Carlson

In this matter we decide an issue which has already been considered with conflicting results by a number of the other Courts of Ap *100 peal—does a good faith settlement between alleged joint tortfeasors and a plaintiff bar a cross-complaint by another alleged joint tortfeasor who seeks total equitable indemnity from the settling tortfeasors on a theory, inter alia, of active/passive negligence. We conclude that it does. We further conclude that claims for implied contractual indemnity are subject to the same rule. Finally, we address a related due process issue raised by cross-complainant IRM Corporation, find it is without merit, and affirm the judgment.

I. Statement of Facts

IRM appeals from a judgment of dismissal of its cross-complaint for indemnity against Western Shower Door, Inc., and Neis Carlson dba Merritt Construction Company (Merritt Construction). The facts which led to that dismissal are relatively simple.

A. The Genesis of IRM’s Cross-complaint

In 1974, IRM apparently assumed management of an apartment complex located in Moraga. In 1978, one of IRM’s tenants, George Becker, sustained serious injuries when he struck the glass shower door in the bathroom…

I respectfully dissent.

My disagreement is with footnote 9. (Majority opn., ante, pp. 112-113.) There and only there does the majority come to grips with IRM’s major point made at oral argument: that IRM is entitled to remand so that it can contest the good faith of the settlement on the basis of standards recently announced by the California Supreme Court in Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488 [ 213 Cal.Rptr. 256 , 698 P.2d 159 ]. The refusal of this court to allow such a hearing is not premised on any belief that Tech-Bilt does not apply to cases pending on appeal. 1 Instead, the majority finds that IRM has waived the point. In my view, the majority is reaching beyond any fair reading of the record in finding a waiver below, and in finding waiver on appeal it is being patently unfair. IRM should be allowed its day in court to test the settlement in light of Tech-Bilt. I would therefore reverse and remand for a new hearing under Code of Civil Procedure section 877.6.

Waiver in the Trial Court

As the majority acknowledges, the matter came for hearing on shortened notice—two days—and upon moving papers citing the incorrect statutory provision.…

Kincaid, Gianunzio, Caudle & Hubert and Robert W. Brower for Cross-complainant and Appellant.

Carniato & Allen, John J. Carniato, McNamara, Houston, Dodge, McClure & Ney and J. Thomas Deal for Cross-defendants and Respondents.

OPINION

SABRAW, J.

In this matter we decide an issue which has already been considered with conflicting results by a number of the other Courts of Appeal — does a good faith settlement between alleged joint tortfeasors and a plaintiff bar a cross-complaint by another alleged joint tortfeasor who seeks total equitable indemnity from the settling tortfeasors on a theory, inter alia, of active/passive negligence. We conclude that it does. We further conclude that claims for implied contractual indemnity are subject to the same rule. Finally, we address a related due process issue raised by cross-complainant IRM Corporation, find it is without merit, and affirm the judgment.

IRM appeals from a judgment of dismissal of its cross-complaint for indemnity against Western Shower Door, Inc., and Nels Carlson dba Merritt Construction Company (Merritt Construction). The facts which led to that dismissal are relatively simple.

In 1974, IRM apparently assumed…