GARLOCK SEALING TECHNOLOGIES, LLC, v. NAK SEALING TECHNOLOGIES CORP.,

Filed 4/17/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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APPEAL from a judgment of the Superior Court of Sacramento County, Trena Burger-Plaven, J. Reversed in part and affirmed in part.

Rutan & Tucker, LLP, Ronald P. Oines and Treg A. Julander for Plaintiff and Appellant Garlock Sealing Technologies, LLC.

Solunce PLLC and Scott Payzant; Kroloff, Belcher, Smart, Perry & Christopherhson and Velma K. Lim for Defendant Cross-Complainant and Appellant Nak Sealing Technologies Corp.

Wilke, Fleury, Hoffelt, Gould & Birney, LLP, Thomas G. Redmon and Daniel L. Baxter for Defendant, Cross-Defendant and Respondent Sunrise Trading Co.

THE COURT:

It is ordered that the opinion filed herein on March 21, 2007, be modified as follows:

On page 61, at the end of the first full paragraph immediately following the last sentence of that paragraph which reads, Instead, we shall remand the matter to the trial court . . . . add a footnote indicator next in order.

The text of the footnote shall read, Mao Shun claims four separate grounds for affirming the trial courts denial of implied contractual indemnity claim. We have carefully considered each and find they are almost entirely based on factual and legal premises that we have already rejected elsewhere in this opinion. We note Garlocks settlement with Rockwell operated at a minimum to reduce and discharge a portion of Mao Shuns liability exposure to Rockwell. Rockwell could not recover twice for the damages it suffered from the defective oil seals should it proceed against Mao Shun. There is no serious question of the existence of a contract between Mao Shun and Garlock for the sale and purchase of those seals based on their course of dealing, the sample documentation, and the trial courts finding that Sunrise Trading was Mao Shuns agent. We need not repeat our discussion regarding Mao Shuns claims regarding Garlocks reliance on its own expertise, its failure to do functional testing, and Garlocks express warranties and indemnification agreement in its contract with Rockwell. Moreover, to the extent there may be equitable reasons for the trial court to deny implied contractual indemnity to Garlock or to assess relative equities between Mao Shun and Garlock, these matters may be raised and argued in the trial court when it reconsiders this issue on remand. We do not express any opinion on the ultimate resolution of the issue, which we have left to the trial court.

The petition for rehearing is denied. This modification does not effect a change in the judgment.

RAYE , Acting P.J.

BUTZ , J.

CANTIL-SAKAUYE , J.

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