Burch v. Certainteed Corp.

intentional misrepresentation, and that the court erred in allocating

and 62 percent of their noneconomic damages ($5.735 million); plaintiffs served defendant with notice of entry of judgment on March 21, 2017.

Defendant timely filed a motion for a new trial and for JNOV on plaintiffs' intentional concealment and misrepresentation claims. Plaintiffs, in turn, brought a motion to amend the judgment, arguing that Proposition 51 does not allow allocation of noneconomic damages according to a tortfeasor's proportion of fault if the tortfeasor committed an intentional tort.

The trial court denied defendant's motion for a new trial. On May 18, 2017, it denied defendant's motion for JNOV on intentional concealment, but granted the motion on intentional misrepresentation. On June 9, 2017, plaintiffs appealed, and on June 13, 2017, defendant filed a cross-appeal. On July 14, 2017, the trial court granted plaintiffs' motion to amend the judgment to eliminate defendant's proportionate fault reduction for noneconomic damages. On August 7, 2017, the court entered an amended judgment for plaintiffs holding defendant 100 percent liable for plaintiffs' economic damages ($776,201) and noneconomic damages ($9.25 million). Defendant appealed from this amended judgment, and plaintiffs cross-appealed.

Meanwhile, defendant attempted to partially satisfy the judgment. Plaintiffs rejected defendant's check; thereafter, plaintiffs moved to challenge the sufficiency of defendant's appellate bond, and defendant moved to compel plaintiffs to execute an acknowledgement of partial satisfaction of judgment. Defendant appealed the denial of its motion, and this court consolidated all of the parties' appeals.

A. Appellate Jurisdiction

This case presents two jurisdictional questions that must be addressed before the merits. First, the court entered two judgments, and there can only

The change in the amended judgment here was not a simple clerical change. The record reflects that the trial court intended to enter the original judgment according to the jury's findings, although the court anticipated making a future final decision on the applicability of section 1431.2. The amended judgment increased defendant's liability for noneconomic damages by more than $3 million. This correction "materially affect[s] the substantial rights of the part[ies]" and had to occur under Code of Civil Procedure section 663. (See Code Civ. Proc., § 663.)

Under the operative law at the time, the court's power to rule on a motion under Code of Civil Procedure section 663 expired 60 days from the clerk's mailing of the notice of entry of judgment or service upon the moving party of written notice of entry of judgment, whichever was earlier, or if that notice was not given, 60 days after the filing of the first notice of intention to move to set aside and vacate the judgment. (Code Civ. Proc., former § 663a,

is insufficient to grant jurisdiction over the separately appealable order. ( Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212 , 239, 26 Cal.Rptr.3d 798 ( Sole ).) However, a notice is sufficient " 'to protect the right of appeal if it is reasonably clear what [the] appellant was trying to appeal from,

Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278 , 290, 130 Cal.Rptr.2d 436 .) This burden to provide a fair summary of the evidence "grows with the complexity of the record." ( Ibid. )

The record in this case is lengthy. The testimony heard by the jury spans 21 of the 46 volumes of reporter's transcripts. Plaintiffs also provided 25 trial exhibits in their appendices. In contrast, defendant did not submit a single trial exhibit, though it frequently cites these exhibits in its briefing, including some that are not in our record. Defendant provided only a brief summary of the evidence and summarized only those facts that support its theories. While we could deem defendant's failure to provide an adequate record and set out the facts in the light most favorable to the judgment a forfeiture ( Foreman & Clark Corp. , supra , 3 Cal.3d at p. 881, 92 Cal.Rptr. 162 , 479 P.2d 362 ), we have elected not to do so. Our independent review of the record reveals the jury's verdict on concealment should be upheld, as we discuss in the next sections.

a. Duty to Disclose and Causation

Defendant argues that there is no evidence establishing that it had a duty to disclose because there was no evidence of a transaction between itself and Burch; defendant also argues that there was no evidence of but-for causation as opposed to Rutherford causation, which allows a plaintiff in a product liability asbestos case to prove causation by establishing a reasonable medical probability that exposure to a defendant's product contributed to the plaintiff's risk of developing cancer. (See Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953 , 957-958, 67 Cal.Rptr.2d 16 , 941 P.2d 1203 .)

With respect to concealment, " '[t]here are "four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts." ' " ( Bigler-Engler , supra , 7 Cal.App.5th at p. 311.) The latter three circumstances " 'presuppose[ ] the existence of some other relationship between the plaintiff and defendant in which a duty to disclose can arise.' " ( Ibid. ) This relationship has been described as a "transaction," such as that between " ' "seller and buyer, employer and prospective employee, doctor and patient, or parties entering

On the record before us, defendant is prohibited from seeking reversal of the jury's verdict based on theories different from those it advanced and tried below. When a party by its conduct induces the commission of error, it may not claim that the judgment should be reversed because of that error. ( Jentick v. Pacific Gas & Elec. Co. (1941) 18 Cal.2d 117 , 121, 114 P.2d 343 ( Jentick ).) Jentick is instructive. In Jentick , the defendant appealed from a judgment following a jury verdict after the court's denial of its motions for a directed verdict, judgment notwithstanding the verdict, and a new trial. ( Id. at p. 120, 114 P.2d 343 .) The jury returned a verdict finding the defendant vicariously liable for the acts of two of its employees, while at the same time finding the employees were not liable. The Supreme Court found that the defendant could not challenge the verdict because it had invited the jury's error by requesting an erroneous jury instruction that led the jury to believe that it could hold defendant vicariously liable for plaintiffs' damages, and at the same time exonerate the two employees. ( Id. at p. 121, 114 P.2d 343 .) The Supreme Court thus affirmed the judgment. ( Id. at p. 122, 114 P.2d 343 ; see also Gherman v. Colburn (1977) 72 Cal.App.3d 544 , 567, 140 Cal.Rptr. 330 [a party may not urge reversal of a judgment based on jury instructions jointly requested].)

Here, prior to the jury instruction conference, defense counsel told the court that the parties had agreed on the language of the CACI jury instructions to be submitted. The record reflects that the parties jointly requested the CACI jury instructions given on concealment and Rutherford causation, and the parties agreed that the traditional but-for causation instruction should not

at trial]; Jones v. Dutra Construction Co. (1997) 57 Cal.App.4th 871 , 876-878, 67 Cal.Rptr.2d 411 [plaintiff could not raise failure to plead an affirmative defense on appeal where he responded to defendant's motion for summary judgment on the merits without raising the issue, and, had he raised it, defendant could have sought to amend its answer]; Simmons v. Ware (2013) 213 Cal.App.4th 1035 , 1050-1051, 153 Cal.Rptr.3d 178 [reversing grant of JNOV, in part because the plaintiff had not pled or presented to the jury the issue on which the court granted JNOV].)

In this case, defendant moved for summary judgment and for nonsuit, but it did not raise the issues of a duty to disclose or but-for causation. With respect to the existence of a transaction sufficient to support a duty to disclose, the record shows that while this case was pending, defendant moved for summary judgment on this issue in a separate asbestos personal injury case pending in another court, suggesting that defendant was clearly aware of the issue. And this was not a case where defendant consistently maintained that it never sought contact with the plaintiff. Instead, defendant tried its case on the theory that it did everything it could to provide information about its A/C pipe to its customers and to Burch. And, as previously noted, the jointly requested jury instructions do not submit the issues of a duty to disclose or but-for causation to the jury. On this record, defendant's change in theory after trial and its contention that the jury verdict is unsupported by evidence

"seldom if ever cut or machined" after leaving the plant. Yet, defendant's installation guides from the 1960's and early 1970's touted the ease of cutting and machining A/C pipe in the field.

In 1977, because the question of health continued "to plague" defendant, it developed a script for its salespeople to discuss "A/C Pipe and Health." Salespeople were told that certain information should be given to customers " only when the A/C Pipe and Health question has been raised by an existing or potential customer." They were also told not to ad lib, and to quote the script when speaking to customers.

Defendant did not give customers pamphlets regarding the safe handling of or the health implications of its A/C pipe until 1977, when it created scripts

ever came to their attention].)

Thomas , supra , 139 Cal.App.4th at p. 1108, 44 Cal.Rptr.3d 66 .) The court reasoned that, at the time Proposition 51 passed, an intentional tortfeasor was not entitled to a reduction of the judgment due to the plaintiff's negligence or that of third parties, and policy considerations of deference and punishment for intentional torts supported the conclusion that an intentional tortfeasor's liability was not subject to apportionment where the negligence of one or more third party tortfeasors contributed to a plaintiff's injuries. ( Id. at p. 1112, 44 Cal.Rptr.3d 66 .)

In B.B. , the Court of Appeal for the Second Appellate District disagreed with Thomas , holding that section 1431.2 requires several liability for noneconomic damages in proportion to fault, regardless of whether the defendants act intentionally or negligently. ( B.B. , supra , 25 Cal.App.5th at p. 127, 235 Cal.Rptr.3d 457 , review granted.) To support its holding, the court relied mainly on the Supreme Court's decision in DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593 , 7 Cal.Rptr.2d 238 , 828 P.2d 140 ( DaFonte ).

In Da Fonte , the Supreme Court addressed whether section 1431.2 eliminated a negligent defendant's joint and several liability to an injured employee for noneconomic damages attributable to the negligence of an employer who was statutorily immune from suit. There, an employee sued the manufacturer of a product that injured the employee at work, and the manufacturer sought to demonstrate the employer's negligent safety policies were partly responsible. Relying on workers' compensation law that prevented the employee from suing the employer for tort damages, the employee argued noneconomic damages should not be apportioned for the defendant

found to be intentional." ( Id. at p. 128, 235 Cal.Rptr.3d 457 .)

We agree with B.B. that section 1432.1, like all statutes, must be interpreted according to its language. ( DaFonte , supra , 2 Cal.4th at p. 601, 7 Cal.Rptr.2d 238 , 828 P.2d 140 .) However, B.B. failed to credit the entire statutory text. Again, section 1432.1 expressly states, "[i]n 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." ( Civ. Code, § 1431.2, subd. (a), italics added.) B.B. appears to have read the language "based upon principles of comparative fault," out of the statute. To understand the import of this language, it is useful to place Proposition 51's modification of common law joint and several liability in brief historical perspective.

In Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 , 119 Cal.Rptr. 858 , 532 P.2d 1226 , the Supreme Court first introduced comparative negligence and eliminated the all-or-nothing doctrine of contributory negligence. Thereafter, California followed a system of pure comparative negligence, "the fundamental

Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208 , 245-246, 149 Cal.Rptr. 239 , 583 P.2d 1281 [ballot materials may help resolve ambiguities in initiative measures].) The official ballot description of Proposition 51 provided that, "[u]nder existing law, tort damages awarded a plaintiff in court against multiple defendants may all be collected from one defendant," and, "[a] defendant paying all the damages may seek equitable reimbursement from

Plaintiffs Michael and Cindy Burch sued defendant CertainTeed Corporation, an asbestos-cement (A/C) pipe manufacturer, after Michael Burch contracted mesothelioma following many years of installing A/C pipe throughout California. After trial, the jury returned a verdict for plaintiffs Michael and Cindy Burch on their claims against CertainTeed Corporation for negligence, failure to warn, strict product liability, intentional concealment, and intentional misrepresentation. The court entered judgment for plaintiffs holding defendant 100 percent liable for plaintiffs' economic damages and 62 percent liable for their noneconomic damages according to the jury's fault apportionment. The court granted judgment notwithstanding the verdict (JNOV) on plaintiffs' intentional misrepresentation claim and denied JNOV on plaintiffs' intentional concealment claim.

On appeal, plaintiffs argue that substantial evidence supports the jury's verdict on

be one final judgment. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2018) ¶ 2.21.) So, we must decide which is the final judgment and whether appellate jurisdiction exists over that judgment. Second, we must resolve plaintiffs' challenge to our jurisdiction over defendant's appeal of the court's order partially denying its motion for JNOV.

1. The Judgments

The court entered a judgment on March 20, 2017 and an amended judgment on August 7, 2017. With respect to the first judgment, defendant timely moved for JNOV, and the parties timely appealed within 30 days of the trial court's service of its order granting in part and denying in part defendant's motion. Because the parties timely appealed from the original judgment, we have jurisdiction unless the amended judgment became the operative judgment.

After a judgment is entered, although clerical errors may be corrected at any time ( Code Civ. Proc., § 473, subd. (d) ), the only way for a court to correct judicial error is on a motion for new trial or on a motion under Code of Civil Procedure section 663 to vacate the judgment and enter a different one. ( Greene v. Superior Court (1961) 55 Cal.2d 403 , 405-406, 10 Cal.Rptr. 817 , 359 P.2d 249 .) A clerical error results when the order or judgment misstates the court's actual intent (i.e., error in recording the judgment rendered), and judicial error results when the order or judgment entered was intended, even though based on an error of law (i.e., error in rendering the judgment). ( Rochin v. Pat Johnson Manufacturing Co . (1998) 67 Cal.App.4th 1228 , 1237-1238, 79 Cal.Rptr.2d 719 .)

and where the respondent could not possibly have been misled or prejudiced.' " ( In re Joshua S. (2007) 41 Cal.4th 261 , 272, 59 Cal.Rptr.3d 460 , 159 P.3d 49 .)

It is reasonably apparent that defendant sought to appeal the order denying JNOV, as well as the judgment. Unlike in Sole , defendant did not singularly appeal from the judgment. Defendant instead marked an additional box indicating an appeal under Code of Civil Procedure section 904.1, subdivision (a)(3)-(13). Plaintiffs were aware of the order partially denying JNOV, they do not argue that other appealable orders caused confusion over which order defendant appealed, and they do not show prejudice. In these circumstances, we liberally construe the notice of cross-appeal and exercise jurisdiction over the court's order partially denying JNOV.

B. The Parties' Appeals of the JNOV Order

The trial court's power to grant JNOV is the same as its power to grant a directed verdict. ( Code Civ. Proc., § 629.) " 'A motion for judgment notwithstanding the verdict may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support.' " ( Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107 , 1138, 76 Cal.Rptr.3d 585 .) If there is any substantial evidence, contradicted or uncontradicted, to support the verdict, we affirm the verdict. ( Ibid. ) Substantial evidence is that of a "ponderable legal significance, reasonable, credible, and of solid value." ( Jorge v. Culinary Institute of America (2016) 3 Cal.App.5th 382 , 396, 207 Cal.Rptr.3d 586 .) The "focus is on the quality, not the quantity of the evidence." ( Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal.App.3d 864 , 871, 269 Cal.Rptr. 647 .) We resolve all evidentiary conflicts and indulge all reasonable inferences in support of the judgment. ( Leung v. Verdugo Hills Hospital (2012) 55 Cal.4th 291 , 308, 145 Cal.Rptr.3d 553 , 282 P.3d 1250 .)

1. Substantial Evidence Supports the Jury's Verdict for Concealment

The elements of fraudulent concealment are: (1) the defendant concealed or suppressed a material fact; (2) the defendant was under a duty to disclose the fact to the plaintiff; (3) the defendant intentionally concealed or suppressed the fact with the intent to defraud the plaintiff; (4) the plaintiff was unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact; and (5) as a result of the concealment or suppression of the fact, the plaintiff sustained damage. ( Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276 , 310-311, 213 Cal.Rptr.3d 82 .) Defendant claims insufficient evidence supports the elements of a duty to disclose, causation, actionable concealment, intent to deceive, and reliance.

As a preliminary matter, we presume that the " 'record contains evidence to sustain every finding of fact.' " ( Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875 , 881, 92 Cal.Rptr. 162 , 479 P.2d 362 .) It is the appellant's burden to demonstrate that it does not. ( Ibid . ) In furtherance of this burden, the appellant must fairly summarize all the facts in the light most favorable to the judgment. (

and brochures acknowledging that asbestos fibers may be a "possible health hazard," but stating that its A/C pipe was "non-harmful" as the fibers were "locked-in." Yet Burch testified the A/C pipe was dusty to work with and even to touch, and it could be inferred from the evidence that defendant knew its A/C pipe was machined and released dust in the field. Defendant did not use the word "cancer" on warning labels until 1985. This record provides substantial evidence supporting the jury's finding of both actionable concealment and intent to deceive.

With respect to reliance, defendant argues no evidence exists because Burch was not asked whether he would have behaved differently had he known the truth and he testified he did not see defendant's brochures or installation guides. This may be true, but defendant ignores testimony from Burch and his co-workers stating the A/C pipe they worked with did not warn of cancer, and they believed the product was safe. Burch testified, "I thought it was all safe to work," and he said he expected that if a product was carcinogenic, the manufacturer would warn those who worked with the product. Burch also testified that he fears dying young from cancer and worries about how his family will live. From this testimony, the jury could reasonably infer that, had Burch known of the concealed danger of cancer, he would have behaved differently. (See Sangster v. Paetkau (1998) 68 Cal.App.4th 151 , 170, 80 Cal.Rptr.2d 66 [reliance may be established through circumstantial evidence showing the alleged fraudulent misrepresentation or concealment substantially influenced the party's choice].)

2. Substantial Evidence Does Not Support the Jury's Verdict for Intentional Misrepresentation

Plaintiffs contend the court erroneously granted JNOV on their intentional misrepresentation claim because they introduced substantial evidence of each of the following elements of fraud: (1) false representation; (2) knowledge of falsity; (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage. ( Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951 , 974, 64 Cal.Rptr.2d 843 , 938 P.2d 903 .)

The problem with plaintiffs' argument, as the trial court recognized, is that the record is devoid of evidence showing reliance. "It is settled that a plaintiff, to state a cause of action for deceit based on a misrepresentation, must [prove] that he or she actually relied on the misrepresentation." ( Mirkin v. Wasserman (1993) 5 Cal.4th 1082 , 1089, 23 Cal.Rptr.2d 101 , 858 P.2d 568 .) Burch testified that he does not recall ever seeing the materials containing defendant's misrepresentations, and Burch cannot have relied on what he never saw. ( Id. at p. 1095, 23 Cal.Rptr.2d 101 , 858 P.2d 568 [finding reliance could not be pled where plaintiffs could not allege the misrepresentations

Plaintiffs' efforts to conjure substantial evidence of reliance are unavailing. They point to: (1) testimony stating that defendant intended to reach all A/C pipe contractors in California with information regarding how to use its A/C pipe; (2) counsel's argument that the misrepresentations must have reached Burch; and (3) section 533 of the Restatement (Second) of Torts (Restatement (Second) section 533). But testimony that defendant intended for information to be passed on to contractors does not provide substantial evidence that Burch, an employee of a contractor, in fact received and relied on this information. And counsel's argument is not evidence. ( Fuller v. Tucker (2000) 84 Cal.App.4th 1163 , 1173, 101 Cal.Rptr.2d 776 .)

Plaintiffs also mistake the import of the Restatement (Second) section 533, which provides an exception to the traditional rule requiring that a defendant make a misrepresentation directly to the plaintiff. ( Mirkin , supra , 5 Cal.4th at p. 1095, 23 Cal.Rptr.2d 101 , 858 P.2d 568 .) Under the Restatement (Second) section 533, a plaintiff can sue the maker of a misrepresentation where the misrepresentation was made to a third party and the maker intends or has reason to expect that the misrepresentation will be repeated or communicated by the third party to the plaintiff. ( Ibid. ) Neither the Restatement (Second) section 533, nor the authorities endorsing it, eliminate a plaintiff's burden to show reliance. "[A] plaintiff who hears an alleged misrepresentation indirectly must still show 'justifiable reliance upon it ....' " ( Id . at p. 1096, 23 Cal.Rptr.2d 101 , 858 P.2d 568 .)

Finally, this case is distinguishable from Engalla , supra , 15 Cal.4th 951 , 64 Cal.Rptr.2d 843 , 938 P.2d 903 , and Boeken v. Philip Morris , Inc. (2005) 127 Cal.App.4th 1640 , 26 Cal.Rptr.3d 638 ( Boeken ), cited by plaintiffs for the proposition that reliance can be inferred from circumstances. In Engalla , a decedent's family sought to avoid arbitration of their malpractice claims by showing that the arbitration agreement decedent signed contained fraudulent misrepresentations about the expeditiousness of arbitration. Decedent's employer selected the medical plan with the arbitration agreement, but the Supreme Court found an employer that negotiates group medical benefits for its employees acts as the employees' agent during negotiation, and evidence of a material misrepresentation made to the agent creates a rebuttable presumption of reliance. ( Engalla , supra , 15 Cal.4th at pp. 977-978, 64 Cal.Rptr.2d 843 , 938 P.2d 903 .) Evidence existed showing the employer considered arbitration expeditious and that it would have looked unfavorably at the hospital's arbitration system, so the Supreme Court directed the trial court to resolve the factual issues underlying fraudulent inducement on remand. ( Id. at pp. 979-981, 64 Cal.Rptr.2d 843 , 938 P.2d 903 .)

In Boeken , a plaintiff who started smoking Marlboros as a minor sued the manufacturer for fraud and other torts. ( Boeken , supra , 127 Cal.App.4th at p. 1650, 26 Cal.Rptr.3d 638 .) On appeal from an unfavorable jury verdict, the defendant argued that the plaintiff had to admit evidence of the exact words of the misrepresentations upon which the plaintiff relied to prove reliance. ( Id. at p. 1660, 26 Cal.Rptr.3d 638 .) The

court disagreed: the record showed a vast Marlboros marketing campaign targeted at boys from 10 to 18 which portrayed young, virile men smoking; the plaintiff bought Marlboros because they were advertised everywhere; and all of plaintiff's social group smoked Marlboros.

In 1986, the voters approved Proposition 51, a compromise measure that sought to balance the interests of injured parties who have sustained considerable damages caused by several tortfeasors, one or more of which is insolvent, against unfairness of the rule of joint and several liability, which could result in a minimally culpable tortfeasor being held liable for all the plaintiff's damages. ( Evangelatos v. Superior Court (1988) 44 Cal.3d 1188 , 1198, 246 Cal.Rptr. 629 , 753 P.2d 585 .) Section 1431.2 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 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."

In Thomas , the Court of Appeal for the Fourth Appellate District held that section 1431.2 does not allow apportionment of several noneconomic damages for an intentional tortfeasor according to the intentional tortfeasor's proportion of fault. (

because section 1431.2 eliminated joint liability for noneconomic damages only among defendants whose liability was joint and several before the statute was enacted. ( DaFonte , supra , 2 Cal.4th at pp. 600-601, 7 Cal.Rptr.2d 238 , 828 P.2d 140 .)

The Supreme Court rejected the plaintiff's argument that preexisting law compelled an exception to section 1431.2 's unambiguous directive. The court explained: " 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.' The statute neither states nor implies an exception for damages attributable to the fault of persons who are immune from liability or have no mutual joint obligation to pay missing shares. On the contrary, section 1431.2 expressly affords relief to every tortfeasor who is a liable 'defendant,' and who formerly would have had full joint liability." ( DaFonte , supra , 2 Cal.4th at p. 601, 7 Cal.Rptr.2d 238 , 828 P.2d 140 .) Thus, the Court held that the defendant's liability for noneconomic damages must be several, apportioned according to his percentage of comparative fault. ( Id. at p. 604, 7 Cal.Rptr.2d 238 , 828 P.2d 140 .)

Based on this, the court in B.B. also held that section 1431.2 was unambiguous and applied to any defendant in an action for personal injury, property damage, or wrongful death, and it criticized Thomas's resort to extrinsic aids to interpret the statute. ( B.B. , supra , 25 Cal.App.5th at pp. 124-128, 235 Cal.Rptr.3d 457 , review granted.) "Consistent with DaFonte , we conclude the unambiguous reference to "[e]ach defendant" in section 1431.2, subdivision (a) mandates allocation of noneconomic damages in direct proportion to a defendant's percentage of fault, regardless of whether the defendant's misconduct is

purpose of which shall be to assign responsibility and liability for damage in direct proportion to the amount of negligence of each of the parties." ( Id. at p. 829, 119 Cal.Rptr. 858 , 532 P.2d 1226 .)

In American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578 , 582-583, 146 Cal.Rptr. 182 , 578 P.2d 899 ( American Motorcycle ), the Supreme Court held that comparative fault principles did not abrogate each defendant's joint and several liability for damages attributable to the fault of others. But American Motorcycle took steps to ameliorate the harshness of this rule by concluding that a defendant sued for personal injury could join other concurrent negligent tortfeasors to allocate proportionate responsibility and could seek equitable indemnity from such tortfeasors in proportion to their fault. ( Id. at pp. 583-584, 146 Cal.Rptr. 182 , 578 P.2d 899 .)

When Proposition 51 was enacted, the comparative fault principles announced in Li and American Motorcycle did not allow intentional tortfeasors to reduce their liability on the account of a negligent joint tortfeasor's fault. In Allen v. Sundean (1982) 137 Cal.App.3d 216 , 227, 186 Cal.Rptr. 863 , the court held that comparative fault principles did not extend to allow an intentional tortfeasor to recover equitable indemnity against a negligent tortfeasor. In Godfrey v. Steinpress (1982) 128 Cal.App.3d 154 , 176, 180 Cal.Rptr. 95 , the court held that a plaintiff's contributory negligence is not a defense to an intentional tort, and it ruled the trial court correctly refused to instruct on comparative negligence with respect to the plaintiff's intentional tort claims. In addition, an intentional tortfeasor could not seek statutory contribution from other liable tortfeasors. ( Code Civ. Proc., § 875, subd. (d).) Thus, unlike a negligent tortfeasor, an intentional tortfeasor was jointly and severally liable for all the plaintiff's damages and had no mechanism to reduce this liability. In using the language "based on principles of comparative fault," section 1431.2 must be read to have incorporated these judicially construed principles. ( In re Harris (1989) 49 Cal.3d 131 , 136, 260 Cal.Rptr. 288 , 775 P.2d 1057 ; Wilson v. John Crane, Inc. (2000) 81 Cal.App.4th 847 , 855, 97 Cal.Rptr.2d 240 [interpreting "comparative fault principles" as they were judicially construed in 1986 to apply to strict product liability cases].)

To the extent ambiguity exists, Proposition 51's ballot materials also aid our construction. (See

other defendants." (Ballot Pamp., Primary Elec. (June 3, 1986), Prop. 51, Official Title and Summary Prepared by the Atty. Gen., p. 32.) The ballot materials explain that "this rule" is maintained under the initiative for economic damages, but would be modified for noneconomic damages. ( Ibid. ) The rule discussed-that allowing a defendant to seek equitable reimbursement after paying a plaintiffs' damages-never applied to intentional tortfeasors. Thus, the ballot measures indicate that intentional tortfeasors were not intended to fall within Proposition 51's modified scope.

Our interpretation also fulfills our obligation to effectuate Proposition 51's purpose. (See Santa Barbara County Taxpayers Assn. v. County of Santa Barbara (1987) 194 Cal.App.3d 674 , 681, 239 Cal.Rptr. 769 .) The inequities that Proposition 51 targeted were "situations in which defendants who bore only a small share of fault for an accident could be left with the obligation to pay all or a large share of the plaintiff's damages if other more culpable tortfeasors were insolvent." ( Evangelatos , supra , 44 Cal.3d at p. 1198, 246 Cal.Rptr. 629 , 753 P.2d 585 .) Again, this was never the case with an intentional tortfeasor who, deemed to be the most culpable of all, could not seek contribution or equitable indemnity from less culpable tortfeasors regardless of their solvency. ( Code Civ. Proc., § 875, subd. (d) ; Allen , supra , 137 Cal.App.3d at p. 227, 186 Cal.Rptr. 863 .) Section 1431.2 's purpose is simply not fulfilled by applying it in the manner defendant or amici curiae seek.

Nor do we agree with B.B. 's view that DaFonte compels a different conclusion. The Supreme Court in DaFonte addressed only the question of whether section 1431.2 eliminated a negligent defendant's joint and several liability for noneconomic damages attributed to the negligence of a joint tortfeasor who was statutorily immune from suit. ( DaFonte, supra , 2 Cal.4th at p. 596, 7 Cal.Rptr.2d 238 , 828 P.2d 140 .) The Supreme Court had no occasion to consider the question of whether section 1431.2 eliminates an intentional tortfeasor's joint and several liability for noneconomic damages in tort actions.

Finally, Weidenfeller v. Star & Garter (1991) 1 Cal.App.4th 1 , 2 Cal.Rptr.2d 14 ( Weidenfeller ), relied on by defendant and amici curiae, does not hold that section 1431.2 applies to reduce the liability of an intentional tortfeasor. In Weidenfeller , the plaintiff was assaulted outside of a bar that defendants owned, and the jury found the plaintiff 5 percent negligent, the bar's owners 20 percent negligent, and the absent assailant to be 75 percent at fault. The trial court allocated 20 percent of plaintiff's noneconomic damages to the negligent defendants, and plaintiff argued on appeal that section 1431.2 did not allow apportionment of noneconomic damages according to fault because comparative fault principles do not apply where one tortfeasor acted intentionally. ( Id. at p. 5, 2 Cal.Rptr.2d 14 .)

The court disagreed, finding that section 1431.2 cannot be read to allow a plaintiff to use an intentional tortfeasor's participation to escalate the liability of negligent tortfeasors above their allocated fault. ( Weidenfeller , supra , 1 Cal.App.4th at pp. 6-7, 2 Cal.Rptr.2d 14 .) In so holding, the court reviewed