Plaintiff Guy Youngblood brings this action against Defendant Rex Qualls, a former police officer for the City of Baxter Springs, Kansas, in his personal capacity only, seeking monetary damages pursuant to 42 U.S.C. § 1983 and the Kansas Tort Claims Act, K.S.A. § 75-6101, et seq., for Defendant's alleged violation of Plaintiff's First, Fourth, and Fourteenth Amendment rights, as well as his rights under Articles 11 and 15 of the Kansas Bill of Rights. Plaintiff contends that this Court has supplemental jurisdiction to hear his state-law claims pursuant to 28 U.S.C. § 1367(b). Before the Court are two motions-Defendant's Motion to Dismiss for Failure to State a Claim (Doc. 4) and Plaintiff's Motion to Amend Complaint (Doc. 12). Having considered the parties' briefing, the Court is prepared to rule. For the reasons set forth below, Defendant's Motion to Dismiss is granted in part and denied in part, and Plaintiff's Motion to Amend is denied as futile.
Plaintiff Guy Youngblood alleges that on July 1, 2015, he was mowing his front lawn when he was approached by Defendant Rex Qualls, who was then a police officer employed by the City of Baxter Springs, Kansas. Plaintiff contends that Defendant's presence at his home was instigated by animosity between Plaintiff and Randall Trease, the mayor of Baxter Springs, who lives across the street from Plaintiff. Plaintiff alleges that Defendant informed him that he was violating a municipal ordinance by discharging grass clippings into the street. Plaintiff states that in response to this comment, he turned toward the mayor's residence and, “while in the . . . close proximity of Defendant Qualls . . . . raise[d] his right arm, extend[ed] the middle finger of his right hand and state[d] in a loud voice, ‘F*** that mother*****.'” Plaintiff alleges that Defendant then “with no warning to Plaintiff, forcefully grasped Plaintiff and threw him onto the street, ” causing injuries to Plaintiff. Plaintiff states that Defendant then arrested him for disorderly conduct and transported him to the Cherokee County Jail, where he was held prior to posting bond and being released.
Plaintiff filed this action on March 29, 2017. His Complaint alleges four causes of action against Defendant in his personal capacity: (1) unreasonable seizure in violation of rights guaranteed under the Fourth and Fourteenth Amendments to the United States Constitution; (2) unreasonable interference with and retaliation for protected speech and conduct in violation of the First and Fourteenth Amendments; (3) unreasonable seizure in violation of rights guaranteed under Section 15 of the Kansas Bill of Rights; and (4) unjustified interference with and retaliation for Plaintiff's right to free speech under Section 11 of the Kansas Bill of Rights.Plaintiff alleges that his federal claims arise under 42 U.S.C. § 1983, that his state-law claims arise under the Kansas Bill of Rights and the Kansas Tort Claims Act (“KTCA”), and that this Court has supplemental jurisdiction to hear his state-law claims pursuant to 28 U.S.C. § 1367.
To survive a motion to dismiss brought under Fed.R.Civ.P. 12(b)(6), a complaint must contain factual allegations that, assumed to be true, “raise a right to relief above the speculative level” and must include “enough facts to state a claim for relief that is plausible on its face.”Under this standard, “the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” The plausibility standard does not require a showing of probability that “a defendant has acted unlawfully, ” but requires more than “a sheer possibility.” “[M]ere ‘labels and conclusions, ' and ‘a formulaic recitation of the elements of a cause of action' will not suffice; a plaintiff must offer specific factual allegations to support each claim.” Finally, the court must accept the nonmoving party's factual allegations as true and may not dismiss on the ground that it appears unlikely the allegations can be proven.
Plaintiff in this case filed a motion to amend his Complaint pursuant to Fed.R.Civ.P. 15(a)(2) after Defendant had moved to dismiss under Rule 12(b)(6). Plaintiff seeks to amend his Complaint to “allege service of notice of claim on the City of Baxter Springs, Kansas under K.S.A. 12-105b.” Although Fed.R.Civ.P. 15 requires that leave to amend “be freely given when justice so requires, ” whether leave should be granted is within the trial court's discretion.The factors the Court should consider in determining whether to allow amendment of a pleading are undue delay, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, or futility of the amendment. To justify denying leave to amend on the basis of futility, the proposed amendment must be clearly futile. “If a proposed amendment is not clearly futile, then denial of leave to amend is improper.” The court may deny a motion to amend as futile if the proposed amendment would not withstand a motion to dismiss or otherwise fails to state a claim upon which relief may be granted.
Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to the claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. . . .
On May 9, 2017, Defendant moved to dismiss this case pursuant to Fed.R.Civ.P. 12(b)(6), asserting that Plaintiff's Complaint fails to state a claim in several respects. Defendant first argues that Plaintiff's Complaint does not comply with Fed.R.Civ.P. 8(a)-which requires a short and plain statement of the claim showing that the pleader is entitled to relief-such that Defendant cannot determine what types of claims Plaintiff is asserting against him. Defendant contends that Plaintiff's Complaint is internally inconsistent, alleging different types of claims in the “Nature of Action and Jurisdiction” section compared with the “Causes of Action” section. Specifically, Defendant notes that Plaintiff alleges that his arrest by Defendant was accomplished through the use of “excessive and unreasonable force” in the early paragraphs of the Complaint, but makes no claim for excessive use of force in the paragraphs that make up the “Causes of Action” portion of the Complaint. Defendant also argues that Plaintiff alleges no state-law tort claims under the Kansas Tort Claims Act in the “Causes of Action” section of his Complaint, but merely refers to the Kansas Bill of Rights as the source of his state-law claims. Defendant contends that these pleading inconsistencies result in a Complaint that “fails to give notice to Defendant Qualls what claims are being raised, ” and that this action must therefore be dismissed.
Defendant also argues that Plaintiff's claims against him must be dismissed because Defendant is entitled to qualified immunity, the Kansas Bill of Rights does not create a private right of action, and Plaintiff failed to comply with the KTCA's notice requirement, K.S.A. § 12-105b(d), prior to bringing suit for state-law tort claims. In his Response to Defendant's motion to dismiss, Plaintiff contends that qualified immunity is not available here, that he has cognizable claims under the Kansas Constitution, and that because Defendant's municipal employer is not a named defendant, the notice requirements of K.S.A. § 12-105b do not apply and he was not required to give notice to Defendant prior to filing suit. In his Motion to Amend, Plaintiff seeks leave to amend his Complaint to allege that he did, in fact, serve notice of his claim on the City of Baxter Springs on or about January 28, 2016. Defendant opposes Plaintiff's Motion to Amend on the basis that it would be futile because the Complaint, as amended, would still be subject to dismissal.
Section 1983 provides a cause of action for the deprivation of federal rights by any person acting “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . . .” Although the Court agrees with Defendant that Plaintiff's Complaint could be more clearly and logically structured, the Court cannot find that Plaintiff's allegations fail to give Defendant notice of the federal claims asserted against him pursuant to § 1983. Rule 8(a) requires that Plaintiff provide a “short and plain statement of the claim showing that [he] is entitled to relief.” To survive a motion to dismiss under Rule 12(b)(6), Plaintiff must “frame [his] ‘complaint with enough factual matter (taken as true) to suggest' that he . . . is entitled to relief.” Plaintiff alleges that he shouted an obscenity directed toward his neighbor's house while in close proximity to Defendant, and that in response, Defendant “forcefully grasped Plaintiff and threw him onto the street.” Plaintiff alleges that Defendant's conduct caused Plaintiff to suffer physical injuries, and that Defendant arrested him and transported him to the Cherokee County Jail. These allegations are set forth in “Facts” section of Plaintiff's Complaint and provide factual support for Plaintiff's allegations in the “Nature of Action and Jurisdiction” section that Defendant violated his constitutional rights through “wrongful seizure and excessive use of force.” While it is true that Plaintiff asserts no separately delineated claim for “excessive use of force” in the “Causes of Action” section of his Complaint, it is plain to the Court that Plaintiff is alleging that his seizure by Defendant was “unreasonable” due to both lack of constitutional justification and the amount of force used under the circumstances. The Court finds that Plaintiff has satisfied Rule 8(a) with respect to his claims arising under § 1983.
Qualified immunity is a defense that must be pleaded by the defendant,  but once the defendant raises it, the burden is on the plaintiff to “(1) com[e] forward with sufficient facts to show that the defendant's actions violated a federal constitutional or statutory right and (2) demonstrat[e] that the right violated was clearly established at the time of the conduct at issue.”Unless the plaintiff provides specific, non-conclusory allegations of fact sufficient to establish these elements, the official is entitled to qualified immunity. Courts have discretion to decide which of the two prongs of the qualified immunity analysis to address first.
(3) Using fighting words or engaging in noisy conduct tending reasonably to arouse alarm, anger or resentment in others.
(c) As used in this section, “fighting words” means words that by their very utterance inflict injury or tend to incite the listener to an immediate breach of the peace.
The fighting words doctrine has an even narrower application where, as here, an individual's speech offends a police officer. This is because a properly trained police officer may reasonably be expected to exercise a higher degree of restraint than the average citizen, and thus be less likely to respond belligerently to fighting words.
In United States v. McKinney, the Tenth Circuit reversed the conviction of a defendant for disorderly conduct, where the defendant had aggressively maneuvered her car toward a military police officer and then repeatedly told him to “go f*** himself” when asked to identify herself. The Tenth Circuit found that while “tasteless and undoubtedly offensive to many, [the defendant's] words would not provoke the average person to retaliate under the circumstances” because she did not threaten or offer to fight the officer. Rather, her words were “the R-rated equivalent of other commonly used phrases, such as ‘buzz off, ' ‘go away, ' ‘leave me alone, ' and get lost.'” Similarly, in Stearns v. Clarkson, the Tenth Circuit found no probable cause for the arrest of a man who, on the day previous to his arrest, had been “loud, belligerent, smelled of alcohol, and pointed his finger at [the officer] while using profanity.” Specifically, the plaintiff in Stearns had referred to an officer as “probably the mother f***** that shot my dad.” In analyzing the defendant's qualified immunity defense, the Tenth Circuit found that “at the time [the defendant] ordered the arrest . . . it was well-settled that profanity, especially toward police officers, does not amount to a violation of the disorderly conduct statute unless it constitutes ‘fighting words.'” Where the plaintiff made no threat against the defendant, the defendant had no probable cause to arrest the plaintiff for disorderly conduct.
The Court must consider the totality of the circumstances surrounding Plaintiff's conduct and remarks when analyzing whether Defendant had probable cause to arrest him for disorderly conduct. Plaintiff alleges that he directed obscene words and an obscene gesture toward his neighbor, who was not present, rather than toward Defendant, a trained police officer. Although Plaintiff concedes that he was “loud” and in “close proximity” to Defendant when shouting toward his neighbor's house, there is no allegation that Plaintiff said more than “F*** that, mother*****, ” words very similar to those used in McKinney and Stearns. While Plaintiff's behavior was certainly distasteful, the Court cannot find that Defendant could have reasonably believed-based on clearly established law at the time-that he had probable cause to arrest Plaintiff for disorderly conduct. Defendant is therefore not entitled to qualified immunity from Plaintiff's claim for unreasonable seizure under the Fourth and Fourteenth Amendments.
Defendant also relies on the case of Leverington v. City of Colorado Springs,  in which the Tenth Circuit affirmed the district court's dismissal of the plaintiff's First Amendment retaliation claim against a city police officer on the basis of qualified immunity. In Leverington, the defendant officer stopped the plaintiff-a cardiac nurse-for speeding, and their interactions during the traffic stop became hostile. When the defendant gave the plaintiff a traffic citation, she told him that she hoped “she never had him as a patient.” The defendant reported the plaintiff's threat to her employer, and the plaintiff was fired from her job as a result. The Tenth Circuit held that because it was “debatable whether a reasonable officer in [the defendant's] position would have considered [the plaintiff's] statement to be a threat” unprotected by the First Amendment, the plaintiff's free speech rights were not clearly established under the circumstances at issue and the defendant was entitled to qualified immunity. In this case, Plaintiff's foul words and gesture directed toward his neighbor were not a threat of future bodily harm toward Defendant as in Leverington, nor were they the type of epithets that would inherently invoke a violent reaction in a trained police officer. The cases cited by Defendant do not convince the Court that Plaintiff's speech lacked First Amendment protection.
Regarding the second Worrell element, the Court finds that Defendant's alleged actions-injuring Plaintiff by forcefully grasping him and throwing him onto the street, and then arresting him-would be sufficient to chill a person of ordinary firmness from continuing to express protected speech. The Court also finds that the third Worrell element is met because Defendant's actions were motivated by Plaintiff's exercise of his free speech rights, given that no time elapsed and no other conduct occurred between Plaintiff's words and gesture and Defendant throwing him onto the street. Plaintiff has established a constitutional violation with respect to his First Amendment retaliation claim. Finally, based on the precedent discussed above concerning the meaning of “fighting words, ” the Court finds that at the time in question, the law was clearly established such that Defendant should have known that his retaliatory actions would violate Plaintiff's rights. Accordingly, Defendant is not entitled to qualified immunity from Plaintiff's First Amendment retaliation claim.
In this case, Plaintiff alleges that he was arrested by Defendant for the misdemeanor offense of disorderly conduct after he made an obscene hand gesture and shouted obscenities toward his neighbor's house. The first Graham factor favors Plaintiff, given that disorderly conduct is not a serious crime, but a Class C misdemeanor under Kansas law. The Court finds that the second Graham factor also favors Plaintiff-although Plaintiff concedes that he was “loud” and “in close proximity” to Defendant, he alleges that his words and gestures were not directed toward Defendant, but toward his neighbor. There is no allegation that Plaintiff verbally or physically threatened Defendant. Finally, the third Graham factor favors Plaintiff, who alleges that in response to his obscene words and gestures, Defendant “with no prior warning to Plaintiff, forcefully grasped Plaintiff and threw him onto the street. Plaintiff offered no resistance to Defendant Qualls' seizure.” Thus, taking Plaintiff's allegations as true, Plaintiff was neither actively resisting arrest nor was he attempting to flee. In fact, Plaintiff had no warning prior to being thrown to the ground. Analyzing the circumstances of this case according to the framework of the Graham factors, the Court finds that Plaintiff has alleged facts sufficient to establish a violation of his Fourth and Fourteenth Amendment right against the use of unreasonable force during arrest.
Likewise, Plaintiff in this case was unarmed, made no attempt to flee or resist arrest, and had no verbal warning that he was being arrested and no chance to comply before Defendant grabbed him and threw him to the ground. The Court finds that under these circumstances, the “nature and quality of the intrusion into the interests of [Plaintiff] protected by the Fourth Amendment was quite severe.” Plaintiff's right to be free from aggressive physical force without a prior warning and when not resisting arrest was settled at the time in question and Defendant's use of force was objectively unreasonable under clearly established law. Plaintiff has alleged sufficient facts to survive Defendant's motion to dismiss with respect to excessive use of force.
The Court finds that it has supplemental jurisdiction to hear Plaintiff's state-law constitutional claims, which arise from the same nucleus of fact as-and are parallel to-his federal constitutional claims. All of Plaintiff's claims arise out of the same incident on July 1, 2015, during which Defendant allegedly violated Plaintiff's rights to free speech and to be free from unreasonable seizure. Having exercised its discretion to hear these state-law claims, however, the Court finds that they must be dismissed under Rule 12(b)(6) because Plaintiff's Complaint sets forth no “plausible [state-law] claim . . . to survive a motion to dismiss.”Further, Plaintiff's Motion to Amend his Complaint is denied as futile for the reasons set forth below.
Plaintiff alleges that Defendant violated his right to free speech and his right to be free from unreasonable seizure under Sections 11 and 15 of the Kansas Bill of Rights, respectively, and that these “causes of action are authorized and his damages compensable . . . under state law by the Kansas Tort Claims Act, K.S.A. 75-6101, et seq.” Plaintiff cites no particular provision of the KTCA as the source of his claims, and seeks monetary damages rather than injunctive or declaratory relief. While § 1983 is a federal statute expressly authorizing a private right of action for state deprivations of federal rights, “an alleged violation of a state constitution cannot form the basis of a § 1983 claim. That section provides remedies only for deprivation of rights secured by the United States Constitution.” Plaintiff's state-law causes of action are not cognizable because Kansas law does not permit a claim for monetary damages brought directly under the Kansas Constitution. Plaintiff has not identified any Kansas statute analogous to § 1983 that would allow a damages action for the violation of the State's constitution, nor has he established that Kansas would permit the equivalent of a Bivens suit, which is an action for damages in federal court permitted directly under the Fourth Amendment without a federal authorizing statute.
Plaintiff cites three cases from the Supreme Court of Kansas-one from 1917 and two from 1974-to support his contention that he “has a remedy for an unreasonable seizure under the state constitution.” Plaintiff does not, however, meaningfully explain how these cases support a claim for monetary damages arising directly under the Kansas Bill of Rights. Plaintiff first cites the 100-year-old case of State v. Wilson,  in which a retail agent appealed his conviction for violating a state statute that forbid the provision of “trading stamps” (i.e., coupons redeemable in cash or merchandise) to customers without the payment of a license fee. Wilson claimed that his conviction was invalid because the statute violated the Kansas Constitution's due process and equal protection provisions. The Supreme Court of Kansas found that the statute did not violate the Kansas Constitution, and that the state legislature had the power to require the payment of a license fee when permitting a practice that could be injurious to the public. Plaintiff does not explain how this case supports his claim for monetary damages under the Kansas Bill or Rights other than to say that the court “found an enforceable right to suppression of evidence under the state constitution.” The Court does not read State v. Wilson to say what Plaintiff claims, but even if the case was as Plaintiff describes, it still would not support his legal theory here.
Similarly, the cases of Manzanares v. Bell and Henry v. Bauder do not support Plaintiff's argument. In both of those cases, the Supreme Court of Kansas examined the constitutionality-under the United States and Kansas Constitutions-of state statutes relating to automobile insurance coverage and liability, rather than the viability of a claim for money damages arising directly under the Kansas Constitution. In Manzanares, the court considered and rejected due process and equal protection challenges to Kansas's no-fault automobile insurance act. In Henry, the Supreme Court of Kansas found that the Kansas automobile guest statute was unconstitutional and void on equal protection grounds. Neither of these cases supports Plaintiff's contention that Kansas permits claims for monetary damages brought directly under the Kansas Constitution.
As we view [this statute], it follows the majority rule concerning arrests of misdemeanants. It allows a law enforcement officer to use any force he or she believes necessary to effect an arrest, but prohibits the use of force which is likely to cause death or great bodily harm except to prevent death or great bodily harm to the officer or another person. . . . The purpose of the statute is to set limits for law enforcement officers, and if the limits are observed an officer has a defense in a criminal action. We see no reason why the civil liability of a law enforcement officer should not be coextensive with his or her criminal liability.
Thus, while K.S.A. § 21-5227 guides the determination of an officer's criminal or civil liability for use of force, cases in which this statute is invoked deal with state-law tort claims such as false imprisonment, assault, battery, negligence, and wrongful death. Plaintiff has not cited, and the Court has not found, any case in which K.S.A. § 21-5227 has been held to authorize a claim for monetary damages brought directly under the Kansas Bill of Rights.


VIKING MOTORCYCLE CLUB et al., Real Parties in Interest.
As Modified on Denial of Rehearing March 16, 1978.
[578 P.2d 901] [20 Cal.3d 581] Lawler, Felix & Hall, Thomas E. Workman, Jr., Erwin E. Adler and Jane H. Barrett, Los Angeles, for petitioner.
John W. Baker, Los Angeles, Caywood J. Borror, San Bernardino, Francis Breidenbach, Richard E. Goethals, Stephen J. Grogan, Henry E. Kappler, Los Angeles, Kenneth L. Moes, Santa Barbara, W. F. Rylaarsdam, Pasadena, and Lucien A. Van Hulle, San Bernardino, as amici curiae on behalf of petitioner.
[20 Cal.3d 582] Jack A. Rose, Anaheim, for real parties in interest.
William P. Camusi, Los Angeles, Robert E. Cartwright, San Francisco, Edward I. Pollock, Los Angeles, Wylie A. Aitken, Santa Ana, Leonard Sacks, Encino, 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, Joseph Posner, Los Angeles, Herbert Hafif, Claremont, and William B. Boone, Santa Rosa, as amici curiae on behalf of real parties in interest.
Three years ago, in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, we concluded that the harsh and much criticized contributory negligence doctrine, which totally barred an injured person from recovering damages whenever his own negligence had contributed in any degree to the injury, should be replaced in this state by a rule of comparative negligence, under which an injured individual's recovery is simply proportionately diminished, rather than completely eliminated, when he is partially responsible for the injury. In reaching the conclusion to adopt comparative negligence in Li, we explicitly recognized that our innovation inevitably raised numerous collateral issues, "(t)he most serious (of which) are those attendant upon the administration of a rule of comparative negligence in cases involving multiple parties." (13 Cal.3d at p. 823, 119 Cal.Rptr. at p. 87, 532 P.2d at p. 1239.) Because the Li litigation itself involved only a single plaintiff and a single defendant, however, we concluded that it was "neither necessary nor wise" (13 Cal.3d at p. 826, 119 Cal.Rptr. 858, 532 P.2d 1226) to address such multiple party questions at that juncture, and we accordingly postponed consideration of such questions until a case directly presenting such issues came before our court. The present mandamus proceeding presents such a case, and requires us to resolve a number of the thorny multiple party problems to which Li adverted.
For the reasons explained below, we have reached the following conclusions with respect to the multiple party issues presented by this case. First, we conclude that our adoption of comparative negligence to ameliorate the inequitable consequences of the contributory negligence rule does not warrant the abolition or contraction of the established "joint and several liability" doctrine; each tortfeasor whose negligence is a proximate cause of an indivisible injury remains individually liable for all compensable damages attributable to that injury. Contrary to petitioner's contention, we conclude that joint and several liability does not logically conflict with a comparative negligence regime. Indeed, as [20 Cal.3d 583] we point out, the great majority of jurisdictions which have adopted comparative negligence have retained the joint and several liability rule; we are aware of no judicial decision which intimates that the adoption of comparative negligence compels the abandonment of this long-standing common law rule. The joint and several liability doctrine continues, after Li, to play an important and legitimate role in protecting the ability of a negligently injured person to obtain adequate compensation for his injuries from those tortfeasors who have negligently inflicted the harm.
[578 P.2d 902] doctrine, which relates to the allocation of loss among multiple tortfeasors. As we explain, California decisions have long invoked the equitable indemnity doctrine in numerous situations to permit a "passively" or "secondarily" negligent tortfeasor to shift his liability completely to a more directly culpable party. While the doctrine has frequently prevented a more culpable tortfeasor from completely escaping liability, the rule has fallen short of its equitable heritage because, like the discarded contributory negligence doctrine, it has worked in an "all-or-nothing" fashion, imposing liability on the more culpable tortfeasor only at the price of removing liability altogether from another responsible, albeit less culpable, party.
Third, we conclude that California's current contribution statutes do not preclude our court from evolving this common law right of comparative indemnity. In Dole v. Dow Chemical Company (1972) 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288, the [20 Cal.3d 584] New York Court of Appeals recognized a similar, common law partial indemnity doctrine at a time when New York had a contribution statute which paralleled California's present legislation. Moreover, the California contribution statute, by its own terms, expressly subordinates its provisions to common law indemnity rules; since the comparative indemnity rule we recognize today is simply an evolutionary development of the common law equitable indemnity doctrine, the primacy of such right of indemnity is expressly recognized by the statutory provisions. In addition, the equitable nature of the comparative indemnity doctrine does not thwart, but enhances, the basic objective of the contribution statute, furthering an equitable distribution of loss among multiple tortfeasors.
Fourth, and finally, we explain that under the governing provisions of the Code of Civil Procedure, a named defendant is authorized to file a cross-complaint against any person, whether already a party to the action or not, from whom the named defendant seeks to obtain total or partial indemnity. Although the trial court retains the authority to postpone the trial of the indemnity question if it believes such action is appropriate to avoid unduly complicating the plaintiff's suit, the court may not preclude the filing of such a cross-complaint altogether.
In light of these determinations, we conclude that a writ of mandate should issue, directing the trial court to permit petitioner-defendant to file a cross-complaint for partial indemnity against previously unjoined alleged concurrent tortfeasors.
AMA filed an answer to the complaint, denying the charging allegations and asserting a number of affirmative defenses, including a claim that Glen's own negligence was a proximate cause of his injuries. Thereafter, AMA sought leave of court to file a cross-complaint, which purported to state two causes of action against Glen's parents. The first cause of action alleges that at all relevant times Glen's parents (1) knew that motorcycle racing is a dangerous sport, (2) were "knowledgeable and fully cognizant" of the training and instruction which Glen had received on the handling and operation of his motorcycle, and (3) directly participated in Glen's decision to enter the race by signing a parental consent form. This initial cause of action asserts that in permitting Glen's entry into the race, his parents negligently failed to exercise their power of supervision over their minor child; moreover, the cross-complaint asserts that while AMA's negligence, if any, was "passive," that of Glen's parents was "active." On the basis of these allegations, the first cause of action seeks indemnity from Glen's parents if AMA is found liable to Glen.
In the second cause of action of its proposed cross-complaint, AMA seeks declaratory relief. It reasserts Glen's parents' negligence, declares that Glen has failed to join his parents in the action, and asks for a declaration of the "allocable negligence" of Glen's parents so that "the damages awarded (against AMA), if any, (may) be reduced by the percentage of damages allocable to cross-defendants' negligence." As more fully explained in the accompanying points and authorities, this second cause of action is based on an implicit assumption that the Li decision abrogates the rule of joint and several liability of concurrent tortfeasors and establishes in its stead a new rule of "proportionate liability," under which each concurrent tortfeasor who has proximately [20 Cal.3d 586] caused an indivisible harm may be held liable only for a portion of plaintiff's recovery, determined on a comparative fault basis.
The trial court, though candidly critical of the current state of the law, concluded that existing legal doctrines did not support AMA's proposed cross-complaint, and accordingly denied AMA's motion for leave to file the cross-complaint. AMA petitioned the Court of Appeal for a writ of mandate to compel the trial court to grant its motion, and the Court of Appeal, recognizing the recurrent nature of the issues presented and the need for a speedy resolution of these multiple party questions, issued an alternative writ; ultimately, the court granted a peremptory writ of mandate. In view of the obvious statewide importance of the questions at issue, we ordered a hearing in this case on our own motion. All parties concede that the case is properly before us.
2. The adoption of comparative negligence in Li does not warrant the abolition of joint and several liability of concurrent tortfeasors.
[578 P.2d 904] review of the established rights of injured persons vis a vis negligent tortfeasors under current law. Under well-established common law principles, a negligent tortfeasor is generally liable for all damage of which his negligence is a proximate cause; stated another way, in order to recover damages sustained as a result of an indivisible injury, a plaintiff is not required to prove that a tortfeasor's conduct was the sole proximate cause of the injury, but only that such negligence was a proximate cause. (See generally 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 624, pp. 2906-2907 and cases cited; Rest.2d Torts, §§ 432, subd. (2), 439.) This result follows from Civil Code section 1714's declaration that "(e)very one is responsible . . . for an injury occasioned to another by his want of ordinary care or skill . . . ." A tortfeasor may not escape this responsibility simply because another act either an "innocent" occurrence such as an "act of God" or other negligent conduct may also have been a cause of the injury.
In cases involving multiple tortfeasors, the principle that each tortfeasor is personally liable for any indivisible injury of which his negligence is a proximate cause has commonly been expressed in terms of "joint and several liability." As many commentators have noted, the "joint and several liability" concept has sometimes caused confusion because the terminology has been used with reference to a number of distinct situations. (See, e. g., Prosser, Law of Torts (4th ed. 1971) §§ 46, 47, [20 Cal.3d 587] pp. 291-299; 1 Harper & James, Law of Torts (1956) § 10.1, pp. 692-709.) The terminology originated with respect to tortfeasors who acted in concert to commit a tort, and in that context it reflected the principle, applied in both the criminal and civil realm, that all members of a "conspiracy" or partnership are equally responsible for the acts of each member in furtherance of such conspiracy.
Subsequently, the courts applied the "joint and several liability" terminology to other contexts in which a preexisting relationship between two individuals made it appropriate to hold one individual liable for the act of the other; common examples are instances of vicarious liability between employer and employee or principal and agent, or situations in which joint owners of property owe a common duty to some third party. In these situations, the joint and several liability concept reflects the legal conclusion that one individual may be held liable for the consequences of the negligent act of another.
In the concurrent tortfeasor context, however, the "joint and several liability" label does not express the imposition of any form of vicarious liability, but instead simply embodies the general common law principle, noted above, that a tortfeasor is liable for any injury of which his negligence is a proximate cause. Liability attaches to a concurrent tortfeasor in this situation not because he is responsible for the acts of other independent tortfeasors who may also have caused the injury, but because he is responsible for all damage of which his own negligence was a proximate cause. When independent negligent actions of a number of tortfeasors are each a proximate cause of a single injury, each tortfeasor is thus personally liable for the damage sustained, and the injured person may sue one or all of the tortfeasors to obtain a recovery for his injuries; the fact that one of the tortfeasors is impecunious or otherwise immune from suit does not relieve another tortfeasor of his liability for damage which he himself has proximately caused.
In the instant case AMA argues that the Li decision, by repudiating the all-or-nothing contributory negligence rule and replacing it by a rule which simply diminishes an injured party's recovery on the basis of his comparative fault, in effect undermined the fundamental rationale of the entire joint and several liability doctrine as applied to concurrent tortfeasors. In this regard AMA cites the following passage from Finnegan v. Royal Realty Co. (1950) 35 Cal.2d 409, 433-434, 218 P.2d 17, 32: "Even though persons are not acting in concert, if the results produced by their acts are indivisible, each person is held liable for the whole. . . . The reason for imposing liability on each for the entire consequences is that there exists no basis for dividing damages and the law is loath to permit an innocent plaintiff to suffer as against a wrongdoing defendant. This liability is imposed where each cause is sufficient in itself as well as where each cause is required to produce the result." (Emphasis added.) Focusing on the emphasized sentence, AMA argues that after Li (1) there is a basis for dividing damages, namely on a comparative negligence basis, and (2) a plaintiff is no longer necessarily "innocent," for Li permits a negligent plaintiff to recover damages. AMA maintains that in light of these two factors it is logically inconsistent to retain joint and several liability of concurrent tortfeasors after Li. As we explain, for a number of reasons we cannot accept AMA's argument.
First, the simple feasibility of apportioning fault on a comparative negligence basis does not render an indivisible injury "divisible" for purposes of the joint and several liability rule. As we have already explained, a concurrent tortfeasor is liable for the whole of an indivisible injury whenever his negligence is a proximate cause of that injury. In many instances, the negligence of each of several concurrent [20 Cal.3d 589] tortfeasors may be sufficient, in itself, to cause the entire injury; in other instances, it is simply impossible to determine whether or not a particular concurrent tortfeasor's negligence, acting alone, would have caused the same injury. Under such circumstances, a defendant has no equitable claim vis a vis an injured plaintiff to be relieved of liability for damage which he has proximately caused simply because some other tortfeasor's negligence may also have caused the same harm. In other words, the mere fact that it may be possible to assign some percentage figure to the relative culpability of one negligent defendant as compared to another does not in any way suggest that each defendant's negligence is not a proximate cause of the entire indivisible injury.
Second, abandonment of the joint and several liability rule is not warranted by AMA's claim that, after Li, a plaintiff is no longer "innocent." Initially, of course, it is by no means invariably true that after Li injured plaintiffs will be guilty of negligence. In many instances a plaintiff will be completely free of all responsibility for the accident, and yet, under the proposed abolition of joint and several liability, such a completely faultless plaintiff, rather than a wrongdoing defendant, would be forced to bear a portion of the loss if any one of the concurrent tortfeasors should prove financially unable to satisfy his proportioned share of the damages.
Finally, from a realistic standpoint, we think that AMA's suggested abandonment of the joint and several liability rule would work a serious and unwarranted deleterious effect on the practical ability of negligently injured persons to receive adequate compensation for their injuries. One of the principal by-products of the joint and several liability rule is that it frequently permits an injured person to obtain full recovery for his injuries even when one or more of the responsible parties do not have the financial resources to cover their liability. In such a case the rule recognizes that fairness dictates that the "wronged party should not be deprived of his right to redress," but that "(t)he wrongdoers should be left to work out between themselves any apportionment." (Summers v. Tice (1948) 33 Cal.2d 80, 88, 199 P.2d 1, 5.) The Li decision does not detract in the slightest from this pragmatic policy determination.
[20 Cal.3d 591] 3. Upon reexamination of the common law equitable indemnity doctrine in light of the principles underlying Li, we conclude that the doctrine should be modified to permit partial indemnity among concurrent tortfeasors on a comparative fault basis.
Although, as discussed above, we are not persuaded that our decision in Li calls for a fundamental alteration of the rights of injured plaintiffs vis a vis concurrent tortfeasors through the abolition of joint and several liability, the question remains whether the broad principles underlying Li warrant any modification of this state's common law rules governing the allocation of loss among multiple tortfeasors. As we shall explain, the existing California common law equitable indemnity doctrine while ameliorating inequity and injustice in some extreme cases suffers from the same basic "all-or-nothing" deficiency as the discarded contributory negligence doctrine and falls considerably short of fulfilling Li 's goal of "a system under which liability for damage will be borne by those whose negligence caused it in direct proportion to their respective fault." (13 Cal.3d at p. 813, 119 Cal.Rptr. at p. 864, 532 P.2d at p. 1232.) Taking our cue from a recent decision of the highest court of one of our sister states, we conclude in line with Li 's objectives that the California common law equitable indemnity doctrine should be modified to permit a concurrent tortfeasor to obtain partial indemnity from other concurrent tortfeasors on a comparative fault basis.
Our court first applied the equitable indemnity doctrine in City & County of S.F. v. Ho Sing (1958) 51 Cal.2d 127, 330 P.2d 802. In Ho Sing, a property owner, with the city's permission, had replaced part of the sidewalk in front of his building with a sidewalk-level skylight to provide more light for his basement. After a number of years, a crack developed in the skylight and a pedestrian tripped over the crack and [20 Cal.3d 593] sustained serious injuries. Prior cases of our court had recognized that in such a situation both the city, which had a general duty to inspect and maintain the sidewalk, and the property owner who had altered the sidewalk for his own benefit, were jointly and severally liable for resulting damages; the injured pedestrian accordingly sued both the city and the property owner and recovered a joint judgment against both. After the city had paid a substantial part of the judgment, it brought its own action against Ho Sing, the property owner, seeking indemnification.
[578 P.2d 909] the contributory negligence doctrine, developed as an all-or-nothing proposition.
[20 Cal.3d 594] Because of the all-or-nothing nature of the equitable indemnity rule, courts were, from the beginning, understandably reluctant to shift the entire loss to a party who was simply slightly more culpable than another. As a consequence, throughout the long history of the equitable indemnity doctrine courts have struggled to find some linguistic formulation that would provide an appropriate test for determining when the relative culpability of the parties is sufficiently disparate to warrant placing the entire loss on one party and completely absolving the other.
If the fundamental problem with the equitable indemnity doctrine as it has developed in this state were simply a matter of an unduly vague or imprecise linguistic standard, the remedy would be simply to attempt to devise a more definite verbal formulation. In our view, however, the principal difficulty with the current equitable indemnity doctrine rests not simply on a question of terminology, but lies instead in the all-or-nothing nature of the doctrine itself. Although California cases have steadfastly maintained that the doctrine is founded upon "equitable considerations" (Peters v. City & County of San Francisco, supra, 41 Cal.2d 419, 431, 260 P.2d 55) and "is based on inherent injustice" (Atchison, T. & S.F. Ry. Co. v. Franco, supra, 267 Cal.App.2d 881, 886, 73 Cal.Rptr. 660), the all-or-nothing aspect of the doctrine has precluded courts from reaching a just solution in the great majority of cases in which equity and fairness call for an apportionment of loss between the wrongdoers in proportion to their relative culpability, rather than the imposition of the entire loss upon one or the other tortfeasor.
The case of Ford Motor Co. v. Poeschl, Inc. (1971) 21 Cal.App.3d 694, 98 Cal.Rptr. 702 (hereafter "Poeschl ") illuminates the problem. In Poeschl, the Ford Motor Company had sent a recall notice [20 Cal.3d 596] to its dealers requesting the recall of designated 1964 Thunderbird automobiles for servicing of the cars' rear brake lights. A dealer and leasing agency had failed to recall one such car which had been leased to a customer and shortly thereafter the defect in the rear brake light caused an accident. The injured customer sued Ford, the dealer and the leasing agency, and Ford settled the customer's claim for $72,000; when the other defendants refused to reimburse it for any part of the settlement, Ford brought an action for indemnification.
is an all-or-nothing proposition," the Poeschl court recognized that by virtue of its developmental character, the common law was capable of evolving the equitable indemnity doctrine into a rule which would permit the equitable sharing of loss between multiple tortfeasors. The proof of the Poeschl court's prescience was not long in coming.
Concluding that the all-or-nothing common law indemnity doctrine did not, in many situations, produce the equitable allocation of loss to which it aimed, the Dole court proceeded to modify the doctrine, holding that the "(r)ight to apportionment of liability or to full indemnity, . . . as among parties involved together in causing damage by negligence, should rest on relative responsibility . . . ." (331 N.Y.S.2d at pp. 391-392, 282 N.E.2d at p. 295.) The Dole court was undeterred from undertaking this modification of the prior common law indemnity doctrine either by the existence of a contribution statute which, like that currently in force in California, provided joint tortfeasors with a right of pro rata contribution in limited circumstances, or by the fact that at that time New York still adhered to the all-or-nothing contributory negligence doctrine.
[20 Cal.3d 599] 4. California's contribution statutes do not preclude this court from adopting comparative partial indemnity as a modification of the common law equitable indemnity doctrine.
None of the parties to the instant proceeding, and none of the numerous amici who have filed briefs, seriously takes issue with our conclusion that a rule of comparative partial indemnity is more consistent with the principles underlying Li than the prior "all-or-nothing" indemnity doctrine. The principal argument raised in opposition to the recognition of a common law comparative indemnity rule is the claim that California's existing contribution statutes, section 875 et seq. of the Code of Civil Procedure, 5 preclude such a judicial development.
[578 P.2d 913] As we explain, we reject the contention on a number of grounds.
[578 P.2d 914] We believe that a similar conclusion must be reached with respect to the pertinent California legislation. The legislative history of the 1957 contribution statute quite clearly demonstrates that the purpose of the legislation was simply "to lessen the harshness" of the then prevailing common law no contribution rule. 7 Nothing in the legislative history suggests that the Legislature intended by the enactment to preempt the field or to foreclose future judicial developments which further the act's principal purpose of ameliorating the harshness and inequity of the old no contribution rule. Under these circumstances, we see no reason to interpret the legislation as establishing a bar to judicial innovation.
The case of Green v. Superior Court (1974) 10 Cal.3d 616, 629-631, 111 Cal.Rptr. 704, 517 P.2d 1168, provides an apt analogy. At early common law a landlord owed a tenant no duty to maintain leased residential [20 Cal.3d 602] premises in habitable condition throughout the duration of the lease, and in Green the landlord argued that because the Legislature had enacted a series of statutes affording tenants a limited "repair and deduct" remedy (Civ.Code, § 1941 et seq.), California courts were not free to evolve a broader, more comprehensive common law warranty of habitability. In Green we emphatically rejected the landlord's contention, declaring that "the statutory framework . . . has never been viewed as a curtailment of the growth of the common law in this field." (10 Cal.3d at p. 630, 111 Cal.Rptr. at p. 713, 517 P.2d at p. 1177.) In like manner we conclude, as did the New York court in Dole, that the contribution statutes were not intended to preclude all common law development in this field.
[578 P.2d 915] that the Legislature had no intention of completely withdrawing the allocation of loss issue from judicial purview.
Second, California's contribution statute again unlike New York's contains a specific provision which explicitly mandates that the "right of contribution shall be administered in accordance with the principles of equity." (Code Civ.Proc., § 875, subd. (b) (quoted in fn. 5, ante ).) We need not decide whether this provision would permit our court to interpret the contribution statute itself as providing for comparative rather than per capita contribution (cf. Lincenberg v. Issen, supra, 318 So.2d 386, 394 (Boyd, J., concurring)), for we think that, at the least, this [20 Cal.3d 603] provision demonstrates that the Legislature did not conceive of its contribution legislation as a complete and inflexible system for the allocation of loss between multiple tortfeasors. (See, e. g., Ramirez v. Redevelopment Agency (1970) 4 Cal.App.3d 397, 400-401, 84 Cal.Rptr. 356; River Garden Farms, Inc. v. Superior Court (1972) 26 Cal.App.3d 986, 993, 103 Cal.Rptr. 498; Rollins v. State of California (1971) 14 Cal.App.3d 160, 165, fn. 8, 92 Cal.Rptr. 251.) By emphasizing that the statutory contribution right is to be administered in accordance with the "principles of equity," principles which the Legislature obviously intended the judiciary to elaborate, the act itself refutes the argument that the Legislature intended to curtail judicial discretion in apportioning damages among multiple tortfeasors.
Several amici argue alternatively that even if the contribution statute was not intended to preclude the development of a common law comparative indemnity doctrine, our court should decline to adopt such a doctrine because it would assertedly undermine the strong public policy in favor of encouraging settlement of litigation embodied in section 877 of the Code of Civil Procedure, one of the provisions of the current statutory contribution scheme. (Quoted in fn. 5, ante.) As amici point out, section 877 creates significant incentives for both tortfeasors and injured plaintiffs to settle lawsuits: the tortfeasor who enters into a good faith settlement is discharged from any liability for contribution to any other tortfeasor, and the plaintiff's ultimate award against any other tortfeasor is diminished only by the actual amount of the settlement rather than by the settling tortfeasor's pro rata share of the judgment. Amici suggest that these incentives will be lost by the recognition of a partial indemnity doctrine.
Accordingly, we conclude that Code of Civil Procedure section 875 et seq. do not preclude the development of new common law principles in this area, and we hold that under the common law of this state a concurrent tortfeasor may seek partial indemnity from another concurrent tortfeasor on a comparative fault basis.
5. Under the allegations of the cross-complaint, AMA may be entitled to obtain partial indemnification from Glen's parents, and thus the trial court, pursuant to Code of Civil Procedure section 428.10 et seq., should have granted AMA leave to file the cross-complaint.
Having concluded that a concurrent tortfeasor enjoys a common law right to obtain partial indemnification from other concurrent tortfeasors on a comparative fault basis, we must finally determine whether, in the instant case, AMA may properly assert that right by cross-complaint against Glen's parents, who were not named as codefendants in Glen's amended complaint. As we explain, the governing provisions of the Code of Civil Procedure clearly authorize AMA to seek indemnification from a previously unnamed party through such a cross-complaint. Accordingly, we conclude that the trial court erred in denying AMA leave to file its pleading.
[20 Cal.3d 605] As early as 1962, our court concluded that under the then governing provisions of the Code of Civil Procedure, a defendant could file a cross-complaint against a previously unnamed party when the defendant properly alleged that he would be entitled to indemnity from such party should the plaintiff prevail on the original complaint. (Roylance v. Doelger (1962) 57 Cal.2d 255, 19 Cal.Rptr. 7, 368 P.2d 535.) Although one commentator has suggested that our Roylance decision extended the then existing cross-complaint provision beyond its legislatively intended scope (see Friedenthal, Joinder of Claims, Counterclaims and Cross-Complaints: Suggested Revision of the California Provisions (1970) 23 Stan.L.Rev. 1, 31-32), when the cross-complaint statutes were completely revised in 1972, the Legislature specifically codified the Roylance rule in section 428.10 et seq. of the Code of Civil Procedure.
Although real parties in interest claim that the effect of permitting a defendant to bring in parties whom the plaintiff has declined to join will have the undesirable effect of greatly complicating personal injury litigation and will deprive the plaintiff of the asserted "right" to control the size and scope of the proceeding (see, e. g., Thornton v. Luce (1962) 209 Cal.App.2d 542, 551-552), as our court observed in Roylance, 57 Cal.2d at pp. 261-262, 19 Cal.Rptr. 7, 368 P.2d 535, to the extent that such claims are legitimate the problem may be partially obviated by the trial court's judicious use of the authority afforded by Code of Civil Procedure section 1048. Section 1048, subdivision (b) currently provides: "The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States."
In this context, of course, a trial court, in determining whether to sever a comparative indemnity claim, will have to take into consideration the fact that when the plaintiff is alleged to have been partially at fault for the injury, each of the third party defendants will have the right to litigate the question of the plaintiff's proportionate fault for the accident; as a consequence, we recognize that in this context severance may at times not be an attractive alternative. Nonetheless, having already noted that under the comparative negligence doctrine a plaintiff's recovery should be diminished only by that proportion which the plaintiff's negligence bears to that of all tortfeasors (see fn. 2, ante ), we think it only fair that a defendant who may be jointly and severally liable for all of the plaintiff's damages be permitted to bring other concurrent tortfeasors into the suit. Thus, we conclude that the interaction of the partial indemnity doctrine with California's existing cross-complaint procedures works no undue prejudice to the rights of plaintiffs.
[578 P.2d 918] case, the allegations of AMA's cross-complaint are sufficient to suggest that Glen's parents' negligence may possibly have been a concurrent cause of Glen's injuries. While we, of course, intimate absolutely no opinion as to the merits of the claim, if it is established that the parents were indeed negligent in supervising their son and that such negligence was a proximate cause of injury, under the governing California common law rule Glen's parents could be held liable for the resulting damages. (See, e. g., Gibson v. Gibson (1971) 3 Cal.3d 914, 92 Cal.Rptr. 288, 479 P.2d 648.) Thus, we believe that AMA's cross-complaint states a cause of action for comparative indemnity and that the trial court should have permitted its filing.
In the instant case we have concluded that the force of Li's rationale applies equally to the allocation of responsibility between two or more negligent defendants and requires a modification of this state's traditional all-or- nothing common law equitable indemnity doctrine. Again, we concur with Dean Prosser's observation in a related context that "(t)here is obvious lack of sense and justice in a rule which permits the entire burden of a loss, for which two defendants were . . . unintentionally [20 Cal.3d 608] responsible, to be shouldered onto one alone, . . . while the latter does scot free." (Prosser, Law of Torts, supra, § 50, p. 307.) From the crude all-or-nothing rule of traditional indemnity doctrine, and the similarly inflexible per capita division of the narrowly circumscribed contribution statute, we have progressed to the more refined stage of permitting the jury to apportion liability in accordance with the tortfeasors' comparative fault.
Accordingly, we hold that under the common law equitable indemnity doctrine a concurrent tortfeasor may obtain partial indemnity from cotortfeasors on a comparative fault basis.
Let a peremptory writ of mandate issue directing the trial court (1) to vacate its order denying AMA leave to file its proposed cross-complaint, and (2) to proceed in accordance with the views expressed in this opinion. Each party shall bear its own costs.
BIRD, C. J., and MOSK, RICHARDSON, MANUEL and SULLIVAN (Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council), JJ., concur.
[20 Cal.3d 609] Now, only three years later, the majority of my colleagues conclude that the Li principle is not irresistible after all. Today, in the first decision of this court since Li explaining the operation of the Li principle, they reject it for almost all cases involving multiple parties.
The majority reject the Li principle in two ways. First, they reject it by adopting joint and several liability holding that each defendant including the marginally negligent one will be responsible for the loss attributable to his codefendant's negligence. To illustrate, if we assume that the plaintiff is found 30 percent at fault, the first defendant 60 percent, and a second defendant 10 percent, the plaintiff under the majority's decision is entitled to a judgment for 70 percent of the loss against each defendant, and the defendant found only 10 percent at fault may have to pay 70 percent of the loss if his codefendant is unable to respond in damages.
The second way in which the majority reject Li 's irresistible principle is by its settlement rules. Under the majority opinion, a good faith settlement releases the settling tortfeasor from further liability, and the "plaintiff's recovery from nonsettling tortfeasors should be diminished only by the amount that the plaintiff has actually recovered in a good faith settlement, rather than by an amount measured by the settling tortfeasor's proportionate responsibility for the injury." (Ante, p. 199 of 146 Cal.Rptr., p. ---- of --- P.2d.) 1 The settlement rules announced today may turn Li 's principle upside down the extent of dollar liability may end up in inverse relation to fault.
[20 Cal.3d 611] The foregoing demonstrates that under the majority's joint and several liability and settlement rules, only rarely will the Li principle be carried out in multi-party litigation. The principle will be frustrated if one or more defendants are unavailable, insolvent, or have settled. Prior to Li, the overwhelming majority of accident cases were settled in whole or in part, and assuming this practice continues, the Li principle will not be realized in those cases. In a substantial number of the remaining cases it can be expected that one of the tortfeasors will not be able to respond in damages, again frustrating the Li principle. In sum, although the majority devote approximately half of their opinion to asserted maintenance of the Li principle (pts. 3, 4, and 5), in only a very small number of multiple party cases will the loss be shared in accordance with that principle.
Attempting to justify their repudiation of the Li principle in favor of joint and several liability, the majority suggest three rationales. First, we are told that the feasibility of apportioning fault on a comparative basis does not "render an indivisible injury 'divisible,' " each defendant's negligence remaining a proximate cause of the entire indivisible injury. (Ante, p. 698 of 146 Cal.Rptr., p. 188 of --- P.2d) The argument proves too much. Plaintiff negligence is also a proximate cause of the entire indivisible injury, and the argument, if meritorious, would warrant repudiation of Li not only in the multiple party case but in all cases.
The second rationale of the majority lies in two parts. First, we are told that after Li there is no reason to assume that plaintiffs will "invariably" be guilty of negligence.
[578 P.2d 921] (Ante, p. 188 of 146 Cal.Rptr., p. ---- of --- P.2d) Obviously this is true. The basis of joint and several liability prior to Li was that between an innocent plaintiff and two or more negligent defendants, it was proper to hold the defendants jointly and severally liable. The innocent plaintiff should not suffer as against a wrongdoing defendant. (Ante, p. 188 of 146 Cal.Rptr., p. ---- of --- P.2d) (Finnegan v. Royal Realty Co. (1950) 35 Cal.2d 409, 433-434, 218 P.2d 17.) Accordingly, it is not unreasonable to reject the Li principle when we are comparing the plaintiff's innocence and defendants' negligence. But the issue presented by this case is whether joint and several liability shall be extended to Li cases, cases where the plaintiff by definition is negligent. While we cannot know whether a plaintiff will be found negligent until trial, we also cannot know whether any given defendant will be found at fault until trial. Since liability is not to be determined until after trial, there is no reason not to deal with the real issue before us whether joint and several liability should be applied in cases where the plaintiff is [20 Cal.3d 612] found negligent i. e., cases where by definition the plaintiff is "invariably" found negligent.
As a second part of the second rationale for joint and several liability we are told that a plaintiff's culpability is not equivalent to that of a defendant. This is obviously true this is what Li is all about. The plaintiff may have been driving 50 miles in excess of the speed limit while the defendants may have been driving 10 miles in excess. The converse may also be true. But the differences warrant departure from the Li principle in toto or not at all.
The majority's third rationale for rejecting the Li principle is an asserted public policy for fully compensating accident victims. The majority state that joint and several liability "recognizes that fairness dictates that the 'wronged party should not be deprived of his right to redress,' but that '(t)he wrongdoers should be left to work out between themselves any apportionment.' (Summers v. Tice (1948) 33 Cal.2d 80, 88.)" (Ante, p. 189 of 146 Cal.Rptr., p. ---- of --- P.2d) The quoted language is not helpful to the majority when the plaintiff is also negligent because he is himself a wrongdoer.
Until today neither policy nor law called for fully compensating the negligent plaintiff. Prior to Li, the negligent plaintiff was denied all recovery under the contributory negligence doctrine the policy reflected being directly contrary to that asserted today. Li, of course, repudiated that doctrine replacing it with a policy permitting compensation of the negligent accident victim but only on the basis of comparative fault. Moreover, Li cannot be twisted to establish a public policy requiring rejection of its own irresistible principle. In sum, the majority are establishing a new policy both contrary to that existing prior to Li and going further than that reflected by the comparative principle enunciated in Li.
Conceivably, such a new public policy departing from intelligent notions of fairness may be warranted but, if so, its establishment should be left for the Legislature. Before going beyond Li 's principle "irresistible to reason and all intelligent notions of fairness" (13 Cal.3d at p. 811, 119 Cal.Rptr. at p. 863, 532 P.2d at p. 1231), a full evaluation should be made of society's compensation to accident victims through our tort system in comparison to all other means used by society to compensate victims. A study should include such matters as the relative workings of the liability insurance system in providing benefits, disability insurance and employer benefits, medical insurance, [20 Cal.3d 613] workers' compensation, insurance against uninsured defendants, Medicare, Medi-Cal and the welfare system. Reconsideration of the collateral source rule would also be required before adoption of a public policy going beyond intelligent notions of fairness. The evidence gathering and hearings necessary for the requisite study are within the capabilities of the Legislature; this court is institutionally incapable of undertaking it.
[578 P.2d 922] for the proposition that courts have retained joint and several liability under comparative negligence. (Ante, p. 189 of 146 Cal.Rptr., p. ---- of --- P.2d) In the cases cited from the first two jurisdictions, it does not appear that the plaintiff was negligent under the facts or that the court in adhering to joint and several liability was considering cases where the plaintiff was negligent. Thus, those cases stand for nothing more than application of joint and several liability when a plaintiff is innocent and the defendants are guilty, the traditional common law application. The third jurisdiction, Wisconsin, is not a pure comparative negligence jurisdiction. Rather, the negligent plaintiff can recover only if his " 'negligence was not as great as the negligence of the person against whom recovery is sought.' " (Chille v. Howell (1967), 34 Wis.2d 491, 499, 149 N.W.2d 600, 604.) Because of the limitation on recovery by negligent plaintiffs in Wisconsin, it may be justifiable to apply joint and several liability by analogy to the common law principle that as between an innocent plaintiff and any negligent defendant, the entire loss shall fall on the negligent actor. Obviously, such justification is not available in a pure comparative jurisdiction like California. Only the Georgia case is in point.
In my view the majority's effort to resist the irresistible fails. They have furnished no substantial reason for refusing to apply the Li principle to multi-party litigation.
Adherence to the Li principle that the extent of liability is governed by the extent of fault requires that only a limited form of joint and several [20 Cal.3d 614] liability be retained in cases where the plaintiff is negligent. 4 The issue of joint and several liability presents the problem whether the plaintiff or the solvent defendants should bear the portion of the loss attributable to unknown defendants or defendants who will not respond in damages due to lack of funds.
Consistent with the Li principle the extent of liability is governed by the extent of fault the loss attributable to the inability of one defendant to respond in damages should be apportioned between the negligent plaintiff and the solvent negligent defendant in relation to their fault. (Fleming, Foreword: Comparative Negligence At Last By Judicial Choice (1976) 64 Cal.L.Rev. 239, 251-252, 257-258.) Returning to my 30-60-10 illustration, if the 60 percent at fault defendant is unable to respond, the 30 percent at fault plaintiff should be permitted to recover 25 percent of the entire loss from the 10 percent at fault solvent defendant based on the 3 to 1 ratio of fault between them. (The solvent defendant would have added to his 10 percent liability one-fourth of the 60 percent or 15 percent to reach the 25 percent figure.) To the extent that anything is recovered from the 60 percent at fault defendant, the money should be apportioned on the basis of the 3 to 1 ratio. The system is based on simple mechanical calculations from the jury findings.
[578 P.2d 923] Placing the entire loss attributable to the insolvent defendant solely on the negligent plaintiff or solely on the solvent negligent defendant is not only contrary to the Li principle, but also undermines the entire system of comparative fault. If the portion attributable to the insolvent defendant is placed upon the negligent plaintiff, the solvent defendant will attempt to reduce his liability by magnifying the fault of the insolvent defendant. Should the insolvent's portion be placed solely upon the solvent defendant as done by the majority's application of joint and several liability the plaintiff will have an incentive to magnify the fault of the insolvent defendant. 5 Because the insolvent and [20 Cal.3d 615] therefore disinterested defendant will usually not be present at trial to defend himself, any semblance to comparative fault will be destroyed.
Similarly, settlement rules should also reflect the Li principle. When a defendant settles, he should be deemed to have settled his share of the total liability and the pleadings and releases should so reflect. The nonsettling defendant should be liable only for the portion of the loss attributable to him deducting from the total loss the amount attributable to the plaintiff's negligence 6 and the amount attributable to the settling defendant's negligence. This rule adopted by Wisconsin (Pierringer v. Hoger (1963) 21 Wis.2d 182, 124 N.W.2d 106, 111-112), would force a plaintiff to demand settlements reasonably commensurate to the fault of the settling defendant because he will no longer be able to settle quickly and cheaply, then holding the remaining defendants for part of his codefendant's share of the loss. Granted, the nonsettling defendant will have an incentive to magnify the fault of the settling defendant, but it is not unfair to place the burden of defending the settling defendant upon the plaintiff for three reasons: He is the one who chose to settle, the settlement has eliminated any right of contribution or partial indemnity of the nonsettling defendant, and the plaintiff in obtaining his settlement may secure the cooperation of the settling defendant for the later trial.
"(I)rresistible to reason and all intelligent notions of fairness" (13 Cal.3d 804, 811, 119 Cal.Rptr. 858, 863, 532 P.2d 1226, 1231), this court created a policy three years ago the majority today cavalierly reject without real explanation. Their attempted rationale for rejection of the Li principle insofar as it is based on a newly discovered public policy is entitled to little weight. The public has no such policy and any attack on the principle based on logic or abstract notions of fairness fail. The principle is transparently irresistible in the abstract.
If not applied across the board the Li principle should be abandoned. The reason for abandonment applies not only to multi-party cases but also to two-party cases, warranting total repudiation of the principle, not merely the majority's partial rejection.
In short, the pure comparative fault system adopted by Li not only invites but demands arbitrary determinations by judges and juries, turning them free to allocate the loss as their sympathies direct. We may expect that allocation of the loss will be based upon the parties' appearance and personality and the abilities of their respective counsel. The system is a nonlaw system. Furthermore, prior to Li our tort system of liability was condemned because it was so inefficient in transferring the liability insurance premium to the accident victim (e. g., Conrad et al., Automobile Accident Costs and Payments (1964) pp. 58-61). The complexities and unpredictability of the Li system can only make the system even more inefficient.
I do not suggest return to the old contributory negligence system. The true criticism of that system remains valid: one party should not be required to bear a loss which by definition two have caused. However, in departing from the old system of contributory negligence numerous approaches are open, but the Legislature rather than this court is the [20 Cal.3d 617] proper institution in a democratic society to choose the course. To accommodate the true criticism, for example, it might be proper to take the position that a negligent plaintiff forfeits part but not all of his recovery in a percentage fixed by the Legislature. A fixed percentage approach would eliminate the impossible task of comparing apples and oranges placed upon the trier of fact by Li and would provide the consistency, certainty and predictability which foster compromise and settlement. Although the percentage would be arbitrary, the allocation of loss as demonstrated above is necessarily arbitrary under the present system.
[578 P.2d 925] accident victims run in directly contrary approaches the nonfault approach where negligence may be ignored and the comparative fault approach where the quantum of negligence is to be meticulously divided among the parties. No area of the law calls out more for a clear policy established by democratically elected representatives.
Rehearing denied; CLARK, J., dissenting.
1 Glen's second amended complaint is framed in six counts and names, in addition to AMA and Viking, numerous individual Viking officials and the Continental Casualty Company of Chicago (AMA's insurer) as defendants. In addition to seeking recovery on the basis of negligence, plaintiff claims that various defendants (1) were guilty of fraud and misrepresentation in relation to the race, (2) acted in bad faith in refusing to settle a medical reimbursement claim allegedly covered by insurance and (3) intentionally inflicted emotional distress upon him. Only the negligence claim, however, is relevant to the present proceeding.
We agree with this conclusion, which finds support in decisions from other comparative negligence jurisdictions. (See, e. g., Pierringer v. Hoger (1963) 21 Wis.2d 182, 124 N.W.2d 106; Walker v. Kroger Grocery & Baking Co. (1934) 214 Wis. 519, 252 N.W. 721, 727-728.) In determining to what degree the injury was due to the fault of the plaintiff, it is logically essential that the plaintiff's negligence be weighed against the combined total of all other causative negligence; moreover, inasmuch as a plaintiff's actual damages do not vary by virtue of the particular defendants who happen to be before the court, we do not think that the damages which a plaintiff may recover against defendants who are joint and severally liable should fluctuate in such a manner.
"(a) Where a money judgment has been rendered jointly against two or more defendants in a tort action there shall be a right of contribution among them as hereinafter provided.
"(b) Such right of contribution shall be administered in accordance with the principles of equity.
"(c) Such right of contribution may be enforced only after one tortfeasor has, by payment, discharged the joint judgment or has paid more than his pro rata share thereof. It shall be limited to the excess so paid over the pro rata share of the person so paying and in no event shall any tortfeasor be compelled to make contribution beyond his own pro rata share of the entire judgment.
"(d) There shall be no right of contribution in favor of any tortfeasor who has intentionally injured the injured person.
"(e) A liability insurer who by payment has discharged the liability of a tortfeasor judgment debtor shall be subrogated to his right of contribution.
"(f) This title shall not impair any right of indemnity under existing law, and where one tortfeasor judgment debtor is entitled to indemnity from another there shall be no right of contribution between them.
"(g) This title shall not impair the right of a plaintiff to satisfy a judgment in full as against any tortfeasor judgment debtor."
"(a) The pro rata share of each tortfeasor judgment debtor shall be determined by dividing the entire judgment equally among all of them.
"(b) Where one or more persons are held liable solely for the tort of one of them or of another, as in the case of the liability of a master for the tort of his servant, they shall contribute a single pro rata share, as to which there may be indemnity between them."
"(b) It shall discharge the tortfeasor to whom it is given from all liability for any contribution to any other tortfeasors."
"(2) If the action is tried before a jury, and a defendant party to the agreement is a witness, the court shall, upon motion of a party, disclose to the jury the existence and content of the agreement or covenant, unless the court finds that such disclosure will create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
"The jury disclosure herein required shall be no more than necessary to be sure that the jury understands (1) the essential nature of the agreement, but not including the amount paid, or any contingency, and (2) the possibility that the agreement may bias the testimony of the alleged tortfeasor or tortfeasors who entered into the agreement.
"(b) As used in this section a 'sliding scale recovery agreement' means an agreement or covenant between a plaintiff or plaintiffs and one or more, but not all, alleged tortfeasor defendants, where the agreement limits the liability of the agreeing tortfeasor defendants to an amount which is dependent upon the amount of recovery which the plaintiff is able to recover from the nonagreeing defendant or defendants. This includes, but is not limited to, agreements within the scope of Section 877, and agreements in the form of a loan from the agreeing tortfeasor defendant to the plaintiff or plaintiffs which is repayable in whole or in part from the recovery against the nonagreeing tortfeasor defendant."
"Judgment for contribution may be entered by one tortfeasor judgment debtor against other tortfeasor judgment debtors by motion upon notice. Notice of such motion shall be given to all parties in the action, including the plaintiff or plaintiffs, at least 10 days before the hearing thereon. Such notice shall be accompanied by an affidavit setting forth any information which the moving party may have as to the assets of defendants available for satisfaction of the judgment or claim for contribution."
"If any provision of this title or the application thereof to any person is held invalid, such invalidity shall not affect other provisions or applications of the title which can be given effect without the invalid provision or application and to this end the provisions of this title are declared to be severable."
"Under the common law there is no contribution between joint tortfeasors. One of several joint tortfeasors may be forced to pay the whole claim for the damages caused by them yet he may not recover from the others their pro rata share of the claim. California follows this rule. (Citations.) The purpose of this bill is to lessen the harshness of that doctrine.
8 Section 428.20 provides in full: "When a person files a cross-complaint as authorized by Section 428.10, he may join any person as a cross-complainant or cross-defendant, whether or not such person is already a party to the action, if, had the cross-complaint been filed as an independent action, the joinder of that party would have been permitted by the statutes governing joinder of parties."
"(1) 'Third-party plaintiff' means a person against whom a cause of action has been asserted in a complaint or cross-complaint, who claims the right to recover all or part of any amounts for which he may be held liable on such cause of action from a third person, and who files a cross-complaint stating such claim as a cause of action against the third person.
"(2) 'Third-party defendant' means the person who is alleged in a cross-complaint filed by a third-party plaintiff to be liable to the third-party plaintiff if the third-party plaintiff is held liable on the claim against him.
"(b) In addition to the other rights and duties a third-party defendant has under this article, he may, at the time he files his answer to the cross-complaint, file as a separate document a special answer alleging against the third-party plaintiff any defenses which the third-party plaintiff has to such cause of action. The special answer shall be served on the third-party plaintiff and on the person who asserted the cause of action against the third-party plaintiff."
1 Although one of the most important matters determined by today's decision, the issue of pro rata reduction or dollar amount reduction was barely mentioned and the relative merits of the two systems were not briefed or argued by the parties or by any of the numerous amici. The overwhelming weight of authority contrary to the majority is for pro rata reduction rather than settlement amount reduction. (Ark.Stats.Ann., § 34-1005; Hawaii Rev.Laws § 663-15; Nebben v. Kosmalski (1976) 307 Minn. 211, 239 N.W.2d 234, 236; Theobald v. Angelos (1965) 44 N.J. 228, 208 A.2d 129, 131; Rogers v. Spady (1977) 147 N.J.Super. 274, 371 A.2d 285, 287; N.Y.Gen.Obl.Law, § 15-108; R.I.Gen.Laws (1956) § 10-6-8; S.D.Ch.Laws 15-8-18; Tex.Rev.Civ.Stat., art. 2212a, § 2(e); Utah Code 78-27-43; Gomes v. Brodhurst (3d Cir. 1967) 394 F.2d 465; Pierringer v. Hoger (1963) 21 Wis.2d 182, 124 N.W.2d 106; Wyo.Stat.Ann. § 1-7.6; but cf. Fla.Stat.Ann., § 768.31; Mass.Laws Ann., ch. § 231B § 4.) Although I believe it is improper for the court to reach such an important issue without the aid of counsel, I am compelled to discuss the problem because the majority has determined it.
Obviously, in most cases the jury will not award plaintiff all of the damages sought and will not conclude the settling tortfeasor should have borne the lion's share. But because prior to trial these matters are necessarily uncertain and the possibility of establishing bad faith exists, the nonsettling tortfeasor's counsel must continue to maintain his cross-complaint for total and partial indemnity. (Cf. Smith v. Lewis (1975) 13 Cal.3d 349, 360, 118 Cal.Rptr. 621, 530 P.2d 587 (failure to pursue arguable claims may constitute malpractice).) Aware that his settlement will not ordinarily prevent his participating in the litigation of the issues of damages and relative fault and that he might be held liable for further damages, a defendant contemplating settlement will rarely do so alone.
3 It has been suggested that statutes repudiating joint and several liability in comparative negligence cases are entitled to little, if any, weight in comparison to judicial opinions on the issue. However, in a democracy the laws enacted by the people's elected representatives are entitled to great weight.
4 When the plaintiff is free of fault he is entitled to a joint and several judgment against each defendant in accordance with common law rule. The Li principle is inapplicable because there is simply no plaintiff fault for comparing with defendants' fault.
In addition, when one defendant is held liable for the acts of another on the basis of principles of vicarious liability, there should be no apportionment of liability because by definition one is liable for the acts of the other. (Ante, p. 187 of 146 Cal.Rptr., p. ---- of --- P.2d.) Apportionment between defendants should be denied even if the plaintiff is negligent, and in determining relative fault of plaintiff and defendants, the single negligent act for which both defendants are responsible should not be counted twice.
5 To illustrate, if plaintiff and the solvent defendant are equally at fault, the amount to be recovered will depend on the extent of fault of the insolvent defendant. If the insolvent defendant is 80 percent at fault, plaintiff will recover 90 percent of his loss but if the insolvent is only 10 percent at fault, recovery will be limited to 55 percent of the loss.
6 Existing rules should be continued as to non-negligent plaintiffs.
7 In the instant case, plaintiff alleges defendants negligently conducted a motorcycle race. Defendant American Motorcycle Association alleges that plaintiff was negligent in causing the accident and that plaintiff's parents negligently failed to supervise their minor child. Assuming that both plaintiff and defendant are successful in proving their allegations, the division of the loss between plaintiff, defendant, and the parents will require arbitrary allocation.


Should I File a Customs Prior Disclosure?
Any party, including importers, custom brokers, shippers, and foreign suppliers/manufacturers, involved in the business of importing into the U.S. can file a prior disclosure with CBP. A valid prior disclosure discloses the circumstances of §1592 violations to CBP before, or without knowledge of, the commencement of a formal investigation. Common examples of a §1592 violation include: undervaluation, misdescription of merchandise, misclassification, overvaluation, evasion of antidumping/countervailing duty. A valid prior disclosure also includes the tender of any loss of actual duties associated with the violation. Importantly, a party is not required to make a prior disclosure but can elect to make one.
If prior disclosures are not required, why would anyone choose to reveal this information to the government? The biggest reason to file a prior disclosure is the mitigation of potential penalties. When CBP discovers §1592 violations, it imposes penalties based on three levels of culpability: negligence, gross negligence, and fraud. (For further information regarding penalties under 19 U.S.C. § 1592, see our previous article, Import Violations: What You Need to Know about 19 USC 1592.) In most cases, a valid prior disclosure will result in substantial mitigation of those penalties. If a party discloses negligent or grossly negligent violations, the mitigated penalty will be the interest that has accrued on the owed duties from the date of liquidation until the submission of the owed duties. In prior disclosures of fraudulent violations (i.e., a knowing or intentional violation of the law) the maximum penalty is reduced to 100% of the duty loss. However, it is important to note that a prior disclosure for fraudulent violations does not prevent CBP from recommending the case to the Department of Justice for criminal prosecution, so a party that has committed fraudulent violations should be very careful when deciding to submit a prior disclosure. In general, a party deciding whether to submit a prior disclosure must make this decision based on the potential costs of the disclosure, the mitigation afforded from the disclosure, and the risk of CBP conducting an investigation into the party’s violations and assessing penalties.
Before an importer decides to disclose errors that reside in a gray area of Customs law, it is important to note that CBP cannot meet the culpability requirements to support a penalty action if the importer exercised “reasonable care” in making the entry. Whether a party acts with “reasonable care” is ascertained on a case-by-case basis, but CBP has provided some guidance to assist parties in making that determination. If a party believes it has acted with reasonable care, and can support that assertion, a prior disclosure may not be necessary.
The regulations provide four elements that must be included in a prior disclosure. These elements are (1) the type of merchandise involved; (2) the entry number, the dates of import or export, and the port(s) of import or export; (3) the materially false statements, omissions, or acts, and an explanation of how they occurred; and (4) the true information that should have been provided. The decision of whether or not to disclose will also therefore depend on the party’s ability to compile historical import data and documentation. Some of the required information can be gathered from Automated Commercial Environment (“ACE”) import reports. However, the deciding factor may be a party’s ability to provide the correct information that should have been declared to CBP upon importation. If an importer has not maintained, or cannot retrieve, sufficient records to provide correct information regarding its violating imports, the importer will have a difficult time preparing its prior disclosure. Common disclosed errors relate to HTS classifications, or valuation errors which may require analysis of a number of product SKUs, company entry records, invoices, proof of payment and other information.
It is also important to point out that the statute of limitations for negligent or grossly negligent violations of §1592 is five years from the date of the violation. In other words, if all the violations occurred more than five years ago, no prior disclosure is necessary. Assuming the violations are within the statute of limitations, a party that has decided to disclose should submit the prior disclosure as soon as possible. The longer a party waits, the higher the likelihood that CBP could launch a formal investigation, after which time the party will no longer be able to file a prior disclosure. If the disclosing party has not gathered all relevant information or documents related to the violations, CBP allows for the submission of an “initial disclosure,” from which point the disclosing party has thirty days to “perfect” the disclosure by providing all required information. If additional time is needed, the disclosing party may request extensions of the original thirty-day period from CBP.
Figuring out what to do once a potential violation has been discovered can be difficult. Generally, you should stop the errors right away and consider consulting with counsel regarding your options. If you have any questions regarding the preparation of prior disclosures, do not hesitate to contact us.
15 U.S.C. § 1592(c)(4)(B). Per CBP guidance, if the prior disclosure involves only unliquidated (i.e., open) entries, there will be no penalty enforced, though the disclosing party will still be required to tender owed duties. What Every Member of the Trade Community Should Know: Prior Disclosure, U.S. Customs and Border Protection, 8, Aug. 2017, available at https://www.cbp.gov/sites/default/files/assets/documents/2017-Oct/Prior%20Disclosure%20FINAL.pdf (last visited Jan. 19, 2018).
 15 U.S.C. § 1592(c)(4)(A). The disclosing party will be liable to pay the owed duties as well as the penalty of 100% of owed duties.
 What Every Member of the Trade Community Should Know: Reasonable Care, U.S. Customs and Border Protection, Sept. 2017, available at https://www.cbp.gov/sites/default/files/assets/documents/2017-Dec/ICPResCare2017revision.pdf (last visited Jan. 18, 2018).
 The statute of limitations for fraudulent violations of §1592 is five years from the date CBP discovers the violation. So, if an importer discloses a fraudulent violation, the statute of limitations may not begin to run until CBP receives the disclosure. 19 U.S.C. § 1621(1).