Difco Administration (US) Inc. v. Superior Court

In this matter we are called upon to decide a simple issue: when an injured employee sues a third party defendant (defendant), not his employer, in tort, and the defendant wishes to raise the employer’s concurrent negligence as the basis for an offset against any judgment against it, may the defendant file a cross-complaint against the employer alleging entitlement to a setoff or credit under the principles of Witt v. Jackson (1961) 57 Cal.2d 57, 71-73 [ 17 Cal.Rptr. 369 , 366 P.2d 641 ]? Or is the defendant limited to asserting the claim as an affirmative defense in its answer to the employee’s complaint, thus precluding the employer from being a party to the litigation?

Here, we must determine whether to follow Del Monte Corp. v. Superior Court (1982) 127 Cal.App.3d 1049 [ 179 Cal.Rptr. 855 ], the former leading case on the question, or to side with CJ.L. Construction, Inc. v. Universal Plumbing (1993) 18 Cal.App.4th 376 [ 22 Cal.Rptr.2d 360 ], a recent, contrary appellate decision. We choose the latter, and publish this opinion to afford guidance to litigants and attorneys practicing within this appellate district.

Factual and Procedural Background

The underlying…