When is ‘each defendant’ not ‘every defendant’? Under Prop 51

Proposition 51 -- aka the Fair Responsibility Act of 1986 -- makes "each defendant" jointly liable for all economic damages, but severally liable for noneconomic damages only in proportion to fault. Last week, in B.B. v. County of Los Angeles, 2020 DJDAR 8403 (Aug. 10, 2020), the California Supreme Court unanimously ruled that this does not apply to intentional tortfeasors. Resolving a split among intermediate appellate courts, the court ruled that "section 1431.2, subdivision (a), does not authorize a reduction in the liability of intentional tortfeasors for noneconomic damages based on the extent to which the negligence of other actors -- including the plaintiffs, any codefendants, injured parties, and nonparties -- contributed to the injuries in question."

The codification of Prop. 51 is familiar to many. "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. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgment shall be rendered against that defendant for that amount." Civ. Code Section 1431.2(a).

The defense argued that "each defendant" meant each and every defendant, regardless of the theory of recovery. Plaintiffs argued, and the court agreed, that the controlling phrase is "based upon principles of comparative fault," and that while that included negligence (and strict product liability), it did not include intentional tortfeasors.

Justice Ming Chin's typically thoughtful opinion traced the history of comparative fault principles, which were first developed to ameliorate the perceived unfairness of the contributory negligence doctrine, an "all-or-nothing rule" that barred any recovery if plaintiff's negligence contributed to the harm in any degree. Li v. Yellow Cab, 13 Cal. 3d (1975), abrogated the contributory negligence defense and replaced it with comparative negligence, so a plaintiff's recovery was not eliminated but merely reduced by the plaintiff's share of responsibility. Not long afterwards, in American Motorcycle Assn. v. Superior Court, 20 Cal. 3d 578 (1978), the court replaced the traditional rule barring indemnity among tortfeasors, another "all-or-nothing" rule, with the "equitable indemnity" doctrine, allowing partial indemnity among tortfeasors "on a comparative negligence basis." None of these, the B.B. court reasoned, involved intentional tortfeasors, so when Prop. 51 was enacted in 1986, "principles of comparative fault" did not include intentional torts.

Although these decisions abrogated "all-or-nothing" rules because they were rightly perceived as unfair, B.B. imposes an "all-or-nothing" rule on intentional tortfeasors. The decision will further incentivize plaintiffs to include and pursue intentional tort claims in multi-defendant cases, even when they are really only "add-ons" to a claim grounded in another theory (e.g., fraud claims in strict product liability failure to warn cases). The potential damages against any defendant facing such a claim now include all, not just some, of the noneconomic damages, even where plaintiff is partly or substantially responsible for the injury. Noneconomic damages for such matters as pain, suffering and loss of consortium are often a multiple of the economic award. Compounding the problem: As the decision recognizes, such intentional tort claims may well be precluded from insurance coverage as a "loss intentionally caused by the insured."

The court's decision expressly reserved at least two questions, and presents several more.

The first reserved question: "We express no opinion on whether negligent tortfeasors may, under section 1431.2, subdivision (a), obtain a reduction in their liability for noneconomic damages based on the extent to which an intentional tortfeasor contributed to the injured party's injuries." There may be a clash between decades of practice and B.B.'s new holding. Courts have for decades reduced the liability of negligent tortfeasors by the percentage of responsibility of everyone on the verdict form, including intentional tortfeasors. But B.B. now holds that intentional tortfeasors are outside "comparative fault," so logically there should be no "comparison" between the two different types of defendants. If this is the result, it seems unfair to the "merely" negligent defendants. Maybe the negligent tortfeasors can recover via a separate suit for contribution.

Just what society needs, more guaranteed collateral litigation.

Another implication: Why should intentional tortfeasors be apportioned a percentage of responsibility at all? Even though they have been for years, and it makes sense, and juries can figure it out.

The B.B. decision also expressly reserved "whether, for policy reasons, existing common law principles of comparative fault should be changed vis-à-vis intentional tortfeasors." One may have thought this case would be a proper vehicle for such changes, as were Li and American Motorcycle. Or Daly v. General Motors Corp., 20 Cal. 3d 725 (1978), which extended comparative fault to cover strict liability. After all, why should strict liability defendants but not intentional tortfeasors be considered part of comparative fault? Especially if we consider intentional tortfeasors exceptionally "faulty," and strict liability "no-fault?"

The hard facts of B.B. v. County of Los Angeles, while technically irrelevant to the narrow legal issue decided, perhaps made this a suboptimal vehicle for what could be perceived as "protecting" intentional tortfeasors. Police used excessive force and caused the death of a man they caught assaulting a woman on the street while in a drug-induced haze. The jury found the decedent 40% responsible, several deputies negligent and collectively 40% responsible, and Deputy Aviles liable for battery and 20% responsible. The trial court entered a judgment holding Aviles liable for 100% of both economic and noneconomic damages. The Court of Appeal reversed, but the Supreme Court reversed the Court of Appeal, effectively reinstating the judgment.

Justice Goodwin Liu, joined by Justice Mariano-Florentino Cuellar, issued a concurring opinion pointing out the unfortunate similarities between this incident and others in the news lately. Deputy Aviles had his knee and "as much [body] weight [as he] was able to apply" on decedent's neck. Oral argument took place a week after George Floyd was killed. Although none of that was relevant to the specific Prop. 51 issue presented, and the main opinion pointed out that neither the decedent's race nor the intentional tortfeasor's status as a law enforcement officer played any part in the decision, it is easy to respect the decision to take this opportunity to speak out. 

Don is chair of the amicus briefs committee of the Association of Defense Counsel of Northern California and Nevada, which co-authored an amicus brief in B.B.