Can intentional tortfeasors shift liability to negligent actors?

In the 2020 term, the California Supreme Court is expected to decide whether intentional tortfeasors are entitled to the benefit of Proposition 51 (Civil Code Section 1431.2), under which civil defendants are liable for noneconomic damages only according to their "percentage of fault" as found by the jury. This decision will issue in B.B. v. County of Los Angeles, S250734, which is fully briefed and awaiting oral argument.

Background Law and Prop. 51

California law has long dictated that intentional tortfeasors cannot shift their liability to a merely negligent actor. E.g., Code Civ. Proc. Section 875, subd. (d) ("no right of contribu

tion in favor of any tortfeasor who has intentionally injured the injured person"); Weidenfeller v. Star & Garter, 1 Cal. App. 4th 1, 6-7 (1991) ("common law determination that a party who commits intentional miscon

duct should not be entitled to escape responsibility for damages based upon the negligence of the victim or a joint tortfeasor").

But in 1986, the California voters passed Prop. 51, declaring that in "any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint." Civ. Code Section 1431.2, subd. (a).

Does Prop. 51 Apply to Intentional Tortfeasors?

At issue now before the Supreme Court is whether Prop. 51 was intended to apply to intentional tortfeasors -- thus allowing them for the first time to shift liability to negligent actors. For over 30 years, California courts held that it was not. E.g., Thomas v. Duggins Constr. Co., 139 Cal. App. 4th 1105 (2006) ("intentional tortfeasor" not "entitled" to Prop. 51 liability reduction); People v. Millard, 175 Cal. App. 4th 7, 38 (2009) ("unbroken line of authority barring apportionment [based on comparative fault]" where "defendant has committed an intentional tort").

But the issue arose again recently, with two appellate courts reaching opposite conclusions.

B.B. v. County of Los Angeles

In July 2018, the 2nd District Court of Appeal disagreed with the Thomas line of authority, holding that Prop. 51 applies to every "defendant" in every "tort action," whether the misconduct was merely negligent or intentional. B.B. v. County of Los Angeles, 25 Cal. App. 5th 115 (2018).

There, police responded when the plaintiffs' decedent (Burley) assaulted a woman in a violent, drug-fueled rampage. A "prolonged and violent struggle" ensued, and Burley died from oxygen deprivation. The jury apportioned fault 40% to the decedent Burley, 20% each to two deputies (Aviles and Becerra), and 20% among several other deputies. The jury found that all of these deputies acted negligently except Aviles, who committed an intentional battery. Id. at 119-20.

The trial court, following Thomas, entered judgment against the intentional tortfeasor Aviles for the full damages amount, with no Prop. 51 reduction. Id. at 120, 124. But the 2nd District reversed, holding that Prop. 51 applies to the judgment against all tort defendants, including intentional tortfeasors.

B.B. cited three reasons for this holding:

1. B.B. first reasoned that the language of Prop. 51 is "unambiguous," dictating that "the liability of each defendant for non-economic damages shall be several only and shall not be joint." B.B., 25 Cal. App. 5th at 128; Civ. Code Section 1431.2, subd. (a) (emphasis added). This language thus reflects the voters' intent to apply the initiative across the board, "regardless of whether the defendant's misconduct is found to be intentional." Id. at 128.

2. B.B. ruled that its construction of Prop. 51 is compelled by the Supreme Court's 1992 statement in DaFonte v. Up-Right that Prop. 51 "attac[ked] the issue of joint liability for noneconomic tort damages root and branch," applying in "every case" to "limi[t] the joint liability of every 'defendant.'" B.B., 25 Cal. App. 5th at 125 (quoting DaFonte v. Up-Right, Inc., 2 Cal. 4th 593, 601-02 (1992)).

3. B.B. found also that its construction of Prop. 51 is necessary to "effectuate" the statute's "purpose to prevent unfairness" to tort "defendants." Id. a 127-28.

Burch v. CertainTeed Corp.

When the 2nd District decided B.B., the 1st District was reviewing the same issue in Burch v. CertainTeed Corp., 34 Cal. App. 5th 341 (2019). Burch arose on very different facts from B.B. Plaintiff Michael Burch was unwittingly exposed to toxic asbestos when installing defendant CertainTeed's asbestos-cement pipe, causing his terminal cancer. The jury found CertainTeed liable for these exposures, in both negligence and the intentional tort of fraudulent concealment (of the extreme hazards of its product). Burch bore zero fault, which the jury apportioned 62% to CertainTeed (and 38% to various other tortfeasors). Burch, 34 Cal. App. 5th at 343.

The 1st District held that Prop. 51 does not apply to the judgment because CertainTeed committed an intentional tort. Burch expressly disagreed with B.B. on each stated rationale in that decision:

1. On statutory construction, Burch "agree[d] with B.B." that Prop. 51, "like all statutes, must be interpreted according to its language" -- but "B.B. failed to credit the entire statutory text." Burch, 34 Cal. App. 5th at 357. B.B., focusing only on Prop. 51's reference to "each defendant," ignores the same sentence's restriction of Prop. 51's application to tort actions "based on principles of comparative fault." Id.; see Code Civ. Proc. Section 1431.2, subd. (a). Prop. 51's use of this language "must be read to have incorporated [the] judicially construed principles" by which an intentional tortfeasor may not reduce its liability based on others' negligence. Id. at 358 (citing In re Harris, 49 Cal. 3d 131, 136 (1989) ("the drafters who frame an initiative statute and the voters who enact it may be deemed to be aware of the judicial construction of the law that served as its source"); Wilson v. John Crane, Inc., 81 Cal. App. 4th 847, 855 (2000) (The "phrase serves the function of placing the statutory mandate in a specific context, i.e., actions for personal injury involving multiple tortfeasors and otherwise subject to the allocation of damages according to principles of comparative fault.")). But B.B. "appears to have read the language 'based upon principles of comparative fault,' out of the statute." Id. at 357.

2. Burch also disagreed "with B.B.'s view that DaFonte compels a different conclusion." Burch, 34 Cal. App. 5th at 359. DaFonte addressed only the issue of whether the damages reduction of Prop. 51 considers the comparative fault of only co-defendants, or whether it also considers non-party co-tortfeasors. Id.; see DaFonte, 2 Cal. 4th at 602 ("cases involving absent tortfeasors"). DaFonte "had no occasion to consider" whether Prop. 51 "eliminates an intentional tortfeasor's joint and several liability for noneconomic damages." Id. Indeed, since DaFonte, the Supreme Court has repeatedly confirmed that Prop. 51 does not apply to "every" tort action but instead only to "a tort action governed by principles of comparative fault." E.g., Richards v. Owens-Illinois, Inc., 14 Cal. 4th 985, 988 (1997); Rutherford v. Owens-Illinois, Inc., 16 Cal. 4th 953, 959 n.1 (1997); Buttram v. Owens-Corning Fiberglas Corp., 16 Cal. 4th 520, 539 (1997); Diaz v. Carcamo, 51 Cal. 4th 1148, 1156 (2011).

3. Burch held that B.B.'s holding does not "effectuate Proposition 51's purpose." 34 Cal. App. 4th at 359. Prop. 51 expressly addressed the "inequities" of "minimally culpable" defendants, sued for their "deep pockets," having to "pay all or a large share of the plaintiff's damages" instead of "other more culpable tortfeasors." Id.; Evangelatos v. Superior Ct. (Van Waters & Rogers, Inc.), 44 Cal. 3d 1188, 1198 (1988); Civ. Code Section 1431.1 (declaration of statutory purpose to "remedy the inequities" of holding "deep pocket" defendants fully liable despite "little or no basis for finding them at fault")). But "this was never the case with an intentional tortfeasor," who is "the most culpable of all." Id. at 359. Thus, Prop. 51's "purpose is simply not fulfilled by applying it" to judgments against intentional tortfeasors. Id.

The Supreme Court's Ruling?

The Supreme Court granted review of both B.B. and Burch, with briefing and argument in B.B., and Burch on grant-and-hold until B.B. is decided.

Although the court will most likely choose from between the B.B. and Burch rulings, it could also fashion some sort of middle position. For example, B.B.'s holding appears to have been animated by a perceived unfairness in that case, where a police officer was fully liable for the damages of a violent, drug-crazed man who instigated the incident that ultimately resulted in his own death. See B.B., 25 Cal. App. 5th at 127-28 (rejecting "policy considerations of punish

ment and deterrence" in favor of "prevent[ing] unfairness" in "Deputy Aviles's liability"). And given the 40% fault of the decedent Burley, saddling Aviles (20% fault) with 100% liability does seem unfair in the abstract.

Of course, Prop. 51 was designed to address a different type of unfairness (full liability for a "minimally culpable" negligent actor). And Deputy Aviles was very culpable -- the only responding officer (among at least five others) to resort to an intentional battery.

But if the Court deems it "inequitable" for this defendant to bear the 40% liability of a plaintiff who contributed to his own injuries, it could fashion a compromise rule that accounts for a plaintiff's comparative fault: an intentional tortfeasor's liability for all damages is "joint and several," allowing a reduction for the plaintiff's comparative fault (if any) but no reduction based on the fault of any co-tortfeasor. This is the existing rule of joint-and-several liability for "concurrent tortfeasors" in the comparative-fault system. Li v. Yellow Cab Co., 13 Cal. 3d 804, 829 (1975) (creating comparative-fault system wherein "the contributory negligence of the person injured in person or property shall not bar recovery, but the damages awarded shall be diminished in proportion to the amount of negligence attributable to the person recovering").] And such a new rule would simply modify California's judicially created "principles of comparative fault" - and thus comport with Prop. 51.

Absent any such compromise rule, the Court will soon decide whether the voters, in an initiative aimed at protecting minimally culpable "deep pocket" defendants, also changed longstanding California law to protect highly culpable intentional tortfeasors. 

Todd represents the Burch family.