B.B. v. County of Los Angeles

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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B.B. v. COUNTY OF LOS ANGELES

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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Opinion of the Court by Chin, J.

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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Opinion of the Court by Chin, J.

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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Opinion of the Court by Chin, J.

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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Opinion of the Court by Chin, J.

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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Opinion of the Court by Chin, J.

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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Opinion of the Court by Chin, J.

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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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

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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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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

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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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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.)

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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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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.)

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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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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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“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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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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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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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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“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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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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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.

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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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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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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”

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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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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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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

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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

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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

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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

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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

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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

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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), <https://www.pbs.org/wgbh/frontline/interactive/

fixingtheforce/> [as of Aug. 7, 2020]. All Internet citations in

this opinion are archived by year, docket number, and case name

at <http://www.courts.ca.gov/38324.htm>.) The structural

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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), <https://newsroom.courts.ca.gov/

news/supreme-court-of-california-issues-statement-on-equality-

and-inclusion>.) 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

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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