Gardner v. Murphy

• Decision Date: 31 December 1975
• Citation: 54 Cal.App.3d 164,126 Cal.Rptr. 302
• Court: California Court of Appeals Court of Appeals
• Parties: Philip GARDNER, Cross-Complainant and Appellant, v. Virginia MURPHY et al., Cross-Defendants and Respondents. Civ. 46408.

Page 302

126 Cal.Rptr. 302

54 Cal.App.3d 164

Philip GARDNER, Cross-Complainant and Appellant, v. Virginia MURPHY et al., Cross-Defendants and Respondents.

Civ. 46408.

Court of Appeal, Second District, Division 3, California.

Dec. 31, 1975.

Davis & Killian and Andrew C. Schutz, Los Angeles, for cross-complainant and appellant.

McDaniel & McDaniel and Donald C. McDaniel, Los Angeles, for cross-defendants and respondents.

COBEY, Acting Presiding Justice.

Cross-complaint, Philip Gardner, appeals from a judgment of dismissal (Code Civ.Proc., § 581c) of his corss-action for indemnity and contribution against certain co-defendants in the main action for rescission and damages, namely, Virginia Murphy, et al. ¹ , following the sustaining, without leave to amend, of their general demurrers to his first amended cross-complaint. The appeal lies. (Code Civ.Proc., § 904.1, subd. (a).) ²

The fundamental question presented is whether the conduct of Gardner, the sole real estate salesman actively involved as an intermediary in the transaction, on the facts alleged in his first amended cross-complaint and on the facts alleged and/or admitted in the other pleadings on file in this case (all of which are subject to judicial notice both by the trial court and by this court (see Evid.Code, §§ 452, subd. (d)(1), 459 and Code Civ.Proc., § 430.30, subd. (a)) in negotiating the sale in December 1965 of a certain landlocked parcel of land in Malibu to the plaintiffs in the main action, the Philip Bentzes, was such that his cross-action for indemnity against certain of his co-defendants therein, namely (Murphy), the sellers of this parcel and their successors in interest, is barred. ³

FACTS

In December 1965 Murphy owned a certain five acre parcel of land in Malibu. On or about December 15, 1965, Murphy, through three agents (Gardner among them), in order to induce the Bentzes (the plaintiffs in the main action for rescission and damages) to purchase the parcel, falsely and fraudulently represented to them, among other things, that a 30 foot wide easement of access for a road existed from Rameris Canyon Road to the Murphy parcel. In addition, during the negotiations between Murphy and the Bentzes for the sale of this parcel, Gardner pointed out to plaintiff, Philip Bentz, the exact location of the supposed road easement, both on the ground and on a certain map. In reliance on this supposed access and in ignorance of the actual fact that the parcel was completely landlocked, a fact which Murphy and Gardner, among others, did not reveal to the Bentzes, the latter on or about December 31, 1965, purchased the Murphy parcel for $39,853.48. In fact, according to their complaint, the Bentzes did not learn that this parcel was completely landlocked until on or about December 1, 1972.

Gardner, in his first amended cross-complaint which is before us, alleged that Murphy and two specified cross-defendant brokers, who were her agents, told him that there was an access easement serving the Murphy parcel. He did not, however, go on to allege that this was the 30 foot wide road easement that the Bentzes had referred to in their complaint, but this may be inferred under the applicable rule of liberal construction that prevails with respect to pleadings challenged by a general demurrer. (See Bank of America v. Vannini, 140 Cal.App.2d 120, 126, 295 P.2d 102; Haldane v. Freedman, 204 Cal.App.2d 475, 478, 22 Cal.Rptr. 445.)

DISCUSSION

Thus, the question presented becomes whether Gardner's alleged specific and affirmative misrepresentations to the Bentzes regarding the existence and location of the 30 foot wide supposed right-of-way easement of access to the Murphy parcel was such wrongful conduct as to bar him from indemnification by Murphy even if he is able to prove the allegations of his cross-complaint against her and the other two brokers that his alleged misrepresentations to the Bentzes on the matter of access were based Solely upon the misinformation on this point that she and her brokers allegedly gave him.

We hold that under the foregoing alleged circumstances Gardner's claim for indemnity lies on the basis of the following rationale. First, we note that this is a case of purely equitable indemnity, as contrasted with contractual indemnity, as Gardner in his first amended cross-complaint does not rely upon any contractual provision for his claim of indemnity.

Any equitable right of Gardner to transfer entirely to Murphy whatever liability he may have to the Bentzes in this transaction depends for its existence upon our concluding that his liability to them is secondary while that of Murphy's to them is primary. Stated otherwise, we must conclude that his negligence toward them was passive, while that of Murphy was active. In other words, to justify equitable indemnification, the wrongs of the respective tortfeasors must differ essentially in character of kind. (See Card Constr. Co. v. Ledbetter, 16 Cal.App.3d 472, 477, 94 Cal.Rptr. 570.)

This difference in the character or kind of worng which each joint tortfeasor has done to the injured third person is thus the essential foundation for the shift in liability between them accomplished by means of indemnification. This transfer in liability is not done simply because the two tortfeasors are not In pari delicto (see Herrero v. Atkinson, 227 Cal.App.2d 69, 74, 38 Cal.Rptr. 490) or because the negligence or wrong of one is greater than that of the other as in pure comparative negligence. (See Li v. Yellow Cab Co., 13 Cal.3d 804, 829, 119 Cal.Rptr. 858, 532 P.2d 1226, as modified; American Can Co. v. City & County of San Francisco, 202 Cal.App.2d 520, 525--526, 21 Cal.Rptr. 33.) Equitable indemnity is not a sharing in liability in proportion to fault us pure comparative negligence is. It is instead a total and complete transfer of liability that is equitably justified by the difference in character or kind of the wrongs of the two tortfeasors. (See Alisal Sanitary Dist. v. Kennedy, 180 Cal.App.2d 69, 75, 4 Cal.Rptr. 379.)

This would seem to be the situation in this case because Murphy is alleged to have been the source of the intentional misrepresentations alleged and Gardner, allegedly, merely the negligent conduit of them to the Bentzes. In such a situation his liability to the Bentzes would be based upon his negligence as a person expert in real estate matters in not seeing to it that the existence and location of the 30 foot wide right-of-way easement of access was actually verified before the Bentzes purchased the property. (See Wilson v. Hisey, 147 Cal.App.2d 433, 438, 305 P.2d 686; Schoenberg v. Romike Properties, 251 Cal.App.2d 154, 162, 59 Cal.Rptr. 359; Ford v. Cournale, 36 Cal.App.3d 172, 180, 111 Cal.Rptr. 334.) Murphy's liability, on the other hand, if both the Bentzes and Gardner prove their respective cases against her, would rest upon the fact that she (presumably intentionally) originated the alleged misrepresentations regarding access. As between the intentional originator and the negligent intended transmitter of alleged misrepresentations, the liability and negligence of the former would appear to be primary and active while that of the latter would seem to be secondary and passive. ⁴ (Cf. Aerojet General Corp. v. D. Zelinsky & Sons,249 Cal.App.2d 604, 607, 57 Cal.Rptr. 701; Kennedy v. Colt (1959) 216 Or. 647, 339 P.2d 450, 453; Rest., Restitution (1937) §§ 76, 86, 89.)

In the leading case of Cahill Bros., Inc. v. Clementina Co., 208 Cal.App.2d 367, 381--382, 25 Cal.Rptr. 301, 309, Justive Molinari stated: 'The crux of the inquiry (whether a right to indemnity exists) is participation in some manner by the person seeking indemnity in the conduct or omission which caused the injury beyond the mere failure to perform the duty imposed upon him by law. (Citations omitted.) The thrust of these cases is that if the person seeking indemnity personally participates in an affirmative act of negligence, or is physically connected with an act of omission by knowledge or acquiescence in it on his part, or fails to perform some duty in connection with the omission which he may have undertaken by virtue of his agreement, he is deprived of the right of indemnity. In other words, the person seeking indemnity cannot recover if his negligence is active or affirmative as distinguished from negligence which is passive.' (Emphasis added.) Later California cases quoting Cahill Bros. have ignored the fact that this disqualifying personal participation in or physical connection to the wrong done the third person was stated simply as an alternative to the more traditional active versus passive negligence test and instead have added it as a second precondition to the right to equitable indemnity. (See, e.g., Atchison, T. & S.F. Ry. Co. v. Lan Franco, 267 Cal.App.2d 881, 886--887, 73 Cal.Rptr. 660; Standard Oil Co. v. Oil, Chemical, etc., Internat. Union, 23 Cal.App.3d 585, 590--591, 100 Cal.Rptr. 354.) In our view it is not a second precondition to the existence of the right but merely a restatement of the only precondition--namely, that the wrongs of the two joint tortfeasors differ in character or kind, however, such difference may be categorized.

Although we have not discovered any prior California decisions on this precise issue, there are several cases reflecting reasoning similar to ours. In Schoenberg v. Romike Properties, supra, 251 Cal.App.2d 154, 59 Cal.Rptr. 359, a real estate broker was not permitted to maintain a cross-action for 'reimbursement' against the buyer who fabricated an...