Alisal Sanitary District v. Kennedy

This is an appeal from a judgment in favor of the defendants following the sustaining of a demurrer to the complaint without leave to amend. Accepting the allegations of the complaint as true, the facts therein stated are as follows:

The plaintiff was a sanitary district organized pursuant to law which owned, maintained, and operated certain sewage disposal facilities in the county of Monterey. The defendants were engineers who represented and held themselves out as

The question presented is whether or not the complaint states a cause of action for indemnity against the defendants. As heretofore noted the trial court sustained a demurrer to said complaint without leave to amend. A demurrer reaches only matters appearing on the face of the complaint and such matters as may be considered under the doctrine of judicial notice. (Weil v. Barthel, 45 Cal.2d 835 [ 291 P.2d 30 ] ; Campbell v. Campbell, 157 Cal.App.2d 548 [ 321 P.2d 133 ]; Griffith v. Department of Public Works, 141 Cal.App.2d 376 [ 296 P.2d 838 ].) The allegations of the complaint must for the purposes of demurrer be accepted as true unless they are contrary to facts of which a court may take judicial notice. (Hauger v. Gates, 42 Cal.2d 752 [ 269 P.2d 609 ]; Watson v. Los Altos School District, 149 Cal.App.2d 768 [ 308 P.2d 872 ]; Livermore v. Beal, 18 Cal.App.2d 535 [ 64 P.2d 987 ].) The defendants contend not only that the complaint does not state a cause of action for indemnity on its face but that the record in the Ambrosini case of which they contend we are required to take judicial notice discloses facts at variance to those alleged in the complaint and such as to establish that as a matter of law there is no right of indemnity because

In order to place the question in its proper legal focus we must briefly review the law of this state with reference to contribution between joint tortfeasors, the exceptions to that rule, and the recognition of the fundamental distinction between the right to indemnity and the right to contribution. Prior to January 1, 1958, the law in California was the common-law rule that there was no right of contribution between joint tortfeasors. (Dow v. Sunset Tel. & Tel. Co., 162 Cal. 136 [ 121 P. 379 ]; City & County of San Francisco v. Ho Sing, 51 Cal.2d 127 [ 330 P.2d 802 ]; San Francisco Unified Sch. Dist. v. California Bldg. etc. Co., 162 Cal.App.2d 434 [ 328 P.2d 785 ].) The right to indemnity in certain situations in other jurisdictions was alluded to in Peters v. City & County of San Francisco, 41 Cal.2d 419 [ 260 P.2d 55 ], but the court was not called upon in that case to make a determination as to whether the right existed in this state. In 1957 the Legislature, by its enactment of section 875 of the Code of Civil Procedure, modified the common law to provide for contribution between joint tortfeasors effective as of January 1, 1958, on causes of action “accruing on or after” that date. The distinction between the right of contribution and the right of indemnity was expressly recognized by the Legislature in subdivision (f) of said section 875 which provides: “This title shall not impair any right of indemnity under existing law, and where one tortfeasor judgment debtor is entitled to indemnity from another there shall be no right of contribution between them. ’ ’ The existence of the right of indemnity in this state was expressly recognized in the School District and Ho Sing cases, supra, determined in July and October, 1958, respectively, in causes of action arising prior to 1958. (See also De La Forest v. Yandle, 171 Cal.App.2d 59 [ 340 P.2d 52 ].)

The alleged cause of action in the present case arose prior to 1958; therefore the common law rule against contribution applies. The question presented, however, is whether or not the plaintiff has a cause of action for indemnity. Both parties concede in their arguments that under the facts pleaded in the complaint the plaintiff and defendants were joint tortfeasors, but they disagree as to whether or not the facts come within the exceptions to the general rule of noncontribution which allow indemnity as between joint tortfeasors.

There are numerous eases from other jurisdictions which have allowed indemnity as between joint tortfeasors upon recognized exceptions to the general rule of noncontribution, such as that the parties were not in pari delicto as to each other, or that the negligence of one was primary, direct, or active, while that of the other was secondary, indirect, passive or con

In the School District case, supra, 162 Cal.App.2d 434 , the court, in reversing a judgment of nonsuit, held that a prima facie case for indemnity had been made by the school district plaintiff against the defendant maintenance company for damages which the district was compelled to pay to an employee of the maintenance company. The employee had been injured while washing the windows of a high school in violation of the express terms of a contract between the district and the company as to the manner of washing the windows in question. The contract also provided that the maintenance company “is held responsible for payment of any and all damages” resulting from its operations. The court said, on page 449: “Even if this did not amount to an express contract to indemnify the school district for damages caused to it by a breach of the contract by the maintenance company, such a warranty or agreement to indemnify would necessarily be implied. Whether the school district should be precluded from recovery by reason of its conduct, that is, whether the conduct of the district helped to bring about the damage is at least a question of fact and should have been left to the jury.” (Emphasis added.) The court therein cited with approval the following annotation in 140 American Law Reports, 1306. ‘ ‘ To these exceptions to the application of the general rule [of non-contribution], the courts in a few cases have added another exception to the effect that where the injury which resulted to a third person, as to whom both of the parties were negligent or guilty of a wrongful act, arose from a violation by the defendant of a duty owing by him to the plaintiff, or that where the defendant was a wrongdoer to the plaintiff but the plaintiff was not a wrongdoer to the defendant, although both were liable to the person injured, the plaintiff may recover contribution or indemnity, as the case may be, from the

In the Ho Sing case, supra, 51 Cal.2d 127 , the plaintiff city was allowed indemnity against an abutting landowner, who had altered a portion of a public sidewalk for the benefit of his property, and where a pedestrian recovered damages against both the city and the owner because of a defective condition in the sidewalk. The court held that while both the city and the owner were joint tortfeasors and each was directly liable to the pedestrian for his own wrong, the city was entitled to be indemnified by the owner because of the special licensor-licensee relationship existing between them with respect to the use of the sidewalk for the benefit of the public. The court recognized that the general rule of noncontribution “admits of some exceptions, and a right of indemnification may arise as a result of contract or equitable considerations.” While the court based its decision on the long outstanding rule in other jurisdictions that a municipality has a right of action over against the landowner whose negligent act has caused the city to become liable to a member of the general public, the court recognized that where a landowner makes an unusual use of the public streets for his own benefit, with the express or implied permission of the city, such permission carries with it the implied condition that the landowner will exercise due care for the safety of the public and that it will hold the city harmless for any damages occasioned by the lack of due care. The court took note of the distinction made between the primary responsibility of the owner who created or permitted the condition and the secondary duty of the city to correct the dangerous condition of which it had notice.

In the De La Forest case, supra, 171 Cal.App.2d 59 , the following facts were presented in a complaint to which a demurrer was sustained without leave to amend, to wit: one Mast owned a truck which required repairs to an axle. Mast engaged De La Forest, the operator of a repair shop, to make the repairs. De La Forest sublet the rebuilding and resurfacing of the axle to Temple, a welder, and Yandle, a machinist, both of whom held themselves out as qualified, skilled, and expert in their crafts. The work was negligently done causing the axle to break with the result that the truck then being driven by Mast was caused to collide with an automobile driven by one Urban causing the latter’s death. Both De La Forest and Mast had installed the axle without first inspecting

The following language from the School District ease, on page 446, is pertinent: “The United States Supreme Court has recently met this problem. It allowed the third person .to recover from an employer where the employer, as in the instant case, breached its contract with the third person and an employee was injured. There was no express contract of indemnification between the third person and the employer. The case is Weyerhaeuser Steamship Co. v. Nacirema Operating Co., 355 U.S. 563 [ 78 S.Ct. 438 , 2 L.Ed.2d 491 ], ... In that case a stevedoring firm contracted to furnish the shipowner stevedoring services. In an action by the longshoreman against the shipowner the latter was found to be negligent and damages awarded. The shipowner paid the damages and sought indemnity from the stevedoring company. That is precisely the problem here presented. The court . . . held that the shipowner was entitled to indemnity. The reasoning of the court was that the stevedoring company had contracted with the shipowner to furnish stevedoring services; that such a contract necessarily implied an obligation to perform the work involved with reasonable safety and to discharge forseeable damages resulting to the shipowner from the contractor’s improper performance. Thus the court found an im

The Ho Sing, School District, and De La Forest cases, supra, recognize the rule announced in Peters v. City & County of San Francisco, supra, 41 Cal.2d 419 , to the effect that each of two joint or concurrent tortfeasors may be held directly liable for his wrong to an injured person, and that each may be held liable for the entire damage suffered. These cases do hold, however, that, as between themselves, the liability may be shifted to the tortfeasor who has breached a duty which he owes to the other where the injury which resulted to the third person arose from a violation or breach of that duty.

Applying the rules announced in the foregoing cases to the facts alleged in the complaint in the present case we must conclude that a cause of action is stated. The complaint alleges in substance that the plaintiff engaged the defendants to do engineering work; that the defendants represented themselves to be specialists, skilled and expert in the work they were engaged to do; that plaintiff relied on these representations ; that the work was negligently done; and that such negligence caused the injury to Ambrosini and Ferrasci for which the plaintiff was obliged to pay damages upon a liability grounded in nuisance and inverse condemnation. The essence of the complaint is that the defendants created the condition which caused the injury. There is nothing on the face of the complaint to indicate that the plaintiff did in fact participate in the alleged omission which caused the injury. The gist of the complaint is the defendants’ breach of its obligation to perform the engineering work in the skillful, expert, and careful manner they had represented they were capable of doing and the plaintiff’s reliance on defendants’ judgment and knowledge in matters in which the latter were experts. Such an obligation carries with it an implied agreement to indemnify and to discharge forseeable damages resulting to the plaintiff from the defendants’ negligent performance. The nature and scope of the relationship between the plaintiff and the defendants; the obligations owing by one to

We are asked by the defendants, however, to go beyond the face of the complaint and to take judicial notice of the record in Ambrosini v. Alisal Sanitary Dist., 154 Cal.App.2d 720 [ 317 P.2d 33 ]. It is apparently defendants’ contention that such record will disclose facts which will render the complaint fatally defective in that it will demonstrate that as a matter of law the plaintiff was adjudicated to have been actively negligent so as to preclude indemnity in the present action. The basis for this contention appears to be that the determination in Ambrosini is res judicata in the present proceeding.

We are not only confronted with the rule that res judicata may not be raised by demurrer (King v. Mortimer, 83 Cal.App.2d 153 [ 188 P.2d 502 ]; Collins v. City & County of San Francisco, 112 Cal.App.2d 719 [ 247 P.2d 362 ]), but by the rule that normally a court will not in one case take judicial notice of the records or judgment in another ease even though the action was in the same court. (Wolfsen v. Hathaway, 32 Cal.2d 632 [ 198 P.2d 1 ]; Johnston v. Ota, 43 Cal.App.2d 94 [ 110 P.2d 507 ]; Popcorn Equipment Co. v. Page, 92 Cal.App.2d 448 [ 207 P.2d 647 ].) The latter rule is not without exception. In Watson v. Los Altos School District, supra, 149 Cal.App.2d 768 , the court took judicial notice of related prior proceedings to demonstrate that a complaint was a sham and contained false allegations thus making it demurrable, even though the court was compelled to assume that the prior determination was not res judicata because such defense could not be raised by demurrer. The rule precluding a court from taking judicial notice of its judgment in another case is not an inflexible one. As said in the Watson ease, supra, it is a rule of expediency, to be applied or refused application as the justice of the case requires. The exception to the rule, however, has usually been applied in unusual circumstances to avoid unreasonable hardship or where the practical and efficient administration of the law requires it. (Watson v. Los Altos School District, supra, 149 Cal.App.2d 768 ; City of Los Angeles v. Abbott, 217 Cal. 184 [ 17 P.2d 993 ]; Sewell v. John

The judgment is reversed.

Bray, P. J., and Duniway, J., concurred.

A petition for a rehearing was denied May 13,1960.