American Motorcycle Association v. Superior Court of the State of California for the County of Los Angeles

• Decision Date: 06 January 1977
• Citation: 135 Cal.Rptr. 497,65 Cal.App.3d 694
• Parties: The AMERICAN MOTORCYCLE ASSOCIATION, a nonprofit corporation, Petitioner, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; VIKING MOTORCYCLE CLUB, an unincorp. assn., et al., Real Parties in Interest. Civ. 49032.
• Court: California Court of Appeals Court of Appeals

Page 497

135 Cal.Rptr. 497

65 Cal.App.3d 694

The AMERICAN MOTORCYCLE ASSOCIATION, a nonprofit corporation, Petitioner, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent;

VIKING MOTORCYCLE CLUB, an unincorp. assn., et al., Real Parties in Interest.

Civ. 49032.

Court of Appeal, Second District, Division 1, California.

Jan. 6, 1977.

For Opinion on Hearing, see 143 Cal.Rptr. 692, 574 P.2d 763.

Lawler, Felix & Hall, Thomas E. Workman, Jr., Erwin E. Adler and Jane H. Barrett, Los Angeles, for petitioner.

Ass'n of Southern Cal. Defense Counsel, John W. Baker, Los Angeles, Caywood J. Borror, San Bernardino, Francis Breidenbach, Richard B. Goethals, Stephen J. Grogan, Henry E. Kappler, Los Angeles, Kenneth E. Moes, Santa Barbara, W. F. Rylaarsdam, Pasadena, and Lucien A. Van Hulle, San Bernardino, as amici curiae on behalf of petitioner.

No appearance for respondent.

Jack A. Rose, Anaheim, for real parties in interest Glen Gregos, a minor by and through his guardian ad litem Gordon Gregos and Gordon Gregos.

Robert E. Cartwright, San Francisco, Edward I. Pollock, Los Angeles, Leroy Hersh, David B. Baum, San Francisco, Stephen I. Zetterberg, Claremont, Robert G. Beloud, Upland, Ned Good, Los Angeles, Arne Werchick, San Francisco, Sanford M. Gage, Beverly Hills, Leonard Sacks, Encino, and Joseph Posner, Los Angeles, as amici curiae on behalf of real parties in interest Glen Gregos, a minor by and through his guardian ad litem Gordon Gregos and Gordon Gregos.

THOMPSON, Associate Justice.

In Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 our Supreme Court: (1) opened for reexamination in light of changed conditions the California statutory law of negligence to the extent that it is declaratory of the common law (13 Cal.3d at pp. 814, 821-822, 119 Cal.Rptr. 858, 532 P.2d 1226); (2) adopted the rule of 'pure comparative negligence' in lieu of the doctrine of contributory negligence codified in Civil Code section 1714 (13 Cal.3d at pp. 827-828, 119 Cal.Rptr. 858, 532 P.2d 1226); (3) determined the easy questions of the effect of the judicially adopted rule upon the doctrines of last clear chance (13 Cal.3d at pp. 824-825, 119 Cal.Rptr. 858, 532 P.2d 1226) and assumption of risk (id.); and (4) left the hard questions such as application of the new principle in multi-party situations to the "trial judges of this State" unencumbered by specific guidelines (13 Cal.3d at p. 826, 119 Cal.Rptr. 858, 532 P.2d 1226).

The petition for writ of mandate which is here before us raises the manner in which Li v. Yellow Cab is to be applied to the situation of multiple parties, all of whom are asserted to be negligent in a manner proximately contributing to a plaintiff's injury. Specifically, the petition concerns the right of a named defendant to bring persons not named as defendants into the action by a cross-complaint alleging the negligence of those persons and its proximate causation of the injury for which the complaint seeks to hold the defendant-cross-complainant liable.

We conclude that: (1) Li v. Yellow Cab's rule of 'pure comparative negligence' fastens liability upon a person 'in direct proportion to his negligence'; (2) the rule of comparative negligence requires modification of California's pre-Li doctrine of joint and several liability of concurrent tortfeasors; ¹ and (3) a defendant may crosscomplain to bring other persons into the action so that the proportion of his negligence may be compared to theirs and the modified rule of liability of concurrent tortfeasors applied to the situation of multiple parties.

Facts

On January 14, 1973, 16-year-old Glen Gregos was injured while participating in a cross-country motorcycle race. Acting through Gordon Gregos, his guardian ad litem, Glen filed an action to recover for his injuries. The lawsuit names as defendants the American Motorcycle Association (AMA), Viking Motorcycle Club (Viking), Jerrald Kindsvogel, Stephen R. Elsner, Continental Casualty Company of Chicago (Continental), and Does 1 through 200.

As eventually amended, the complaint is framed in six causes of action.

The first cause of action is based in negligence. It asserts that AMA, Viking, and other named defendants (excluding Continental) sponsored, managed, administered, and controlled a race for novice motorcycle riders and solicited and encouraged members of the public to participate in it for an entry fee of $5. Glen paid the entry fee and entered the race. The first cause of action claims that by reason of the negligence of the defendants in sponsoring, operating, controlling, and managing the race and in soliciting entrants, Glen suffered personal injuries causing damage of $3,000,000, plus the cost of future medical care.

The second cause of action asserts fraud of the named defendants other than Continental. The fraud is related to the defendant's failure to perform on promises made to Glen to instruct him in racing technique, evaluate his capability, and place him in races with entrants of similar ability.

The third cause of action seeks compensatory and punitive damages from Continental. It alleges the bad faith refusal of Continental to make payments on a $10,000 medical reimbursement policy covering injuries to participants in AMA sanctioned amateur events.

The fourth cause of action sounds in fraud and is based upon the allegedly false and untrue representation that the motorcycle race in which Glen was injured was an event officially sponsored by AMA and Viking. Continental and its agents are asserted to be parties to the fraud.

The fifth cause of action claims that the various defendants intentionally inflicted emotional distress upon Glen by causing his insurance claim against Continental to be dishonored.

The sixth cause of action alleges a conspiracy among the defendants to violate Glen's rights generally in the fashion claimed in the preceding causes of action.

AMA answered the amended complaint denying its charging allegations and asserting affirmative defenses. After an unsuccessful attempt to file a cross-complaint bringing Viking, various of its agents, and Glen's parents, one of whom is his guardian ad litem, into the case on theories of indemnity and comparative negligence, AMA filed a second motion for leave to file a cross-complaint. The proposed cross-complaint is framed in two causes of action asserted against Glen's mother and father.

The first alleges notice to Glen's parents that motorcycle competition is a dangerous sport, that the parents participated in Glen's decision to enter the event, that his entry would not have been received without parental consent, that Glen's father gave his written consent which permitted Glen's participation, that Glen's parents knew of the extent of Glen's training and negligently failed to exercise their powers of supervision over their minor child by allowing his entry in the race, and that while AMA's negligence, if any, was passive, that of Glen's parents was active. The first cause of action seeks indemnity from the parents if AMA is found liable to Glen.

The second cause of action seeks declaratory relief. It alleges that Glen has failed to join his father and mother as defendants in the action, reasserts their negligence, and asks for a declaration of the relative negligence of those who contributed to Glen's injury so that the rule of Li v. Yellow Cab may be applied.

Believing itself bound by existing case law pre-dating Li, the trial court denied AMA's motion to file its cross-complaint. AMA petitioned this court for a writ of mandate compelling the trial court to grant its motion. Recognizing that the problem must be a recurring one in which the trial courts are in need of guidance, we issued our alternative writ.

Pre-Li Law

Prior to Li v. Yellow Cab Co., supra, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, California in general applied an all-or-nothing concept of negligence. If a person's negligence was a proximate cause of damage to a person or property, he was deemed responsible for the entire damage. That responsibility barred a plaintiff whose own negligence was a proximate cause of the damage from recovering any part of it. (4 Witkin, Summary of Cal.Law (8th ed.) Torts, § 683.) That responsibility rendered a joint or concurrent tortfeasor liable for the entire damage and it was improper for a court to apportion damages among tortfeasors. (4 Witkin, Summary of Cal.Law (8th ed.) Torts, § 35; 1 Harper & James, The Law of Torts, §§ 10.1, 10.2.) In either event, the person's negligence precluded his loss from being shifted in part to another who was also at fault. While the all-or-nothing principle was mitigated somewhat as to plaintiffs by rules such as last clear chance (4 Witkin, Summary of Cal.Law (8th ed.) Torts, §§ 714-721), and to defendants by a limited right of contribution among judgment debtors who, at the plaintiff's election, were named in the lawsuit (Code Civ.Proc., §§ 875, 876; 4 Witkin, Summary of Cal. Law (8th ed.) Torts, §§ 43-49; cf. Schwartz, Comparative Negligence, § 16.7, pp. 261-263), and by a complex system of equitable indemnity to persons 'secondarily' liable from persons whose liability was 'primary' (4 Witkin, Summary of Cal.Law (8th ed.) Torts, §§ 50-52), nevertheless the underlying California principle of negligence was founded on attaching total responsibility to each person whose lack of care contributed to the damage.

Consequences of Li v. Yellow Cab

Demise of all-or-nothing doctrine. In Li v. Yellow Cab Co., supra, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 our Supreme Court prospectively terminated the operation of the all-or-nothing doctrine as applied to plaintiffs seeking damages for negligence (13 Cal.3d at pp. 812-813), and replaced it with a principle 'under which liability for damage will be borne by those whose negligence caused it in direct proportion to their respective fault.' (13...