Commercial Standard Title Co. v. Superior Court

I concur with the majority opinion which holds this is a proper case for the issuance of an extraordinary writ under the authority of Babb v. Superior Court, 3 Cal.3d 841, 851 [ 92 Cal.Rptr. 179 , 479 P.2d 379 ], but I must respectfully dissent from the opinion in its refusal to extend the principles of American Motorcycle Assn. v. Superior Court, 20 Cal.3d 578 [ 146 Cal.Rptr. 182 , 578 P.2d 899 ], to the issues presented.

We are called upon to apply the principles set forth in American Motorcycle Assn. v. Superior Court, supra, 20 Cal.3d 578 , to allow a cross-complaint seeking partial indemnity by a joint tortfeasor so that liability may be apportioned on a comparative negligence basis. The fact the joint tortfeasor is an attorney should not deter the court from *947 exercising its responsibility to impose equitable indemnity especially where, as here, the client has waived the attorney-client privilege.

The holding in American Motorcycle generally eliminates a trial court’s discretion to deny filing of a cross-complaint for indemnity if it can withstand a demurrer. No discretion is permitted in the case at bar since under American Motorcycle the cross-complaint against the…

Holt, Rhoades & Hollywood, Rhoades & Hollywood, Douglas R. Reynolds, David J. Danielsen and John S. Rhoades for Real Party in Interest.

OPINION

STANIFORTH, J.

Petitioners Commercial Standard Title Company, Inc., and First California Title Company of San Diego (the Title Companies) seek a writ of mandate directing the court below to allow them to file a cross-complaint for partial indemnity against Todd Smith, an attorney at law, in an action wherein the Title Companies, inter alia, are defendants and W.L. Lipscomb Engineering, Inc. (Lipscomb), Smith's former client, is plaintiff. Lipscomb's action seeks damages from the Title Companies for "fraudulently or negligently" preparing and issuing an incorrect "lot book" guaranty which Lipscomb relied upon to its damage. Lipscomb charges the lot book guaranty omitted a $750,000 trust deed of which the Title Companies had knowledge. Attorney Smith represented Lipscomb in the property exchange transactions wherein Lipscomb was given the defective lot book guaranty. The Title Companies, by their proposed cross-complaint, seek "indemnification" from Smith under principles announced in American Motorcycle Assn. v. Superior Court ( 20…

*937 Opinion

Petitioners Commercial Standard Title Company, Inc., and First California Title Company of San Diego (the Title Companies) seek a writ of mandate directing the court below to allow them to file a cross-complaint for partial indemnity against Todd Smith, an attorney at law, in an action wherein the Title Companies, inter alia, are defendants and W. L. Lipscomb Engineering, Inc. (Lipscomb), Smith’s former client, is plaintiff. Lipscomb’s action seeks damages from the Title Companies for “fraudulently or negligently” preparing and issuing an incorrect “lot book” guaranty which Lipscomb relied upon to its damage. Lipscomb charges the lot book guaranty omitted a $750,000 trust deed of which the Title Companies had knowledge. Attorney Smith represented Lipscomb in the property exchange transactions wherein Lipscomb was given the defective lot book guaranty. The Title Companies, by their proposed cross-complaint, seek “indemnification” from Smith under principles announced in American Motorcycle Assn. v. Superior Court (20 Cal.3d 578 [ 146 Cal.Rptr. 182 , 578 P.2d 899 ]) (AMA).

The trial court sustained Smith’s general demurrer to the Title Companies’ amended…