AB 328 replaces the final clause of Civil Code Section 2777 with a slightly different wording. The existing provision — which makes an indemnitor jointly and separately liable with the indemnified party to anyone injured by the act — is left substantively intact by the bill's text, which the Legislative Counsel describes as a nonsubstantive change.
Why it matters: on its face this is housekeeping. In practice, the amendment introduces an unexpected wording choice that could be read as a typographical or drafting error.
That creates a narrow risk of interpretive disputes, additional drafting work for counsel and legislative staff, and a potential (although unlikely) gateway for litigation arguing a change in meaning. For most indemnity relationships, obligations and liabilities remain unchanged, but practitioners should note the drafting oddity and watch for corrective action or judicial interpretation.
At a Glance
What It Does
AB 328 amends Civil Code §2777's final clause by altering the language that describes liability for an indemnitor; the statutory rule that an indemnitor is jointly and separately liable remains on its face. The Legislative Counsel's digest describes the amendment as nonsubstantive housekeeping.
Who It Affects
The change touches parties engaged in indemnity relationships (indemnitors, indemnitees, insurers), civil litigators who plead or defend indemnity claims, legislative drafters, and anyone who maintains statutory annotations or model contract language referencing §2777.
Why It Matters
Even minor textual edits can produce unintended interpretive questions. This bill likely creates no change in legal duties, but the unusual insertion of wording opens a small window for challenges and generates administrative work to correct or clarify the text.
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What This Bill Actually Does
Section 2777 of the Civil Code currently states that a person who indemnifies another against an act is jointly and separately liable to anyone injured by that act. AB 328 alters the statutory phrase that follows — replacing the original wording with a slightly different construction.
The change is presented to the Legislature as nonsubstantive housekeeping rather than a change in law.
Practically speaking, the amendment does not add new duties, carve out defenses, or create new remedies. It does not change the underlying rule that an indemnitor can be held jointly and separately liable alongside the indemnified party for injuries caused by the covered act.
For day-to-day contracting and claims-handling, indemnity obligations under §2777 should operate as before.What elevates this otherwise routine edit is that the inserted wording is grammatically unusual and resembles a typographical slip. That introduces the limited—but real—possibility that an advocate will press an argument claiming the amendment changed the statute’s scope or altered who can recover.
Courts confronted with such an argument would apply familiar canons of interpretation (looking to legislative intent, historical text, and the presumption against unintended substantive change) but those doctrines do not guarantee a hassle-free outcome.Given the low substantive stakes but nonzero risk, practical responses are straightforward: legislative counsel or sponsors may file a correcting amendment; contract drafters should not assume any shift in liability but may note the statutory phrasing in risk analyses; litigators should be prepared to address the textual oddity if indemnity disputes arise. For most stakeholders, the immediate impact is administrative (review, annotation updates, and potential clarification) rather than doctrinal.
The Five Things You Need to Know
AB 328 amends Civil Code §2777 by changing the clause that describes liability for injuries ‘by the act’ to a slightly different wording in the statute’s text.
The Legislative Counsel's digest characterizes the change as nonsubstantive; the bill does not create new duties, defenses, penalties, or entitlement schemes.
The precise wording inserted is grammatically unusual and appears to be a typographical or drafting lapse rather than a deliberate shift in legal meaning.
Because the bill does not alter the statute’s stated rule of joint and several liability, everyday indemnity arrangements and insurer exposure are unlikely to change on their face.
The main practical effect is procedural: potential need for a technical correction, updated statutory annotations, and a limited risk of litigation focused on the amendment’s wording.
Section-by-Section Breakdown
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Text amendment to Civil Code §2777
This is the operative change: the bill replaces the final clause of Section 2777 with a different phrase describing liability for injuries caused by the act. Mechanically, the statute’s declared rule — that an indemnitor is jointly and separately liable with the person indemnified — remains. The section establishes no new regulatory regime, filing requirement, or administrative mechanism; it is purely a text edit to an existing civil-liability provision.
Housekeeping label and interpretive significance
The digest explicitly calls the amendment nonsubstantive. That label matters in statutory interpretation: courts presume the Legislature did not intend to change outcomes when an amendment is described as technical or corrective. However, the label is not dispositive if the changed text can reasonably be read to alter meaning; the odd phrasing inserted here could therefore prompt courts to examine legislative history and surrounding code to confirm intent.
How this gets fixed if needed
If the phrasing proves problematically ambiguous, the likely remedies are familiar: a technical cleanup bill, a correction from the Office of Legislative Counsel, or an authoritative annotation from the Code Commission or a widely used annotated code publisher. Absent corrective action, disputes would be resolved through ordinary litigation and appellate review, relying on canons of construction to preserve existing liabilities if that reflects legislative intent.
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Explore Justice in Codify Search →Who Benefits and Who Bears the Cost
Every bill creates winners and losers. Here's who stands to gain and who bears the cost.
Who Benefits
- Office of Legislative Counsel and statute editors — the issue highlights a drafting point they can correct, reinforcing the role of technical amendment and code maintenance.
- Contract drafters and in-house compliance teams — the change prompts a targeted review of indemnity clauses and statutory citations, enabling updates to model contracts and risk matrices.
- Law firms specializing in indemnity and insurance — they gain clarity on advisory work and, in the short term, potential consults to assess whether the textual edit affects client exposure.
Who Bears the Cost
- State legislative staff and drafters — they bear the administrative cost of preparing, processing, and publishing a correction or clean-up amendment if one becomes necessary.
- Civil litigants and courts — if the wording generates disputes, parties and the judiciary expend time and money resolving what is likely a technical ambiguity rather than a substantive rule change.
- Businesses relying on indemnity language (indemnitors and insurers) — they face transactional and administrative costs to review contracts and policies for consistency with the updated statutory text, even if legal exposures remain the same.
Key Issues
The Core Tension
The bill sits at the tension between routine statutory housekeeping and the risk that even small textual edits create interpretive friction: the Legislature wants clean, modern code language, but the act of editing can inadvertently introduce ambiguities that generate litigation and administrative costs.
The critical implementation risk here is not substantive policy change but interpretive noise. Courts start with the statutory text, so an odd insertion — even if unintended — can invite argument.
That makes the quality of drafting and the clarity of legislative record unusually important. Practically, the burden of cleanup falls on legislative drafters and counsel, and the cost of any ambiguity is borne by litigants and practitioners who must expend time to resolve what the Legislature intended.
Two unresolved questions matter to practitioners: first, whether the Legislature intended any change at all (the Legislative Counsel says no), and second, if a court is asked to construe the amended provision, how aggressively a textualist judge will treat the written words versus the indicated nonsubstantive intent. Both questions point to familiar—but frictional—trade-offs between updating statutes and preserving legal stability.
The likely outcome is technical correction or judicial construction that preserves preexisting liability rules, but the path to that outcome can consume attention and resources that would otherwise be unnecessary.
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