Horn & Barker, Inc. v. MacCo Corp.

Unable to concur in the prevailing opinion I now set forth my reasons.

This is an action for recovery of implied indemnity against liability growing out of a personl injury, commonly known as indemnity between joint tort feasors. The court sustained without leave a general demurrer to plaintiff’s original complaint and thereafter denied plaintiff’s motion for leave to file an amended complaint which was tendered with the motion. Of course it was not necessary for appellant to ask for leave at the time of the ruling, which in this instance was made in the absence of counsel (Code Civ. Proc., § 472c) and failure to grant such subsequent motion is error unless it plainly appears that the complaint cannot be successfully amended. (Lemoge Electric v. County of San Mateo, 46 Cal. 2d 659, 664 [297 P.2d 638]; Temescal Water Co. v. Department of Public Works, 44 Cal.2d 90, 107 [ 280 P.2d 1 ].) It thus becomes incumbent upon us to review the ruling in the light of the proposed amendment plus the possibility of further amendment if that be necessary to statement of a cause of action. Hence we quote freely from that proffered complaint, thus testing its sufficiency to state a cause of action…

Plaintiff appeals from the judgment entered following the sustaining of defendant’s demurrer without leave to amend. Plaintiff’s complaint attempts to state a cause of action based upon a theory of implied indemnity. A second count for money had and received is based upon the same transaction as that alleged in *99 the first cause of action. The demurrer to the latter count was sustained in conformity with the familiar rule when it was determined that the actual and ultimate facts alleged by plaintiff in its first count did not constitute a cause of action. (Orloff v. Metropolitan Trust Co., 17 Cal.2d 484, 489 [ 110 P.2d 396 ].)

“The right to implied indemnity, while relatively recent in the law of California, is now well established. [Citations.] ” (Cahill Bros., Inc. v. Clementina Co., 208 Cal. App.2d 367, 375-376 [ 25 Cal.Rptr. 301 ], wherein numerous cited decisions are extensively analyzed both as to their facts and their legal theories.)

In support of its claim to indemnification, plaintiff’s complaint alleges that on September 23, 1958, defendant corporation was employed as a contractor on a certain construction project; that one Ira Carnahan was an employee of defendant…

HERNDON, Acting P. J.

Plaintiff appeals from the judgment entered following the sustaining of defendant's demurrer without leave to amend. Plaintiff's complaint attempts to state a cause of action based upon a theory of implied indemnity. A second count for money had and received is based upon the same transaction as that alleged in the first cause of action. The demurrer to the latter count was sustained in conformity with the familiar rule when it was determined that the actual and ultimate facts alleged by plaintiff in its first count did not constitute a cause of action. (Orloff v. Metropolitan Trust Co., 17 Cal.2d 484, 489 [ 110 P.2d 396 ].)

[1] "The right to implied indemnity, while relatively recent in the law of California, is now well established. [Citations.]" (Cahill Bros., Inc. v. Clementina Co., 208 Cal.App.2d 367, 375-376 [ 25 Cal.Rptr. 301 ], wherein numerous cited decisions are extensively analyzed both as to their facts and their legal theories.)

[2a, 3a] In support of its claim to indemnification, plaintiff's complaint alleges that on September 23, 1958, defendant corporation was employed as a contractor on a certain construction project; that one Ira Carnahan…