Ramirez v. Redevelopment Agency

• Decision Date: 16 February 1970
• Citation: 4 Cal.App.3d 397,84 Cal.Rptr. 356
• Court: California Court of Appeals Court of Appeals
• Parties: Louis RAMIREZ, Plaintiff, v. The REDEVELOPMENT AGENCY OF the CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants and Respondents, Columbia Elevator Company, a corporation, Defendant and Appellant. Civ. 25768.

Page 356

84 Cal.Rptr. 356

4 Cal.App.3d 397

Louis RAMIREZ, Plaintiff, v. The REDEVELOPMENT AGENCY OF the CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants and Respondents Columbia Elevator Company, a corporation, Defendant and Appellant.

Civ. 25768.

Court of Appeal, First District, Division 4, California.

Feb. 16, 1970.

George A. Weinkauf, San Francisco, for appellant.

Lorin Castleman, Maloney, Chase, Fisher & Hurst, San Francisco, for respondents.

DEVINE, Presiding Justice.

Plaintiff, Louis Ramirez, was injured by a fall caused, he alleged in his pleading, while he was alighting from an elevator which had been stopped below a floor level. Negligence was charged against Columbia Elevator Company, appellant, which had a maintenance contract on the elevator, and against The Redevelopment Agency of the City and County of San Francisco, owner of the property, and the administrators of the Estate of Paul L. Marty, lessee. At the time of the accident, Marty had held a lease on the property, a hotel. Judgment went for plaintiff on the verdict of a jury, in the amount of $15,000. One half of the judgment, plus interest and costs, a total of $7,832.75, was paid by appellant, Columbia Elevator Company; the other half was paid by respondents, the owner and lessee respectively. Satisfactions of judgment were executed on August 26, 1966.

On December 15, 1967, appellant filed a motion, pursuant to Code of Civil Procedure section 878, which provides that a judgment of contribution among joint tortfeasors may be entered by one tortfeasor judgment debtor against other tortfeasor judgment debtors by motion, upon notice. Section 875 of the Code of Civil Procedure provides for contribution among joint tortfeasors where a money judgment has been rendered against two or more defendants; and section 876 provides that the pro-rata share of each tortfeasor judgment debtor shall be determined by dividing the entire judgment equally among them all. The motion was denied, and this appeal followed.

Respondents resisted the motion on two grounds: first, that the position of the owner and of the lessee, as opposed to the plaintiff's charges, was a single one--and that the liability, which the jury decided did exist, was single; and second, that appellant's claim is barred by laches.

Appellant contends that there are three separate liabilities; that appellant has borne the burden of one half instead of a proper one third of the total and is entitled to reimbursement; and that although its motion was made more than a year after payment, there is no bar of laches because no harm resulted from the delay.

The liability of an owner who controls the property is, in respect of the maintenance of elevators, nondelegable. (Brown v. George Pepperdine Foundation, 23 Cal.2d 256, 259, 143 P.2d 929.) The owner may be liable in certain cases even though the premises have been leased, as when the use of the premises is to be public (Finnegan v. Royal Realty Co., 35 Cal.2d 409, 218 P.2d 17; Goodman v. Harris, 40 Cal.2d 254, 253 P.2d 447, and cases collected in 17 A.L.R.3d 878 et seq.), or when the owner violates law, or knowingly permits his tenant to do so, in construction or alteration of the premises (Longway v. McCall, 181 Cal.App.2d 723, 5 Cal.Rptr. 818). The second of these probably was not an issue in our case, because the instructions to the jury say nothing about it.

But when the rule of nondelegability operates it does so for the protection of third persons, as plaintiff herein. It does not follow that the relationship between the active tortfeasor and those who are otherwise held is an equal one. The dominant rule in the matter of contribution is expressed in section 875, subdivision (b) of the Code of Civil Procedure, which provides that the right to contribution 'shall be administered in accordance with the principles of equity.'

There is an essential fairness in applying the rule of unity of liability of owner and lessee instead of splitting it for the benefit of the servicing agency. The latter must have been primarily negligent under the circumstances, else the jury (whose verdict was approved by the judge on motion for new trial) could not have held the elevator company liable. On the other hand,...