Each party joined in the litigation as a defendant will inevitably feel an
urge to blame somebody else, and the result will be a proliferation of cross-complaints
for indemnity and apportionment of fault. These cross-complaints will almost always be
formalistic and, will contain no facts or useful information, and will serve no
constructive purpose except to preserve a claim for implied or equitable indemnity in the
event that it later becomes necessary to assert such claim. The judge should consider
eliminating all of these unnecessary cross-complaints and the answers thereto by simply
ordering that every party in the case be deemed to have cross-complained against every
other party for implied and equitable indemnity and apportionment of fault, and that no
cross-complaints asserting such claims, or answers thereto, will be permitted.
Such an order should not extend to contractual indemnity claims, however,
because such claims require the pleading of the contract that is the basis of the claim,
and such an order should not permit cross-complaints against design professionals or
licensed contractors unless the certificate required by Code of Civil Procedure section
411.35 or 411.36 has been filed.
The order should also permit any party who does not wish to assert claims
for implied or equitable indemnity or apportionment of fault against certain other parties
to file a disclaimer to that effect. Any party who wishes to contest the validity of any
such cross-complaint should of course be permitted to do so.
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