Munoz v. Davis
| Citation | 141 Cal.App.3d 420,190 Cal.Rptr. 400 |
| Parties | Frank E. MUNOZ, Cross-Complainant and Appellant, v. Thomas R. DAVIS, Cross-Defendant and Respondent. Civ. 66464. |
| Decision Date | 28 March 1983 |
| Court | California Court of Appeals |
Lewis, D'Amato, Brisbois & Bisgaard and David E. Reynolds, Los Angeles, for cross-complainant and appellant.
Gilbert, Kelly, Crowley & Jennett and Patrick A. Mesisca, Jr. and Michael I.D. Mercy, Los Angeles, for cross-defendant and respondent.
In June 1979 plaintiff Raul Rodriguez was a passenger in an automobile which collided with an automobile driven by the cross-defendant, Thomas R. Davis. Rodriguez retained Frank E. Munoz to represent him in a claim for personal injuries against Davis. According to Rodriguez, Munoz failed to file a complaint within the statutory time period. Rodriguez then sued Munoz for legal malpractice alleging that as a result of Munoz' negligence in failing to file the complaint within the prescribed period Rodriguez' cause of action is now barred by the statute of limitations. Munoz answered Rodriguez' complaint admitting that he is an attorney; that he was retained to represent Rodriguez in his claim against Davis; and denying the remaining material allegations of the complaint.
Concurrent with his answer, Munoz filed a cross-complaint against Davis for equitable indemnification. The cross-complaint alleges that Davis was negligent in operating his automobile and that if Munoz is liable to Rodriguez for any damages those damages are the proximate result of Davis' negligence; therefore Munoz is entitled to partial indemnification from Davis. Davis demurred to the cross-complaint on the ground inter alia that it failed to state a cause of action. The trial court sustained the demurrer without leave to amend.
If the demurrer was properly sustained on any ground then the trial court's ruling must be upheld on appeal. (Sequoia Pine Mills, Inc. v. Superior Court (1968) 258 Cal.App.2d 65, 68-69, 65 Cal.Rptr. 353.)
We have identified two grounds which justify sustaining the demurrer to the equitable indemnity claim without leave to amend. First, we hold that a negligent lawyer is not entitled to equitable indemnity from a negligent driver because the lawyer and driver are not jointly and severally liable to the injured person for the lawyer's negligence. Second, as an independently sufficient ground, we hold that equitable and policy considerations render equitable indemnity unavailable to shift a lawyer's malpractice liability to the tortfeasor whose actions happened to provide the lawyer with the opportunity to commit malpractice. Therefore we affirm the trial court's ruling.
A brief history of the doctrine of equitable indemnification is an important aid to understanding Munoz' claim for relief and the reasons why the claim fails.
Until 1958, California followed the so-called "general rule" that there can be no contribution or indemnity between joint tortfeasors. (See e.g. Adams v. White Bus Line (1921) 184 Cal. 710, 712-713, 195 P. 389.) That rule, attributed to Merryweather v. Nixan (1799) 8 T.R. 186 1 is said to be based on the theory that as joint tortfeasors the act of one was the act of the other and the individual seeking indemnity was seeking recovery for what was, in the eyes of the law, entirely his own wrong. (Prosser, Joint Torts and Several Liability (1937) 25 Cal.L.Rev. 413, 426 [hereinafter "Joint Torts "].)
As Dean Prosser observed, "There is an obvious lack of sense and justice in a rule which permits the entire burden of an accident, for which two defendants were equally, unintentionally to blame, to be shouldered onto one alone, according to the accident of a successful levy of execution, the plaintiff's spite, or his collusion with the other wrongdoer." (Prosser, Joint Torts, supra, at p. 427.) The obvious injustice of requiring one tortfeasor to bear the entire burden of the judgment while another escaped with impunity led to the carving out of equitable exceptions to the "general rule." Indemnity came to be available in three broad categories: where a court had imposed liability without fault, where one tortfeasor's fault was negligible, and where one wrongdoer was less at fault than the others. (Werner, Contribution and Indemnity in California (1969) 57 Cal.L.Rev. 490, 494.)
City and County of San Francisco v. Ho Sing (1958) 51 Cal.2d 127, 330 P.2d 802, was the first California case to recognize an equitable right of indemnity between tortfeasors. The city had been compelled to pay a pedestrian for injuries received when she fell over a defective skylight in a sidewalk in front of defendant's premises. The court emphasized the point that the city and Ho Sing were jointly and severally liable for the pedestrian's injuries, (id. at pp. 130, 138, 330 P.2d 802), but determined to follow the doctrine of equitable indemnity which had been applied in numerous other jurisdictions under similar circumstances. (Id. at pp. 131-133, 330 P.2d 802.)
The introduction of equitable indemnity into California law also introduced the problems associated with that doctrine. As a result of the rule prohibiting contribution among tortfeasors, equitable indemnity developed as an all-or-nothing proposition shifting the entire loss from one tortfeasor to another. (Werner, supra, at p. 494.) Consequently, courts struggled to formulate a test for determining when a judge could do what was unjust for a party to do: place the entire loss on one tortfeasor and completely absolve the other. The result was a "conflicting tangle of tests and rules that make it difficult to isolate the criteria and values which underly [sic] the decisions." (Comment, The Allocation of Loss Among Joint Tortfeasors (1968) 41 So.Ca.L.Rev. 728, 738, and see Atchison, T. & S.F. Ry. Co v. Lan Franco (1968) 267 Cal.App.2d 881, 886, 73 Cal.Rptr. 660; Prosser, Law of Torts (4th ed. 1971) p. 313.) Change was called for by courts and commentators. (See e.g. Ford Motor Co. v. Robert J. Poeschl, Inc. (1971) 21 Cal.App.3d 694, 699, 98 Cal.Rptr. 702; Werner, supra, at pp. 513-517.)
Change came in American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899 [hereinafter "AMA "]. Rather than attempt another formulation for determining when liability should be shifted from one tortfeasor to another, the court went to the root of the problem and eliminated the all-or-nothing aspect of the doctrine. In its place the court adopted a rule permitting partial indemnity among joint tortfeasors on a comparative fault basis. (Id. at pp. 595, 598, 146 Cal.Rptr. 182, 578 P.2d 899.)
In AMA, a teen-age boy was injured while participating in a motorcycle race sponsored in part by the American Motorcycle Association. The boy alleged that the injuries were caused by the Association's negligence in designing and supervising the race. (20 Cal.3d at p. 584, 146 Cal.Rptr. 182, 578 P.2d 899.) The Association answered the complaint and thereafter sought leave to file a cross-complaint against the boy's parents for indemnity on the theory that in permitting the boy's entry in the race his parents negligently failed to exercise their power of supervision of their minor child. (Id. at p. 585, 146 Cal.Rptr. 182, 578 P.2d 899.)
The facts in AMA fit the classic model of an indemnity suit between jointly and severally liable tortfeasors. When independent negligent actions of two tortfeasors (American Motorcycle Association and the parents) are each a proximate cause of a single injury (a crushing of the boy's spine) each tortfeasor is personally liable for the damage sustained. (20 Cal.3d at p. 587, 146 Cal.Rptr. 182, 578 P.2d 899; Rest.2d Torts, § 879.)
The AMA opinion explained that the court's earlier decision in Li v. Yellow Cab (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, did not eliminate the joint and several liability doctrine. "[E]ach tortfeasor whose negligence is a proximate cause of an indivisible injury remains individually liable for all compensable damages attributable to that injury." (20 Cal.3d at 582, 146 Cal.Rptr. 182, 578 P.2d 899.) But, as to equitable indemnity, the court stated, "In light of Li, ... we think that the long-recognized common law equitable indemnity doctrine should be modified to permit, in appropriate cases, a right of partial indemnity, under which liability among multiple tortfeasors may be apportioned on a comparative negligence basis." (Id. at p. 583, 146 Cal.Rptr. 182, 578 P.2d 899.)
With this background in mind, we turn to the indemnification claim of attorney Munoz.
Whatever confusion may have existed in the case law of equitable indemnity (see discussion supra ), one point stands clear: there can be no indemnity without liability. In other words, unless the prospective indemnitor and indemnitee are jointly and severally liable to the plaintiff there is no basis for indemnity. (Columbus Line, Inc. v. Gray Line Sight-Seeing Companies Associated, Inc. (1981) 120 Cal.App.3d 622, 628, 174 Cal.Rptr. 527.) Unless it appears that Davis and Munoz are jointly and severally liable to Rodriguez for Munoz' negligence in failing to file a complaint within the statute of limitations there is no basis for an apportionment of damages from that injury. 2
Munoz contends that Davis is jointly and severally liable with him for Munoz' negligence in failing to file the personal injury action. He bases this...
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