a comparative negligence basis. Prior to American Motorcycle, California did not recognize such a rule. If one tortfeasor's negligence was active and the other tortfeasor's negligence was passive, the courts adopted an all or nothing approach and no indemnification was recoverable from the latter participant. ² Now, a defendant can file a cross-complaint against other named defendants, or against unnamed parties, seeking partial indemnification. In our present case, Camarillo was originally named by Larsen in his complaint as a multiple tortfeasor, but he apparently was not enthusiastic about his chances against Camarillo because he did not contest Camarillo's motion for summary judgment against him. Ventura could not appeal the summary judgment leading to Camarillo's dismissal from the Larsen action; therefore, Camarillo was in effect an unnamed defendant in the principal action when the court granted its motion for summary judgment on Ventura's cross-complaint. One count of the cross-complaint sought partial indemnity from Camarillo. The first issue confronting us therefor is whether the law of American Motorcycle is to be applied retroactively. This is important because under the facts of this case Ventura would probably be the "actual" or "primary" tortfeasor, and under prior law, it would have no right to partial indemnity. The court's order dismissing Ventura's cross-complaint would then be correct.

Recent California cases have taken a middle course on the issue of retroactivity and have made the decisions apply to any case in which no final judgment has yet been rendered. (See 6 Witkin, Cal. Procedure (2d ed., 1977 pocket supp.) § 705A, p. 79 and cases cited.) In In re Marriage of Brown, 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561, the court overruled long-standing law on division of nonvested pension rights in marriage dissolution proceedings. The law overruled had been enunciated in some detail in French v. French, 17 Cal.2d 775, 112 P.2d 235. As one of its reasons for applying limited retroactivity to cases still pending, the court said the rule in French "was ripe for reconsideration," and the unfairness of the...