Harold L. BOSTICK, Plaintiff and Appellant,
v.
FLEX EQUIPMENT COMPANY, INC., Defendant and Appellant.
Gold's Gym, Inc., Cross-complainant and Respondent,
v.
Flex Equipment Company, Inc., Cross-defendant and Appellant.
Court of Appeal of California, Second District, Division Three.
*31 Smith, Chapman & Campbell, Steven C. Smith, William D. Chapman and Robert J. Hadlock, Santa Ana, for Plaintiff and Appellant.
Horvitz & Levy, David S. Ettinger, S. Thomas Todd, Encino; Callahan, McCune & Willis and John J. Tasker, West Los Angeles, for Defendant, Cross-defendant and Appellant.
No appearance for Cross-complainant and Respondent.
Certified for Partial Publication.[*]
*30 ALDRICH, J.
INTRODUCTION
Harold L. Bostick suffered severe, disabling injuries while working out at Gold's Gym, Inc. (Gold's Gym) on weight-lifting equipment manufactured by Flex Equipment Company, Inc. (Flex). Bostick sued both Flex and Gold's Gym. Gold's Gym cross-complained against Flex for equitable indemnity. The cross-complaint was severed for separate trial. Prior to the conclusion of the trial on the complaint, Bostick entered into a settlement with Gold's Gym for $7.3 million. The jury returned a verdict awarding Bostick nearly $3.3 million in economic damages and $13 million in noneconomic damages, and later awarded $1 in punitive damages. The jury apportioned 90 percent of the fault to Flex, 10 percent to Bostick, and 0 percent fault to "other entities." The trial court reduced Bostick's award against Flex by the full amount of the $7.3 million settlement and entered a judgment in favor of Bostick. Thereafter, the trial court entered judgment in favor of Gold's Gym on its cross-complaint against Flex for equitable indemnity in the full amount of the $7.3 million settlement.
Both Flex and Bostick appeal from the judgment. In its appeal, Flex challenges the $13 million verdict for noneconomic damages, contending the jury awarded punitive damages in the guise of damages for pain and suffering because of an instructional error. In his appeal, Bostick contends that Proposition 51 applies to this case with the result that Flex is only severally liable for Bostick's noneconomic damages. He argues further that the trial court erred in setting off the full amount of his $7.3 million settlement with Gold's Gym, because the setoff should be limited to that portion of the settlement attributable to economic damages only. Flex also appeals from the judgment on the cross-complaint *32 granting equitable indemnity in favor of Gold's Gym. It contends that the finding by the jury in the action on the complaint that the percentage of fault attributable to "other entities" was zero is not collateral estoppel and therefore is not binding on Flex in the Gold's Gym cross-action.
In the published portion of this opinion, we hold that the trial court did not err in reducing Bostick's award of damages by the full amount of his settlement with Gold's Gym. In reaching this conclusion, we follow Wimberly v. Derby Cycle Corp. (1997)
In the unpublished portion of the opinion, we hold that the trial court did not commit instructional error with respect to the award of noneconomic damages and there was no prejudice. Accordingly, we affirm the judgment on the complaint and reverse the judgment on the cross-complaint.
FACTUAL AND PROCEDURAL BACKGROUND
1. Factual Background
Bostick, at the time a 31-year-old law student, was exercising and lifting weights at a facility owned by Gold's Gym in Venice, California in January 2001 when he collapsed while doing squats using a Smith machine manufactured by Flex. A Smith machine has a barbell that rests on the user's shoulders and moves up and down between guide rods as the user performs squats by bending and extending his legs. On the machine Bostick was using, hooks attached to the barbell rested on pegs and supported the barbell when the machine was not in use. By rotating the barbell, the user could disengage the hooks, allowing the barbell to move up and down between the guide rods. Upon completing the exercise, the user could rotate the barbell to engage the hooks and support the barbell. There were pegs every six inches along the guide rods. The guide rods were 10 degrees from the perpendicular, so the barbell moved slightly toward the user as it traveled down.
Bostick was lifting over 300 pounds on the machine at the time of the accident. He had performed several sets of six to ten repetitions each at lower weights. He did not have another person standing by, known as a spotter, to relieve him of the weight if necessary. He was extending his legs and had almost reached a full extension when he noticed that something did not feel right, and collapsed to the floor. Bostick fell straight down under the weight of the barbell, which came to rest on his neck, pushing his head forward. He felt no pain and was unable to move his legs. He suffered a broken neck and severe injury to his spinal cord.
Bostick was hospitalized for three weeks in intensive and critical care, and then spent nine weeks at a rehabilitation hospital and seven months at a veterans' hospital. *33 He continued to receive outpatient rehabilitative care until January 2002, when he resumed his law school education. The injury rendered him severely disabled.
2. Trial Court Proceedings
Bostick filed a complaint against Gold's Gym and Flex in April 2001. His first amended complaint alleged counts against both defendants for negligence, strict liability for product defects and failure to warn, and breach of implied warranty. Defendants, in their answers, alleged as affirmative defenses that their liability to Bostick, if any, should be reduced in proportion to the comparative fault of other persons and that their liability for noneconomic damages should be several only pursuant to Civil Code section 1431.2. Defendants each filed a cross-complaint against the other seeking declaratory relief of a right of equitable indemnity. The court granted Bostick leave to file a second amended complaint, which he filed in November 2002, adding allegations to support an award of punitive damages. Bostick filed a third amended complaint naming Brunswick Corporation and Life Fitness (collectively, Life Fitness) as additional defendants who allegedly may have manufactured the exercise equipment. Life Fitness settled with Bostick before trial.
The jury trial commenced in June 2003. The court severed the cross-complaints from the complaint and tried only the complaint. The court granted a nonsuit in favor of Gold's Gym on the implied warranty count. After the close of evidence, involving five weeks of testimony, but before closing arguments, Bostick dismissed his negligence cause of action against Gold's Gym with prejudice and settled his products liability counts against Gold's Gym for $7.3 million.[2] The trial court granted a nonsuit motion on the breach of warranty claim. The court found that the settlement was in good faith and, pursuant to Code of Civil Procedure section 877.6,[3] dismissed Flex's cross-complaint against Gold's Gym.
The jury thereafter returned special verdicts in favor of Bostick and against Flex finding that there was a design defect or a failure to warn of a defect in the Smith machine, that Flex was negligent, that Bostick's comparative fault also contributed to his injury, and that Bostick suffered $3,274,966 in economic damages and $13 million in noneconomic damages. The jury found that the comparative fault of Flex was 90 percent, the comparative fault of Bostick was 10 percent, and the comparative fault of "other entities" was 0 percent. The jury also found by clear and convincing evidence that Flex was guilty of malice or oppression. In the second phase of trial, the jury awarded punitive damages of $1.
As noted, the trial court determined that Bostick's settlement with Gold's Gym was made in good faith. The court concluded that because Bostick's injuries were caused solely by a defective product and Flex and Gold's Gym were in the same chain of distribution, Wimberly, supra, 56 *34 Cal.App.4th 618,
Bostick moved to vacate the judgment and enter a new judgment with a reduced setoff for the Gold's Gym settlement and no setoff for the Life Fitness settlement. Flex moved for a new trial on the grounds, inter alia, the award of noneconomic damages was excessive. The court denied both motions. The court later entered a corrected judgment in favor of Bostick with no setoff for the Life Fitness settlement, awarding him a net total of $7,347,470. Bostick and Flex both appeal from the judgment (case No. B171567).
Gold's Gym then moved for judgment on the pleadings on its cross-complaint for equitable indemnity against Flex based on the jury's finding that Gold's Gym was without fault.[4] Gold's Gym argued that it was entitled to total equitable indemnity because Flex was solely responsible for Bostick's injury. The court granted the motion and entered a judgment against Flex awarding Gold's Gym $7.3 million. Flex appeals from that judgment (case No. B173455). The court denied Gold's Gym's motion for an award of attorney fees. We consolidated the two appeals for disposition in a single opinion.
DISCUSSION
1. Flex Has Not Shown Prejudicial Error with Respect to the Award of Noneconomic Damages[**]
2. A Defendant in a Strict Products Liability Action is Jointly and Severally Liable to the Plaintiff for Noneconomic Damages Because Liability Is Imposed as a Matter of Public Policy and is not Based On Fault
a. Strict Products Liability Principles
The doctrine of strict products liability imposes strict liability in tort on all of the participants in the chain of distribution of a defective product. (Greenman v. Yuba Power Products, Inc. (1963)
The chief justification for creating the strict products liability doctrine was "to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves." (Greenman, supra,
Under the doctrine of strict products liability, the liability of all defendants in the chain of distribution "is joint and several." (Kaminski v. Western MacArthur Co. (1985)
b. Proposition 51
"California's system of `comparative fault' seeks to distribute tort damages proportionately among all who caused the harm. However, even after judicial adoption of the comparative fault system, every culpable tort defendant, regardless of his or her degree of fault, remained `jointly and severally' liable to pay any damages attributable to the fault of others who failed to contribute their proportionate share. This rule of joint and several liability applied not only to the injured person's 'economic' damages, such as medical costs and lost earnings, but to `non-economic' damages like emotional distress, pain, and suffering." (DaFonte v. Up-Right, Inc. (1992)
In 1986, the voters of California passed Proposition 51, which modified the system of joint and several liability for damages (DaFonte v. Up-Right, Inc., supra, 2 Cal.4th at pp. 598-600,
Civil Code section 1431.2, subdivision (a) states: "In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgment shall be rendered against that defendant for that amount." Thus, in an action subject to Proposition 51, each tortfeasor remains jointly and severally liable to the plaintiff for economic damages, but is liable to the plaintiff for only its proportionate share of noneconomic damages. (DaFonte v. Up-Right, Inc., supra,
c. Wimberly
In Wimberly, the plaintiff suffered injuries when the fork assembly on his bicycle broke. He brought a strict products liability action against the designer, manufacturer, and seller of the fork assembly, among others. After settling with a number of the defendants before trial, the plaintiff proceeded at trial against the producer-distributor defendant only. (Wimberly, supra, 56 Cal.App.4th at pp. 623-624,
Wimberly held that Proposition 51 did not modify the common law rule that defendants in an action for strict products liability who are in the chain of distribution of the same defective product are jointly and severally liable for all of the plaintiffs economic and noneconomic damages. (Wimberly, supra,
Strict products liability is similar to vicarious liability, Wimberly determined, because under both theories, liability is imposed on the defendant to serve analogous public policies. (Wimberly, supra,
Wimberly explained why Proposition 51 should not apply to strict products liability cases. To limit a defendant's responsibility in strict products liability for noneconomic damages to a proportionate share based on fault would undermine the purpose of strict products liability: "[T]he potential reduction or elimination of a plaintiffs recovery for noneconomic damages through apportionment of `fault' would reallocate the risks accompanying use of defective products and utterly defeat the principal policy reasons for the adoption of strict product liability." (Wimberly, supra,
Wimberly stated: "Accordingly, we hold Proposition 51 has no application in a strict product liability case where, as here, the plaintiffs injuries are caused solely by a defective product. A strictly liable defendant cannot reduce or eliminate its responsibility to the plaintiff for all injuries caused by a defective product by shifting blame to other parties in the product's chain of distribution who are ostensibly more at `fault,' and therefore may be negligent as well as strictly liable. The defendant's recourse, if not precluded by good faith settlement principles, lies in an indemnity action. [Citations.] [Fn. omitted.]" (Wimberly, supra,
d. Proposition 51 Does Not Apply in This Strict Products Liability Action Involving a Single Defective Product Where All Defendants Are in the Same Chain of Distribution
This case is no different from Wimberly, which is well-reasoned and, along with the cases upon which it relies, persuasive. Bostick's injuries were caused by a single defective product. Flex was found liable under the strict products liability *39 theory.[7] The doctrine of strict products liability attaches without regard to fault as a matter of social policy. Thus, Proposition 51, which by its terms applies to actions "based upon principles of comparative fault" (Civ.Code, § 1431.2, subd. (a)), is not triggered by facts of this case. To apportion the noneconomic damages under Proposition 51 would be to reduce or potentially eliminate a plaintiffs recovery of noneconomic damages, which are often far greater than the economic damages, thereby reallocating the risks and losses associated with the use of defective products and utterly defeating the principal social justifications for the adoption of strict products liability. (Wimberly, supra,
Some have observed that liability for noneconomic damages can be apportioned because strict products liability is not liability without fault. (See, Daly v. General Motors Corp., supra,
Indeed, applying concepts of "fault" in a strict products liability case would defeat the very purposes of the doctrine because it would re-impose on the plaintiff the burden of proving negligencean obligation that the doctrine was designed to eliminate. (Daly v. General Motors Corp., supra,
Neither Daly v. General Motors Corp., supra,
Safeway held that comparative fault principles provided the bases for apportionment of liability between defendants, one of whose liability to the plaintiff was based on strict products liability and the other of whose liability was largely premised on negligence. (Safeway Stores, Inc. v. Nest-Kart, supra,
In sum, following Wimberly, supra,
In light of this conclusion, we need not reach Bostick's contention that because Proposition 51 applies to this case, the setoff required by Code of Civil Procedure 877 for a good faith settlement should be limited to that portion of the settlement attributable to economic damages only. Nonetheless, we are constrained to observe that the consequence of disagreeing with Wimberly and applying Proposition 51 to this case is that the concurring opinion necessarily must address and disregard the longstanding and widely accepted precedent for allocating setoffs under Proposition 51 and Code of Civil Procedure section 877. The doctrine of stare decisis presents a "formidable obstacle" to the reconsideration of law relied on for 15 years. (People v. Garcia (2006)
3. The Jury's Apportionment of Fault Between Flex and "Other Entities" Is Not Collateral Estoppel Against Flex in Gold's Gym's Cross-Action
a. Principles of Collateral Estoppel
The court entered a judgment on the pleadings awarding Gold's Gym total equitable indemnity on its cross-complaint against Flex based on the jury's finding that the percentage of fault attributable to "other entities" was zero. The ruling was based on the doctrine of collateral estoppel.
Collateral estoppel or issue preclusion bars the relitigation of an issue that was previously adjudicated if (1) the issue is identical to an issue decided in a prior proceeding; (2) the issue was actually litigated; (3) the issue was necessarily decided; (4) the decision in the prior proceeding is final and on the merits; and (5) the party against whom collateral estoppel is asserted was a party to the prior proceeding or in privity with a party to the prior proceeding. (Lucido v. Superior Court (1990)
The purposes of collateral estoppel are to prevent inconsistent judgments that undermine the integrity of the judicial system, promote judicial economy by minimizing repetitive litigation, and protect litigants from harassment by vexatious litigation. (Vandenberg v. Superior Court (1999)
California courts recognize exceptions to the general rule of collateral estoppel. One such exception is where the party to be precluded, or person in privity with that party, had inadequate incentive to fully litigate the issue in the prior proceeding. (Sutton v. Golden Gate Bridge, Highway & Transportation Dist. (1998)
Moreover, collateral estoppel applies between parties who were codefendants *43 in a prior proceeding only as to issues they litigated fully and fairly as adversaries to each other. (Sutton v. Golden Gate Bridge, Highway & Transportation Dist, supra, 68 Cal.App.4th at pp. 1155-1157,
b. Flex Had No Meaningful Incentive to Adjudicate the Issue of Gold's Gym's Comparative Fault in the Action on the Complaint and the Issue Was Not Fully and Fairly Litigated
As discussed, Flex and Gold's Gym were named as codefendants in the complaint. For trial, their cross-complaints against each other were severed from the complaint. Bostick presented evidence at trial on the complaint to support his claims that Gold's Gym negligently failed to warn him of dangers presented by ordinary use of the Smith machine and that Gold's Gym, as a participant in the chain of distribution, was jointly and severally liable for a product defect. The court denied Gold's Gym's motion for nonsuit or directed verdict as to the causes of action for negligence and strict liability, and granted a nonsuit only on the claim of breach of warranty. After all parties had rested, Gold's Gym agreed to pay Bostick $7.3 million in settlement and was dismissed from the action on the complaint before closing arguments. Because Gold's Gym is not a party to the judgment on the complaint, the assertion of collateral estoppel by Gold's Gym requires a close examination to determine whether use of the doctrine is fair and appropriate. (Vandenberg v. Superior Court, supra, 21 Cal.4th at pp. 829-830,
As explained in section 2, ante, the rule is that those in the same chain of distribution of a defective product are jointly and severally liable to an injured plaintiff for all compensable economic and noneconomic damages caused by the defective product, notwithstanding Proposition 51. (Wimberly, supra,
Moreover, Gold's Gym's potential liability for a product defect or failure to warn under the strict products liability doctrine also inculpated Flex as a participant in the same chain of distribution. Any effort by Flex to establish Gold's Gym's liability on those theories undermined Flex's own defense and provided no discernible benefit for Flex.
Our review of the record shows that Flex and Gold's Gym did not, in fact, fully and fairly litigate the issue of Gold's Gym's comparative fault. Flex apparently heeded the risks inherent in inculpating a codefendant and did not treat Gold's Gym as an adversary at trial. Flex's counsel in closing argument referred to Gold's Gym only *44 in passing and did not attempt to shift responsibility to Gold's Gym. Moreover, apart from Flex's failure to fully litigate the issue, by the time of closing arguments Bostick also had no reason to establish Gold's Gym's responsibility for his injury and did not attempt to do so. Bostick had settled with Gold's Gym, wished to maximize his recovery against Flex, and no longer had reason to show that Gold's Gym was at fault. The lack of a full and fair litigation of the issue of the comparative fault of Gold's Gym precludes the application of collateral estoppel.
We therefore hold that the jury's finding that the percentage of fault attributable to "other entities" was zero cannot be binding upon Flex as a cross-defendant and therefore conclude that the judgment awarding total equitable indemnity in favor of Gold's Gym and against Flex based on collateral estoppel was error. In light of that conclusion, we need not address the other grounds asserted by Flex for challenging the judgment on Gold's Gym's cross-complaint.
CONCLUSION
We conclude that the judgment on Bostick's complaint must be affirmed. We also conclude that the judgment on Gold's Gym's cross-complaint against Flex must be reversed and the matter remanded for further proceedings to determine the amount of any equitable indemnity that Gold's Gym may recover from Flex. Because of our holding, we need not reach the additional contentions on appeal concerning the setoff required by section 877 and equitable indemnity.
DISPOSITION
The judgment on the complaint is affirmed (case No. B171567). The judgment on the cross-complaint is reversed, and the matter is remanded for further proceedings consistent with the views expressed herein (case No. B173455). Each party is to bear its own costs on appeal.
I CONCUR: KITCHING, J.
CROSKEY, Acting P.J., Concurring.
I concur in the decision affirming the judgment on the complaint, but for reasons different from those stated in the majority opinion. In my view, Proposition 51 applies to a strict products liability action involving a single indivisible injury, and Wimberly v. Derby Cycle Corp. (1997)
I conclude further that despite the application of Proposition 51, the setoff required by Code of Civil Procedure section 877 (section 877) for a good faith settlement applies to both economic and noneconomic damages, contrary to Espinoza v. Machonga (1992)
Finally, I concur in that part of the majority opinion reversing the judgment on the cross-complaint by Gold's Gym due to the absence of collateral estoppel.[1] In light of my conclusion that Proposition 51 applies, however, I find it necessary to address and reject Flex's contention that Gold's Gym is entitled to equitable indemnity for only the portion of the settlement that represents payment for economic damages. The purpose of equitable indemnity is to avoid unjust enrichment, and a nonsettling defendant whose liability for noneconomic damages is reduced due to the plaintiffs good faith settlement with a joint tortfeasor is unjustly enriched unless the nonsettling defendant is made to indemnify the settling tortfeasor in the amount of the reduction.
Bostick challenges the amount of the setoff to which Flex is entitled by reason of his settlement with Gold's Gym. He contends the setoff should be limited to the portion of the settlement representing payment for economic damages, based on Proposition 51. I agree with Bostick that Proposition 51 applies, but conclude that section 877 requires a setoff of the full amount of the $7.3 million settlement, including the portion of the settlement representing payment for noneconomic damages. Flex challenges the award of total equitable indemnity in favor of Gold's Gym on the cross-complaint. Flex contends if Proposition 51 applies, Gold's Gym is entitled to equitable indemnity for only for the portion of its settlement representing payment for economic damages. I disagree with Flex and conclude that if Gold's Gym on remand establishes a right of equitable indemnity, the recovery should encompass not only the portion of the settlement attributable to economic damages, but also the portion of the settlement attributable to noneconomic damages.
1. A Defendant in a Strict Products Liability Action Is Liable to the Plaintiff for Only Its Proportionate Share of Noneconomic Damages
a. Strict Products Liability and Comparative Fault Principles
The doctrine of strict products liability imposes strict liability in tort on the manufacturer of a defective product and others in the product's chain of distribution. (Jimenez v. Superior Court (2002)
Daly, supra,
Daly concluded, "Having examined the principal objections and finding them not insurmountable, and persuaded by logic, justice, and fundamental fairness, we conclude that a system of comparative fault should be and it is hereby extended to actions founded on strict products liability." (Daly, supra,
Safeway Stores, Inc. v. Nestr-Kart (1978)
b. Proposition 51
The voters of California passed Proposition 51 in 1986. The initiative amended Civil Code section 1431 and added sections 1431.1 through 1431.5. Section 1431.1 states that the doctrine of joint and several liability has resulted in defendants who are perceived to have "deep pockets" or insurance coverage being included in litigation "even though there was little or no basis for finding them at fault," and that defendants have been held liable for all the damage when they were found to share only "a fraction of the fault." (Id., subd. (b).) Civil Code section 1431.1 decries the "inequity and injustice" of such a system and states that it has threatened local governments, public agencies, and private individuals and businesses with financial ruin. (Id., subd. (a).) It states, "to remedy these inequities, defendants in tort actions shall be held financially liable in closer proportion to their degree of fault. To *48 treat them differently is unfair and inequitable." (§ 1481.1, subd. (c).)
Civil Code section 1431.2, subdivision (a) states: "In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for noneconomic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of noneconomic 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." Proposition 51 modified the common law rule that multiple tortfeasors responsible for the same indivisible injury generally were jointly and severally liable to the plaintiff for all damages. (DaFonte v. Up-Right, Inc. (1992)
c. Wimberly v. Derby Cycle Corp.
Wimberly, supra,
Wimberly gleaned from those opinions a rule of law that Proposition 51 limits a defendant's liability to the plaintiff for noneconomic damages only if the defendant's liability to the plaintiff is based on negligence. (Wimberly, supra, 56 Cal.App.4th at pp. 629-630,
Wimberly stated further that to limit a defendant's liability for noneconomic damages to a proportionate share based on fault would undermine the purpose of strict products liability: "[T]he potential reduction or elimination of a plaintiffs recovery for noneconomic damages through apportionment of `fault' would reallocate the risks accompanying use of defective products and utterly defeat the principal policy reasons for the adoption of strict product liability." (Wimberly, supra,
Although this comment could have equal application to the impact of Proposition 51 on any tort claim, Wimberly concluded: "Accordingly, we hold Proposition 51 has no application in a strict product liability case where, as here, the plaintiffs injuries are caused solely by a defective product. A strictly liable defendant cannot reduce or eliminate its responsibility to the plaintiff for all injuries caused by a defective product by shifting blame to other parties in the product's chain of distribution who are ostensibly more at `fault,' and therefore may be negligent as well as strictly liable. The defendant's recourse, if not precluded by good faith settlement principles, lies in an indemnity action. [Citations.] [Fn. omitted.]" (Wimberly, supra,
Arena v. Owens-Corning Fiberglas Corp. (1998)
Wilson rejected the argument that strict products liability is not "`based upon principles of comparative fault,'" (Wilson, supra,
Wilson also rejected the argument that public policy considerations underlying strict products liability favor complete joint and several liability among all defendants, stating that the argument was "simply irrelevant when the legislative branch has spoken through the initiative process." (Wilson, supra,
d. Proposition 51 Applies in a Strict Products Liability Action Involving a Single Indivisible Injury
The question whether Proposition 51 applies in a strict products liability action is a question of statutory construction. Statutory construction is a question of law that courts review de novo. (Barner v. Leeds (2000)
If the language of a statute is unambiguous, the plain meaning governs and it is unnecessary to resort to extrinsic sources to determine the legislative or voters' intent. (Kavanaugh v. West Sonoma County Union High School Dist. (2003)
The express purpose of Proposition 51 is to ameliorate the inequity of holding a defendant liable for all the damages when that defendant shared only a fraction of the fault. (Civ.Code, § 1431.1.) Proposition 51 accomplishes this goal by holding defendants in tort actions "liable in closer proportion to their degree of fault." (Ibid.) Specifically, Civil Code section 1431.2, subdivision (a) relieves defendants of joint and several liability for noneconomic damages, and makes the liability of each defendant for noneconomic damages several only and in direct proportion to the defendant's percentage of fault.
Strict products liability is not liability without fault. Rather, a defendant is at fault for participating in the chain of distribution of a defective product. (Daly, supra,
The apportionment of liability for noneconomic damages in a strict products liability action pursuant to Proposition 51 would eliminate joint and several liability for noneconomic damages, but would not affect joint and several liability for economic damages. The same is true in any action in which the defendants' liability is joint and several to which Proposition 51 applies. In my view, the plain language of Proposition 51 compels the conclusion that *52 the voters intended to modify the rule of joint and several liability "[i]n any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault" (Civ.Code, § 1431.2, subd. (a), italics added), including a strict products liability action. (Wilson, supra, 81 Cal.App.4th at pp. 855, 858,
The prior opinions of this court holding that Proposition 51 does not eliminate vicarious liability for noneconomic damages (Srithong v. Total Investment Co., supra,
Accordingly, I agree with the argument on this point advanced by Bostick and would not follow Wimberly, supra,
Although I would conclude that Proposition 51 applies and that Flex's liability for noneconomic damages therefore is several only, I would still reach the conclusion that Bostick's damages award against Flex must nonetheless be reduced by the full amount of his $7.3 million settlement with Gold's Gym.
2. Section 877 Requires a Reduction by Setoff of the Noneconomic Portion of an Award Against a Nonsettling Defendant But Only to the Extent Necessary to Avoid a Double Recovery by the Plaintiff
a. Section 877
Code of Civil Procedure section 877.6 provides a procedure for an alleged tortfeasor *53 to be relieved of liability to another "joint tortfeasor" for equitable indemnity or contribution through settlement with the plaintiff. "A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault." (Id., subd. (c).) The plaintiffs claims against other tortfeasors "claimed to be liable for the same tort" then are reduced in the amount stipulated in the settlement or the amount of consideration paid for the settlement, whichever is greater. (§ 877, subd. (a).)
Section 877 states: "Where a release, dismissal with or without prejudice, or a covenant not to sue or not to enforce judgment is given in good faith before verdict or judgment to one or more of a number of tortfeasors claimed to be liable for the same tort, or to one or more co-obligors mutually subject to contribution rights, it shall have the following effect:
"(a) It shall not discharge any other such party from liability unless its terms so provide, but it shall reduce the claims against the others in the amount stipulated by the release, the dismissal or the covenant, or in the amount of the consideration paid for it whichever is the greater.
"(b) It shall discharge the party to whom it is given from all liability for any contribution to any other parties.
"(c) This section shall not apply to co-obligors who have expressly agreed in writing to an apportionment of liability for losses or claims among themselves.
"(d) This section shall not apply to a release, dismissal with or without prejudice, or a covenant not to sue or not to enforce judgment given to a co-obligor on an alleged contract debt where the contract was made prior to January 1, 1988." (Italics added.)
Section 877 originally was enacted in 1957 and was amended in 1987 to its current language. (Stats.1957, ch. 1700, § 1, p. 3077;[2] Stats.1987, ch. 877, § 2, p. 2148.) Section 877 was enacted as part of a bill that for the first time provided for a right of contribution between tortfeasors (Code Civ. Proc, §§ 875, 876) and established a uniform rule that the plaintiffs settlement with one defendant would not effect a release of other defendants liable for the same injury (§ 877 & subd. (a)).[3] (Stats. 1957, ch. 1700, § 1, pp. 3076-3077, enacting Sen. Bill No. 1510 (1957 Reg. Sess.); see American Motorcycle, supra, 20 Cal.3d at pp. 592, 601,
The California Supreme Court has stated that the purposes of section 877 are (1) to maximize the plaintiffs recovery "'for the amount of his injury to the extent fault of others has contributed to it,'" (2) to encourage settlement, and (3) to achieve an equitable apportionment of liability among tortfeasors. (Mesler v. Bragg Management Co. (1985)
Section 877 refers to a settlement with one or more of multiple "tortfeasors claimed to be liable for the same tort" (ibid.) and states that the settlement "shall reduce the claims against the others" (id., subd. (a)) in the greater of the amount stipulated or the amount of consideration paid. The broad language "tortfeasors claimed to be liable for the same tort" encompasses persons claimed to be liable in tort for the same injury whether they acted in concert, concurrently, or successively, and also encompasses persons whose liability is vicarious. (Mesler v. Bragg Management Co., supra,
*55 The statutory language "shall reduce the claims against the others" (§ 877, subd. (a)) thus must necessarily refer to "claims" against nonsettling defendants who are claimed to be liable for the same tort as the settling defendant. A "claim" in this context means a demand for payment of damages and, after the determination of a nonsettling defendant's liability and the amount of damages, a right to payment of damages in a particular amount. (Reed v. Wilson, supra, 73 Cal.App.4th at pp. 444-445,
b. Effect of Proposition 51
Proposition 51 makes each defendant's liability for noneconomic damages several and in proportion to the defendant's fault, rather than joint and several. (Civ.Code, § 1431.2, subd. (a).) The express purpose of Proposition 51 is to limit each defendant's liability to a proportion of the plaintiffs damages that more closely approximates the defendant's degree of fault. (Civ.Code, § 1431.1, subd. (c) ["to remedy these inequities, defendants in tort actions shall be held financially liable in closer proportion to their degree of fault"].) Proposition 51 accomplishes this by limiting each defendant's liability for noneconomic damages to an amount in proportion to that defendant's percentage of fault. (Civ.Code, § 1431.2, subd. (a); see also Evangelatos v. Superior Court (1988)
Proposition 51 affects the way that a setoff under section 877 is calculated and applied. In an action subject to Proposition 51, "the claims against the others" (§ 877, subd. (a)) are not unitary claims for damages. Rather, each defendant is liable for separate amounts of economic and noneconomic damages; the former liability is joint and several, while the latter liability is only several. A good faith settlement therefore must be apportioned between economic and noneconomic damages before a setoff can be applied.
Courts have encountered no difficulty in applying section 877 to an award of economic damages after Proposition 51. By apportioning a settlement between economic and noneconomic damages and reducing the total economic damages award first in proportion to the plaintiffs comparative fault, if any, and further by the economic portion of the settlement, Espinoza, supra, (1992)
*56 It is my view that in order to be consistent with the purpose of section 877 to avoid a double recovery, the plaintiffs total recovery for noneconomic damages, including the sum of the separate awards of noneconomic damages and the noneconomic portion of any good faith settlements, should be no greater than the plaintiffs total noneconomic loss reduced in proportion to the plaintiffs share of fault. Thus, a noneconomic damages award against a defendant should be reduced, by application of a section 877 setoff, but only to the extent necessary to avoid a double recovery by the plaintiff. If the noneconomic portion of one or more good faith settlements exceeds the total amount of plaintiffs noneconomic loss, reduced in proportion to the plaintiffs share of fault, the award of noneconomic damages against each nonsettling defendant will be reduced to zero by means of a setoff. At the other extreme, if the noneconomic portion of good faith settlements is equal to or less than the total amount of the plaintiffs noneconomic damages apportioned to those settling defendants, the award of noneconomic damages against each nonsettling defendant will not be reduced at all by means of a setoff. In between these two extremes, a noneconomic damages award against a defendant should be reduced by a setoff to the extent necessary to avoid a double recovery by the plaintiff.[5] I believe the cases that have articulated a contrary rule (i.e., Espinoza, supra,
c. Espinoza and Its Progeny Construe Section 877 To Require a Setoff Only With Respect to Claims for Joint and Several Liability
Espinoza, supra,
Espinoza, supra,
Thus, Espinoza, supra,
d. The Plain Language of Section 877 Does Not Limit the Setoff Requirement Only to Claims Based on Joint and Several Liability
"Our fundamental task in construing a statute is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute. [Citation.] We begin by examining the statutory language, giving the words their usual and ordinary meaning. [Citation.] If there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs. [Citations.] If, however, the statutory terms are ambiguous, then we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history. [Citation.] In such circumstances, we '"select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences." [Citation.]' [Citations.]" (Day v. City of Fontana (2001)
The language "claimed to be liable for the same tort" (§ 877) is not expressly limited to joint and several liability. Regardless of whether the 1957 Legislature anticipated that the then-prevailing rule of joint and several liability for multiple tortfeasors responsible for the same indivisible injury (American Motorcycle, supra, 20 Cal.3d at pp. 586-587,
e. Proposition 51 Does Not Preclude a Setoff for the Noneconomic Portion of a Settlement
Hoch, supra,
A court could construe Civil Code section 1431.2, subdivision (a) to require an award of noneconomic damages against each defendant in proportion to that defendant's percentage of fault notwithstanding the setoff requirement of section 877 only if it could conclude that Proposition 51 limits or partially repeals that setoff requirement. Proposition 51, however, does not expressly refer to or limit the setoff requirement of section 877. It is therefore necessary to harmonize section 877 with Proposition 51, if possible. (Mejia v. Reed, supra,
The construction of Proposition 51 that I propose is consistent with section 877. The express purpose of Proposition 51 is to limit each defendant's liability to a proportion of the plaintiffs damages that more closely approximates the defendant's degree of fault, as already stated. (Civ. Code, § 1431.1, subd. (c) ["to remedy these inequities, defendants in tort actions shall be held financially liable in closer proportion to their degree of fault"].) Proposition 51 accomplishes this by limiting each defendant's liability for noneconomic damages to an amount in proportion to that defendant's percentage of fault. (Civ. Code, § 1431.2, subd. (a) ["Each defendant shall be liable only for the amount of noneconomic 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"]; see Evangelatos v. Superior Court, supra,
In light of the express statutory purpose to limit defendants' liability, and absent any express limitation in Proposition 51 on the setoff requirement of section 877, the *61 language "shall be rendered" (Civ. Code, § 1432.1, subd. (a)) cannot be construed as an implied limitation, with respect to noneconomic damages, on the section 877 setoff requirement. Rather, Proposition 51 can easily be harmonized with section 877 by construing "a separate judgment shall be rendered against that defendant for that amount" (Civ.Code, § 1432.1, subd. (a)) to refer to the amount of the defendant's liability before any setoff, to be reduced in accordance with section 877, if applicable. Accordingly, I would conclude that Civil Code section 1432.1, subdivision (a) does not preclude a setoff for the amount of a settlement attributable to noneconomic damages.
f. Neither Proposition 51 Nor Section 877 Reflects or Supports the Policy Rationale Endorsed by Hoch Permitting a Plaintiff to Receive a Double Recovery
Hoch, supra,
Hoch, supra,
I am not persuaded by the "equitable" public policy rationale in Hoch, supra,
The first of the three reasons offered in Hoch, supra, 24 Cal.App.4th at pages 66-68,
The second reason offered in Hoch, supra,
The third reason offered in Hoch, supra,
*63 g. The Application of Section 877 to the Noneconomic Portion of Good Faith Settlements Would Provide a Greater Incentive to the Settlement of Multiple-Defendants Tort Cases
Hoch, supra, 24 Cal.App.4th at pages 64-66,
A settling defendant can recover equitable indemnity from a nonsettling defendant to the extent the settling defendant has discharged a liability that the nonsettling defendant should be responsible to pay, as discussed in section 3, post.[11] The rule from Espinoza, supra,
The rule suggested above, in contrast, would require a setoff for the noneconomic portion of a settlement to the extent necessary to avoid a double recovery by the plaintiff. If such a setoff were required, a settling defendant would be allowed to recover equitable indemnity from a nonsettling defendant for all or part of the noneconomic portion of a high settlement, depending on the circumstances. A defendant contemplating settlement in a multiple-defendant tort case would be more likely to pay a greater amount if there existed an opportunity to recover from one or more nonsettling defendants not only the excess economic portion of a high settlement (i.e., the amount by which the economic portion of the settlement exceeds the amount of economic damages later apportioned to the settling defendant by the trier of fact) but also the excess noneconomic portion of a high settlement (i.e., the amount by which the noneconomic portion of the settlement exceeds the amount of noneconomic damages later apportioned to the settling defendant by the trier of fact). Particularly in cases where noneconomic damages may be substantial, the ability to recovery indemnity for the noneconomic portion of a high settlement in this manner, rather than be required to bear the full cost of settlement as to noneconomic damages regardless of the apportionment *64 of fault by the trier of fact, provides a significantly greater incentive for defendants to agree to and pay greater amounts in settlement. Such a result would benefit plaintiffs as well and bring about more settlements. In my view, this would encourage settlements far more than a rule that precluded any indemnity against the nonsettling defendant for the noneconomic portion of a settlement. In addition, the settling defendant's opportunity for such an indemnity recovery would be a complete answer to the concern expressed in Hoch, supra,
Moreover, despite the changes effected by Proposition 51, section 877 continues to provide both tortfeasors and injured plaintiffs with ample incentives to settle. As explained in American Motorcycle, supra, 20 Cal.3d at pages 603-604,
h. The Suggested Rule Serves all the Purposes of Section 877 and Complies with the Statutory Mandate of Proposition 51
As previously stated, the purposes of section 877 are (1) to maximize the plaintiffs recovery "`for the amount of his injury to the extent fault of others has contributed to it,'" while avoiding a double recovery, (2) to encourage settlement, and (3) to achieve an equitable apportionment of liability among tortfeasors. (Mesler v. Bragg Management Co., supra,
The suggested rule also complies with the statutory mandate of Proposition 51 by ensuring that each defendant's liability for noneconomic damages is limited to an amount in proportion to that defendant's percentage of fault. The proposed setoff calculation (see fn. 5, ante) is designed to ensure exactly that and to further ensure that the plaintiffs total recovery for noneconomic damages, including the award of noneconomic damages against nonsettling defendants and the noneconomic portion of any good faith settlement, is no greater than the plaintiffs total noneconomic loss reduced in proportion to the plaintiffs share of fault, consistent with section 877.
i. This Analysis Is Consistent with the Result But Not the Reasoning of Some of the Precedents
In Espinoza, supra,
This conclusion is therefore consistent with the result, but not the reasoning, of Espinoza, supra,
j. This Analysis Is Not Precluded by the Principles of Stare Decisis
I do not suggest a departure from 14 years of precedent lightly. The California Supreme Court has stated: "It is, of course, a fundamental jurisprudential policy that prior applicable precedent usually must be followed even though the case, if considered anew, might be decided differently by the current justices. This policy, known as the doctrine of stare decisis, `is based on the assumption that certainty, predictability and stability in the law are the major objectives of the legal system; i.e., that parties should be able to regulate their conduct and enter into relationships with reasonable assurance of the governing rules of law' [Citation.] [¶] It is likewise well established, however, that the foregoing policy is a flexible one which permits this court to reconsider, and ultimately to depart from, our own prior precedent in an appropriate case. [Citation.] As we stated in Cianci v. Superior Court (1985)
"`Considerations of stare decisis have special force in the area of statutory interpretation, for here, unlike in the context of constitutional interpretation, the legislative power is implicated, and [the Legislature] remains free to alter what we have done.'" (People v. Latimer (1993)
Considerations of reliance "are often crucial" in determining the strength of stare decisis. (People v. Latimer, supra,
I believe that these well-settled principles do not preclude the conclusion that Espinoza, supra,
k. There Is No Error in the Award of Damages Against Flex
The court awarded Bostick $7,347,470 in damages against Flex, including $1 in punitive damages, after reducing the amount awarded by the jury by the full amount of the Gold's Gym settlement. Although the court's calculation was based on the conclusion that Proposition 51 did not apply in this case, I would reach the same result, despite my disagreement with that conclusion, by applying the calculations set forth in footnote 5, ante:
1. Reduce the total damages award by the plaintiffs apportioned share and the total amount of good faith settlements:
16,274,966.00 total damages award
- 1,627,496.60 plaintiffs 10% apportioned share
- 7,300,000.00 good faith settlement with Gold's Gym
_______________
= 7,347,469.40 Reduced Award
2. Determine the economic portion of the Reduced Award by multiplying the Reduced Award by the ratio of total economic damages to the total damages award:
7,347,469.40 Reduced Award
x 3,274,966.00 total economic damages
+ 16,274,966.00 total damages award
_______________
= 1,478,510.77 Reduced Economic Award
3. Determine the noneconomic portion of the Reduced Award by multiplying the Reduced Award by the ratio of total noneconomic damages to the total damages award:
7,347,469.40 Reduced Award
x 13,000,000.00 total noneconomic damages
- 16,274,966.00 total damages award
_______________
= 5,868,958.63 Reduced Noneconomic Award
4. Determine a preliminary noneconomic damages award against each nonsettling *68 defendant by apportioning the Reduced Noneconomic Award among the nonsettling tortfeasors:
5,868,958.63 Reduced Noneconomic Award
x 90 Flex's % of fault
(100-10) 100%combined % of fault of Bostick
_______________
and "other entities"
= 5,868,958.63 Preliminary Noneconomic Award
against Flex[13]
5. Determine the maximum noneconomic damages award against each nonsettling defendant that is permissible under Proposition 51:
90 Flex's % of fault
x 13,000,000.00 total noneconomic damages
________________
= 11,700,700.00 Proposition 51 Limit against Flex
6. Enter a judgment awarding the Reduced Economic Award against the nonsettling defendants jointly and severally and awarding against each defendant severally the tesser of the Preliminary Noneconomic Award or the Proposition 51 Limit:
1,478,510.77 Reduced Economic Award
+ 5,868,958.63 Preliminary Noneconomic Award
_______________
against Flex
= 7,347,469.40 total award of compensatory damages
against Flex
The total award of compensatory damages against Flex plus $1 in punitive damages makes a total award of compensatory and punitive damages of $7,347,470.40. That figure rounded to the nearest dollar is $7,347,470, which is the total amount actually awarded by the trial court. I would therefore affirm the judgment on the complaint in that amount.
3. The Doctrine of Equitable Indemnity Applies to Payments for Both Economic and Noneconomic Damages
a. Principles of Equitable Indemnity
Flex contends Gold's Gym can recover equitable indemnity only for the economic portion of its settlement with Bostick. I disagree. Equitable indemnity is an equitable doctrine that apportions responsibility among tortfeasors responsible for the same indivisible injury on a comparative fault basis. "[T]he equitable indemnity doctrine originated in the common sense proposition that when two individuals are responsible for a loss, but one of the two is more culpable than the other, it is only fair that the more culpable party should bear a greater share of the loss." (American Motorcycle, supra,
The equitable basis for indemnity is the law of restitution. A person is unjustly enriched at the expense of another person *69 when the latter discharges a liability that the former should be responsible to pay. (Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994)
As already discussed, a plaintiffs claim against a nonsettling defendant should be reduced by the amount of a prior good faith settlement to the extent necessary to avoid a double recovery, pursuant to section 877. A nonsettling defendant benefits from any reduction of its liability. For a nonsettling defendant to retain the benefit of a reduction of its liability for damages below its apportioned share based on comparative faultthat is, the amount that it should be responsible to paywithout indemnifying the settling defendant would constitute unjust enrichment. (Western Steamship, supra, 8 Cal.4th at pp. 108-109,
b. Munoz v. Davis and its Progeny
Union Pacific Corp. v. Wengert (2000)
Munoz v. Davis, supra,
Munoz v. Davis, supra,
*71 The citation to Columbus Line, Inc. v. Gray Line Sight-Seeing Companies Associated, Inc., supra,
I would construe Munoz v. Davis, supra,
Wengert, supra, 79 Cal.App.4th at pages 1447-1448,
c. Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital
Western Steamship, supra,
Western Steamship, supra,
I construe the reference in Western Steamship, supra,
d. Any Equitable Indemnity in Favor of Gold's Gym Is Not Limited to the Portion of the Settlement Attributable to Economic Damages
In light of the foregoing, I would conclude that any right of equitable indemnity that Gold's Gym may establish against Flex on remand should not be limited to the portion of its settlement attributable to economic damages, but should also encompass the portion attributable to noneconomic damages.
CONCLUSION
There are two principal points made by this concurring opinion that I wish to underscore. First, Proposition 51 rejected the common law rule of complete joint and several liability for joint tortfeasors and replaced it with a rule limiting a defendant's liability for noneconomic damages to only several liability in direct proportion to that defendant's share of fault. Contrary to Wimberly, supra,
Second, contrary to Espinoza, supra,
The Supreme Court has yet to address either of these important issues. This case presents an excellent opportunity for it to do so.
NOTES
Notes
[*] Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for partial publication with the exception of Part 1 of the Discussion.
[1] Proposition 51 was an initiative measure adopted by the voters in 1986 that amended Civil Code section 1431 and added sections 1431.1 through 1431.5.
[2] In orally presenting to the court the agreed settlement with Gold's Gym, Bostick's counsel set forth in detail how the $7.3 million payment was to be distributed:
1. $2,920 million was to be paid to Bostick's attorneys;
2. $150,000 was to be put in the trust account of Bostick's attorneys towards costs incurred;
3. $1,230 million was to be paid to Bostick through his attorneys' trust account;
4. $3 million was to be paid to a structured settlement company designated by Bostick and his attorneys.
[3] Unless otherwise indicated, all statutory references are to the Code of Civil Procedure.
[4] Section 877.6, subdivision (c) bars any claim for equitable indemnity by a nonsettling tortfeasor against a settling tortfeasor, but the statute does not preclude a claim for equitable indemnity by a settling tortfeasor against a nonsettling tortfeasor.
[**] See footnote *, ante.
[7] Although the jury was instructed in negligence as well as strict products liability and it found that Flex was liable under both theories, we view the negligence here as encompassed within the cause of action for strict products liability because the negligence at issue involved the design and manufacture of the defective product that caused Bostick's personal injuries.
[8] To the extent that Daly v. General Motors Corp., supra,
As stated previously, Proposition 51 was adopted to eliminate inequities that existed under the system of joint and several liability where defendants, who were perceived to have "deep pockets" or had insurance coverage, were included in litigation "even though there was little or no basis for finding them at fault," and that defendants were held liable for all the damage even when they were found to share only "a fraction of the fault." (§ 1431.1, subd. (b).) To remedy these inequities, Proposition 51 sought to hold defendants in tort actions financially liable in closer proportion to their degree of fault. (§ 1431.1, subd. (c).) The language of Proposition 51 is clear on its face: It was intended to apply to defendants and only when their fault is comparable. This analysis is compatible both with the public policy behind strict products liability as explained in Wimberly, namely to place the costs associated with a defective product on those who are most able to absorb them (56 Cal.App.4th at pp. 630-633,
[9] Arena v. Owens-Corning Fiberglas Corp. (1998)
[1] I also concur in the unpublished part of the majority opinion rejecting Flex's challenges to the award of noneconomic damages.
[2] As originally enacted, section 877 stated: "Where a release, dismissal with or without prejudice, or a covenant not to sue or not to enforce judgment is given in good faith before verdict or judgment to one or more of a number of tortfeasors claimed to be liable for the same tort[¶] (a) It shall not discharge any other such tortfeasor from liability unless its terms so provide, but it shall reduce the claims against the others in the amount stipulated by the release, the dismissal, or the covenant, or in the amount of the consideration paid for it whichever is the greater; and [¶] (b) It shall discharge the tortfeasor to whom it is given from all liability for any contribution to any other tortfeasors." (Stats. 1957, ch. 1700, § 1, p. 3077.)
[3] Code of Civil Procedure sections 875 and 876 provide for a right of contribution, and section 877 states that a settlement made in good faith before verdict or judgment "shall not discharge any other such party from liability unless its terms so provide" (§ 877 & subd. (a)).
[4] American Motorcycle, supra,
[5] This result can De achieved in any case by the following calculations that reduce the plaintiff's claims against nonsettling defendants in accordance with section 877 and determine the amounts of economic and noneconomic damages to award the plaintiff in an action subject to Proposition 51:
1. Reduce the total damages award by the plaintiff's apportioned share and the total amount of good faith settlements:
- total damages award - plaintiff's apportioned share - total amount of good faith settlements _____________________________________________ = Reduced Award2. Determine the economic portion of the Reduced Award by multiplying the Reduced Award by the ratio of total economic damages to the total damages award:
Reduced Award x total economic damages ÷ total damages award: _________________________ = Reduced Economic Award3. Determine the noneconomic portion of the Reduced Award by multiplying the Reduced Award by the ratio of total noneconomic damages to the total damages award:
Reduced Award x total noneconomic damages ÷ total damages award ____________________________ = Reduced Noneconomic Award4. Determine a preliminary noneconomic damages award against each nonsettling defendant by apportioning the Reduced Noneconomic Award among the nonsettling tortfeasors:
Reduced Noneconomic Award x defendant's % of fault ÷ (100 percentcombined % of fault of plaintiff and of all defendants settling in good faith) _____________________________________________ - Preliminary Noneconomic Award5. Determine the maximum noneconomic damages award against each nonsettling defendant that is permissible under Proposition 51:
defendant's % of fault x total noneconomic damages _____________________________ = Proposition 51 Limit6. Enter a judgment awarding the Reduced Economic Award against the defendants jointly and severally and awarding against each defendant severally the lesser of the Preliminary Noneconomic Award or the Proposition 51 Limit applicable to that defendant.
[6] Bostick understandably relies on this line of cases. In addition, he also cites DaFonte, supra,
[7] In re Piper Aircraft (N.D.Cal.1992)
[8] "Our conclusion is based, first, on the relevant language of section 877(a), which presupposes the existence of multiple defendants jointly liable for the same damages. The settlement by one or more of several tortfeasors 'claimed to be liable for the same tort' reduces 'the claims against the others.' Under the scheme of purely several liability created by section 1431.2(a), however,'... a personal injury plaintiff's valid "claim" against one such tortfeasor for noneconomic damages can never be the liability of "the others." ... Thus, there is no longer any such claim "against the others" to "reduce."' (Espinoza v. Machonga, supra, 9 Cal.App.4th at pp. 274-275,
[9] "Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgment shall be rendered against that defendant for that amount." (Civ.Code, § 1431.2, subd. (a).)
[10] Poire v. C.L. Peck/Jones Brothers Construction Corp., supra,
[11] I disagree with the opinions holding or suggesting that a settling tortfeasor cannot recover equitable indemnity from a nonsettling tortfeasor for the portion of a settlement attributable to noneconomic damages, as discussed in section 3, post.
[12] Without even considering the possibility of retaining the benefit of a high settlement, the plaintiff, in a multiple-defendant tort case, may have several substantial reasons to settle with fewer than all of the defendants in addition to the incentives already mentioned. For example, and without suggesting that this a comprehensive list, such reasons might include: (1) the establishment of a "war chest" with which to prosecute the claim against the remaining defendants, (2) disposal of the claim as against the settling defendant who may have a lesser or questionable liability or limited financial resources, (3) obtaining the cooperation or assistance of the settling defendant with respect to discovery or evidentiary issues in the prosecution of the claim against the remaining defendants, and (4) receiving an immediate partial recovery on the claim without further risk, delay, or expense.
[13] It should be noted that when there is only a single nonsettling tortfeasor, as is the case here, this calculation will always result in a multiplier of 1, so the "reduced noneconomic award" and the "preliminary noneconomic award" against that tortfeasor will be the same.
[14] "`The basis for indemnity is restitution, and the concept that one person is unjustly enriched at the expense of another when the other discharges liability that it should be his responsibility to pay.'" (Western Steamship, supra,
[15] Opinions stating the purported rule include, among others, BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc. (2004)
[16] Numerous opinions quote this passage in full or in part, including Major Clients Agency v. Diemer (1998)
[17] The Ninth Circuit in Hydro-Air Equipment, Inc. v. Hyatt Corp. (9th Cir. 1988)
[18] Wengert, supra,
[19] Civil Code section 1430 distinguishes a joint obligation, a several obligation, and a joint and several obligation.