B.B. v. Cnty. of L. A.

• Citation: 10 Cal.5th 1,471 P.3d 329,267 Cal.Rptr.3d 203
• Decision Date: 10 August 2020
• Docket Number: S250734
• Parties: 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.
• Court: United States State Supreme Court (California)

10 Cal.5th 1

471 P.3d 329

267 Cal.Rptr.3d 203

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

Supreme Court of California.

August 10, 2020

Pine Tillet Pine, Norman Pine, Sherman Oaks, Stacy Freeman, Scott Tillett,Sherman Oaks, Chaya M. Citrin; The Sweeney Firm and John E. Sweeney, Simi Valley, for Plaintiffs and Appellants B.B. and B.B.

Schonbrun Seplow Harris & Hoffman, Michael D. Seplow, Paul L. Hoffman, Aidan C. McGlaze, John Washington, Los Angeles; Orange Law Offices, Olu Orange, Los Angeles; Antablin & Bruce, Drew Antablin ; Douglas / Hicks Law, Carl E. Douglas, Beverly Hills, 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, Los Angeles; Manning & Kass, Ellrod, Ramirez, Trester, Eugene P. Ramirez, Louis W. Pappas, Steven J. Renick, Julie M. Fleming and Angela M. Powell, Los Angeles, for Defendants and Appellants.

Fred J. Hiestand, Sacramento, for The Civil Justice Association of California as Amicus Curiae on behalf of Defendants and Appellants.

Cole Huber and Derek P. Cole, Roseville, 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, Los Angeles; 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, San Francisco, for Coalition for Litigation Justice, Inc. as Amicus Curiae on behalf of Defendants and Appellants.

Cole Pedroza, Curtis A. Cole, Fresno, Cassidy C. Davenport, San Marino, 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, Oakland, for Michael and Cindy Burch as Amici Curiae on behalf of Plaintiffs and Respondents.

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 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 (2018) 25 Cal.App.5th 115, 235 Cal.Rptr.3d 457.) 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-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, 44 Cal.Rptr.3d 66 ( 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. 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 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, 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 the...