Applying Proposition 51 in the Case of Missing Defendants

An important consideration for defense counsel when evaluating a case is whether there are other individuals or entities which may play an important role in the liability and/or damage portions of the case who are not currently parties to the litigation. As more fully discussed below, even without formal involvement as a party to the case, a defendant can still attempt to apportion a percentage of liability to this other “empty chair” person or entity.

The Fair Responsibility Act of 1986 (California Civil Code Section 1431 et seq.), popularly known as Proposition 51, modified the long-established rule of joint and several liability of multiple tortfeasors. The statute retains joint and several liability for economic damages, but makes liability for noneconomic damages several. Non-economic damages include pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation. Pursuant to Proposition 51, “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.” (C.C. 1431.2(a), and see, Kellogg v. Asbestos Corp. Ltd. (1996) 41 C.A.4th 1397, 1408). In all cases in which a negligent actor and one or more others jointly caused the plaintiff’s injury, the jury should be instructed that, “assuming 100 percent represents the total causes of the plaintiff’s injury, liability must be apportioned to each actor who caused the harm in direct proportion to such actor’s respective fault, whether each acted intentionally or negligently or was strictly liable.” (Scott v. Cnty. of Los Angeles (1994) 27 Cal. App. 4th 125, 151.)

Proposition 51 applies even when a responsible individual is not already a defendant or a party to a lawsuit. Cases such as Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1242, fn. 4, conc. & dis. opn. of Kaufman, J. and DaFonte v. Up-Right, Inc., (1992) 2 Cal. 4th 593, 603 indicate damages must be apportioned among the “universe of tortfeasors,” including non-joined defendants.

A defendant may seek to reduce their share of liability for non-economic damages by adding nonparty joint tortfeasors in the apportionment, if the defendant can produce substantial evidence the alleged nonparty tortfeasor is in fact at fault. (Wilson v. Ritto (2003) 105 C.A.4th 361, 366. “[T]he right to indemnity flows from payment of a joint legal obligation on another’s behalf.” (AmeriGas Propane, LP v. Landstar Ranger, Inc. (2014) 230 Cal.App.4th 1153, 1167). The test for indemnity, under which liability among multiple tortfeasors may be apportioned according to the comparative negligence of each, is thus “whether the indemnitor and indemnitee jointly caused the plaintiff’s injury.” (Id.).

The elements of a cause of action for equitable indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is equitably responsible. (Bailey v. Safeway, Inc. (2011) 199 Cal.App.4th 206, 217).

“[C]omparative equitable indemnity includes the entire range of possible apportionments, from no right to any indemnity to a right of complete indemnity. Total indemnification is just one end of the spectrum of comparative equitable indemnification.” (Far West Financial Corp. v. D & S Co., Inc. (1988) 46 Cal.3d 796, 808).

Therefore, if an at-fault person or entity is not formally brought into the lawsuit by way of a cross-complaint, a defendant may want to instruct the jury regarding comparative negligence by way of Judicial Council of California Civil Jury Instruction – Special Verdict Form 402, which incorporates questions to the jury relating to the percentage of negligence they would attribute to certain nonparties. If, following a jury verdict wherein a portion of liability is allocated to said nonparties, the defendant has a right of partial or total indemnity against that nonparty for plaintiffs’ non-economic damages. The statute of limitations for defendant’s indemnity claim is two years, and this right to indemnity does not accrue until the indemnitee’s liability has become finally ascertained. (General Brewing Corp. v. Clark 264 Cal. App. 2d 518, 70 Cal. Rptr. 907 (2d Dist. 1968)). For an implied indemnity claim in a tort case that has settled, the period of limitation begins when the party claiming indemnity settles with the injured party. This provides a defendant two years from a judgment (or a settlement) to bring a formal lawsuit against an at-fault nonparty for equitable indemnity.

About the Authors 

Kristi Blackwell is a Partner at Tyson & Mendes. She specializes in general liability, professional liability and business litigation. Contact Kristi at 858.459.4400 or

Nicole Hermanson is a graduate of Pepperdine University School of Law. She focuses on products liability and business litigation. Contact her at

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