Opinion
For Opinion on Hearing, see 163 Cal.Rptr. 585, 608 P.2d 673.
ORDER AND OPINION ON DENIAL OF REHEARING
ALLPORT, Associate Justice.
The petition of the People of the State of California for a rehearing 88 Cal.App.3d 689, 152 Cal.Rptr. 177, is denied.
COBEY, Acting P.J., concurs.
POTTER, Associate Justice.
I concur in the denial of the petition for rehearing, although I find the result less than satisfactory. I agree that the failure of the plaintiff to comply with the requirements of Government Code section 911.2 should not increase the liability of the real parties in interest. I believe, however, that there is a better solution to the dilemma posed by the facts in this case than that of exposing the State to the filing of such belated claims as have been authorized by our opinion. The purpose of the claims statute to protect the State by giving it an early notice of the necessity to defend itself is substantially frustrated if parties who are joint tortfeasors with the State must defer filing of claims until they have suffered liability. The absence of any provision for the filing of contingent claims, however, effectively precludes earlier filing of such claims.
A much better solution would be to recognize an exception to the general rule stated in American Motorcycle Assn. v. Superior Court of Los Angeles County (1978) 20 Cal.3d 578, 587, 146 Cal.Rptr. 182, 187, 578 P.2d 899, 904, that "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." Where the reason one of the tortfeasors is immune is the sole fault of the plaintiff, it is manifestly unjust to the defendants not to reduce the plaintiff's recovery to a percentage of his loss equal to the contributing fault of the remaining defendants. Such a qualification of the rule of American Motorcycle Assn. would not conflict with the rationale of footnote 9 (20 Cal.3d at p. 607, 146 Cal.Rptr. 182, 578 P.2d 899) of the opinion in that matter. Strong public policy favors limiting the liability of a plaintiff's employer to workers' compensation benefits, and a similar strong public policy favors encouraging good-faith settlement. But no public policy favors a plaintiff's neglect of the requirements of the claims statute.
I conclude, therefore, that the preferable solution would be to limit plaintiff's recovery against real parties in interest to that percentage of his loss which equals their contributing fault. This would not leave plaintiff without remedy; he has his already asserted malpractice claim against his former attorney, and it would place the risk of the attorney's insolvency where it belongs. To carry out this disposition, we would direct the court to vacate the order granting leave to file the cross-complaint and allow defendants to amend their answer to assert a defense based upon plaintiff's having lost defendants' rights of comparative indemnity.
The implementation of this solution, however, presents insuperable practical difficulties. This court has no authority to limit the rule stated in American Motorcycle, however logical such limitation may seem. In addition, plaintiff is not a party to this proceeding, and an adjudication of his