B.B. v. County of Los Angeles ( 2020 )

IN THE SUPREME COURT OF
CALIFORNIA
B.B., a Minor, etc., et al.,
Plaintiffs and Appellants,
v.
COUNTY OF LOS ANGELES et al.,
Defendants and Respondents.
T.E., a Minor, etc., et al.,
Plaintiffs and Appellants,
v.
COUNTY OF LOS ANGELES et al.,
Defendants and Appellants.
D.B., a Minor, etc., et al.,
Plaintiffs and Respondents,
v.
COUNTY OF LOS ANGELES et al.,
Defendants and Appellants.
S250734
Second Appellate District, Division Three
B264946
Los Angeles County Superior Court
TC027341, TC027438 and BC505918
August 10, 2020
Justice Chin authored the opinion of the Court, in which Chief
Justice Cantil-Sakauye and Justices Corrigan, Liu, Cuéllar,
Kruger, and Groban concurred.
Justice Liu filed a concurring opinion, in which Justice Cuéllar
concurred.
B.B. v. COUNTY OF LOS ANGELES
S250734
Opinion of the Court by Chin, J.
In this case, we consider the application of Civil Code
section 1431.21 to tortfeasors held liable for injuries based on the
commission of an intentional tort. Here, the intentional tort was
a battery that, combined with other factors, tragically led to the
death of Darren Burley. While attempting to subdue Burley,
deputies from the Los Angeles County Sheriff’s Department,
after getting Burley facedown on pavement, used their knees to
pin him to the ground with as much body weight as possible.
One of the deputies — defendant David Aviles — pressed one
knee into the center of Burley’s back and another onto the back
of Burley’s head, near the neck. Aviles disengaged after Burley’s
hands were cuffed behind his back and his ankles tightly
cinched together with a nylon cord. But when paramedics
arrived, they found Burley, still cuffed and facedown on the
pavement, with a different deputy pressing a knee into the
small of his back and with no pulse. They restored Burley’s
1
All further unlabeled statutory references are to the Civil
Code.
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Opinion of the Court by Chin, J.
pulse through resuscitation efforts, but he never regained
consciousness and died 10 days later.2
A jury found that Aviles had committed battery by using
unreasonable force against Burley. The court later entered a
judgment against Aviles for the entire amount of the
noneconomic damages the jury awarded — $8 million — even
though the jury also found that only 20 percent of the
responsibility for Burley’s death was “attributable to” Aviles’s
actions.
On review, the Court of Appeal held that the judgment
against Aviles had to be reduced in accordance with the jury’s
allocation of responsibility to him. (B.B. v. County of Los Angeles
(2019) 25 Cal. App. 5th 115.) It relied on section 1431.2, which
provides in relevant part: “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-
2
Burley was African American. We are cognizant that the
facts of this case bear similarities to well-publicized incidents in
which African Americans have died during encounters with
police. These incidents raise deeply troubling and difficult
issues involving race and the use of police force. But the
question plaintiffs raise in this case — whether and how section
1431.2 applies to intentional tortfeasors — does not turn upon
either the decedent’s race or the fact that a law enforcement
officer, rather than a civilian, committed the intentional tort.
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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.” (§ 1431.2, subd. (a).) This statute, the Court of
Appeal held, requires reduction of an intentional tortfeasor’s
liability for noneconomic damages to the extent that the
negligence of other actors — including the plaintiffs, any
codefendants, injured parties, and nonparties — contributed to
injury. In reaching this conclusion, the court expressly
disagreed with the holding in Thomas v. Duggins Construction
Co., Inc. (2006) 139 Cal. App. 4th 1105, 1108 (Thomas), that “an
intentional tortfeasor is [not] entitled to a reduction or
apportionment of noneconomic damages under” section 1431.2,
subdivision (a).
We granted review to address this split of authority and to
consider section 1431.2’s application to intentional tortfeasors.
For reasons that follow, we agree with Thomas and reverse the
judgment of the Court of Appeal in this case.
I. FACTUAL AND PROCEDURAL HISTORY
On the evening of August 3, 2012, the Los Angeles County
Sheriff’s Department received a report of an ongoing assault in
Compton, California. Upon arriving at the scene, Deputies
David Aviles and Steve Fernandez observed Darren Burley
approach them in slow, stiff, exaggerated robotic movements
with his fists clenched at his sides and a blank stare on his face.
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He was foaming at the mouth and making grunting and
growling noises. Based on these observations, the deputies
suspected Burley might be under the influence of PCP. The
deputies ordered Burley to get on his knees facing away from
them. Burley did not respond.
A distraught woman suddenly appeared in the street,
pointed at Burley and yelled, “He tried to kill me!” She began
to flee, and Burley ran after her. Fernandez, in an effort to stop
Burley’s pursuit and knock him down, “hockey checked” Burley,
ramming a shoulder into Burley’s side. Burley lost balance and
fell, hitting his head on a parked truck and then landing
facedown on the pavement. Aviles attempted to handcuff
Burley, but Burley resisted. A struggle ensued, during which
Burley punched Aviles — who was wearing a bulletproof vest —
in the chest and Aviles punched Burley in the face
approximately five times. Fernandez came to Aviles’s aid, and
the two deputies wrestled Burley to the pavement, facedown. As
Burley continued to struggle, Fernandez tried “to get [Burley’s
lower body] pinned to the ground” by kneeling “with all [his]
weight on [Burley’s] hamstring area.” Meanwhile, Aviles tried
“to pin” Burley’s upper body to the ground by mounting Burley
and pressing one knee into the center of his back, at the top of
his diaphragm, and another knee down on the back of his head,
near the back of his neck. Aviles, who weighed 200 pounds, used
“as much [body] weight [as he] was able to apply.” Burley
struggled, trying to raise his chest from the ground. According
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to a witness, one of the deputies — who, from the witness’s
description, appeared to be Aviles — held Burley in “some type
of head-lock” during most of the struggle and was “choking” him.
More deputies arrived on scene and found Burley
facedown with Aviles and Fernandez trying to restrain him.
Deputy Paul Beserra attempted to restrain Burley’s left arm,
while Deputy Timothy Lee assisted on the right and Deputy
Ernest Celaya held Burley’s feet. Celaya “Tasered” Burley
multiple times in the calf area, and Lee “Tasered” him once in
the rib cage area, all without apparent effect. The deputies
eventually maneuvered Burley’s hands behind his back and
cuffed him. Even though restrained, Burley was still “flinging”
and “twisting” his upper body, so Aviles remained on Burley’s
back, using his “upper body weight” to push down on Burley and
“keep him in place.” Other deputies applied a “hobble restraint”
to Burley’s legs by wrapping a nylon cord around his ankles and
“cinch[ing] it tight.” A witness testified that one of the deputies
hit Burley in the head “at least seven to ten times” with a
flashlight, and that Burley appeared to be gasping for air.
After Burley was handcuffed and hobbled, all of the
deputies disengaged except Beserra, who “took over” from Aviles
and “relieve[d]” him of “attempting to control [Burley’s] upper
body.” From that point forward, Beserra was the only deputy to
“touch[]” Burley. According to Beserra, he continued to keep
Burley “restrained” facedown on the ground because Burley,
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though “handcuffed and hobbled,” was “still violently fighting
against the restraints” and thus posed “a threat to himself and
to” the officers. During this time, Beserra did not use “any more
force” or place any of his weight “on top of” Burley. “After about
30 seconds,” Beserra “felt that [Burley] was no longer fighting
against the restraints,” so he “placed [Burley] on his left side in
order to put him in a recovery position” and “to facilitate . . .
medical monitoring.” About 90 seconds later — or
“approximately two minutes” after Burley was handcuffed and
hobbled — Beserra heard Burley’s breathing become labored.
Beserra then “motioned” for the other deputies “to bring . . .
over” paramedics, who were already on scene and “about 10 to
20 feet away . . . rendering aid to” the woman Burley had earlier
chased. The paramedics responded “immediately,” but as they
were “walking over to render aid,” Beserra felt Burley’s body “go
limp” and “motionless.” This occurred “approximately . . . a
minute after [Beserra] placed [Burley] on his side and after
[Beserra] heard [Burley’s] breathing become shallow.”
Baserra’s account was sharply contradicted at trial by
Jason Henderson, Sr., a fire captain and paramedic with the
Compton Fire Department. Henderson testified that when he
and other paramedics arrived at the scene, they “got out of
[their] rigs and then [immediately] started moving towards
where [Burley] was.” Henderson did not recall any of the
deputies calling them over or indicating that Burley needed
help, or any medical personnel treating the woman Burley had
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chased; she was already in one of the deputy’s vehicle when they
arrived. When they reached Burley, he was not “on his side,”
but was “face down” on the pavement with his hands cuffed
behind his back and a deputy “leaning on” him and applying
“weight” with a “knee in the small of [his] back.” Burley
“appeared to be unresponsive,” so Henderson “asked the deputy
to get off [Burley] and to unhook him” so Burley could be
assessed. After Burley was “uncuffed,” the paramedics “rolled
him over” and “checked his pulse,” but could find none. They
restored his pulse after five minutes of resuscitation efforts, but
he never regained consciousness and died 10 days later.
According to the autopsy report, the cause of death was brain
death and swelling from lack of oxygen following a cardiac arrest
“due to status post-restraint maneuvers or behavior associated
with cocaine, [PCP] and cannabinoids intake.”
Burley’s children and estranged wife, on behalf of
themselves and Burley, sued the County of Los Angeles
(County) and the deputies, asserting, as here relevant, claims
for battery, negligence, and wrongful death (based on the
alleged acts of battery and negligence). Regarding Aviles, the
jury found in a special verdict that he had committed battery by
using unreasonable force against Burley, and that 20 percent of
the responsibility for Burley’s death was “attributable to”
Aviles’s use of unreasonable force. The jury also found that
Burley himself had been negligent and that he bore 40 percent
of the responsibility for his own death. The jury attributed the
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remaining 40 percent of the responsibility to the other deputies.
Despite this allocation, the trial court entered a judgment
against Aviles for 100 percent of the noneconomic damages —
set by the jury at $8 million — because his liability was based
on commission of an intentional tort: battery.
The Court of Appeal reversed the judgment, holding that
section 1431.2 limits the liability for noneconomic damage of all
defendants — including intentional tortfeasors — to their
proportionate share of fault. (B.B. v. County of Los Angeles,
supra, 25 Cal. App. 5th 115, 123–128.) The court expressly
disagreed with the contrary holding in Thomas.
II. DISCUSSION
The issue here is the extent of Aviles’s liability for “ ‘non-
economic damages,’ ” which, for purposes of applying section
1431.2, are defined as “subjective, non-monetary losses
including, but not limited to, pain, suffering, inconvenience,
mental suffering, emotional distress, loss of society and
companionship, loss of consortium, injury to reputation and
humiliation.” (§ 1431.2, subd. (b)(2).) As set forth above, section
1431.2, subdivision (a), provides: “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
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proportion to that defendant's percentage of fault, and a
separate judgment shall be rendered against that defendant for
that amount.” The question before us is how, if at all, this
section applies to intentional tortfeasors like Aviles.
A. The Statute’s Meaning
Section 1431.2 became part of the Civil Code in June 1986,
through the electorate’s adoption of Proposition 51, an initiative
measure entitled the Fair Responsibility Act of 1986. To
interpret a statute enacted by initiative, we apply the same
principles we apply to interpret statutes enacted by the
Legislature. “We first consider the initiative’s language, giving
the words their ordinary meaning and construing [them] in the
context of the statute and initiative as a whole. If the language
is not ambiguous, [then] we presume the voters intended the
meaning apparent from that language, and we may not add to
the statute or rewrite it to conform to some assumed intent not
apparent from that language. If the language is ambiguous,
[then we] may consider ballot summaries and arguments in
determining the voters’ intent and understanding of [the] ballot
measure.” (People v. Superior Court (Pearson) (2010) 48 Cal. 4th
564, 571.)
Plaintiffs argue that the key language for determining the
statute’s applicability to intentional tortfeasors is the phrase,
“based upon principles of comparative fault.” (§ 1431.2, subd.
(a).) This phrase, they assert, establishes that the statute, “by
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its own terms, . . . requires several liability for non-economic
damages only . . . in an action in which comparative fault
principles apply.” “[W]hen section 1431.2 was enacted,”
plaintiffs further assert, comparative fault principles
“preclud[ed] intentional tortfeasors from reducing their liability
based on [another’s] negligence,” and “nothing in section 1431.2
purports to change [that] long established” rule. Thus, because
of the phrase “based upon principles of comparative fault”
(§ 1431.2, subd. (a)), the statute should be read “as excluding
intentional tortfeasors from profiting from the statute’s
limitation on damages liability amongst negligent parties.”
Defendants, by contrast, assert that the key language in
the statute is the phrase, “the liability of each defendant.”
(§ 1431.2, subd. (a), italics added.) The “plain,” “clear and
unambiguous” meaning of this phrase, they argue, is that the
statute “guarantees apportionment to every defendant in a
wrongful death case, without exception” and “regardless of the
nature of the defendant’s wrongdoing.” In defendants’ view,
under canons of statutory construction, the phrase on which
plaintiffs rely — “based upon principles of comparative
fault” (§ 1431.2, subd. (a)) — “modifies the subject of the
sentence — ‘the liability of each defendant’ — not [the] term
‘action’ in the preceding clause” of the sentence. As such, it
functions, not “as a limitation” on the statute’s applicability, but
“as an instruction” on “how a defendant’s liability should be
calculated under the statute — i.e., ‘based [up]on principles of
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comparative fault.’ ” In other words, defendants alternatively
assert, it “instructs courts how the percentage of fault should be
calculated — i.e., according to the proportion of fault determined
by the fact-finder.” In short, defendants assert, under the “plain
and commonsense meaning” of the statute, intentional
tortfeasors like Aviles are entitled to reduce their liability based
on the negligent acts of others.
We agree with plaintiffs that there are several problems
with defendants’ textual analysis. First, defendants’ assertion
that “[t]he statutory text mandates its application to ‘each
defendant’ without exception” is inconsistent with our
precedent. In Diaz v. Carcamo (2011) 51 Cal. 4th 1148, 1156
(Diaz), we considered the statute’s application to a defendant
who was liable both vicariously for the actions of its employee
and in its own right for its negligence in hiring and retaining the
employee. We first explained that, under case law, certain
“type[s] of defendant[s] [are] excluded from allocations of fault
under Proposition 51.” (Id. at p. 1158.) “One [such] type,” we
stated, is “an employer who faces only vicarious liability under
the respondeat superior doctrine for torts committed by its
employees in the scope of employment. [Citation.] In a case
involving such an employer-defendant, the ‘ “ ‘universe’ of
tortfeasors” ’ among whom the jury must apportion fault
[citation] does not include the employer. Instead, the employer’s
share of liability for the plaintiff’s damages corresponds to the
share of fault that the jury allocates to the employee.” (Ibid.)
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This rule, we then held in Diaz, applies even where the
employer’s “own” separate act of “negligence” — such as
“negligent entrustment” of a vehicle — contributes to the
plaintiff’s injury, if “the employer admits vicarious liability for”
the employee’s “negligent driving.” (Id. at p. 1152.) Diaz
establishes that, contrary to defendants’ assertions, the phrase
“each defendant” in section 1431.2, subdivision (a), does not
mean “all defendants, without exception,” and the statute’s
application may, in fact, depend on the basis of the defendant’s
liability.
In arguing otherwise, defendants ignore Diaz and rely
principally on DaFonte v. Up-Right, Inc. (1992) 2 Cal. 4th 593,
600 (DaFonte), which predated Diaz. The plaintiff in DaFonte
was injured by a machine he was using while performing his job,
and we held that section 1431.2 required reduction of the
product manufacturer’s liability by the proportion of fault
attributable to the negligence of the plaintiff’s employer, even
though the employer could not be sued for negligence and its
liability to the plaintiff was limited to workers compensation
benefits. (DaFonte, at p. 596.) As relevant to defendants’
argument, in reaching this conclusion, we stated: “Section
1431.2 declares plainly and clearly that in tort suits for personal
harm or property damage, no ‘defendant’ shall have ‘joint’
liability for ‘non-economic’ damages, and ‘[e]ach defendant’ shall
be liable ‘only’ for those ‘non-economic’ damages directly
attributable to his or her own ‘percentage of fault.’ ” (DaFonte,
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at p. 601.) It “expressly affords relief to every tortfeasor who is
a liable ‘defendant,’ and who formerly would have had full joint
liability.” (Ibid., italics omitted.) It “contains no ambiguity
[that] would permit resort to . . . extrinsic constructional aids,”
such as “ballot materials.” (Id. at p. 602.) It “plainly attacks the
issue of joint liability for noneconomic tort damages root and
branch. In every case, it limits the joint liability of every
‘defendant’ to economic damages, and it shields every
‘defendant’ from any share of noneconomic damages beyond that
attributable to his or her own comparative fault.” (Ibid.) It
“plainly limits a defendant’s share of noneconomic damages to
his or her own proportionate share of comparative fault.” (Id. at
p. 604.)
Notwithstanding these statements, for several reasons,
DaFonte does not require reduction under the statute of
defendants’ liability in the case now before us. First, DaFonte
did not involve an intentional tortfeasor, did not examine the
purpose and effect of the phrase “based upon principles of
comparative fault” in section 1431.2, subdivision (a), and did not
even quote that phrase. Indeed, there was no need in DaFonte
to focus on or examine this phrase, because that case involved
the statute’s application to a quintessential comparative fault
tortfeasor: a negligent actor. As we have repeatedly observed,
“ ‘cases are not authority for propositions not considered.’ ”
(American Federation of Labor v. Unemployment Ins. Appeals
Bd. (1996) 13 Cal. 4th 1017, 1039.)
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Second, close examination of our DaFonte opinion
suggests that defendants overstate the breadth of its scope and
effect. We rested our analysis there in part on the fact that,
“[l]ong before” the statute’s enactment, we had held in American
Motorcycle Assn. v. Superior Court (1978) 20 Cal. 3d 578
(American Motorcycle), that “[n]either the allocation of fault, nor
the amount of a joint and several damage award, ‘var[ied] by
virtue of the particular defendants who happen[ed] to be before
the court.’ ” (DaFonte, supra, 2 Cal.4th at pp. 602–603, quoting
American Motorcycle, at p. 589, fn. 2.) The holding in American
Motorcycle we were referencing was that “ ‘the contributory
negligence of the plaintiff must be proportioned to the combined
negligence of plaintiff and of all the tort-feasors, whether or not
joined as parties . . . whose negligence proximately caused or
contributed to plaintiff’s injury.’ ” (American Motorcycle, at p.
589, fn. 2 italics added.) “In this context,” we stated in DaFonte,
“the only reasonable construction of section 1431.2 is that a
‘defendant[’s]’ liability for noneconomic damages cannot exceed
his or her proportionate share of fault as compared with all fault
responsible for the plaintiff’s injuries, not merely that of
‘defendant[s]’ present in the lawsuit.” (DaFonte, at p. 603,
italics omitted.) Given this analysis, DaFonte does not establish
the statute’s applicability in the very different context now
before us, involving an intentional, rather than negligent,
tortfeasor. On the contrary, DaFonte’s analysis suggests that
the law’s treatment of intentional tortfeasors “before the
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enactment of Proposition 51” — i.e., the legal “context” at the
time of the measure’s adoption — is relevant in determining
section 1431.2’s meaning in the context at issue. (DaFonte, at
pp. 602–603.)
Finally, in our subsequent Diaz decision, we effectively
rejected defendants’ expansive reading of DaFonte. The plaintiff
in Diaz argued that section 1431.2, as construed in DaFonte,
required “inclu[sion]” of a negligent employer “in the
‘ “ ‘universe’ of tortfeasors” ’ to whom the jury will allocate fault,”
even if the employer is also vicariously liable for the act of its
employee. (Diaz, supra, 51 Cal.4th at p. 1158.) We disagreed,
holding, as noted above, that section 1431.2 does not require, or
even permit, a share of liability to be allocated to a negligent
employer for its own negligent act if the employer admits
vicarious liability for the negligent act of its employee. (Diaz, at
pp. 1159–1160.) Notably, we quoted DaFonte in explaining that
the “ ‘ “ ‘universe’ of tortfeasors” ’ among whom the jury must
apportion fault [citation] does not include the employer.” (Diaz,
at p. 1157, italics added.) Thus, Diaz makes clear that
defendants overstate DaFonte’s scope and effect.
The second problem with defendants’ plain language
analysis is its treatment of the phrase “based upon principles of
comparative fault” in section 1431.2, subdivision (a). As noted
above, defendants insist that, under canons of statutory
construction, the phrase “modifies” the phrase that follows it:
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“the liability of each defendant for non-economic damages.”
(§ 1431.2, subd. (a).) However, plaintiffs argue that under the
same canons of statutory interpretation, it is “at least as
reasonable” to conclude that the phrase instead modifies “what
precedes it, ‘any action for personal injury, property damage, or
wrongful death.’ ” In support of their argument, plaintiffs note
that “[t]his Court . . . has used [the latter] construction” in
several opinions. (See Diaz, supra, 51 Cal.4th at p. 1156
[discussing effect of § 1431.2 “[i]n cases ‘based upon principles
of comparative fault’”]; Buttram v. Owens-Corning Fiberglas
Corp. (1997) 16 Cal. 4th 520, 539 [finding § 1431.2 applicable
because the plaintiff’s “cause of action . . . [was] based upon
‘principles of comparative fault’ ”]; Rutherford v. Owens-Illinois,
Inc. (1997) 16 Cal. 4th 953, 959, fn. 1 [§ 1431.2 “provides” for
proportionate liability as to noneconomic damages “in a tort
action governed by principles of comparative fault”); Richards v.
Owens-Illinois, Inc. (1997) 14 Cal. 4th 985, 988 [same]; DaFonte,
supra, 2 Cal.4th at p. 600 [“section 1431.2 declares that in
actions for wrongful death, personal injury, or property damage
based on comparative fault, ‘the liability of each defendant for
non-economic damages shall be several only and shall not be
joint’ ”].) Under this construction, plaintiffs further argue, the
statute does not apply to intentional tortfeasors because
intentional tort actions “are not based on principles of
comparative fault.”
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Ultimately, we need not decide whether defendants’
parsing of the statutory language is correct because their view
of the statute’s meaning is problematic even if, as they assert,
the phrase “based upon principles of comparative fault” (§
1431.2, subd. (a)) modifies what follows. As noted above,
according to defendants, that phrase “supplies only the manner
for calculating percentages”; its sole function is to “instruct[]
courts how the percentage of fault should be calculated — i.e.,
according to the proportion of fault determined by the fact-
finder.” However, as plaintiffs point out, under that reading,
the phrase would serve no purpose given that (1) the
immediately following clause specifies that “the liability of each
defendant for non-economic damages shall be several only and
shall not be joint,” and (2) the next sentence sets forth detailed
instructions for calculating each defendant’s share, stating that
“[e]ach 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 . . . .”
(§ 1431.2, subd. (a).) Because defendants’ construction renders
the phrase “wholly without . . . effect,” adopting it would be
inconsistent with the well-established principle that courts
should, if possible, give meaning to every word of a statute and
avoid constructions that make any word surplusage. (People v.
Franco (2018) 6 Cal. 5th 433, 437.)
On the other hand, as plaintiffs further argue, there is a
construction of the statute, even under defendants’ parsing of its
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language, that is both reasonable and does not render the
phrase “based upon principles of comparative fault” superfluous.
(See Rumetsch v. City of Oakland (1933) 135 Cal. App. 267, 269
[courts should not construe “[w]ords in a statute . . . as
surplusage if a reasonable construction can be given them which
will give them some force and meaning”].) Under plaintiffs’
construction, the phrase functions to “incorporate[]” otherwise
“existing ‘principles of comparative fault’ ” into the statute, such
that a defendant’s liability is “several and not joint” — and
subject to apportionment based on percentage of
responsibility — only in cases where the extent of that
defendant’s liability is otherwise determined according to
“principles of comparative fault.” (§ 1431.2, subd. (a).) In the
end, then, we agree with plaintiffs that for purposes of deciding
this case, “it is irrelevant whether the phrase ‘based upon
principles of comparative fault’ modifies the word ‘actions’ or
‘liability.’ Whatever the referent,” the key question is the
extent, if any, to which existing principles of comparative fault
otherwise apply under the law to intentional tortfeasors.
To that question, we now turn.
B. Comparative Fault Principles and Intentional
Tortfeasors
Not surprisingly, the parties disagree as to whether, under
existing principles of comparative fault, intentional tortfeasors
are entitled to a reduction of liability based on the negligent acts
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of others. Plaintiffs assert that California law has never
sanctioned application of “principles of comparative fault” in
this manner. Defendants, on the other hand, assert that “[n]o
rule in California excludes intentional tortfeasors from a
comparative fault analysis,” and that no court “had held” before
Proposition 51’s adoption “that intentional tortfeasors were
excluded from the comparative fault doctrine.” Therefore,
defendants argue, “the language referencing comparative fault
principles in section 1431.2, subdivision (a) cannot be read to
exclude intentional tortfeasors from its scope.” As shown below,
plaintiffs have the better of the argument.
Since 1872, California law has provided that “[e]veryone
is responsible, not only for the result of his or her willful acts,
but also for an injury occasioned to another by his or her want
of ordinary care or skill in the management of his or her
property or person . . . .” (§ 1714, subd. (a), as enacted 1872.)
Until 1975, this broad principle was significantly limited by the
contributory negligence doctrine, which barred all recovery if
any negligent conduct of the injured plaintiff “contributed as a
legal cause in any degree to the harm suffered.” (Li v. Yellow
Cab Co. (1975) 13 Cal. 3d 804, 808 (Li).) This “ ‘all-or-nothing
rule’ ” came to be viewed as unjustifiably harsh, because it
“ ‘exonerate[d]’ ” even “ ‘very negligen[t]’ ” defendants “ ‘for even
the slight fault of [their] victim.’ ” (Id. at p. 810, fn. 3.)
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B.B. v. COUNTY OF LOS ANGELES
Opinion of the Court by Chin, J.
To address this harshness, courts developed several
limitations on the contributory negligence doctrine. One
relevant limitation was that the doctrine applied only where the
defendant was liable on the basis of negligence, and was
inapplicable where the defendant was liable on the basis of
“willful misconduct” (Li, supra, 13 Cal.3d at p. 825) or “an
intentional wrong” (Security-First Nat. Bank of Los Angeles v.
Earp (1942) 19 Cal. 2d 774, 777). And because battery is an
“intentional tort[],” courts held that the contributory negligence
defense was “unavailable” to defendants in actions for battery,
(Bartosh v. Banning (1967) 251 Cal. App. 2d 378, 385.) “As
between the guilty aggressor and the person attacked the former
[could] not shield himself behind the charge that his victim may
have been guilty of contributory negligence . . . .” (Ibid.)
In 1975, in Li, supra, 13 Cal.3d at page 829, we abolished
the contributory negligence defense and replaced it with “a
system of ‘pure’ comparative negligence” that “assess[es]
liability in proportion to negligence.” Under that system, we
explained, “liability for damage will be borne by those whose
negligence caused it in direct proportion to their respective
fault” (id. at p. 813), meaning “the amount of [their] negligence”
(id. at p. 829). In setting forth this rule, we also explained that
the terms “fault” and “negligence” are interchangeable, the
latter “import[ing] nothing more than ‘negligence’ in the
20
B.B. v. COUNTY OF LOS ANGELES
Opinion of the Court by Chin, J.
accepted legal sense.”3 (Li, at p. 813, fn. 6.) Thus, the new rule
of proportionate liability, we said, applies “in all actions for
negligence.” (Id. at p. 829.) We expressly declined to address
the rule’s applicability in actions based on willful or intentional
misconduct. (Id. at p. 826.)
Three years later, in American Motorcycle, we considered
Li’s impact on a tort principle that would later become the target
of Proposition 51: the rule of “joint and several liability” for
concurrent tortfeasors “who have negligently inflicted the
harm.” (American Motorcycle, supra, 20 Cal.3d at p. 583.)
Under this rule, “each tortfeasor whose negligence is a
proximate cause of an indivisible injury remains individually
liable for all compensable damages attributable to that injury”
(id. at p. 582), “and the injured person may sue one or all of the
tortfeasors to obtain a [full] recovery for his [or her] injuries” (id.
at p. 587). The defendant in American Motorcycle argued that
Li compelled replacement of the joint and several liability rule
with “a new rule of ‘proportionate liability,’ under which each
concurrent tortfeasor who has proximately caused an indivisible
3
Long before Li, California precedent held in the tort
context that the terms “fault” and “negligence” were
“synonymous.” (Cahill Bros., Inc. v. Clementina Co. (1962) 208
Cal. App. 2d 367, 380; Marston v. Pickwick Stages (1926) 78
Cal. App. 526, 534; see Gackstetter v. Market St. Ry. Co. (1933)
130 Cal. App. 316, 323 [“The word ‘fault’ in the instruction was
the equivalent of negligence”].)
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B.B. v. COUNTY OF LOS ANGELES
Opinion of the Court by Chin, J.
harm may be held liable only for a portion of plaintiff’s recovery,
determined on a comparative fault basis.” (American
Motorcycle, at pp. 585–586, italics omitted.) We disagreed,
holding that “after Li, a concurrent tortfeasor whose negligence
is a proximate cause of an indivisible injury remains liable for
the total amount of damages, diminished only ‘in proportion to
the amount of negligence attributable to the person
recovering.’ ” (Id. at p. 590.)
We further held, however, that “the principles underlying
Li” warranted “modification” of a separate common law
principle that governed the allocation of loss, not vis-à-vis the
plaintiff, but among multiple tortfeasors: the “equitable
indemnity doctrine.” (American Motorcycle, supra, 20 Cal.3d at
p. 591.) Under “[e]arly California decisions,” we explained, a
tortfeasor held liable for all of the plaintiff’s damages had no
“right to contribution” from other tortfeasors who had
contributed to the plaintiff’s injury. (Id. at p. 592.) In later
years, out of concern about the “injustice of requiring one
tortfeasor to bear an entire loss while another more culpable
tortfeasor escaped with impunity,” courts “develop[ed] an
equitable exception to the no contribution rule” (ibid.), which
allowed “a ‘passively’ or ‘secondarily’ negligent tortfeasor to shift
his [or her] liability completely to a more directly culpable party”
(id. at p. 583). But the “all-or-nothing aspect of” this supposedly
equitable exception “ha[d] precluded courts from reaching a just
22
B.B. v. COUNTY OF LOS ANGELES
Opinion of the Court by Chin, J.
solution in the great majority of cases in which equity and
fairness call[ed] for an apportionment of loss between the
wrongdoers in proportion to their relative culpability, rather
than the imposition of the entire loss upon one or the other
tortfeasor.” (Id. at p. 595.) “ ‘[T]here is obvious lack of sense and
justice,’ ” we said, “ ‘in a rule [that] permits the entire burden of
a loss, for which two defendants were . . . unintentionally
responsible, to be shouldered onto one alone, . . . while the latter
goes scot free.’ ” (Id. at pp. 607–608, quoting Prosser, Law of
Torts (4th ed. 1971) § 50, p. 307, italics added.) Therefore, we
concluded, in order to “attain” the system that Li envisioned —
“ ‘under which liability for damage will be borne by those whose
negligence caused it in direct proportion to their respective
fault’ ” (id. at p. 598) — “the long-recognized common law
equitable indemnity doctrine should be modified to permit, in
appropriate cases, a right of partial indemnity, under which
liability among multiple tortfeasors may be apportioned on a
comparative negligence basis” (id. at p. 583).
In considering our authority to modify the rule of equitable
indemnity, we discussed in American Motorcycle a separate but
related doctrine: “contribution among tortfeasors.” (American
Motorcycle, supra, 20 Cal. 3d at p. 596.) “In traditional terms,”
we explained, the difference between the two doctrines is that
indemnity involves the complete “shift[ing]” of loss “from one
tortfeasor to another,” whereas contribution involves only the
pro rata “shar[ing]” — or “apportionment” — of loss. (Id. at p.
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B.B. v. COUNTY OF LOS ANGELES
Opinion of the Court by Chin, J.
591.) Until 1957, California followed the common law rule
“denying a tortfeasor any right to contribution whatsoever.” (Id.
at p. 592.) In that year, the Legislature established a statutory
“right of contribution among” multiple “defendants in a tort
action” against whom “a money judgment has been rendered
jointly.” (Code Civ. Proc., § 875, subd. (a), added by Stats. 1957,
ch. 1700, § 1, p. 3076.) According to the statute’s legislative
history, the “ ‘purpose’ ” of this change was “ ‘to lessen the
harshness of’ ” the rule prohibiting contribution, which
precluded a tortfeasor “ ‘forced to pay the [plaintiff’s] whole
claim for . . . damages’ ” from “ ‘recover[ing] . . . [a] pro rata
share’ ” from other tortfeasors who had contributed to the
injuries. (American Motorcycle, at p. 601, fn. 7, italics omitted.)
Among other things, the legislative history explained, the
common law rule “ ‘ignore[d] . . . the fact that most tort liability
results from inadvertently caused damage and leads to the
punishment of one wrongdoer by permitting another wrongdoer
to profit at his expense.’ ” (Ibid., italics added.) Consistent with
this explanation, the Legislature expressly denied the “right of
contribution” to tortfeasors who have “intentionally injured the
injured person.” (Code Civ. Proc., § 875, subd. (d).) As several
appellate courts later observed, this “unequivocal” exclusion of
intentional tortfeasors followed “the rule . . . [that] ha[d] been
recognized uniformly in all jurisdictions.” (Bartneck v. Dunkin
(1969) 1 Cal. App. 3d 58, 61; see Martinez v. De Los Rios (1960)
187 Cal. App. 2d 28, 34.)
24
B.B. v. COUNTY OF LOS ANGELES
Opinion of the Court by Chin, J.
About a month after American Motorcycle, in Daly v.
General Motors Corp. (1978) 20 Cal. 3d 725, 730 (Daly), we
extended Li’s “comparative negligence” principles to “actions
founded on strict products liability.” In reaching this conclusion,
we rejected the argument that because strict liability “is not
founded on negligence or fault, [it] is inhospitable to
comparative principles.” (Daly, at p. 734.) We relied in part on
the Uniform Comparative Fault Act, which made comparative
liability principles applicable in actions “ ‘based on fault’ ” and
defined the term “ ‘ “Fault” [to] include[] acts or omissions that
are in any measure negligent or reckless toward the person or
property of the actor or others, or that subject a person to strict
tort liability.’ ” (Id. at p. 741, quoting § 1 of the act, italics
omitted.) Among the “notable” features of these provisions, we
explained, was their use of a term — “ ‘fault[]’ ” — that was
expressly defined to encompass “negligence and strict liability.”
(Id. at p. 742.) To reflect this usage and our expansion of Li to
both negligence actions and “actions founded on strict liability,”
we adopted “the term ‘comparative fault’ ” to describe the
doctrine. (Daly, at p. 742.)
Two months after Daly, in Safeway Stores, Inc. v. Nest-
Kart (1978) 21 Cal. 3d 322, 325 (Safeway), we extended American
Motorcycle’s comparative indemnity doctrine “for apportioning
liability among multiple negligent tortfeasors” to actions where
the liability of some tortfeasors “rests” on “strict product
liability.” We reasoned in part that the social policy underlying
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B.B. v. COUNTY OF LOS ANGELES
Opinion of the Court by Chin, J.
strict liability — “assign[ing] liability to a party who possesses
the ability to distribute losses over an appropriate segment of
society” — “ha[d] never been viewed as so absolute as to require,
or indeed as to permit, negligent tortfeasors who have also
contributed to the injury to escape all liability whatsoever.
Instead, from the initial adoption of strict product liability in
[California], the propriety of awarding contribution between
strictly liable and negligent defendants ha[d] been uniformly
recognized.” (Safeway, at p. 330.) Applying American
Motorcycle’s comparative indemnity doctrine in this context
would simply “achieve a more precise apportionment of
liability . . . by allocating damages on a comparative fault or a
comparative responsibility basis, rather than by fixing an
inflexible pro rata apportionment pursuant to the contribution
statutes.” (Id. at p. 331.) We also reasoned that a contrary
conclusion “would lead to bizarre, and indeed irrational,
consequences.” (Id. at p. 332.) If “only” the “negligent
defendant” may invoke the comparative indemnity doctrine,
then “a manufacturer who was actually negligent in producing
a product would frequently be placed in a better position than a
manufacturer who was free from negligence but who happened
to produce a defective product, for the negligent manufacturer
would be permitted to shift the bulk of liability to more negligent
cotortfeasors, while the strictly liable defendant would be denied
the benefit of such apportionment.” (Ibid.) “[N]o policy
considerations . . . demand or justify such a result . . . .” (Ibid.)
26
B.B. v. COUNTY OF LOS ANGELES
Opinion of the Court by Chin, J.
In the years between our 1975 decision in Li and
Proposition 51’s adoption in 1986, several published court of
appeal decisions addressed the comparative fault doctrine’s
applicability to willful conduct. In 1976, the Third District
Court of Appeal held that Li’s “comparative negligence
doctrine . . . does not apply to willful misconduct.” (Kindt v.
Kauffman (1976) 57 Cal. App. 3d 845, 855.) But courts in the
First, Second, and Fifth Appellate Districts, and one federal
appellate court, later held otherwise, extending comparative
fault principles to tortfeasors liable for willful and wanton
conduct. (Blake v. Moore (1984) 162 Cal. App. 3d 700, 707; Allen
v. Sundean (1982) 137 Cal. App. 3d 216, 226 (Allen); Zavala v.
Regents of University of California (1981) 125 Cal. App. 3d 646,
650; Southern Pac. Transportation Co. v. State of California
(1981) 115 Cal. App. 3d 116, 118; Sorensen v. Allred (1980) 112
Cal. App. 3d 717, 726; Plyler v. Wheaton Van Lines (9th Cir. 1981)
640 F.2d 1091, 1093.) In the earliest of these decisions —
Sorensen — which the later decisions largely followed, the court
reasoned that willful and wanton conduct is simply an
aggravated “type[] of negligence,” which is “suitable for
comparison with any other kind of negligence.” (Sorenson, at p.
725.) As relevant to the issue before us, the Sorenson court also
relied on the following: (1) our statement in Li, which had been
endorsed by “[t]he most comprehensive historical and analytical
treatise on the subject of comparative negligence,” that “ ‘a
comprehensive system of comparative negligence should allow
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Opinion of the Court by Chin, J.
for the apportionment of damages in all cases involving
misconduct which falls short of being intentional’ ” (Sorensen, at
p. 722, italics added); (2) our observation in Daly that “ ‘ “[t]here
is obvious lack of sense and justice in a rule [that] permits the
entire burden of a loss, for which two defendants were . . .
unintentionally responsible, to be shouldered onto one alone,
. . . while the latter goes scot free” ’ ” (Sorensen, at p. 724, italics
added); and (3) a “legislative study . . . recommend[ing] that the
Legislature include recklessness and wilful misconduct short of
intentional injury among the kinds of fault capable of reducing,
but no longer necessarily barring recovery” (ibid., italics added).
In one of the decisions that later adopted Sorensen’s analysis
and conclusion, the court declared that allocation under
principles of comparative fault is necessary “[u]nless a
defendant has intentionally injured a plaintiff.” (Southern, at p.
121.)
Consistent with this declaration, decisions before
Proposition 51’s adoption uniformly held that reduced liability
under principles of comparative fault is not available to
defendants liable for intentional torts. In Allen, supra, 137
Cal.App.3d at page 226, the court held that although
“comparative fault principles” apply to willful conduct, they do
not apply to “the intentional tort of fraudulent concealment.”
The plaintiff in Allen sought recovery for property damage
caused by a landslide, and the trial court, as trier of fact, found
that the defendant property developer had committed both
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Opinion of the Court by Chin, J.
“wilful misconduct” and “fraudulent concealment.” (Id. at p.
220.) The trial court, based on “doubt as to whether comparative
fault principles apply” to such conduct, “declined to allocate any
portion of the judgment” to a negligent codefendant. (Ibid.) The
appellate court held that the trial court had erred as to the
developer’s liability for “wilful misconduct,” but had acted
correctly regarding “damages attributable to [the developer’s]
fraudulent concealment.” (Id. at p. 227.) Regarding the latter
conclusion, the appellate court explained: “[T]he Supreme Court
in Li, and again in American Motorcycle, used language which
appears to exclude intentional torts from the comparative fault
system. Nor has there been support for an extension of
comparative fault principles to intentional torts, as there was to
wilful misconduct or to strict liability, in other states, among the
commentators generally, or in the Uniform Comparative Fault
Act. Finally, Code of Civil Procedure section 875, subdivision
(d), still provides: ‘There shall be no right of contribution in
favor of any tortfeasor who has intentionally injured the injured
person.’ Thus, while there may be sound policy arguments for
extending comparative fault principles to intentional tortfeasors
[citation], there is as yet no authority to support such an
extension.” (Allen, at pp. 226–227, italics added, fns. omitted.)
In another 1982 decision, Godfrey v. Steinpress (1982) 128
Cal. App. 3d 154, 176 (Godfrey), the appellate court affirmed the
trial court’s refusal to instruct the jury that an award of
damages for infliction of emotional distress and fraud by
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Opinion of the Court by Chin, J.
concealment could be reduced based on the plaintiffs’
negligence. The appellate court explained in part: “We do not
see how contributory negligence could have any application to
fraud by concealment. The concealment alleged by the
amendment and proved by the evidence was a deliberate,
calculated act by [the defendant].” (Ibid.)
In a third 1982 decision — Phelps v. Superior Court (1982)
136 Cal. App. 3d 802, 815 — the court held that “damages
resulting from intentional torts,” including “battery,” are not
“subject to apportionment” based on the jury’s allocation of fault
among a plaintiff and defendants. The jury in Phelps found the
defendants liable for the plaintiff’s injuries on “theories of [both]
negligence and battery.” (Id. at p. 805.) The trial court declared
a mistrial because of “inconsistency in the voting of jurors on
issues pertaining to the comparative negligence issues” (id. at p.
804), specifically regarding the “apportionment of fault as
between” the plaintiff and the defendants (id. at p. 807). The
plaintiff moved for entry of “a partial interlocutory judgment”
regarding the defendants’ liability for battery, arguing (1) there
was no inconsistency in the special verdicts regarding the
defendants’ commission of “intentionally tortious” acts, and (2)
the inconsistency “concerning contributory negligence [was]
irrelevant to [that] finding of liability because contributory
negligence is no defense to an intentional tort.” (Ibid.) The trial
court denied the motion. (Id. at p. 808.) Upon a challenge to the
trial court’s ruling, the appellate court, retroactively applying
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Opinion of the Court by Chin, J.
new precedent, held that the liability verdicts on both the
negligence and intentional tort theories were valid,
notwithstanding the inconsistency in the verdicts regarding
comparative negligence issues. (Id. at pp. 809–812.) However,
the court further held that the damage award was problematic
because the special verdicts failed to “include a break-down of
general damages as between damages resulting from
intentional torts (conversion and battery) and damages
resulting from negligence.” (Id. at p. 815.) The damages
resulting from negligence, the court explained, “are subject to
apportionment, . . . while [the damages resulting from
intentional torts] are not. Accordingly, upon retrial . . . , the
trier of fact should . . . determine what portion of the total
general damages . . . is subject to apportionment of fault and
what portion is not.” (Ibid.)
In sum, by June 1986, when the electorate adopted
Proposition 51, the state of the law in California was as follows:
This court’s precedents established that (1) for purposes of
allocating liability under “principles of comparative fault,” the
term “fault” includes both negligence and strict liability (Daly,
supra, 20 Cal.3d at p. 744); (2) even where comparative fault
principles apply, the liability of codefendants vis-à-vis the
plaintiff remains joint and several, subject to reduction based on
the plaintiff’s conduct (American Motorcycle, supra, 20 Cal.3d at
p. 582); and (3) under “comparative fault principles,” a right of
partial indemnity exists as to the defendants in actions based on
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Opinion of the Court by Chin, J.
negligence and strict liability, such that they may recover from
each other on a comparative responsibility basis (Safeway,
supra, 21 Cal.3d at p. 325). Our Courts of Appeal uniformly held
that intentional tortfeasors may not, under comparative fault
principles, reduce their liability based on the negligent acts of
others. And section 875 of the Code of Civil Procedure
authorized pro rata contribution among the defendants held
liable “in a tort action” (id., subd. (a)), but expressly precluded
“contribution in favor of any tortfeasor who has intentionally
injured the injured person” (id., subd. (d)).
Published appellate authority after Proposition 51’s
adoption similarly held that intentional tortfeasors may not
obtain reduction of their liability under principles of
comparative fault. As noted at the outset, almost 15 years ago,
in Thomas, supra, 139 Cal.App.4th at page 1108, the court
confronted the precise issue now before us and held that “an
intentional tortfeasor is [not] entitled to a reduction or
apportionment of noneconomic damages under Proposition 51.”
Citing Allen and Godfrey, the court first explained that “[a]t the
time Proposition 51 was adopted, the law was well established”
that “a defendant who committed an intentional tort against the
plaintiff was not entitled to a reduction of the judgment because
the plaintiff’s injuries also resulted from his or her own
negligence or the negligence of a third party.” (Thomas, at p.
1111.) The court then held that “Proposition 51 did not alter”
this principle. (Ibid.)
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Opinion of the Court by Chin, J.
The Thomas court relied in part on Heiner v. Kmart Corp.
(2000) 84 Cal. App. 4th 335, 337, which involved the extent of the
defendant’s liability for a battery committed by its employee —
a security guard — against the plaintiff. The defendant in
Heiner argued on appeal that the trial court had erred by
“declining to apply principles of comparative fault to allocate the
damages resulting from the battery” (ibid.) “based on [the
plaintiff’s] ‘contributory negligence’ ” (id. at p. 348). The Court
of Appeal disagreed, finding it “reasonably clear” under
California law “that apportionment of fault for injuries inflicted
in the course of an intentional tort — such as the battery in this
case — would have been improper.” (Id. at p. 349.) The court
reasoned that Li’s “adoption of a regime of ‘comparative fault’ ”
had not abrogated this rule. (Heiner, at p. 349.) On the
contrary, the court stated, Li, “along with” American Motorcycle,
Allen and Godfrey, “constitute an unbroken line of authority
barring apportionment where, as here, the defendant has
committed an intentional tort and the injured plaintiff was
merely negligent.” (Heiner, at p. 350.)
In support of their contrary view of California law,
defendants rely on a single, post-Proposition 51 decision:
Weidenfeller v. Star & Garter (1991) 1 Cal. App. 4th 1
(Weidenfeller). According to defendants, the Weidenfeller court,
in the course of holding that “a negligent defendant was entitled
to apportionment under section 1431.2 when a plaintiff’s harm
was also caused by a non-party who acted intentionally,”
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Opinion of the Court by Chin, J.
“acknowledged that no authority excluded intentional
tortfeasors from the comparative fault doctrine.” This decision,
defendants assert, “suggests that section 1431.2 should apply to
intentional tortfeasors.”
Defendants’ reliance on Weidenfeller is misplaced. As
defendants acknowledge, because the party who acted
intentionally in that case “was not named as a defendant,”
Weidenfeller “did not address” whether an intentional tortfeasor
“is entitled to apportionment” under the law. The plaintiff in
Weidenfeller, after being injured during an unprovoked assault
in a bar parking lot, sued — and obtained a verdict
against — the bar and its owners based on their “negligence” in
failing “to provide adequate lighting and a security presence.”
(Weidenfeller, supra, 1 Cal.App. 4th at p. 4.) Thus, as here
relevant, the sole issue before the appellate court was whether
the judgment against the negligent defendants for noneconomic
damages should be reduced pursuant to section 1431.2 based on
the percentage of fault the jury attributed to the assailant’s
intentional acts. (Weidenfeller, at p. 4.) The court’s affirmative
answer to that question did not, as defendants assert,
“suggest[]” the converse, i.e., that intentional tortfeasors are
entitled to reduce their liability based on the negligent acts of
the plaintiff or other actors. This is clear from the fact that the
court expressly distinguished Godfrey and Allen on the ground
that they precluded “intentional actor[s]” from “shift[ing] [their]
financial burden to a negligent party,” and did not involve “the
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Opinion of the Court by Chin, J.
converse situation” — at issue in Weidenfeller — where
“transfer [of[ the intentional actor’s responsibility to the
negligent tortfeasor” is sought. (Weidenfeller, at p. 7.)
But the Weidenfeller court did not merely distinguish
Godfrey and Allen, it endorsed and ultimately relied on their
holding that intentional tortfeasors may not shift liability to
negligent actors. In seeking to preclude reduction of the
negligent defendants’ liability under section 1431.2, the plaintiff
in Weidenfeller argued that the statute did not apply because (1)
“[c]omparative fault principles . . . are inapplicable whenever
one party . . . acted intentionally,” (2) his assailant’s “conduct
was intentional,” and (3) his lawsuit therefore was “not an action
‘based upon principles of comparative fault’ ” within the
meaning of the statute. (Weidenfeller, supra, 1 Cal.App.4th at
p. 5.) In rejecting this argument, the Court of Appeal reasoned
in part that the plaintiff’s interpretation would “distort[] the
meaning” of the statute by precluding “a negligent tortfeasor”
from invoking its benefits “where the other tortfeasors act
intentionally.” (Id. at p. 6.) This “absurd[]” result, the court
explained, would “violate[] the commonsense notion” that an
“intentional actor [should] bear full responsibility for its act”
(ibid.) and “the common law determination that a party who
commits intentional misconduct should not be entitled to escape
responsibility for damages based upon the negligence of the
victim or a joint tortfeasor” (id. at p. 7). These principles, the
court stated, are “reflected in the Legislature’s enactment of
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Opinion of the Court by Chin, J.
Code of Civil Procedure section 875,” which expressly
“preclud[es] contribution for ‘any tortfeasor who has
intentionally injured the injured person’ ” (Weidenfeller, at p. 6),
and in Godfrey and Allen, which held “that an intentional actor
cannot rely on someone else’s negligence to shift responsibility
for his or her own conduct” (Weidenfeller, at pp. 6–7). Given
these authorities, the court concluded, “[t]here is no principled
basis” for construing the statute to allow an “injured party . . . to
transfer the intentional actor’s responsibility to the negligent
tortfeasor.” (Id. at p. 7.) As this analysis shows, Weidenfeller
actually provides further support for the view that, under
existing principles of comparative fault, intentional tortfeasors
are not entitled to reduction of their liability based on the
negligent acts of others.
For similar reasons, the post-Proposition 51 decisions
cited by amici curiae on behalf of defendants — the Association
of Southern California Defense Counsel and the Association of
Defense Counsel of Northern California and Nevada — do not
constitute contrary authority. As amici curiae note, in Rosh v.
Cave Imaging Systems, Inc. (1994) 26 Cal. App. 4th 1225, 1233
(Rosh), the court stated that “the comparative fault doctrine . . .
is designed to permit the trier of fact to consider all relevant
criteria in apportioning liability” and allows jurors to “ ‘evaluate
the relative responsibility of various parties for an injury
(whether their responsibility for the injury rests on negligence,
strict liability, or other theories of responsibility).’ ” (Rosh, at p.
36
B.B. v. COUNTY OF LOS ANGELES
Opinion of the Court by Chin, J.
1233.) As amici curiae also note, in Scott v. County of Los
Angeles (1994) 27 Cal. App. 4th 125, 151 (Scott), the court, after
declaring itself to be “in accord with” Weidenfeller, stated: “It
follows that in all cases in which a negligent actor and one or
more others jointly caused the plaintiff’s injury, the jury should
be instructed that, assuming 100 percent represents the total
causes of the plaintiff’s injury, liability must be apportioned to
each actor who caused the harm in direct proportion to such
actor’s respective fault, whether each acted intentionally or
negligently or was strictly liable [citations], and whether or not
each actor is a defendant in the lawsuit . . . .” (Some italics
omitted.)
But Rosh and Scott, like Weidenfeller, involved negligent
tortfeasors seeking to reduce their liability based on the
intentional acts of a third party. (Scott, supra, 27 Cal.App.4th
at pp. 133–134; Rosh, supra, 26 Cal.App.4th at pp. 1229, 1232–
1233.) Given this context, and the rule that “ ‘cases are not
authority for propositions not considered’ ” (American
Federation of Labor v. Unemployment Ins. Appeals Bd., supra,
13 Cal.4th at p. 1039), the statements on which amici curiae rely
are not authority for the proposition that intentional tortfeasors
may, under existing principles of comparative fault, shift
liability to negligent actors. Indeed, to view Scott more broadly
would be to ignore the fact that the Scott court primarily relied
on Weidenfeller and that Weidenfeller, for reasons explained
above, actually supports the conclusion that under existing
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Opinion of the Court by Chin, J.
California principles of comparative fault, intentional
tortfeasors are not entitled to reduce their liability based on the
negligent acts of others. Finally, Scott’s statement that “the jury
should be instructed” to make an allocation of responsibility as
to “each actor who caused the harm in direct proportion to such
actor’s respective fault (Scott, at p. 151, italics omitted) says
nothing about whether the judgment the court later enters
against an intentional actor should be in the amount of the
plaintiff’s entire damages — i.e., joint and several — or in an
amount reduced to reflect the jury’s allocation. Under Scott’s
holding that “a negligent actor” is entitled to have its liability
reduced based on the acts of intentional tortfeasors (ibid.), the
jury must make an allocation of responsibility as to those
intentional tortfeasors, or there would be no basis for making
the reduction of the negligent defendant’s liability. Scott’s
direction that juries be instructed to make such allocations
therefore does not imply that the eventual judgment the court
later enters against any intentional tortfeasors should also be
reduced in accordance with the jury’s allocation.
The preceding discussion demonstrates that California
principles of comparative fault have never required or
authorized the reduction of an intentional tortfeasor’s liability
based on the acts of others. Because section 1431.2, subdivision
(a), incorporates those “principles of comparative fault,” we
agree with plaintiffs that the statute does not entitle Aviles to
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Opinion of the Court by Chin, J.
reduce his liability based on the acts of Burley or the other
defendants.
C. Other Indicia of Intent
In addition to the language of section 1431.2 itself,
defendants rely on several other sources to support their view
that section 1431.2 provides for reduction of an intentional
tortfeasor’s liability based on the negligent acts of others. For
reasons explained below, we disagree.
1. Section 1431.1
Invoking the principle that courts should construe a
statute’s language, not “in isolation, but in the context of the
statutory framework as a whole” (Sierra Club v. Superior Court
(2013) 57 Cal. 4th 157, 165), defendants argue that the findings
and declarations the voters codified in section 1431.1 when they
adopted Proposition 51 “confirm[]” section 1431.2’s “application
to all defendants no matter the nature of their fault.” The
former section, defendants argue, “makes no exception for any
category of defendants, declaring in relevant part: ‘The legal
doctrine of joint and several liability . . . has resulted in a
system of inequity and injustice’; it further states that ‘to
remedy these inequities, defendants in tort actions shall be held
financially liable in closer proportion to their degree of fault. To
treat them differently is unfair and inequitable.’ ” According to
defendants, “[t]he only way to fulfill Proposition 51’s purpose of
ensuring that ‘defendants in tort actions shall be held
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Opinion of the Court by Chin, J.
financially liable in closer proportion to their degree of fault’
(Civ. Code, § 1431.1) is to treat intentional and negligent
tortfeasors equally.”
For several reasons, defendants’ argument is
unpersuasive. First, it presumes that the word “fault” in section
1431.1 includes intentional conduct. However, as explained
above, at the time the voters considered Proposition 51, the word
“fault” in tort law generally — and in the comparative fault
context in particular — included negligent (even willful) conduct
and liability based on strict liability, but not intentional
conduct. And section 1431.1, like section 1431.2, contains no
reference to intentional conduct.
Second, defendants fail to explain how or why it would be
“ ‘unfair’ ” or “ ‘inequitable’ ” to treat those who intentionally
commit tortious acts differently from those who act negligently
or whose responsibility arises from principles of strict liability.
As previously explained, before and after Proposition 51’s
passage, California law, both common and statutory, has
treated intentional tortfeasors differently from negligent and
strictly liable tortfeasors with respect to the doctrines of
contributory negligence and contribution. In this regard, it is
notable that Proposition 51 did not even mention Code of Civil
Procedure section 875, which since 1957 has established “a right
of contribution among” multiple “defendants in a tort action”
40
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Opinion of the Court by Chin, J.
(id., subd. (a)), but has expressly denied that right to intentional
tortfeasors (id., subd. (d)).
Third, defendants also fail to explain how intentional
tortfeasors fit within the category of defendants that section
1431.1 identifies as needing relief: “ ‘deep pocket’ ” entities and
individuals (id., subd. (a)) “included in lawsuits even though
there [is] little or no basis for finding them at fault,” simply
because they are “perceived to have substantial financial
resources or insurance coverage” (id., subd. (b)). As to those
committing intentionally tortious conduct that inflicts injury, it
can hardly be said there is “little or no basis for finding them at
fault.” (Ibid.) As for the financial ability of such defendants to
pay damages, when Proposition 51 was adopted, California law,
as it does today, precluded insurance coverage “for loss
intentionally caused by the insured.” (Taylor v. Superior Court
(1979) 24 Cal. 3d 890, 904, citing Ins. Code, § 533 [insurers are
“not liable for a loss caused by the wilful act of the insured”], and
Civ. Code, § 1668 [“contracts which have for their object, directly
or indirectly, to exempt anyone from responsibility for . . . willful
injury to the person . . . of another . . . are against the policy of
the law”].) For these reasons, we see nothing in the findings and
declarations set forth in section 1431.1 that signals an intent to
change long-standing law regarding intentional tortfeasors or
that convinces us to alter our construction, based on that long-
standing law, of section 1431.2’s language.
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Opinion of the Court by Chin, J.
2. Unpassed Bill
Defendants also base their reading of section 1431.2 on the
difference between its language and that of an unpassed statute,
introduced in the Legislature about four months before
Proposition 51’s passage, that addressed apportionment of
noneconomic damages. The proposed statute, defendants
emphasize, contained the following “exception for intentional
tortfeasors: ‘The allocation provided for by this section shall not
apply to any person who intentionally injures another.’ ” (See
Assem. Bill No. 4271 (1985–1986 Reg. Sess.) as introduced Feb.
21, 1985, § 2.) “[B]y contrast,” defendants assert, “[n]othing in
the text of section 1431.2, subdivision (a) qualifies or modifies
the phrase ‘each defendant’ in a manner that excludes
defendants found liable for an intentional tort.” Thus, the
drafters of Proposition 51 “included,” and the voters “approved,”
“no exception” for intentional tortfeasors, and this court
“ ‘cannot create’ ” one absent “ ‘an explicit legislative intention
to do so.’ ”
Defendants’ argument is unpersuasive. As we have
stated, “ ‘legislative antecedents’ ” of an initiative statute that
were “ ‘not directly presented to the voters . . . are not relevant’ ”
in construing the statute. (Robert L. v. Superior Court (2003) 30
Cal. 4th 894, 904–905.) Nor is the “ ‘motive or purpose of [an
initiative’s] drafters . . . relevant to its construction, absent
reason to conclude that the [voters were] aware of that purpose
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Opinion of the Court by Chin, J.
and believed the language of the proposal would accomplish it.’ ”
(Id. at p. 904.) Moreover, defendants’ argument ignores a
significant textual difference between section 1431.2 and the
unpassed statute. The latter did not contain the qualifying
phrase in the former that is at the heart of this case — “based
upon principles of comparative fault” (§ 1431.2, subd. (a)) — but
instead broadly provided, without qualification, for allocation of
noneconomic damages “[i]n an action for personal injury,
property damage or wrongful death where an indivisible injury
has been sustained by the plaintiff as a proximate result of the
wrongful conduct of two or more persons” (Assem. Bill No. 4271
(1985–1986 Reg. Sess.) as introduced Feb 21, 1986, § 2). As
plaintiffs argue, in light of the proposed statute’s broad and
unqualified language, a provision “specifically refer[ring] to
intentional tortfeasors” would have been called for were the
intent “to exclude them from benefiting from apportionment.”
As our prior analysis demonstrates, because section 1431.2,
subdivision (a), calls for apportionment “based upon principles
of comparative fault,” the absence of an express exclusion for
intentional tortfeasors does not have the significance
defendants assert. As our prior analysis also demonstrates,
adopting defendants’ construction would render this additional
phrase without meaning.
Moreover, defendants’ argument is inconsistent with
several California decisions involving section 1431.2,
subdivision (a). For example, although that section is silent
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Opinion of the Court by Chin, J.
regarding defendants who are liable both vicariously and based
on their own negligence, in Diaz, supra, 51 Cal.4th at pages
1159–1160, we construed the statute, consistent with an express
provision of the same unpassed bill on which defendants here
rely, to preclude allocation of a share of liability based on the
defendant’s negligence, where the defendant admits to vicarious
liability for negligent acts of its employee. And in Wilson v. John
Crane, Inc. (2000) 81 Cal. App. 4th 847, 856, the court, in holding
that apportionment under section 1431.2 applies to strict
liability claims, rejected the plaintiff’s reliance on the fact that
the statute makes no express reference to such claims, unlike
proposed but “unenacted” statutes that “explicitly prescribed
the application of comparative fault principles to claims
sounding in strict products liability.” Such claims, the court
reasoned, “are of a type clearly understood at the time of
[Proposition 51’s] enactment to fall within the description
chosen,” i.e., an “ ‘action for personal injury, property damage,
or wrongful death, based upon principles of comparative fault.’ ”
(Wilson, at p. 586, quoting § 1431.2, subd. (a)) By contrast, as
we have demonstrated, an intentional tort claim clearly is not of
such a type. For all of these reasons, defendants’ reliance on the
fact that section 1431.2, unlike the unpassed statute, does not
contain an express exclusion for intentional tortfeasors, is
unpersuasive.
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Opinion of the Court by Chin, J.
3. Ballot Materials
Defendants also argue that, to the extent section 1431.2’s
text is ambiguous, “[t]he official Proposition 51 ballot materials
confirm that the voters intended [the statute] to apply to all
defendants, without exception.” Defendants base their
argument principally on the following: (1) the statement of the
Legislative Analyst that “[t]his measure . . . limits the liability
of each responsible party in a lawsuit to that portion of non-
economic damages that is equal to the responsible party’s share
of fault” (Ballot Pamp., Primary Elec. (June 3, 1986) analysis of
Prop. 51 by Legis. Analyst, p. 32 (Ballot Pamphlet)); and (2) the
absence “in the ballot materials” of “the terms ‘intent’ or
‘intentional’ ” or of any “mention” that there were “exceptions to
Proposition 51’s applicability” or that “the actions subject to
Proposition 51 were limited to only those ‘based upon’ principles
of comparative fault.”
Again, for several reasons, defendants’ arguments are
unpersuasive. First, as explained earlier, we have previously
rejected the argument that, in light of the statutory language,
the statute makes reduction of liability available to all
defendants, without exception. (Diaz, supra, 51 Cal.4th at p.
1156–1150.) The broad and general statement of the Legislative
Analyst on which defendants rely does not convince us we
should now hold otherwise. In this regard, we note that that
statement is also overbroad insofar as it refers to limiting
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Opinion of the Court by Chin, J.
liability of responsible parties “in a lawsuit.” (Ballot Pamp.,
supra, analysis of Prop. 51 by Legis. Analyst, p. 32.) By its
terms, section 1431.2, subdivision (a) applies, not in any lawsuit,
but only in “action[s] for personal injury, property damage, or
wrongful death.” “[T]he generality and brevity of the Legislative
Analyst’s commentary . . . cannot plausibly be viewed as
implicitly [expanding] the scope of the statute in the manner
advocated by defendants.” (People ex rel. Lungren v. Superior
Court (1996) 14 Cal. 4th 294, 308 [construing Health & Safety
Code provisions enacted through initiative.)
Second, contrary to defendants’ argument, the ballot
materials did, in fact, inform voters that application of section
1431.2, subdivision (a), was subject to “principles of comparative
fault.” Those materials included the text of the proposed statute
itself, including the phrase “based upon principles of
comparative fault.” (See Ballot Pamp., supra, text of Prop. 51,
§ 4, p. 33.) That the phrase was not mentioned in any of the
accompanying commentary or arguments is not a basis for
expanding the statute’s application. (See DaFonte, supra, 2
Cal.4th at p. 602 [ballot arguments and analyses, though
sometimes helpful in resolving ambiguities in an initiative
measure, “cannot vary its plain import”].)
Third, in several respects, the comments in the ballot
materials, though not expressly referring to liability for
intentional torts, suggest that Proposition 51 was directed at
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Opinion of the Court by Chin, J.
other types of tort liability. The Attorney General’s “Official
Title and Summary” stated that (1) “[u]nder existing law,”
where a plaintiff obtains a damage award “against multiple
defendants,” “[a] defendant paying all the damages may seek
equitable reimbursement from other defendants,” and (2)
“[u]nder” the proposed law, “this rule” would “[c]ontinue[] to
apply to ‘economic damages.’ ” (Ballot Pamp., supra, Official
Title and Summary of Prop. 51, p. 32.) These comments describe
the state of California law, both before and after Proposition 51’s
adoption, only with respect to liability for nonintentional torts.
As we have previously explained, at the time of Proposition 51’s
adoption, both statutory and common law precluded intentional
tortfeasors from “seek[ing] equitable reimbursement from other
defendants.” (Ballot Pamp., supra, Official Title and Summary
of Prop. 51, p. 32.) And Proposition 51 did nothing to alter that
preclusion and allow intentional tortfeasors to seek equitable
indemnity for economic damages.
Comments in the Legislative Analyst’s analysis similarly
refer to California law as it applied only to nonintentional torts.
In explaining the measure’s background, the analysis stated
that in “a lawsuit” by “someone [who] is injured or killed, or
suffers property damage,” “[i]f the court finds that the injured
party was partly responsible for the injury, the responsibility of
the other party is reduced accordingly.” (Ballot Pamp., supra,
analysis of Prop. 51 by Legis. Analyst, p. 32.) As previously
explained, under California law as it existed when the voters
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Opinion of the Court by Chin, J.
adopted Proposition 51, this accurately described the rule in
cases involving negligence and strict liability, but not in cases
involving intentional torts; in the latter context, the law
precluded intentional tortfeasors from reducing their liability
based on the injured party’s conduct. In this respect, the
comments of the Legislative Analyst, like those of the Attorney
General, suggest that Proposition 51 was directed at liability for
nonintentional torts.
Nothing in the ballot arguments — either pro or con —
persuades us that Proposition 51’s scope is, or was intended to
be, broader. In arguing that section 1431.2 makes reduction of
liability available to all defendants regardless of the basis for
liability, defendants cite the statement in the argument in favor
of the measure that taxpayers and consumers ultimately pay the
costs of “huge ‘deep pocket’ court awards” — “through high
taxes, increased costs of goods and services, and reduced
governmental services” — “[r]egardless of whether it is a city,
county or private enterprise.” (Ballot Pamp., supra, argument
in favor of Prop. 51, p. 34.) But this statement merely suggests
that the universe of defendants to which the statute may apply
includes cities, counties, and private enterprises; it does not
suggest that such defendants may invoke the statute even when
they commit intentionally tortious conduct. Notably,
immediately after the statement defendants cite, the argument
in favor of the measure, in explaining “[h]ow . . . the ‘deep pocket’
law work[s],” discussed a hypothetical “ACCIDENT VICTIM”
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Opinion of the Court by Chin, J.
who, after being injured when a drunk driver runs a red light
and hits another car, seeks recovery from a city for having a
“faulty” stop light. (Ibid.) Similarly, the argument against the
measure explained that Proposition 51 would “scrap[]” the
existing system for allocating fault among “everyone found
guilty [of having] caused [an] accident to occur,” which “put[s]
the responsibility where it belongs: not on innocent victims, but
on drunk drivers, manufacturers of dangerous products or toxic
waste and unsafe roads and highways.” (Ballot Pamp., supra,
argument against Prop. 51, p. 35, italics added.) These
statements do not suggest that the measure’s scope included
liability for intentionally tortious conduct, or hinted to voters
that if they were injured in a criminal attack, and either they or
someone else negligently contributed to their injury, they would
no longer be able to fully recover from the perpetrator. “One
could reasonably expect [that] a change [in the law] of this
magnitude would be made clear in both legal text and ballot
argument.” (People v. Anderson (1987) 43 Cal. 3d 1104, 1161; see
People v Valencia (2017) 3 Cal. 5th 347, 364 [“ ‘We cannot
presume. . . the voters intended the initiative to effect a change
in law that was not expressed or strongly implied in either the
text of the initiative or the analyses and arguments in the
official ballot pamphlet.’ ”].) For this reason, we are not
persuaded that the failure of the ballot materials to expressly
mention the measure’s effect on intentional tortfeasors supports
defendants’ position.
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Opinion of the Court by Chin, J.
Based on the preceding analysis, we hold 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.4
III. DISPOSITION
For the reasons set forth above, we reverse the judgment
of the Court of Appeal and remand for further proceedings
consistent with this opinion.
CHIN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.
4
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. We also express no opinion on whether, for
policy reasons, existing common law principles of comparative
fault should be changed vis-à-vis intentional tortfeasors.
50
B.B. v. COUNTY OF LOS ANGELES
S250734
Concurring Opinion by Justice Liu
In Compton, on the evening of August 3, 2012, several
witnesses called the police after they saw Darren Burley
attacking a woman in the street. When police arrived and
attempted to stop him, Burley resisted arrest; the police
suspected that Burley was under the influence of drugs. Deputy
David Aviles then pinned Burley to the ground while other
officers beat him with a flashlight and tasered him repeatedly.
Deputy Aviles pressed his knees on Burley’s neck and back with
the full weight of his 200-pound body. A witness saw Burley
gasping for air. When Burley lost consciousness, none of the
officers rendered aid. Burley never regained consciousness and
died 10 days later.
Darren Burley was Black. By happenstance, we heard
oral argument in this case one week after another Black man,
George Floyd, was killed by a Minneapolis police officer who
pressed his knee into Floyd’s neck with the full weight of his
body for 8 minutes and 46 seconds — an incident that galvanized
protests in every state across the country and throughout the
world. (Burch et al., How Black Lives Matter Reached Every
Corner of America, N.Y. Times (June 13, 2020); Bender &
Winning, Antiracism Protests Erupt Around the World in Wake
of George Floyd Killing, Wall Street Journal (June 7, 2020).) In
all likelihood, the only reason Darren Burley is not a household
B.B. v. COUNTY OF LOS ANGELES
Liu, J., concurring
name is that his killing was not caught on videotape as Floyd’s
was.
Sadly, what happened to these men is not happenstance.
Variants of this fact pattern have occurred with distressing
frequency throughout the country and here in California. (See,
e.g., People v. Mehserle (2012) 206 Cal. App. 4th 1125, 1133
[“[Oscar] Grant protested, ‘I can’t breathe. Just get off of me. I
can’t breathe. I quit. I surrender. I quit.’ ”]; Garlick v. County
of Kern (E.D.Cal. 2016) 167 F. Supp. 3d 1117, 1134 [“[David]
Silva was chest-down with weight on his back. . . . [T]hroughout
the altercation, Silva was . . . yelling out ‘help,’ and ‘help me.’ ”];
Martinez v. City of Pittsburg (N.D.Cal., Mar. 8, 2019, No. 17-cv-
04246-RS) 2019 WL 1102375, p. *3 [“Once [Humberto] Martinez
was secured, Elmore . . . continued to apply pressure to the side
of Martinez’s head and kept his knee on Martinez’s upper back
for approximately 30 seconds. . . . Eventually, one of the officers
noticed that Martinez was turning purple, at which point they
rolled him to his side and removed the handcuffs.”]; People v.
O’Callaghan (Mar. 13, 2017, B265928) 2017 WL 958396, p. *1
[nonpub. opn.] [“[Alesia] Thomas remarked, ‘I can’t move’ and ‘I
can’t breathe’ ” and officer “proceeded to kick Thomas three
times in her lower abdomen”]; C.R. v. City of Antioch (N.D.Cal.,
June 25, 2018, No. 16-cv-03742-JST) 2018 WL 3108982, p. *2
[witness “testified that he heard [Rakeem] Rucks say at some
point while he was on the ground, ‘Get me up out of the dirt. I’m
breathing dirt. It’s hard to breathe.’ ”].)
Today’s opinion holds that Civil Code section 1431.2 does
not permit an intentional tortfeasor to offset liability for
noneconomic damages based on the negligence of other actors.
(Maj. opn., ante, at pp. 3–7, 49.) Thus, Burley’s family may
2
B.B. v. COUNTY OF LOS ANGELES
Liu, J., concurring
recover the full amount of their noneconomic damages. But even
as the wrongful death judgment here affords a measure of
monetary relief to Burley’s family, it does not acknowledge the
troubling racial dynamics that have resulted in state-sanctioned
violence, including lethal violence, against Black people
throughout our history to this very day. (See Felker-Cantor,
Policing Los Angeles: Race, Resistance, and the Rise of the
LAPD (2018); Coates, Between the World and Me (2015);
Baldwin, The Fire Next Time (1963).)
Wrongful death statutes trace their origins to the 19th
century, when state legislatures, alarmed at the increasing rate
of fatal workplace accidents, attempted to force corporations to
compensate the family members of accident victims. (Malone,
The Genesis of Wrongful Death (1965) 17 Stan. L.Rev. 1043,
1043; see Hillbrand v. Standard Biscuit Co. (1903) 139 Cal. 233
[wrongful death action by father and mother for death of their
daughter while employed at biscuit factory]; Daves v. Southern
Pac. Co. (1893) 98 Cal. 19 [wrongful death action for death of
husband while repairing railroad].) The elements of a wrongful
death action are the underlying tort (in this case, battery), a
resulting death, and damages. (Code Civ. Proc., § 377.60; see
Lattimore v. Dickey (2015) 239 Cal. App. 4th 959, 968.) Although
this tort encompasses the wrong inflicted on Burley and
provides compensation to his family, it gives no hint that what
happened here has a history. And reckoning with that history
is necessary if we are to prevent the wrongful deaths of more
African Americans in the future.
The Legislature has at times attempted to redress the
specific harm of violence against African Americans. Burley’s
family has also sought relief under the Tom Bane Civil Rights
3
B.B. v. COUNTY OF LOS ANGELES
Liu, J., concurring
Act (Bane Act), which provides a right of action against a person
who, whether or not acting under the color of law, violates “by
threat, intimidation, or coercion” another person’s federal or
state rights. (Civ. Code, § 52.1, subd. (b).) The Bane Act was
passed to “ ‘stem a tide of hate crimes’ ” against minorities in the
1980s. (Venegas v. County of Los Angeles (2004) 32 Cal. 4th 820,
843.) In addition, the Ralph Civil Rights Act of 1976 (Ralph Act)
forbids violence or intimidation “on account of” certain protected
characteristics, including race. (Civ. Code, § 51.7, subd. (b).)
These laws acknowledge the racial dimensions of acts of violence
against African Americans. But in the excessive force context,
applying the coercion element of a Bane Act claim has not been
straightforward, as the Burley family’s litigation in the Court of
Appeal demonstrates. (B.B. v. County of Los Angeles (2018)
25 Cal. App. 5th 115, 129–134.) And although the Ralph Act
provides liability for intentional discrimination (Gabrielle A. v.
County of Orange (2017) 10 Cal. App. 5th 1268, 1291), one may
ask what other measures are necessary given what we know
about unconscious bias. (See Banks, Eberhardt & Ross,
Discrimination and Implicit Bias in a Racially Unequal Society
(2006) 94 Calif. L.Rev. 1169, 1182–1189.)
Moreover, the efficacy of these laws has sometimes been
undermined by the very racial disparities they were meant to
correct. When litigants have recovered damages, verdicts have
often reflected racial disparities in income and health outcomes.
Until the Legislature prohibited the practice this year,
California juries routinely consulted tables estimating earning
potential based on race and gender when awarding economic
damages to prevailing plaintiffs. (Civ. Code, § 3361, added by
Stats. 2019, ch. 136, § 2.) This “perpetuate[d] systemic
4
B.B. v. COUNTY OF LOS ANGELES
Liu, J., concurring
inequalities” and “disproportionately injure[d] women and
minority individuals,” who on average earn less than white men.
(Stats. 2019, ch. 136, § 1; see Avraham & Yuracko, Torts and
Discrimination (2017) 78 Ohio St. L.J. 661, 664.)
Nor should we assume that damages are enough to
reliably deter police misconduct. Local jurisdictions must
indemnify officers for any nonpunitive damages judgments or
settlements in suits brought against them (with few exceptions),
which effectively means that taxpayers foot the bill. (Gov. Code,
§§ 825, subd. (a), 825.2.) And these payouts often come from law
enforcement budgets specifically set aside for such purposes or
from the local jurisdiction’s general funds. (See Schwartz, How
Governments Pay: Lawsuits, Budgets, and Police Reform (2016)
63 UCLA L.Rev. 1144, 1165; id. at p. 1241 [Los Angeles Sheriff’s
Department budgeted more than $35 million for lawsuit payouts
annually between 2012 and 2014].) As a result, officers and
their departments are often insulated from the financial
consequences of their actions. (See Schwartz, Police
Indemnification (2014) 89 N.Y.U. L.Rev. 885, 953.)
Separate from this action, Burley’s family also sought
redress under federal law, specifically 42 United States Code
section 1983 (section 1983). (T.E. v. County of Los Angeles
(C.D.Cal., Feb. 25, 2016, No. 15-cv-5826).) On several occasions,
Congress has enacted civil rights statutes in response to law
enforcement violence against African Americans. Although
these laws, including section 1983, provide a measure of
recognition that the police officer’s knee on Darren Burley’s neck
is part of a legacy of anti-Black violence, their efficacy has been
much debated. The Burley family’s federal suit was dismissed
because the statute of limitations had run (T.E., at p. *1), but
5
B.B. v. COUNTY OF LOS ANGELES
Liu, J., concurring
even if the suit had gone forward, the family would have needed
to overcome a number of hurdles in order to obtain relief.
Section 1983 provides a cause of action against state and
local officials who violate individual constitutional and statutory
rights while acting “under color of” state law. (42 U.S.C. § 1983.)
After the Civil War, the Ku Klux Klan continued to terrorize
African Americans in the South. Beatings, lynchings, and
destruction of Black-owned property were common, and local
authorities and courts routinely refused to enforce state
criminal laws against perpetrators and often participated in the
violence themselves. (See Monroe v. Pape (1961) 365 U.S. 167,
171, overruled in part by Monell v. New York City Dept. of Social
Services (1978) 436 U.S. 658; Gilles, Breaking the Code of
Silence: Rediscovering “Custom” in Section 1983 Municipal
Liability (2000) 80 B.U. L.Rev. 17, 55.) Congress enacted section
1983 to “interpose the federal courts between the States and the
people,” providing African Americans redress when the very
officials sworn to protect them from violence were its
perpetrators. (Mitchum v. Foster (1972) 407 U.S. 225, 242; see
Civil Rights Act of 1871, ch. 22, § 1, 17 Stat. 13, as amended, 42
U.S.C. § 1983).)
But the doctrine of qualified immunity shields officials
from liability under section 1983 so long as their “conduct does
not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” (Harlow v.
Fitzgerald (1982) 457 U.S. 800, 818.) To show that a right was
clearly established at the time of the conduct, a plaintiff must
identify precedent governing “the specific facts at issue” that has
“ ‘placed the statutory or constitutional question beyond
debate.’ ” (Kisela v. Hughes (2018) 584 U.S. __, __, __ [138 S. Ct.
6
 B.B. v. COUNTY OF LOS ANGELES
Liu, J., concurring
1148, 1153, 1152].) Applying this standard, a federal appeals
court has concluded that even if binding authority has held it is
excessive force to unleash a police dog on a surrendering suspect
in a canal in the woods, it is not necessarily clearly established
that unleashing a police dog on a motionless suspect in a bushy
ravine is excessive force. (Compare Priester v. City of Riviera
Beach (11th Cir. 2000) 208 F.3d 919, 927, with Jones v. Fransen
(11th Cir. 2017) 857 F.3d 843, 854.) Such examples have led one
federal judge to observe that qualified immunity has allowed
“public officials [to] duck consequences for bad behavior — no
matter how palpably unreasonable — as long as they were the
first to behave badly.” (Zadeh v. Robinson (5th Cir. 2019) 928
F.3d 457, 479 (conc. & dis. opn. of Willett, J.), italics omitted.)
Another federal judge, in a powerful and extensive account of
the racial history of section 1983 and the continuing lack of
accountability for police harassment and violence against
African Americans, has noted that qualified immunity in its
present form is “extraordinary and unsustainable.” (Jamison
v. McClendon (S.D.Miss., Aug. 4, 2020, No. 3:16-cv-00595-CWR-
LRA) 2020 WL 4497723, p. *29.) Today there are numerous
proposals to narrow or eliminate this judicially created
limitation on section 1983 liability. (H.R. No. 7085, 116th Cong.,
2d Sess. (2020); H.R. No. 7115, 116th Cong., 2d Sess. (2020);
H.R. No. 7120, 116th Cong., 2d Sess. (2020); Sen. No. 4036,
116th Cong., 2d Sess. (2020); Sen. No. 4142, 116th Cong., 2d
Sess. (2020); Sen. No. 3912, 116th Cong., 2d Sess. (2020).)
With respect to injunctions, high court precedent has
constrained substantive review of police misconduct claims. In
City of Los Angeles v. Lyons (1983) 461 U.S. 95, the high court
held that Adolph Lyons, a Black man pulled over and put in a
7
B.B. v. COUNTY OF LOS ANGELES
Liu, J., concurring
chokehold by Los Angeles police officers, did not have standing
to seek an injunction against the use of chokeholds because he
could not establish that he would again be subject to the same
abuse. (Id. at p. 105.) Moreover, in order to hold municipalities
liable for failure to train or supervise officers (often a necessary
component of structural reform), the high court has held that a
plaintiff must show that the department’s conduct amounted to
“deliberate indifference to the rights of persons.” (City of Canton
v. Harris (1989) 489 U.S. 378, 388.)
Another federal law allows the United States Department
of Justice to sue police departments for engaging in a pattern
and practice of constitutional rights violations. (34 U.S.C.
§ 12601, former 42 U.S.C. § 14141.) Enacted in 1994 as part of
the Violent Crime Control and Law Enforcement Act (Pub.L. No.
103–322, 108 Stat. 1796), section 12601 revived a bill that was
introduced in the aftermath of the police beating of Rodney King
in Los Angeles. (See Gilles, Reinventing Structural Reform
Litigation: Deputizing Private Citizens in the Enforcement of
Civil Rights (2000) 100 Colum. L.Rev. 1384, 1401; compare 34
U.S.C. § 12601 with H.R. No. 2972, 102d Cong., 1st Sess., § 2
(1991).)
Since 1994, the United States Department of Justice has
formally investigated 70 police departments and reached more
than 40 agreements requiring departments to overhaul internal
oversight measures, officer training, and disciplinary
procedures. (Childress et al., Fixing the Force, Frontline PBS
(2018), [as of Aug. 7, 2020]. All Internet citations in
this opinion are archived by year, docket number, and case name
at .) The structural
8
B.B. v. COUNTY OF LOS ANGELES
Liu, J., concurring
reforms resulting from federal intervention have shown signs of
effectively “reduc[ing] officer uses of force, reduc[ing] civil
liability for police misconduct, increas[ing] citizen satisfaction,
and increas[ing] apparent compliance with legal norms.”
(Rushin & Garnett, State Labor Law and Federal Police Reform
(2017) 51 Ga. L.Rev. 1209, 1213 [collecting empirical studies].)
But such investigations and settlements are costly and depend
on the political will of the governing federal administration.
(See Bell, Police Reform and the Dismantling of Legal
Estrangement (2017) 126 Yale L.J. 2054, 2129.) Under the
current administration, the number of formal investigations
launched by the Department of Justice has declined to just one,
and the Department has sharply curbed enforcement of existing
agreements. (See Childress, supra; Mazzone & Rushin, State
Attorneys General As Agents of Police Reform (2020) 69 Duke
L.J. 999, 1028–1029.)
A wrongful death judgment with substantial damages is
one way of affirming the worth and dignity of Darren Burley’s
life, and I join today’s opinion. But the racial dimensions of this
case should not escape our notice. How are we to ensure that
“the promise of equal justice under law is, for all our people, a
living truth”? (Cal. Supreme Ct., Statement on Equality and
Inclusion (June 11, 2020), .) Whatever the answer, it must involve
acknowledging that Darren Burley’s death at the hands of law
enforcement is not a singular incident unmoored from our racial
history. With that acknowledgment must come a serious effort
to rethink what racial discrimination is, how it manifests in law
enforcement and the justice system, and how the law can
9
B.B. v. COUNTY OF LOS ANGELES
Liu, J., concurring
provide effective safeguards and redress for our neighbors,
friends, and citizens who continue to bear the cruel weight of
racism’s stubborn legacy.
LIU, J.
I Concur:
CUÉLLAR, J.
10
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion B.B. v. County of Los Angeles
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XX 25 Cal. App. 5th 115
Rehearing Granted
__________________________________________________________________________________
Opinion No. S250734
Date Filed: August 10, 2020
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Ross M. Klein
__________________________________________________________________________________
Counsel:
Pine Tillet Pine, Norman Pine, Stacy Freeman, Scott Tillett, Chaya M. Citrin; The Sweeney Firm and John
E. Sweeney for Plaintiffs and Appellants B.B. and B.B.
Schonbrun Seplow Harris & Hoffman, Michael D. Seplow, Paul L. Hoffman, Aidan C. McGlaze, John
Washington; Orange Law Offices, Olu Orange; Antablin & Bruce, Drew Antablin; Douglas / Hicks Law,
Carl E. Douglas and Jamon Hicks for Plaintiff and Appellant T.E. and for Plaintiffs and Respondents.
O'Melveny & Myers, Sabrina Heron Strong, Dimitri D. Portnoi, Jefferson J. Harwell; Manning & Kass,
Ellrod, Ramirez, Trester, Eugene P. Ramirez, Louis W. Pappas, Steven J. Renick, Julie M. Fleming and
Angela M. Powell for Defendants and Appellants.
Fred J. Hiestand for The Civil Justice Association of California as Amicus Curiae on behalf of Defendants
and Appellants.
Cole Huber and Derek P. Cole for League of California Cities and California State Association of Counties
as Amici Curiae on behalf of Defendants and Appellants.
Polsinelli, David K. Schultz, J. Alan Warfield; Mansukhani, Don Willenburg and Gordon Rees Scully for
the Association of Southern California Defense Counsel and Association of Defense Counsel of Northern
California and Nevada as Amici Curiae on behalf of Defendants and Appellants.
Shook, Hardy & Bacon, Mark A. Behrens, Cary Silverman and Patrick Gregory for Coalition for Litigation
Justice, Inc. as Amicus Curiae on behalf of Defendants and Appellants.
Cole Pedroza, Curtis A. Cole, Cassidy C. Davenport and Bethany J. Peak for California Medical
Association, California Dental Association and California Hospital Association as Amici Curiae on behalf
of Defendants and Appellants.
The Arkin Law Firm and Sharon J. Arkin for Consumer Attorneys of California as Amicus Curiae on
behalf of Plaintiffs and Respondents.
Kazan, McClain, Satterly & Greenwood and Ted W. Pelletier for Michael and Cindy Burch as Amici
Curiae on behalf of Plaintiffs and Respondents.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Olu Orange
Orange Law Offices, P.C.
3435 Wilshire Blvd., Suite 2910
Los Angeles, CA 90010
(213) 736-9900, ext. 103
Norman Pine
Pine Tillett Pine LLP
14156 Magnolia Blvd., Ste. 200
Sherman Oaks, CA 91423-1182
(818) 379-9710
Sabrina H. Strong
O’Melveny & Myers, LLP
400 South Hope Street, 18th Floor
Los Angeles, CA 90071-2899
(213) 430-6000