Supreme Court of California Justia
Citation 45 Cal. 4th 1151, 202 P.3d 1115, 90 Cal. Rptr. 3d 732

Prince v. Pac. Gas & Elec.


Filed 3/19/09

IN THE SUPREME COURT OF CALIFORNIA

EVE PRINCE,
Cross-complainant and Appellant,
S149344
v.
) Ct.App.
6
H028957
PACIFIC GAS & ELECTRIC COMPANY, )

Santa Clara County
Cross-defendant and Respondent. ) Super.
Ct. No. 1-02-CV-810390

Joshua Jackson suffered serious injuries when he attempted to dislodge a
kite from a power line maintained by Pacific Gas & Electric Company (PG&E) on
the property of Eve Prince. The parties do not dispute that PG&E is immune from
direct liability to Jackson under Civil Code1 section 846, which provides with
certain exceptions that a property owner “owes no duty of care to keep the
premises safe for entry or use by others for any recreational purpose.” The
question here is whether Prince, who might be liable to Jackson under one of the
statutory exceptions, may recover on her cross-complaint alleging PG&E is liable
for implied contractual indemnity based on its breach of a contractual duty owed
to her to maintain its power line easement in repair.
We conclude that, even assuming a claim for implied contractual indemnity
may be predicated on an alleged breach of an easement duty, PG&E’s immunity

1
All statutory references are to this code unless otherwise indicated.
1


from liability to Jackson under section 846 nonetheless bars Prince from
recovering indemnification as a matter of law. We therefore reverse the judgment
of the Court of Appeal and remand the matter to that court with directions to enter
judgment in favor of PG&E.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts are undisputed. Ten-year-old Joshua Jackson was
flying a kite in his friend’s backyard and suffered serious injuries when he used an
aluminum pole to try to dislodge the kite from an electrical power line that
traversed the neighboring property owned by the friend’s grandmother, Eve
Prince. (See Jackson v. Pacific Gas & Electric Co. (2001) 94 Cal.App.4th 1110,
1113 (Jackson).)
A guardian ad litem filed an action on Jackson’s behalf against PG&E,
which owned an easement to erect and maintain electrical power lines across the
Prince property. In that action, the Court of Appeal upheld the trial court’s
determination that PG&E was immune from liability to Jackson under section 846,
the so-called recreational use immunity statute. (Jackson, supra, 94 Cal.App.4th
at p. 1113.) The court concluded that (1) based on the undisputed facts, Jackson’s
attempted retrieval of the kite was, as a matter of law, a recreational use of
property within the contemplation of section 846; and (2) there were no facts
supporting application of section 846’s enumerated exceptions to immunity.
(Jackson, at pp. 1114-1119.) The decision in that action became final in 2002.
(Id. at p. 1121.)
Jackson’s guardian ad litem subsequently filed a premises liability action
against Prince. The complaint alleges that Jackson was “expressly invited” to use
Prince’s property, and that Prince knew or should have known that the lines
hanging low over her property were high voltage power lines that posed a hazard
to her guests. It further alleges that Prince used a 19 foot 8 inch aluminum pole to
2
shake nut trees, that she left it under or near the low hanging power lines, and that
she “created a foreseeable risk of injury or death should the metal pole be raised
near the lines for any purpose.”
Prince, in turn, filed a cross-complaint against PG&E. As relevant here,
she alleges that, based on the easement granted to PG&E and on a statute that
requires owners of easements to maintain them in repair (§ 845), PG&E breached
a contractual duty owed to her to maintain its power lines in repair and thereby
proximately caused Jackson’s injury. Prince seeks indemnity on the ground that
PG&E’s alleged breach of duty has forced her to defend against Jackson’s action
and to be potentially liable for his damages.
PG&E filed a motion for summary judgment, contending Prince is barred
from recovery because the gravamen of her cross-complaint is equitable
indemnity, as opposed to express contractual indemnity. Relying on the
undisputed evidence that Jackson was injured while engaged in a recreational use
of its easement, PG&E argued its immunity under section 846 affords a complete
defense to equitable indemnity. The trial court granted the motion, concluding
that equitable indemnity is at issue and that PG&E’s showing negating joint and
several liability to Jackson entitled it to judgment as a matter of law.
The Court of Appeal reversed, finding that the indemnity Prince seeks is
implied from PG&E’s contractual obligations under the recorded easement
documents, and is not based on any alleged breach of duty owed to Jackson. In
the Court of Appeal’s words, PG&E “has contractual duties to Prince that are
separate and distinct from the general duty of care to Jackson that is the subject of
section 846. Prince’s claim for implied contractual indemnification does not rely
on, or seek to enforce, the duty that is limited by section 846, but instead relies on
duties arising from the easement.” The court concluded that, because joint and
several liability to the injured plaintiff is not a requirement of implied contractual
3
indemnity, PGE’s statutory immunity from suit by Jackson does not preclude
Prince’s indemnity claim.
We granted PG&E’s petition for review.
DISCUSSION
This case presents two issues: (1) whether a claim for implied contractual
indemnity may rest on the documents granting PG&E a power line easement and
on section 845, which generally requires an easement holder to maintain its
easement in repair; and (2) if so, whether PG&E’s immunity from liability to
Jackson under section 846 nonetheless bars Prince from recovering on an implied
contractual indemnity theory.
A. The Obligation of Indemnity
In general, indemnity refers to “the obligation resting on one party to make
good a loss or damage another party has incurred.” (Rossmoor Sanitation, Inc. v.
Pylon, Inc. (1975) 13 Cal.3d 622, 628.) Historically, the obligation of indemnity
took three forms: (1) indemnity expressly provided for by contract (express
indemnity); (2) indemnity implied from a contract not specifically mentioning
indemnity (implied contractual indemnity); and (3) indemnity arising from the
equities of particular circumstances (traditional equitable indemnity).2 (Ibid.; see
PPG Industries, Inc. v. Transamerica Ins. Co. (1999) 20 Cal.4th 310, 318.)
Although the foregoing categories of indemnity were once regarded as
distinct, we now recognize there are only two basic types of indemnity: express
indemnity and equitable indemnity. (See Bay Development, Ltd. v. Superior Court

2
As will be explained, implied contractual indemnity is but a form of
equitable indemnity. Accordingly, this opinion uses the term “traditional equitable
indemnity” to refer to the other form of equitable indemnity, which is not based on
the existence of a contractual relationship between the indemnitor and the
indemnitee.
4


(1990) 50 Cal.3d 1012, 1029-1030 & fn. 10 (Bay Development).) Though not
extinguished, implied contractual indemnity is now viewed simply as “a form of
equitable indemnity.” (Id. at p. 1029; see E. L. White, Inc. v. City of Huntington
Beach (1978) 21 Cal.3d 497, 506-507 (E. L. White).)
We briefly review all three historic forms of indemnity, so as to provide
context to Prince’s claim of a right to implied contractual indemnity.
Express indemnity refers to an obligation that arises “ ‘by virtue of express
contractual language establishing a duty in one party to save another harmless
upon the occurrence of specified circumstances.’ ” (Bay Development, supra, 50
Cal.3d at p. 1029.) Express indemnity generally is not subject to equitable
considerations or a joint legal obligation to the injured party; rather, it is enforced
in accordance with the terms of the contracting parties’ agreement. (Markley v.
Beagle (1967) 66 Cal.2d 951, 961.) In the context of noninsurance indemnity
agreements, if a party seeks to be indemnified for its own active negligence, or
regardless of the indemnitor’s fault, the contractual language on the point “must
be particularly clear and explicit, and will be construed strictly against the
indemnitee.” (Crawford v. Weather Shield Mfg. Inc. (2008) 44 Cal.4th 541, 552;
see also E. L. White, supra, 21 Cal.3d at p. 507.) In this sense, express indemnity
allows contracting parties “great freedom to allocate [indemnification]
responsibilities as they see fit,” and to agree to “protections beyond those afforded
by the doctrines of implied or equitable indemnity.” (Crawford v. Weather Shield
Mfg. Inc., supra, 44 Cal.4th at pp. 551, 552.) Prince makes no claim that PG&E
expressly contracted to indemnify her for the type of damages alleged here.
Unlike express indemnity, traditional equitable indemnity requires no
contractual relationship between an indemnitor and an indemnitee. Such
indemnity “is premised on a joint legal obligation to another for damages,” but it
“does not invariably follow fault.” (Western Steamship Lines, Inc. v. San Pedro
5
Peninsula Hospital (1994) 8 Cal.4th 100, 114 (Western Steamship).)3 Although
traditional equitable indemnity once operated to shift the entire loss upon the one
bound to indemnify, the doctrine is now subject to allocation of fault principles
and comparative equitable apportionment of loss. (Bay Development, supra, 50
Cal.3d at pp. 1029-1030, fn. 10; American Motorcycle Assn. v. Superior Court
(1978) 20 Cal.3d 578, 591-598 (American Motorcycle).)
A key restrictive feature of traditional equitable indemnity is that, on
matters of substantive law, the doctrine is “wholly derivative and subject to
whatever immunities or other limitations on liability would otherwise be
available” against the injured party. (Western Steamship, supra, 8 Cal.4th at p.
115; Children’s Hospital v. Sedgwick (1996) 45 Cal.App.4th 1780, 1787
(Children’s Hospital) [“As against the indemnitee, the indemnitor may invoke any
substantive defense to liability that is available against the injured party.”].)4 This
rule “is often expressed in the shorthand phrase ‘. . . there can be no indemnity
without liability.’ ” (Children’s Hospital, supra, 45 Cal.App.4th at p. 1787.)

3
“[J]oint and several liability in the context of equitable indemnity is fairly
expansive.” (BFGC Architects Planners, Inc. v. Forcum/Mackey Construction,
Inc.
(2004) 119 Cal.App.4th 848, 852.) It extends beyond the term “joint
tortfeasor” and may “apply to acts that are concurrent or successive, joint or
several, as long as they create a detriment caused by several actors.” (Ibid.)
4
In Western Steamship, supra, 8 Cal.4th 100, we held that section 3333.2’s
limit on noneconomic damages in actions against health care providers limited a
hospital’s indemnification obligation to a ship owner. (See also Children’s
Hospital
, supra, 45 Cal.App.4th 1780 [anesthesiologist’s exoneration from
liability in patient’s prior malpractice action barred hospital’s equitable indemnity
action against anesthesiologist]; Colich & Sons v. Pacific Bell (1988) 198
Cal.App.3d 1225 [consistent with a tariff limiting telephone company’s negligence
liability to its customers, contractor could not recover equitable indemnity against
Pacific Bell for ordinary negligence but could seek indemnification for gross
negligence].)
6


Prince acknowledges she cannot recover traditional equitable indemnity because,
under section 846, PG&E owed no duty of care to Jackson to keep its easement
safe for his recreational entry or use.
That leaves implied contractual indemnity as Prince’s sole potential basis
for seeking indemnity from PG&E. Historically, this type of indemnity was
available when two parties in a contractual relationship were both responsible for
injuring a third party; recovery rested on the theory that “a contract under which
the indemnitor undertook to do work or perform services necessarily implied an
obligation to do the work involved in a proper manner and to discharge
foreseeable damages resulting from improper performance absent any
participation by the indemnitee in the wrongful act precluding recovery.” (Great
Western Furniture Co. v. Porter Corp. (1965) 238 Cal.App.2d 502, 517, italics
added (Great Western); e.g., S.F. Unified Sch. Dist. v. Cal. Bldg. etc. Co. (1958)
162 Cal.App.2d 434 (S.F. Unified).) Now, however, implied contractual
indemnity, like traditional equitable indemnity, is subject to comparative equitable
apportionment of loss. (Bay Development, supra, 50 Cal.3d at pp. 1029-1030, fn.
10.)
PG&E argues its immunity under section 846 shields it from liability for
implied contractual indemnity. PG&E additionally contends there is no basis here
for implying a right of contractual indemnity because Prince and PG&E were not
in a contractual relationship with each other and because PG&E owed no
contractual duty to Prince under the easement grant.
We need not resolve PG&E’s latter contentions because, even assuming the
existence of a sufficient contractual relationship and duty, PG&E’s immunity from
liability to Jackson bars Prince from recovering implied contractual indemnity in
any event.
7
B. The Effect of PG&E’s Recreational Use Immunity
Section 846 provides in pertinent part: “An owner of any estate or any
other interest in real property, whether possessory or nonpossessory, owes no duty
of care to keep the premises safe for entry or use by others for any recreational
purpose or to give any warning of hazardous conditions, uses of, structures, or
activities on such premises to persons entering for such purpose, except as
provided in this section.” (§ 846, 1st par.) By its own terms, however, section
846 does not limit the liability which otherwise exists when: (1) there has been a
willful or malicious failure to guard or warn against a dangerous condition, use,
use, structure, or activity; (2) permission to enter the premises was granted in
exchange for consideration; or (3) the injured person was expressly invited rather
than merely permitted to enter the premises. (§ 846, 4th par., subds. (a)-(c).)
Section 846 was enacted “to constrain the growing tendency of private landowners
to bar public access to their land for recreational uses out of fear of incurring tort
liability.” (Hubbard v. Brown (1990) 50 Cal.3d 189, 193.) The immunity clearly
extends to easement owners, given the statute’s “ ‘exceptionally broad and
singularly unambiguous’ definition of protected property ‘interests.’ ” (Miller v.
Weitzen (2005) 133 Cal.App.4th 732, 736 [finding section 846 protected holders
of an encroachment permit]; see also Hubbard v. Brown, supra, 50 Cal.3d at pp.
196-197 [holder of a permit to graze livestock on federal lands].)
For purposes of our analysis, we emphasize the parties do not dispute that
PG&E owed no duty of care to Jackson, who was injured while engaging in a
recreational use of PG&E’s easement. Nor do they dispute that PG&E is therefore
immune from liability to Jackson under section 846. However, Jackson’s
premises liability action against Prince remains pending due to triable issues of
8
material fact regarding the applicability of section 846’s express invitation
exception to immunity and the existence of a duty of care.5
As indicated above, traditional equitable indemnity differs significantly
from express contractual indemnity, in that the former is not available in the
absence of a joint legal obligation to the injured party. (Children’s Hospital,
supra, 45 Cal.App.4th at p. 1787; see ante, fn. 3.) Consequently, as to matters of
substantive law one may defend against a traditional equitable indemnity action by
relying on “whatever immunities or other limitations on liability would otherwise
be available” against the injured party (Western Steamship, supra, 8 Cal.4th at p.
115.) The principal question for us is whether or not a requirement of a joint legal
obligation also applies when implied contractual indemnity is at issue. We
conclude the answer is yes, based on the underlying rationale of this common law
doctrine and the case law that has developed over the years.
S.F. Unified, supra, 162 Cal.App.2d 434, the seminal case validating the
implied contractual indemnity doctrine in California, makes it abundantly clear the
doctrine originated as a means to equitably shift the risk of loss from one joint
tortfeasor to another when both were deemed liable to the injured party. In S.F.
Unified, the plaintiff school district had entered a contract with the defendant
maintenance company for window washing in certain city schools. The contract
required the defendant’s use of stepladders in washing the windows “ ‘[i]n all
schools that have Hauser window sashes’ ” and provided “ ‘the [defendant] is held
responsible for payment of any and all damages resulting from his operations.’ ”

5
In Jackson, supra, 94 Cal.App.4th 1110, the Court of Appeal held that, if
Jackson received an express invitation from his friend’s mother to enter the Prince
property, under authority given to the mother by Prince, such invitation did not
abrogate PG&E’s immunity under section 846. (Jackson, supra, at p. 1119.) That
holding is not at issue here.
9


(Id. at p. 437.) The defendant’s employee was injured while washing a Hauser
window at a school, and it was shown that, at the time of the accident, the
defendant was not following the contractually mandated stepladder procedure for
cleaning a Hauser window. (Ibid.) The injured employee successfully sued the
school district on the ground it had not provided him with a safe place to work.
After satisfying the judgment, the school district sued the defendant for indemnity.
The trial court granted a nonsuit, and the Court of Appeal reversed. (Id. at pp.
435-436.)
In determining whether the trial court correctly held, as a matter of law, that
the defendant maintenance company was not liable for the damages the plaintiff
school district paid to the injured party, the Court of Appeal started by
commenting there was “no doubt” that the school district and the defendant were
joint tortfeasors with respect to the injuries of the defendant’s employee. (S.F.
Unified, supra, 162 Cal.App.2d at p. 444.)6 The court next observed that the
common law rule governing at the time of the accident generally barred any right
of contribution between joint tortfeasors. (Id. at pp. 434-444.) In assessing
whether the case presented any basis for an exception to the rule of
noncontribution, the Court of Appeal sought guidance from 140 American Law
Reports 1306, which contained an annotation on the subject “ ‘Contribution or
indemnity between joint tort-feasors where injury to third person results from

6
The Court of Appeal elsewhere observed that the defendant maintenance
company was not liable to its employee in tort (i.e., for the full measure of tort
damages) because of the Workmen’s Compensation Act then in effect. (S.F.
Unified
, supra, 162 Cal.App.2d at p. 440.)
10


violation of a duty which one tort-feasor owes to other.’ ” (S.F. Unified, at p.
444.)7
According to that annotation, “ ‘the courts in a few cases have added
another exception [to the general rule of noncontribution] 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 defendant notwithstanding the fact that his
negligence also contributed to the third person’s injury. [Citations.]’ ” (S.F.
Unified, supra, 162 Cal.App.2d at p. 444, italics added.) The Court of Appeal in
S.F. Unified reviewed the cases cited in support of the exception, and quoted one
of the decisions reasoning that, even when joint tortfeasors were “ ‘equally
culpable and equally liable’ ” to the injured party, “ ‘as between themselves, the
plaintiff [seeking indemnity] was entitled to rely upon the defendants to discharge
the duty because of their contractual relations, and the former could only be
deprived of the right of indemnity by proof that it did in fact participate in some
manner in the omission, beyond its mere failure to perform the duty imposed on
both by the law.’ ” (Id. at p. 445, quoting Phoenix Bridge Co. v. Creem (1905) 92
N.Y.S. 855, 856-857.) The other decisions supporting the exception were to the
same effect. (E.g., Otis Elevator Co. v. Maryland Casualty Co. (Colo. 1934) 33
P.2d 974, 977-978; Seaboard Air Line Ry. Co. v. American District Electric

7
Contribution and indemnity are related doctrines, but contribution
“ ‘presupposes a common liability which is shared by the joint tortfeasors on a pro
rata basis
.’ ” (Western Steamship, supra, 8 Cal.4th at p. 108, fn. 6, italics added.)
11


Protective Co. (Fla. 1932) 143 So. 316; Busch & Latta Paint Co. v. Woermann
Const. Co. (Mo. 1925) 276 S.W. 614, 619 [“In all cases where one party creates
the condition which causes the injury, and the other does not join therein, but is
exposed to liability, and suffers damages on account of it, the rule that one of two
joint tort-feasors cannot maintain an action against the other for indemnity does
not apply.”]; accord, Weyerhaeuser S.S. Co. v. Nacirema Co. (1958) 355 U.S. 563;
Ryan Co. v. Pan-Atlantic Corp. (1956) 350 U.S. 124.)8 Finding the reasoning of
the foregoing cases “quite convincing,” the Court of Appeal found it appropriate
to adopt an implied contractual indemnity exception to the common law rule of
noncontribution between joint tortfeasors. (S.F. Unified, supra, 162 Cal.App.2d at
p. 448.)
Decisions subsequent to S.F. Unified, supra, 162 Cal.App.2d 434,
emphasized that implied contractual indemnity and traditional equitable indemnity
developed as related exceptions to the rule of noncontribution. In Cahill Bros.,
Inc. v. Clementina Co. (1962) 208 Cal.App.2d 367, the Court of Appeal
summarized the basic principles of “implied” indemnity, now commonly referred
to as “equitable” indemnity, as follows. “The right to implied indemnity, while
relatively recent in the law of California, is now well established. [Citations.] The
distilled essence of these cases is that where each of two persons is made

8
In Ryan Co. v. Pan-Atlantic Corp., supra, 350 U.S. 124, a shipowner
contracted with a stevedoring company for performance of stevedoring operations,
but the company’s failure to perform the work safely contributed to the injury of
one of its own employees. The United States Supreme Court held that, under
these circumstances, the shipowner had an action for breach of contract to recover
indemnity from the stevedoring company for the compensation the shipowner paid
to the company’s injured employee. In Weyerhaeuser S.S. Co. v. Nacirema Co.,
supra, 355 U.S. 563, the high court followed Ryan and held that the right to
indemnity did not depend on tort concepts of active/passive or primary/secondary
negligence. (Weyerhaeuser, supra, 355 U.S. at p. 569.)
12


responsible by law to an injured party the one to whom the right of indemnity
inures is entitled to shift the entire liability for the loss to the other party.
Accordingly, a right of implied indemnification may arise as a result of contract
or equitable considerations.” (Id. at pp. 375-376, italics added; Great Western,
supra, 238 Cal.App.2d at p. 516 [citing same].) As Cahill Bros., Inc. v.
Clementina Co. indicated, however, where the right of implied or equitable
indemnity was based on a “contractual relationship,” it was not necessary to
evaluate the “primary or secondary liability” of those made responsible by the law
to the injured party. (Id. at p. 376, italics omitted; cf. American Motorcycle,
supra, 20 Cal.3d at p. 583 [where no contractual relationship existed, a
“ ‘passively’ or ‘secondarily’ negligent tortfeasor” could shift its liability
completely to a more directly culpable tortfeasor].)
Significantly, while early decisions appeared to recognize the sometimes
vague and imprecise standard of recovery governing equitable indemnity, “the
restitutionary nature of indemnification clearly emerged as a common thread.”
(Western Steamship, supra, 8 Cal.4th at p. 108.) That is, “ ‘[t]he basis for
indemnity is restitution, and the concept that one person is unjustly enriched at the
expense of another when the other discharges liability that it should be his
responsibility to pay.’ ” (Ibid.)
As originally conceived, equitable indemnity was a doctrine that sought to
prevent a more culpable tortfeasor from escaping liability altogether when a less
culpable tortfeasor was involved. As an “ ‘all-or-nothing’ ” rule, however, at
times it operated to shift the entire loss to a party who was simply slightly more
culpable than another. (American Motorcycle, supra, 20 Cal.3d at pp. 583, 594.)
Recognizing this inequity, American Motorcycle modified the equitable indemnity
rule to permit a concurrent tortfeasor to obtain partial indemnity from other
cotortfeasors on a comparative fault basis. (Id. at pp. 607-608.)
13
After American Motorcycle, this court emphasized that, although “the
change from a shifting of loss to an apportionment of damages” was a significant
development, it “did not affect the essential restitutionary character of equitable
indemnity.” (Western Steamship, supra, 8 Cal.4th at p. 109.) As we shall
demonstrate below, the analyses in our post-American Motorcycle decisions,
consistent with the earlier cases validating and applying the doctrine, support the
conclusion that a party may defeat a claim for implied contractual indemnity by
relying on an immunity otherwise available against the injured party.
In E. L. White, supra, 21 Cal.3d 497, we recognized that, notwithstanding
the three separately identified forms of indemnity, the obligation of indemnity
arises only “from either of two general sources.” (Id. at p. 506.) “First, it may
arise by virtue of express contractual language establishing a duty in one party to
save another harmless upon the occurrence of specified circumstances.” (Ibid.)
“Second, it may find its source in equitable considerations brought into play either
by contractual language not specifically dealing with indemnification or by the
equities of the particular case.” (Id. at p. 507, italics added.) Although a claim of
implied contractual indemnity was not at issue in E. L. White, we relied on the
distinction between express contractual indemnity and equitable indemnity to hold
that the latter might still apply to apportion responsibility for a loss where an
express indemnity agreement between the joint tortfeasors is found inapplicable to
the injury. (Id. at pp. 507-510.)
Relying on the analysis in E. L. White, supra, 21 Cal.3d 497, our decision
in Bay Development, supra, 50 Cal.3d 1012, also distinguished between express
contractual indemnity, on the one hand, and the two forms of equitably based
indemnity, on the other, and rejected the contention that a claim for implied
contractual indemnity should be equated with a claim for express contractual
indemnity. (Id. at pp. 1029-1032.) In particular, we observed that equating
14
implied contractual indemnity with express indemnity could, anomalously,
“accord an indemnitee greater rights than it would have under an express
indemnification contract,” because “in an implied indemnity situation a court
could not apply the rules requiring specificity in express indemnification clauses.”
(Id. at p. 1033; see generally Crawford v. Weather Shield Mfg. Inc., supra, 44
Cal.4th at p. 552 [contract language must be “particularly clear and explicit” to
afford protection beyond that available under doctrines of implied or equitable
indemnity, e.g., indemnification regardless of the indemnitor’s fault]; E. L. White,
supra, 21 Cal.3d at p. 507.)
That consideration, as well as our observation that “equitable
considerations have always played an integral role in defining the scope of the
implied contractual indemnity doctrine” (Bay Development, supra, at pp. 1029-
1030, fn. 10), supported our conclusion that “a claim for implied contractual
indemnity is a form of equitable indemnity subject to the rules governing equitable
indemnity claims” (id. at p. 1033, fn. omitted). In particular, we recognized that
an implied contractual indemnity claim, like a traditional equitable indemnity
claim, is subject to the American Motorcycle rule that a party’s liability for
equitable indemnity is based on its proportional share of responsibility for the
damages to the injured party. (Bay Development, supra, 50 Cal.3d at p. 1031.)
Based on the foregoing, we ultimately held in Bay Development that,
notwithstanding a different rule for express indemnity claims, an implied
contractual indemnity claim may not be pursued against a party who has entered
into a good faith settlement pursuant to Code of Civil Procedure section 877.6,
subdivision (c).9 (Bay Development, supra, 50 Cal.3d at p. 1020; cf. C. L. Peck

9
Code of Civil Procedure section 877.6, subdivision (c) provides: “A
determination by the court that the settlement was made in good faith shall bar any

(fn. continues on next page)
15


Contractors v. Superior Court (1984) 159 Cal.App.3d 828, 834.) Thus, in
evaluating a settling defendant’s potential proportionate liability to the injured
party for purposes of the good faith settlement determination, “the trial court must
take into account any contractual relationship between the settling and nonsettling
defendants, and must consider how each party’s performance of its contractual
obligations relates to its share of liability.” (Bay Development, supra, 50 Cal.3d
at p. 1034, italics added.)
Guided by the rationale driving the doctrine and the logical force and
consistency of the analyses in S.F. Unified, supra, 162 Cal.App.2d 434, E. L.
White, supra, 21 Cal.3d 497, and Bay Development, supra, 50 Cal.3d 1012, we
conclude that implied contractual indemnity has always been subject to the rule
that “ ‘there can be no indemnity without liability.’ ” (Children’s Hospital, supra,
45 Cal.App.4th at p. 1787.) Application of this rule here compels the conclusion
that PG&E’s immunity from liability to Jackson under section 846 bars Prince
from recovering on an implied contractual indemnity theory.
The Court of Appeal below relied on Bear Creek Planning Com. v. Title
Ins. & Trust Co. (1985) 164 Cal.App.3d 1227 to find that joint liability is not
required because the implied contractual indemnity doctrine is grounded upon the
indemnitor’s failure to properly perform contractual duties owed to the
indemnitee. As the Court of Appeal acknowledged, however, Bay Development
disapproved Bear Creek to the extent it erroneously assumed that a claim for
implied contractual indemnity is not a form of equitable indemnity and is not

(fn. continued from previous page)

other joint tortfeasor or co-obligor from any further claims against the settling
tortfeasor or co-obligor for equitable comparative contribution, or partial or
comparative indemnity, based on comparative negligence or comparative fault.”
16


subject to comparative indemnity principles. (See Bay Development, supra, 50
Cal.3d at pp. 1031-1032 & fn. 12.) Furthermore, while Bear Creek correctly
observed that the implied contractual indemnity doctrine is grounded upon the
indemnitor’s failure to properly perform contractual duties owed to the
indemnitee, the decision was flawed to the extent it viewed the doctrine as akin or
analogous to express contractual indemnity. Express indemnity has never required
joint liability, and as indicated, equating the two doctrines would lead to
anomalous results. (Bay Development, supra, 50 Cal.3d at p. 1033.)
More importantly, Bear Creek failed to appreciate that implied contractual
indemnity is and always has been restitutionary in nature, meaning it is intended to
address the situation where “ ‘one person is unjustly enriched at the expense of
another when the other discharges liability that it should be his responsibility to
pay.’ ” (Western Steamship, supra, 8 Cal.4th at p. 108.) Indeed, our recognition
that “a claim for implied contractual indemnity is a form of equitable indemnity
subject to the rules governing equitable indemnity claims” (Bay Development,
supra, 50 Cal.3d at p. 1033, fn. omitted) corrects any misimpression that joint
liability is not a component of such claims.10
Prince relies on S.F. Unified, supra, 162 Cal.App.2d 434, Ryan Co. v. Pan-
Atlantic Corp., supra, 350 U.S. 124, and Weyerhaeuser S.S. Co. v. Nacirema Co.,
supra, 355 U.S. 563, to argue that implied contractual indemnity is properly
available even when the alleged indemnitor is “immune from direct liability” to

10
Allowing a claim for implied contractual indemnity to proceed in the
absence of any independent liability on the part of the indemnitor to the injured
party would essentially subject the indemnitor to liability for the injured party’s
damages in connection with an alleged breach of contract. Our reiteration that
indemnity is restitutionary in nature and our recognition of a shared liability
requirement will avoid transforming a breach of contract claim into a vehicle for
the recovery of tort damages.
17


the injured party. In those cases, the courts either held or recognized that a
worker’s compensation law did not preclude an entity from seeking implied
contractual indemnity from a contractor for damages paid to an injured party,
where the contractor was also the employer of the injured party. (S.F. Unified,
supra, 162 Cal.App.2d at pp. 440-442 [Workmen’s Compensation Act]; Ryan Co.
v. Pan-Atlantic Corp., supra, 350 U.S. at pp. 128-132 [Longshoremen’s and
Harbor Workers’ Compensation Act]; see Weyerhaeuser S.S. Co. v. Nacirema Co.,
supra, 355 U.S. 563 [following Ryan Co. v. Pan-Atlantic Corp.].)11 We are not
convinced.
As PG&E points out, the compensation laws in those cases were not
comparable to section 846 and the recreational use immunity it affords. Under
section 846, an easement holder “owes no duty of care to keep the premises safe
for entry or use by others for any recreational purpose.” Because PG&E owed no
such duty to Jackson, there is no question that PG&E is immune from liability to
Jackson. By contrast, the compensation laws did not operate to shield the
employers from liability to their injured employees or otherwise negate any duty
of care owing from employers to employees. To the contrary, those laws reflected
compensation bargains, pursuant to which employers were held to assume liability
for all industrial injuries, regardless of fault, in exchange for a limitation on the

11
Subsequent to the decisions in S.F. Unified, supra, 162 Cal.App.2d 434,
Ryan Co. v. Pan-Atlantic Corp., supra, 350 U.S. 124, and Weyerhaeuser S.S. Co.
v. Nacirema Co.
, supra, 355 U.S. 563, state and federal lawmakers enacted
legislation barring recovery of implied or equitable indemnity against employers
for injuries to their employees. (See Lab. Code, § 3864, added by Stats. 1959, ch.
955, § 1, p. 2986; Cooper Stevedoring Co. v. Kopke, Inc. (1974) 417 U.S. 106,
113, fn. 6 [noting congressional intent to overrule Ryan insofar as it “made an
employer circuitously liable for injuries to its employee, by allowing the employee
to maintain an action for unseaworthiness against the vessel and allowing the
vessel to maintain an action for indemnity against the employer”].)
18


amount of that liability.12 In light of the obvious differences between section 846
and the compensation laws, as well as the balance of the legal analysis appearing
in S.F. Unified, supra, 162 Cal.App.2d at pages 444-449, these cases are not
persuasive authority for disregarding the no-indemnity-without-liability rule.
Prince asserts that another decision, Great Western, supra, 238 Cal.App.2d
502, directly supports her position that “the indemnitor could be liable as a matter
of contract even if it had been exonerated in a tort action by the injured person.”
Great Western involved an assault on a victim (Nizuk) by an employee (Gorges)
of a “Thrift Club” that was managed and supervised by the indemnitor (Porter) but
located within a furniture store owned by the indemnitee (Great Western). In a
previous action, Nizuk had sued Porter and Great Western, but Porter obtained a
summary judgment and a dismissal while Great Western eventually settled the
action during the trial. Great Western then successfully sued Porter for implied
contractual indemnity after demonstrating that, pursuant to a contract between the
two of them, Porter, not Great Western, had complete charge of the entire Thrift
Club operation, including the employment, management, and supervision of all its
personnel, including Gorges. (Great Western, supra, 238 Cal.App.2d at p. 516.)
Prince’s reliance on Great Western is misplaced. First, the decision made
clear that Porter’s successful defense of Nizuk’s action was not res judicata on the
issue of liability in the Great Western indemnity action. (Great Western, supra,
238 Cal.App.2d at pp. 508-514.) Second, it observed that Nizuk had failed to even
assert the basis of liability against Porter that Great Western relied on in the
indemnity action, and arguably suggested that, had Nizuk done so, he might have
prevailed. (Id. at pp. 510-511.) Thus, the issue of the indemnitor’s liability was

12
As already indicated, the Court of Appeal in S.F. Unified viewed the
employer as a joint tortfeasor. (S.F. Unified, supra, 162 Cal.App.2d at p. 444.)
19


litigated and resolved against the indemnitor in the Great Western indemnity
action, while here it is conceded that the alleged indemnitor (PG&E) had no duty
or liability to the injured party (Jackson). Great Western presents no parallel to
this case.
Finally, Prince contends equitable considerations support her claim for
implied contractual indemnity because (1) “the extraordinary hazard of high-
voltage electricity emphasizes the need to give utilities strong incentive to
maintain easements in safe condition,” (2) “the typical liability limits of
homeowners’ insurance of typical servient tenement owners are unlikely to
compensate the injured person,” and (3) “the public benefits of electric power
counsel that the rate paying public should pay for both public safety and injured
persons’ compensation through power rates.” Although equitable considerations
are properly considered when assessing the awarding of indemnity in individual
cases, at least two of the identified concerns essentially amount to policy
arguments for excluding utilities from the protective scope of section 846, and are
more appropriately directed to the Legislature.13 In any event, Prince’s indemnity
claim fails because she cannot make the required showing that PG&E bears some
legal responsibility for Jackson’s injuries.
In sum, we conclude, as a matter of law, that PG&E’s immunity under
section 846 bars Prince’s claim for implied contractual indemnity. Contrary to
Prince’s assertions, there is nothing inequitable about this outcome. It is

13
To the extent Prince complains that a requirement of joint liability would
expose property owners to extensive liability that rightfully should be borne by
PG&E, we note that PG&E’s immunity under section 846 would not be triggered
unless a person were to engage in a recreational activity with respect to PG&E’s
easement. We perceive no unfairness in the Legislature’s policy decision to
provide for immunity when, for instance, kiteflyers poke metal poles into power
lines, or people race up and down power poles.
20


undisputed that Prince, like PG&E, may defend against Jackson’s suit by claiming
the benefit of the recreational use immunity provided in section 846. In fact,
Prince herself relies on section 846 as an affirmative defense, and the only reason
Jackson’s case against her remains pending is that a disputed issue of material fact
exists as to whether Prince expressly invited Jackson onto her property, so as to
trigger a statutorily listed exception to immunity. (See § 846, 4th par., subd. (c).)
If that issue is ultimately resolved in Jackson’s favor, then there is no question that
Prince’s ability to claim the statutory immunity, and to avoid the damages for
which she seeks indemnity (i.e., her costs in defending the action and her potential
liability for Jackson’s damages), will have been defeated by her own conduct.
Under these circumstances, considerations of equity and fairness fail to support
Prince’s unilateral efforts to partially or completely shift responsibility for her loss
to PG&E, which did nothing to except either Prince or itself from the statutory
immunity.
That Prince has no recourse for indemnification against PG&E does not
contravene the equitable premise of the indemnity doctrine. As we have
recognized, “ ‘[i]nevitably, whenever one concurrent tortfeasor is insolvent or
immunized, either partially or completely, from liability, the remaining tortfeasors
must pay more than an amount measured by their proportional responsibility for
the injury. [Citations.]’ [Citation.] Such are the realities, if not the vagaries, of
multi-party litigation.” (Western Steamship, supra, 8 Cal.4th at p. 117.)
21

Disposition
We reverse the judgment of the Court of Appeal, and direct that court to
enter judgment in favor of PG&E.
BAXTER, J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
MORENO, J.
McINTYRE, J.*
McGUINESS, J.**
______________________________________
* Associate Justice of the Court of Appeal, Fourth Appellate District, Division
One, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
**Presiding Justice of the Court of Appeal, First Appellate District, Division
Three, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
22





CONCURRING OPINION BY WERDEGAR, J.
I concur in the majority opinion. I write separately to address what I
perceive to be a general misperception about the nature of implied contractual
indemnity and to express my belief that irrespective of its nature, the doctrine no
longer exists in California.
As the majority observes, implied contractual indemnity and equitable
indemnity developed as related exceptions to the rule of noncontribution existing
in this state before American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d
578. (Maj. opn., ante, at pp. 13-14.) Equitable indemnity rests on the concept that
“ ‘one person is unjustly enriched at the expense of another when the other
discharges liability that it should be his responsibility to pay.’ ” (Western
Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal.4th 100, 108.)
For that reason, as the majority rightly states, as to equitable indemnity “ ‘ “there
can be no indemnity without liability.” ’ ” (Maj. opn., ante, at p. 7.) Implied
contractual indemnity, on the other hand, historically arose from the concept that a
party who breaches a contract is responsible for the resulting damages to its
contractual partner. For example, in the seminal case of S.F. Unified Sch. Dist. v.
Cal. Bldg. etc. Co. (1958) 162 Cal.App.2d 434, which the majority discusses (maj.
opn., ante, at pp. 10-12), the appellate court reasoned the defendant maintenance
company could be required to indemnify the school district even if the parties’
contract contained no express provision for indemnity, holding, “such a warranty
1


or agreement to indemnify would necessarily be implied” (S.F. Unified, at p. 449).
In my view, Bear Creek Planning Com. v. Title Ins. & Trust Co. (1985) 164
Cal.App.3d 1227 correctly summarized the law defining implied contractual
indemnity when it explained: “ ‘[W]here the right of implied indemnity arises
from a contractual relationship between the indemnitor and the indemnitee, it is
predicated upon the indemnitor’s breach of such contract, the rationale of the cases
being that a contract under which the indemnitor undertook to do work or perform
services necessarily implied an obligation to do the work involved in a proper
manner and to discharge foreseeable damages resulting from improper
performance absent any participation by the indemnitee in the wrongful act
precluding recovery.’ [Citation.]” (Id. at p. 1237.) Thus, “implied contractual
indemnity is based upon the premise that a contractual obligation to perform
‘carries with it an implied agreement to indemnify and to discharge foreseeable
. . . damages’ ” resulting to a contractual partner from the negligent performance
of that obligation. (Ibid.)
Because implied contractual indemnity as originally conceived was based
on a duty one party to the contract owed to the other, contrary to the majority’s
assertion (maj. opn., ante, at p. 17) it has not always been a restitutionary doctrine
that depended on the payment by the indemnitee of a legal obligation the
indemnitor owed to an injured plaintiff. Rather, the indemnitor could be required
to pay its contractual partner even if the indemnitor was immune from direct
liability to the injured party. It is for that reason the defendant maintenance
company in S.F. Unified Sch. Dist. v. Cal. Bldg. etc. Co., supra, 162 Cal.App.2d
434, was required to pay the school district even though by reason of the workers’
compensation laws in existence at the time, the maintenance company could not
be required to pay the injured worker. (Id. at pp. 440-442.) And it is for that
reason, contrary to the majority (maj. opn., ante, at p. 21), that I believe Pacific
2
Gas & Electric Company’s (PG&E) immunity from direct liability to Jackson
would not of itself bar Prince from pursuing an action against PG&E for implied
contractual indemnity as that doctrine was originally conceived.
Nonetheless, the doctrine of implied contractual indemnity has always
presented significant conceptual and practical problems, some of which were
alluded to in Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012,
1029-1033, where a majority of this court recognized that ordinary rules of
express contractual indemnity could not reasonably be applied to a claim of
implied contractual indemnity and disposed of the problem by characterizing
implied contractual indemnity as simply a form of equitable indemnity. As I
believe equitable indemnity provides a far better tool than traditional implied
contractual indemnity for distributing liability between those directly or legally
responsible for an injury or loss, I without reservation join in the majority’s
holding that a remedy under the doctrine of implied contractual indemnity may not
be had when, as here, none would be available under the doctrine of equitable
indemnity because the contracting party is immune from liability. But in my
opinion, which admittedly is inconsistent with that expressed by the majority in
Bay Development, relief in that event should be denied not because the doctrine of
implied contractual indemnity is a form of equitable indemnity, but because the
development of equitable indemnity has obviated any need for the unwieldy
doctrine of implied contractual indemnity, and it should be abandoned.
WERDEGAR, J.
3
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Prince v. Pacific Gas & Electric Company
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 145 Cal.App.4th 289
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S149344
Date Filed: March 19, 2009
__________________________________________________________________________________

Court:

Superior
County: Santa Clara
Judge: John F. Herlihy

__________________________________________________________________________________

Attorneys for Appellant:

Luce, Forward, Hamilton & Scripps, Charles A. Bird, Peter H. Klee; Rankin, Landsness, Lahde, Serverian
& Stock, Jon A. Heaberlin and Bernard P. Lahde for Cross-complainant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Sedgwick, Detert, Moran & Arnold, Frederick D. Baker and Steven P. Burke for Cross-defendant and
Respondent.

Fred J. Hiestand for The Civil Justice Association of California as Amicus Curiae on behalf of Cross-
defendant and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Charles A. Bird
Luce, Forward, Hamilton & Scripps
600 West Broadway, Suite 2600
San Diego, CA 92101-3372
(619) 236-1414

Frederick D. Baker
Sedgwick, Detert, Moran & Arnold
One Market Plaza, Steuart Tower, 8th Floor
San Francisco, CA 94105
(415) 781-7900


Document Outline

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Petition for review after the Court of Appeal reversed the judgment in a civil action. This case includes the following issue: Does the principle that there can be no indemnity without liability apply to claims for implied contractual indemnity as it does to claims for comparative equitable indemnity?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Thu, 03/19/200945 Cal. 4th 1151, 202 P.3d 1115, 90 Cal. Rptr. 3d 732S149344Review - Civil Appealclosed; remittitur issued

Parties
1Pacific Gas & Electric Company (Cross-defendant and Respondent)
Represented by Frederick D. Baker
Sedgwick Detert Moran & Arnold, LLP
1 Market Plaza, Steuart Tower, 8th Floor
San Francisco, CA

2Prince, Eve (Cross-complainant and Appellant)
Represented by Charles A. Bird
Luce, Forward, Hamilton & Scripps, LLP
600 W. Broadway, Suite 2600
San Diego, CA

3Prince, Eve (Cross-complainant and Appellant)
Represented by Jon Allen Heaberlin
Rankin, Landsness, Lahde, Serverian & Stock
96 N. Third Street, Suite 500
San Jose, CA

4Civil Justice Association Of California (Amicus curiae)
Represented by Fred James Hiestand
Attorney at Law
1121 "L" Street, Suite 404
Sacramento, CA

5Consumer Attorneys Of California (Amicus curiae)
Represented by Raymond Paul Boucher
Attorney at Law
770 "L" Street, Suite 1200
Sacramento, CA


Opinion Authors
OpinionJustice Marvin R. Baxter
ConcurJustice Kathryn M. Werdegar

Disposition
Mar 19 2009Opinion: Reversed

Dockets
Jan 8 2007Petition for review filed
  Pacific Gas & Electric Company, Cross Defendant and Respondent. Frederick D. Baker, counsel
Jan 9 2007Record requested
 
Jan 11 2007Received Court of Appeal record
  one file folder/briefs/transcript
Feb 26 2007Time extended to grant or deny review
  The time for granting or denying review in the above-entitled matter is hereby extended to and including April 6, 2007, or the date upon which review is either granted or denied.
Mar 14 2007Petition for review granted (civil case)
  Chin and Corrigan, JJ., were recused and did not participate. George, C. J., Kennard, Baxter, Werdegar and Moreno, JJ.
Mar 26 2007Certification of interested entities or persons filed
  Timothy M. Smith, Counsel
Mar 29 2007Certification of interested entities or persons filed
  Eve Prince, appellant Jon Allen Heaberlin, Counsel
Mar 29 2007Certification of interested entities or persons filed
  PG & E, respondent Frederick D. Baker, Counsel
Apr 4 2007Certification of interested entities or persons filed
  Joshua Jackson, Plaintiff Timothy M. Smith, Counsel
Apr 12 2007Request for extension of time filed
  31 day extension, May 14, 2007, to file opening brief on the merits. Pacific Gas & Electric Company, Cross Defendant and Respondent. Frederick D. Baker, counsel
May 10 2007Opening brief on the merits filed
  PG&E, respondent Frederick D. Baker, Counsel
May 25 2007Association of attorneys filed for:
  Eve Prince, respondent Jon A. Heaberlin, counsel associates Charles A. Bird.
May 25 2007Request for extension of time filed
  32 day extension to July 11, 2007, to file answer brief on the merits.
May 30 2007Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including July 11, 2007.
Jul 9 2007Answer brief on the merits filed
  Eve Prince, appellant Charles A. Bird, Counsel
Jul 18 2007Request for extension of time filed
  to August 30, 2007 to file reply brief on the merits. PG&E, respondent Frederick D. Baker, Counsel
Jul 19 2007Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including August 30, 2007.
Aug 23 2007Change of contact information filed for:
  Timothy M. Smith
Aug 23 2007Reply brief filed (case fully briefed)
  PG&E, respondent Frederick D. Baker, Counsel
Sep 12 2007Request for extension of time filed
  to October 9, 2007 to file amicus curiae in support of appellant. Civil Justice Association of California, Amicus Curiae Fred J. Hiestand, Counsel
Sep 28 2007Request for extension of time filed
  to October 9, 2007 to file amicus curiae in support of appellant. Consumer Attorneys of California, Amicus Curiae Ray Boucher, Counsel
Oct 1 2007Extension of time granted
  On application of The Civil Justice Association of California and good cause appearing, it is ordered that the time to serve and file the amicus curiae brief is extended to and including October 9, 2007.
Oct 1 2007Extension of time granted
  On application of Consumer Attorney of California and good cause appearing, it is ordered that the time to serve and file the amicus curiae brief is extended to and including October 9, 2007.
Oct 10 2007Received application to file Amicus Curiae Brief
  The Civil Justice Association of California, amicus curiae Fred J. Hiestand, counsel
Oct 10 2007Request for extension of time filed
  to October 12, 2007 to file amicus curiae in support of appellant. Consumer Attorneys of California, Amicus Curiae Ray Boucher, Counsel
Oct 10 2007Permission to file amicus curiae brief granted
  The Civil Justice Association of California, amicus curiae Fred J. Hiestand, counsel
Oct 10 2007Amicus curiae brief filed
  The application of The Civil Justice Association of California for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Oct 12 2007Extension of time granted
  On application of Consumer Attorneys of California and good cause appearing, it is ordered that the time to serve and file the amicus curiae is extended to and including October 12, 2007. No further extensions of time are contemplated.
Oct 30 2007Request for extension of time filed
  to November 29, 2007 to file response to amicus curiae brief.
Oct 31 2007Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer to amicus curiae brief is extended to and including November 29, 2007.
Nov 29 2007Response to amicus curiae brief filed
  to Amicus Curiae Brief of Civil Justice Association of California Eve Prince, appellant Charles A. Brid, Counsel
Dec 3 2007Received:
  Notice of Errata Eve Prince's appellant Answer Brief on the Merits Eve Prince's, Appellant Charles A. Bird, Counsel
Oct 20 2008Justice pro tempore assigned
 
Dec 10 2008Case ordered on calendar
  to be argued on Wednesday, January 7, 2009, at 1:30 p.m., in San Francisco
Jan 7 2009Cause argued and submitted
 
Mar 18 2009Notice of forthcoming opinion posted
 
Mar 19 2009Opinion filed: Judgment reversed
  We reverse the judgment of the Court of Appeal, and direct that court to enter judgment in favor of PG&E. Majority opinion by Baxter, J. -----joined by George, C.J., Kennard, Moreno, McIntyre* and McGuiness**, JJ. Concurring Opinion by Werdegar, J. *Associate Justice of the Court of Appeal, 4th Dist., Div. 1, assigned. **Presiding Justice of the Court of Appeal, 1st Dist., Div. 3, assigned.
Apr 21 2009Remittitur issued
 

Briefs
May 10 2007Opening brief on the merits filed
 
Jul 9 2007Answer brief on the merits filed
 
Aug 23 2007Reply brief filed (case fully briefed)
 
Oct 10 2007Amicus curiae brief filed
 
Nov 29 2007Response to amicus curiae brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 5, 2010
Annotated by siller

-Key Players-

Joshua Jackson: Kite flying ten year-old.
Eve Prince: Property owner on whose land Pacific Gas & Electric held an easement for electrical power lines.
Pacific Gas & Electric Company (PG&E): Owner of easement on Prince’s land for erection and maintenance of electrical power lines.

-Facts-

Joshua Jackson was flying a kite on his friend’s family’s property. His friend’s grandmother, Eve Prince (the cross-complainant and appellant) owned the adjacent property. Pacific Gas & Electric (the cross-defendant and respondent) owned an easement on Prince’s land on which it maintained high voltage power lines. Jackson’s kite became stuck in the power lines on Prince’s property, and he was injured when he attempted to dislodge the kite using a nineteen foot eight inch aluminum pole Prince kept on her property near the power lines.

-Procedural Posture-

Jackson was appointed a guardian ad litem, who sued PG&G on his behalf. PG&G was found to be immune from liability because of § 846 of the California Civil Code, also referred to as the recreational use immunity statute, which greatly limits the liability of property owners to others who enter the property for recreational purposes. Subsequently, the guardian ad litem filed a premises liability suit against Eve Prince claiming, among other things, that Jackson had been expressly invited onto her property. (If true, Prince could be held liable as express invitation is an exception to recreational use immunity.) Jackson’s suit against Prince remains pending because of the existence of triable issues of material fact about this question of express invitation.

The case at hand arose when Prince filed a cross-complaint for indemnity against PG&E. She alleged that PG&E breached a contractual duty to maintain its power lines in good repair and thus proximately caused Jackson’s injury. She sought indemnity on the ground that PG&E’s breach of duty has exposed her to liability in Jackson’s case against her.

The trial court granted PG&E’s summary judgment motion on the ground that the gravamen of her complaint was equitable indemnity rather than express contractual indemnity. Consequently, the trial court held, PG&E’s immunity under § 846 provided it a complete defense.

The Court of Appeal reversed, holding that Prince could bring an implied contractual indemnity claim based on PG&E’s contractual obligations to her under the easement documents separate from any alleged breach of PG&E’s duty to Jackson. The Court of Appeal further held that since implied contractual indemnity does not require joint and several liability to the injured party, PG&E’s § 846 immunity does not preclude Prince’s indemnity claim.

-Questions Presented-

1. Can a claim for implied contractual immunity rest on documents granting PG&E a power line easement and PG&E’s obligations to maintain the easement in good repair under § 845 of the California Civil Code?
2. Does PG&E’s immunity from liability to Jackson under § 846 nonetheless bar Prince from recovering on an implied contractual immunity theory?

-Holding-

The Supreme Court reversed. It held that even if an implied contractual indemnity claim could be predicated on an alleged breach of duty by an easement owner, PG&E’s § 846 immunity barred indemnity as a matter of law. Because PG&E owed no duty of care to the injured party (Jackson), it was unnecessary to reach the question of the existence of a contractual relationship or contractual duties between Prince and PG&E.

-Disposition-

Judgment of the Court of Appeal was reversed. Case was remanded with instructions to enter judgment for PG&E.

-Analysis-

The Court identified three historical forms of indemnity: express contractual indemnity (expressly provided for by contract); implied contractual indemnity (arising from a contract that lacks express indemnity provisions); and and traditional equitable indemnity (arising from the equities of specific events). Currently, there only express indemnity and equitable indemnity, with implied contractual indemnity viewed as a form of equitable indemnity. (Note that Judge Werdegar’s concurrence takes issue with the latter assertion.)

The court is particularly concerned with when fault must be demonstrated to successfully prosecute an claim for indemnity. The doctrine of express indemnity permits parties to allocate damages liability as they see fit by explicit contractual language and to do so without regard to which party is at fault. The traditional doctrine of equitable indemnity does not require a contractual relationship, and is now subject to comparative equitable apportionment of loss. Under this doctrine, the indemnitor can advance any defense against the party seeking indemnity as it could against the injured party. Thus, there can be no indemnity without liability. Recognizing this, Prince did not bring a traditional equitable indemnity claim against PG&E because PG&E was immune from liability to Jackson.

Prince’s only possible claim is one of implied contractual indemnity. Under this doctrine, a contract to perform services or do other work implies an obligation to do so non-negligently and to assume liability for damages resulting from negligent performance. Historically, if one party’s negligence in the performance of the contract lead to the injury of a third party, the other party can seek indemnification from the negligent party only if it itself were not negligent. That is, there could be no contribution under this doctrine. Now, as with equitable indemnity, implied contractual indemnity is subject to comparative equitable apportionment of loss.

After a lengthy discussion of the development of these doctrines of indemnity in California case law, the Court concludes that joint legal obligation is required for a successful implied contractual indemnity claim. Finding that California case law treats implied contractual indemnity as a form of equitable indemnity as is thus subject to the same rules governing those claims – including the requirement that a party’s liability for indemnity be based on its proportional share of responsibility for the damages to the inured party – the Court held that Prince could not recover from PG&E on a theory of implied contractual indemnity because there can be no indemnity without liability and PG&E was not liable to Jackson, the injured party in this case.

-Concurrence (Werdegar, J.)-

Judge Werdegar wrote separately to express his belief that the doctrine of implied contractual indemnity does not exist in California. He disagreed with the majority’s characterization of the doctrine as restitutionary in nature. Rather, he maintained that the doctrine of implied contractual indemnity is premised on the notion that one contracting party’s obligation to another to perform implies an agreement to indemnify the other party in the event that the first party’s negligent execution of the obligation exposes the second party to damages. Consequently, Judge Werdegar does not believe that PG&E’s § 846 immunity from liability to Jackson would of itself bar Prince’s claim. He also disputes the majority’s claim that implied contractual indemnity is a form of equitable indemnity. Nevertheless, he joined the majority because he believes that equitable indemnity is a better mechanism to apportion liability between parties responsible for a loss than implied equitable indemnity and because he believes that the development of equitable indemnity doctrine has eliminated the need for implied contractual indemnity, which he deems to be unwieldy.

-Key related cases-

S.F. Unified Sch. Dist. v. Cal. Bldg. etc. Co. (1958) 162 Cal.App.2d 434
http://scholar.google.com/scholar_case?case=15715481829826947108

American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578
http://scholar.google.com/scholar_case?case=10357310141539155145

Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012
http://scholar.google.com/scholar_case?case=9376684077121418649

-Tags-
California Civil Code § 846
equitable indemnity
express contractual indemnity
implied contractual indemnity
premises liability
recreational use of property
right of contribution