Dreybus v. Bayless Rents

California Court of Appeal Feb 28, 1963 No. Civ. 7038Published

Before: Monroe

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Holding. A defendant may file a cross-complaint for declaratory relief against a third party from whom they seek indemnity in the event they are held liable in the original action.

Issues

Whether a defendant may bring in a third party via cross-complaint to seek indemnity for potential liability in the original action.
Whether a cross-complaint for declaratory relief is a proper procedural vehicle for asserting a claim of indemnity before the defendant has paid the underlying claim.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“the courts of California have now definitely agreed upon the rule that a defendant may, by cross-complaint for a declaration of the rights of the parties, bring in a party from whom he claims indemnity in ease he be held liable”

“the courts are committed to the theory that a cross-complaint in the form of an action for declaratory relief may properly be maintained under the circumstances.”

MONROE, J. pro tem.

The plaintiff, John F. Dreybus, brought this action to recover damages for personal injuries alleged to be the proximate result of the collapse of crutches sold to him by the defendant partnership doing business as Bayless Rents. He alleged that the crutches were defective and he predicated his cause of action both upon breach of warranty and upon negligence. The defendant partnership answered and also filed a cross-complaint making Everest and Jennings, Inc. a cross-defendant. By the amended cross-complaint it was alleged that the plaintiff had sought to purchase the type of crutches manufactured by respondent and that pursuant to his request the crutches had been purchased and resold to plaintiff. It is alleged that there was an express warranty by reason of statements contained in the printed advertisements issued by respondent and upon which defendant relied, and that there was also the implied warranty of fitness for the purpose for which they were sold. The defendants, in the cross-complaint, set forth that the plaintiff claims the warranties were breached and that the crutches were negligently manufactured, and defendant alleges in substance that if it be held liable it should have judgment over against the respondent. Appropriate allegations are set forth in the amended cross-complaint whereby the defendant seeks a declaration of the rights of the parties.

Demurrer was sustained to the cross-complaint without leave to amend and judgment thereon was rendered. From this judgment the defendant and cross-complainant, Bayless Rents, appeals.

There had been some uncertainty in the past with respect to whether the defendant sued for damages could by cross-complaint bring in another party claimed to be primarily responsible for the damages suffered by plaintiff. It was the well established rule of the common law that an action for indemnity could not be maintained until the person seeking

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indemnity had paid the claim in question. It followed therefrom that an attempt to involve the alleged indemnitor in the original action was premature. This rule is set forth in section 2778 of the Civil Code.

In 1957, section 442 of the Code of Civil Procedure was amended to permit a cross-complaint to be filed against any person whether or not a party to the original action. In

Dreybus v. Bayless Rents

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