Gonzales v. R. J. Novick Constr. Co.

• Decision Date: 23 March 1978
• Citation: 144 Cal.Rptr. 408,575 P.2d 1190,20 Cal.3d 798
• Parties: , 575 P.2d 1190 Ben C. GONZALES, Plaintiff and Respondent, v. R. J. NOVICK CONSTRUCTION COMPANY, INC., Defendant, Cross-Complainant, and Appellant, Vienna Stonecraft, Inc., Cross-Defendant and Appellant. L.A. 30829.
• Court: California Supreme Court

Page 408

144 Cal.Rptr. 408

20 Cal.3d 798, 575 P.2d 1190

Ben C. GONZALES, Plaintiff and Respondent, v. R. J. NOVICK CONSTRUCTION COMPANY, INC., Defendant, Cross-Complainant, and Appellant Vienna Stonecraft, Inc., Cross-Defendant and Appellant.

L.A. 30829.

Supreme Court of California, In Bank.

March 23, 1978.

Clausen, Gilliland, Koelsche, Roberson & Moser, William N. Roberson, Los Angeles, Edward L. Lascher, Wendy C. Wilner, Ventura, and Richard C. Gilman, Oxnard, for defendant, cross-complainant and appellant.

Kean & Engle and Joseph A. Kean, Los Angeles, for cross-defendant and appellant.

Vogt & Woloz and James D. Vogt, Los Angeles, for plaintiff and respondent.

William P. Camusi, Los Angeles, Wylie A. Aitken, Santa Ana, and Lawrence R. Booth, Wilmington, as amici curiae on behalf of plaintiff and respondent.

MANUEL, Justice.

Cross-defendant Vienna Stonecraft, Inc., appeals from an adverse judgment on a cross-complaint for indemnity. ¹ We affirm.

Plaintiff Ben C. Gonzales brought the instant action against R. J. Novick Construction Company, Inc. (Novick), a general contractor, and others seeking damages for personal injuries suffered by him when he fell from a scaffold while acting in the course and scope of his employment as a brick tender for Vienna Stonecraft, Inc. (Vienna), a subcontractor of Novick. Novick cross-complained against Vienna for indemnity. The trial was trifurcated, the issue of Novick's liability to plaintiff to be tried before a jury, the issue of Vienna's liability to Novick on the cross-complaint for indemnity to be tried before the court sitting without a jury, and the issue of damages to be tried before a jury. At the conclusion of the proceedings before the jury on the issue of Novick's liability to plaintiff a verdict was returned in favor of plaintiff. The court with the consent of the parties ² then submitted three special interrogatories to the jury to assist in its determination of the issue of liability on the cross-complaint for indemnity. The jury, responding to these special interrogatories, concluded that Novick was "negligent so as to proximately cause plaintiff's accident"; that Vienna was "negligent so as to proximately cause plaintiff's accident"; and that plaintiff was not contributorily negligent. The court having indicated to the parties its intention to rule in favor of Novick and against Vienna on the cross-complaint for indemnity, proceedings before the jury on the issue of the measure of damages ensued, at the conclusion of which the jury returned a verdict against Novick in the amount of $111,500. The parties then stipulated to a set-off in the amount of $12,578 on account of workers' compensation benefits previously paid. Judgment was entered (1) on the complaint in favor of plaintiff and against Novick for the sum of $98,922 plus interest and costs, and (2) on the cross-complaint in favor of Novick and against Vienna in the same amount.

Vienna appeals from the judgment on the cross-complaint. ³ Novick cross-appeals from the judgment on the complaint, ⁴ stating that this cross-appeal should be deemed abandoned by it if the judgment be affirmed insofar as it relates to the cross-complaint. For reasons to appear below, we conclude that the portion of the judgment appealed from must be affirmed and the cross-appeal dismissed as abandoned.

It has been suggested that we, in spite of the clear purport of Vienna's notice of appeal and Novick's stated intention to abandon its appeal in the event of our affirmance of the judgment on the cross-complaint, should nevertheless address the issues raised by the cross-appeal before considering the issues raised by Vienna's appeal. ⁵ This is necessary, we are advised, because the underlying issue of Novick's negligence is the basis of the entire proceeding, and a finding of prejudicial error in that respect would render a consideration of all other issues unnecessary. Moreover, it is urged, considerations of fundamental justice should not allow an erroneous judgment in favor of plaintiff and against Novick to stand simply because Novick can in turn recover from Vienna.

We decline the indicated invitation. Vienna, despite the fact that it was clearly a "party aggrieved" by the judgment in all its aspects and therefore entitled to appeal from it in its entirety (Code Civ.Proc., § 902; see generally, 6 Witkin, Cal.Procedure (2d ed. 1971) § 118, p. 4117, and cases there cited), took advantage of its right under the law of this state to limit its appeal to a particular portion of the judgment. (See rule 1(a), Cal.Rules of Court; see generally Comment: Partial Appeals (1953) 41 Cal.L.Rev. 277.) This determination was reflected not only in the notice of appeal and the original designation of the appellate record (see fn. 3, ante ) but also in Vienna's appellate briefs, which concerned themselves solely with issues of indemnity. ⁶ The effect of proceeding in this fashion was clearly stated by us in the early case of Whalen v. Smith (1912) 163 Cal. 360, 125 P. 904: "Ordinarily (an appeal from a specific portion of a judgment) would leave the parts not appealed from unaffected, and it would logically follow that such unaffected parts must be deemed final, being a final judgment of the facts and rights which they determine. The decisions are to the effect that upon such an appeal where the parts not appealed from are not so intimately connected with the part appealed from that a reversal of that part would require a reconsideration of the whole case in the court below, the court upon such partial appeal can inquire only with respect to the portion appealed from." (163 Cal. at pp. 362-363, 125 P. at p. 905.) Thus, we concluded it is "the general principle that an appeal from a distinct and independent part of a judgment does not bring up the other parts for review in the appellate court, and that a reversal of the part appealed from does not affect the portions not dependent thereon, but that they will stand as final adjudications(.)" (Id., at pp. 363-364, 125 P. at p. 905.)

It is manifest that the foregoing principle, which has been a part of the law of this state at least since its elucidation in Whalen 65 years ago (see also In re Burdick (1896) 112 Cal. 387, 391, 44 P. 734), enjoys continuing present vitality. (See, e. g., In re Marriage of Wilson (1974) 10 Cal.3d 851, 853, 112 Cal.Rptr. 405, 519 P.2d 165; People v. One 1953 Ford Victoria (1957) 48 Cal.2d 595, 597, 311 P.2d 480; Albertson v. Raboff (1956) 46 Cal.2d 375, 378, 295 P.2d 405; Harrold v. Harrold (1954) 43 Cal.2d 77, 87, 271 P.2d 489 (Traynor, J., conc.); Stein v. Hubbard (1972) 25 Cal.App.3d 603, 606, 102 Cal.Rptr. 303; Rouse v. Underwood (1966) 242 Cal.App.2d 316, 318, 51 Cal.Rptr. 437; Page v. Bakersfield Uniform etc. Co. (1966) 239 Cal.App.2d 762, 768-769, 49 Cal.Rptr. 46; Hansen v. Hansen (1965) 233 Cal.App.2d 575, 579-581, 43 Cal.Rptr. 729; Culbertson v. Cizek (1964) 225 Cal.App.2d 451, 471-474, 37 Cal.Rptr. 548.

As the language of the principle in question indicates, however, an exception is made in cases involving judgments whose parts are not deemed to be severable. In such cases an appeal from a portion of the judgment brings up for review not only the portion appealed from but those other portions which are found to be "interdependent upon" it. Thus, as we said in what has come to be regarded as the leading case on the subject: "The test of whether a portion of a judgment appealed from is so interwoven with its other provisions as to preclude an independent examination of the part challenged by the appellant is whether the matters or issues embraced therein are the same as, or interdependent upon, the matters or issues which have not been attacked. (Citations.) '(I)n order to be severable, and therefore (separately) appealable any determination of the issues so settled by the judgment . . . must not affect the determination of the remaining issues whether such judgment is reversed or affirmed . . . . Perhaps another way of saying it would be that the judgment is severable when the original determination of those issues by the trial court and reflected in the judgment or any determination which could be made as a result of an appeal cannot affect the determination of the remaining issues of the suit . . . .' (Citation.)" (American Enterprise, Inc. v. Van Winkle (1952) 39 Cal.2d 210, 217, 246 P.2d 935, 938.)

We do not believe that this exception is applicable to the instant case. Although the matters of Novick's liability on the complaint for negligence and Vienna's liability on the cross-complaint for indemnity are linked in the sense that a positive determination on the former is a condition precedent to any determination on the latter and although this relationship might require that a reversal of the judgment as to Novick's liability entail a reversal of the judgment on indemnity a separate disposition of the judgment as to indemnity can have no effect on the underlying determination as to the indemnitee's liability to the injured plaintiff. Vienna, by limiting its appeal to the indemnity issues, effectively chose not to bring plaintiff into the appeal at all, contenting itself with a challenge to the trial court's determination as to who should pay the judgment. As we said in American Enterprise, supra, "where several persons are affected by a judgment, the reviewing court will make no determination detrimental to the rights of those who have not been brought into the appeal." (39 Cal.2d at p. 218, 246 P.2d at p. 939.) Accordingly, in examining the merits of Vienna's appeal we shall not undertake to inquire into the validity of that portion of the judgment relating to Novick's liability to plaintiff.

Our conclusion on this point is not affected by the fact that Novick, by taking a protective cross-appeal, has effectively "brought (plaintiff) into the appeal" by naming him a cross-respondent. That cross-appeal, as we have noted, is...