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GREGORY EVANGELATOS, Petitioner, v. THE SUPERIOR COURT OF LOSANGELES COUNTY, Respondent; VAN WATERS & ROGERS, INC., et al., Real

Parties in Interest. VAN WATERS & ROGERS, INC., Petitioner, v. THESUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; GREGORY

EVANGELATOS et al., Real Parties in Interest

No. S000194

SUPREME COURT OF CALIFORNIA

44 Cal. 3d 1188; 753 P.2d 585; 246 Cal. Rptr. 629; 1988 Cal. LEXIS 104; CCH Prod.Liab. Rep. P11,762

April 21, 1988

SUBSEQUENT HISTORY: The Petition of RealParty in Interest Van Waters & Rogers, Inc., for aRehearing was Denied June 23, 1988.

DISPOSITION: The decision of the Court of Appealis affirmed insofar as it upholds the constitutionality ofProposition 51, but is reversed insofar as it holds thatProposition 51 applies to causes of action that accruedprior to the effective date of the initiative measure.

Each party shall bear its own costs in theseproceedings.

CASE SUMMARY:

PROCEDURAL POSTURE: Both parties petitioned forreview of a decision of the Court of Appeal (California).Defendants sought a determination that the FairResponsibility Act of 1986, Cal. Civ. Code, §1431 etseq., applied retrospectively to pending tort litigation, andplaintiff asserted a constitutional challenge to the Act,popularly known as Proposition 51.

OVERVIEW: Shortly after the passage of the FairResponsibility Act of 1986, Cal. Civ. Code, §1431 etseq., plaintiff's pending personal injury action was

assigned for trial. The parties requested the trial court todetermine whether the newly revised doctrine applied tothe instant case, defendants contesting plaintiff's claimsthat the legislation was unconstitutional and did not applyretroactively. The intermediate appellate court upheld thestatute, concluding that it applied to cases coming to trialafter its effective date. The trial court's judgment wasaffirmed in conflict with a holding of another appellatecourt. The court granted review, upholding the statute,but refusing to apply the statute retroactively.Retrospective operation would not be given to a statutethat interfered with antecedent rights, unless such was theunequivocal and inflexible import of its terms and themanifest intention of the legislature.

OUTCOME: The judgment below was affirmed as toconstitutionality, since the right to recover fornoneconomic injuries was not immune from legislativerevision. The court reversed the judgment as toretrospective application, because the rule was thatstatutes operated prospectively unless the legislature'smanifest intent was otherwise.

LexisNexis(R) Headnotes

Governments > Legislation > Effect & Operation >Prospective OperationGovernments > Legislation > Initiative & ReferendumGovernments > Legislation > Interpretation[HN1] It is a widely recognized legal principle,specifically embodied in Cal. Civ. Code § 3, that in theabsence of a clear legislative intent to the contrarystatutory enactments apply prospectively.

Governments > Legislation > Effect & Operation >Prospective OperationGovernments > Legislation > Effect & Operation >Retrospective OperationGovernments > Legislation > Interpretation[HN2] The general legal presumption of prospectivityapplies with full force to a measure that substantiallymodifies a legal doctrine on which many persons mayhave reasonably relied in conducting their legal affairsprior to the new enactment.

Torts > Damages > General OverviewTorts > Negligence > Defenses > ComparativeNegligence > General OverviewTorts > Procedure > Multiple Defendants > Joint &Several Liability[HN3] The Fair Responsibility Act of 1986, Cal. Civ.Code § 1431 et seq., popularly known as Proposition 51,retains the traditional joint and several liability doctrinewith respect to a plaintiff's economic damages, but adoptsa rule of several liability for noneconomic damages,providing that each defendant is liable for only thatportion of the plaintiff's noneconomic damages which iscommensurate with that defendant's degree of fault forthe injury.

Torts > Negligence > Defenses > ComparativeNegligence > Multiple Parties > General OverviewTorts > Procedure > Multiple Defendants > Joint &Several LiabilityTorts > Wrongful Death & Survival Actions > Defenses> Comparative & Contributory Negligence[HN4] See Cal. Civ. Code § 1431.

Constitutional Law > Bill of Rights > FundamentalFreedoms > Judicial & Legislative Restraints >Overbreadth & VaguenessGovernments > Legislation > Overbreadth

Governments > Legislation > Vagueness[HN5] So long as a statute does not threaten to infringeon the exercise of First Amendment or otherconstitutional rights, such ambiguities, even if numerous,do not justify the invalidation of a statute on its face. Inorder to succeed on a facial vagueness challenge to alegislative measure that does not threaten constitutionallyprotected conduct a party must do more than identifysome instances in which the application of the statutemay be uncertain or ambiguous; he must demonstrate thatthe law is impermissibly vague in all of its applications.

Governments > Legislation > Initiative & ReferendumTorts > Negligence > Defenses > ComparativeNegligence > Intentional & Reckless ConductTorts > Negligence > Defenses > ComparativeNegligence > Multiple Parties > Absent Defendants[HN6] When situations in which the statutory language isambiguous arise, a statute's application can be resolvedby trial and appellate courts in time-honored,case-by-case fashion, by reference to the language andpurposes of the statutory schemes as a whole. Thejudiciary's traditional role of interpreting ambiguousstatutory language or filling in the gaps of statutoryschemes is, of course, as applicable to initiative measuresas it is to measures adopted by the legislature.

Constitutional Law > Equal Protection > Level ofReviewTorts > Damages > Compensatory Damages > MedicalExpensesTorts > Procedure > Multiple Defendants > Joint &Several Liability[HN7] There is clearly a rational basis for distinguishingbetween economic and noneconomic damages andproviding fuller protection for economic losses, as theequal protection clause certainly does not require thelegislature to limit a victim's recovery for out-of-pocketmedical expenses or lost earnings simply because it hasfound it appropriate to place some limit on damages forpain and suffering and similar noneconomic losses. Insimilar fashion, the equal protection clause clearly doesnot require a state to modify the traditional joint andseveral liability rule as it applies to economic damages,simply because the state has found it appropriate to limitan individual tortfeasor's potential liability for an injuredperson's noneconomic damages.

44 Cal. 3d 1188, *; 753 P.2d 585, **;

246 Cal. Rptr. 629, ***; 1988 Cal. LEXIS 104

Constitutional Law > Equal Protection > Scope ofProtectionTorts > Damages > Compensatory Damages > Pain &Suffering > General Overview[HN8] While the general propriety of noneconomicdamages is firmly imbedded in common lawjurisprudence, no California case has ever suggested thatthe right to recover for such noneconomic injuries isconstitutionally immune from legislative limitation orrevision.

Governments > Courts > Common LawTorts > Negligence > Defenses > ComparativeNegligence > General OverviewTorts > Procedure > Multiple Defendants > Joint &Several Liability[HN9] Differential treatment flowing from the relativesolvency of the tortfeasor who causes an injury has neverbeen thought to render all tort statutes unconstitutional orto require the state to compensate plaintiffs foruncollectible judgments obtained against insolventdefendants. While the common law joint and severalliability doctrine has in the past provided plaintiffs ameasure of protection from the insolvency of a tortfeasorwhen there are additional tortfeasors who are financiallyable to bear the total damages, the allocation of tortdamages among multiple tortfeasors is an entirelyappropriate subject for legislative resolution.

Governments > Legislation > Effect & Operation >OperabilityGovernments > Legislation > Effect & Operation >Retrospective OperationWorkers' Compensation & SSDI > Compensability >Injuries > General Overview[HN10] A retrospective law is one that affects rights,obligations, acts, transactions and conditions that areperformed or exist prior to the adoption of the statute.Since the injury is the basis for any compensation award,the law in force at the time of the injury is to be taken asthe measure of the injured person's right of recovery. Theapplication of a tort reform statute to a cause of actionwhich arose prior to the effective date of the statute butwhich is tried after the statute's effective date wouldconstitute a retroactive application of the statute.

Governments > Legislation > Effect & Operation >Prospective Operation

Governments > Legislation > Effect & Operation >Retrospective OperationGovernments > Legislation > Interpretation[HN11] Because the question whether a statute is toapply retroactively or prospectively is, in the firstinstance, a policy question for the legislative body whichenacts the statute, before reaching any constitutionalquestion the court must determine whether, as a matter ofstatutory interpretation, a provision should properly beconstrued as prospective or retroactive. If, as a matter ofstatutory interpretation, the provision is prospective, noconstitutional question is presented.

Governments > Legislation > Effect & Operation >Prospective OperationGovernments > Legislation > Effect & Operation >Retrospective OperationGovernments > Legislation > Interpretation[HN12] The principle that statutes operate onlyprospectively, while judicial decisions operateretrospectively applies to the first rule of construction thatlegislation must be considered as addressed to the future,not to the past. The rule has been expressed in varyingdegrees of strength but always of one import, that aretrospective operation will not be given to a statutewhich interferes with antecedent rights unless such be theunequivocal and inflexible import of the terms, and themanifest intention of the legislature.

Governments > Legislation > Effect & Operation >Prospective OperationGovernments > Legislation > Effect & Operation >Retrospective OperationGovernments > Legislation > Interpretation[HN13] Cal. Civ. Code § 3, one of the general statutoryprovisions governing the interpretation of all theprovisions of the Civil Code, represents a specificlegislative codification of the general legal principle,declaring that no part of the Code is retroactive, unlessexpressly so declared. Like similar provisions found inmany other codes, Cal. Civ. Code § 3 reflects thecommon understanding that legislative provisions arepresumed to operate prospectively, and that they shouldbe so interpreted unless express language or clear andunavoidable implication negatives the presumption.

Governments > Legislation > Effect & Operation >Prospective Operation

44 Cal. 3d 1188, *; 753 P.2d 585, **;


Governments > Legislation > Interpretation[HN14] To the extent that dictum in footnote one in theCourt of Appeal decision in Andrus v. Municipal Court,143 Cal.App.3d 1041 (1983), discussing a provision ofthe Code of Civil Procedure, suggests that such aprovision has no application to amendments to suchcodes and applies only to the original provisions of thecodes, that dictum is contrary to numerous SupremeCourt decisions and must be disapproved.

Governments > Legislation > Effect & Operation >Prospective OperationGovernments > Legislation > Effect & Operation >Retrospective OperationGovernments > Legislation > Interpretation[HN15] Broad, general language in statutory provisionshas not been considered sufficient to indicate a legislativeintent that the statute is to be applied retroactively. A fewwords of general connotation appearing in the text ofstatutes should not be given a wide meaning contrary to asettled policy, excepting as a different purpose is plainlyshown.

Governments > Legislation > Effect & Operation >Prospective OperationGovernments > Legislation > Effect & Operation >Retrospective OperationGovernments > Legislation > Interpretation[HN16] Even when a statute does not contain an expressprovision mandating retroactive application, thelegislative history or the context of the enactment mayprovide a sufficiently clear indication that the legislatureintended the statute to operate retrospectively that thecourt may find it appropriate to accord the statute aretroactive application.

Governments > Legislation > Statutory Remedies &RightsTorts > Negligence > Defenses > ComparativeNegligence > General OverviewTorts > Procedure > Multiple Defendants > Joint &Several Liability[HN17] See Cal. Civ. Code §1431.1.

Governments > Legislation > Effect & Operation >Prospective OperationGovernments > Legislation > Effect & Operation >

Retrospective OperationGovernments > Legislation > Interpretation[HN18] It must be assumed that the legislature isacquainted with the settled rules of statutoryinterpretation, and that it would have expressly providedfor retrospective operation of the amendment if it had sointended.

Governments > Legislation > Interpretation[HN19] The intent of the electorate prevails over theintent of the drafters if there is a reliable basis fordetermining that the two were in conflict.

Governments > Legislation > Initiative & ReferendumGovernments > Legislation > Interpretation[HN20] Initiative measures are subject to the ordinaryrules and canons of statutory construction.

Governments > Legislation > Effect & Operation >Retrospective OperationGovernments > Legislation > InterpretationTorts > Procedure > Multiple Defendants > Joint &Several Liability[HN21] A remedial purpose does not necessarily indicatean intent to apply a statute retroactively.

Governments > Legislation > Effect & Operation >Retrospective OperationGovernments > Legislation > InterpretationGovernments > Legislation > Types of Statutes[HN22] The rule of liberal construction and the rule thatstatutes should ordinarily be construed to operateprospectively are neither inconsistent nor mutuallyexclusive . It would be a most peculiar judicial reasoningwhich would allow one such doctrine to be invoked forthe purpose of destroying the other. It seems clear,therefore, that the legislative intent in favor of theretrospective operation of a statute cannot be impliedfrom the mere fact that the statute is remedial and subjectto the rule of liberal construction.

Governments > Legislation > Effect & Operation >Prospective OperationGovernments > Legislation > Effect & Operation >Retrospective OperationGovernments > Legislation > Interpretation[HN23] The fact that the electorate chose to adopt a new

44 Cal. 3d 1188, *; 753 P.2d 585, **;


remedial rule for the future does not necessarilydemonstrate an intent to apply the new rule retroactivelyto defeat the reasonable expectations of those who havechanged their position in reliance on the old law. Thepresumption of prospectivity assures that reasonablereliance on current legal principles will not be defeated inthe absence of a clear indication of a legislative intent tooverride such reliance.

Governments > Legislation > Effect & Operation >Prospective OperationTorts > Negligence > Defenses > ComparativeNegligence > General OverviewTorts > Negligence > Defenses > ContributoryNegligence > General Overview[HN24] In the absence of an indication to the contrary,legislative acts should not be construed in a mannerwhich changes legal rights and responsibilities arising outof transactions which occur prior to the passage of suchacts.

Evidence > Inferences & Presumptions > Presumptions> Exceptions > Common Law PresumptionsGovernments > Legislation > Effect & Operation >Prospective OperationGovernments > Legislation > Effect & Operation >Retrospective Operation[HN25] The general rule of construction that, unless theintention to make it retrospective clearly appears from theact itself, a statute will not be construed to have thateffect is particularly applicable to a statute whichdiminishes or extinguishes an existing cause of action.

Governments > Legislation > Effect & Operation >Retrospective OperationGovernments > Legislation > InterpretationTorts > Procedure > Multiple Defendants > Joint &Several Liability[HN26] The distinction between "procedural" and"substantive" relates not so much to the form of thestatute as to its effects. If substantial changes are made,even in a statute which might ordinarily be classified asprocedural, the operation on existing rights would beretroactive because the legal effects of past events wouldbe changed, and the statute will be construed to operateonly in futuro unless the legislative intent to the contraryclearly appears. The joint and several liability imposed onjoint tortfeasors or independent concurrent tortfeasors

producing an indivisible injury is a substantive liability topay entire damages. This differs from what might bedescribed as a procedural liability to be joined with othertortfeasors as defendants in a single action.

Governments > Legislation > Effect & Operation >Prospective OperationGovernments > Legislation > Effect & Operation >Retrospective OperationGovernments > Legislation > Interpretation[HN27] The almost universal rule is that statutes areaddressed to the future, not to the past. They usuallyconstitute a new factor in the affairs and relations of menand should not be held to affect what has happenedunless, indeed, explicit words be used or by clearimplication that construction be required. A statute thatintroduces a new policy and quite radically changes theexisting law is particularly the kind of statute that shouldnot be construed as retrospective.

SUMMARY:

CALIFORNIA OFFICIAL REPORTS SUMMARY

A high school student who was injured whileattempting to make fireworks at home with chemicalspurchased in a retail store brought an action for personalinjuries against the retailer and the wholesale distributorof the chemicals. Before trial began, Proposition 51(limiting an individual joint tortfeasor's liability fornoneconomic damages to a proportion of such damagesequal to the tortfeasor's own percentage of fault; Civ.Code, § 1431 et seq.) was enacted, and the student andboth defendants filed motions seeking a determinationwhether the proposition would be applied to the case. Thetrial court found that Proposition 51 was constitutionaland that it applied to all cases that had not gone to trialprior to its effective date. The student and one of thedefendants filed separate mandate petitions challengingthe trial court's decision. The Court of Appeal, SecondDist., Div. Two, Nos. B021968, B022000, concluded thatthe trial court had correctly ruled as to the validity andretroactive application of the proposition.

The Supreme Court affirmed the decision of theCourt of Appeal insofar as it upheld the constitutionalityof Proposition 51, but reversed as to the retroactivityfinding. The court held that Proposition 51 was notunconstitutionally vague and that it did not violate equalprotection guarantees. However, the court held, the

44 Cal. 3d 1188, *; 753 P.2d 585, **;


proposition could not be applied to the student's action.Under Civ. Code, § 3 (no provision of the code isretroactive unless expressly so declared), and the generalprinciple of prospectivity, the absence of any expressprovision directing retroactive application stronglysupported prospective operation of the measure. Further,there was nothing in the statutory "findings anddeclaration of purpose" or the brochure materials tosuggest that retroactively was even considered during theenactment process; and retroactive application could haveunexpected and potentially unfair consequences for allparties who acted in reliance on the then existing state ofthe law. (Opinion by Arguelles, J., with Mosk, ActingC.J., Broussard and Panelli, JJ., concurring. Separateconcurring and dissenting opinion by Kauffmen, J., withEagleson, J., and Anderson (Carl W.), J., * concurring.)

* Presiding Justice, Court of Appeal, FirstAppellate District, Division Four, assigned by theActing Chairperson of the Judicial Council.

HEADNOTES

CALIFORNIA OFFICIAL REPORTS HEADNOTESClassified to California Digest of Official Reports, 3dSeries

(1a) (1b) (1c) Torts § 9--Persons Liable--Joint andSeveral Tortfeasors--Statutory Limitation of Liabilityfor Noneconomic Damages--Vaguesness.--Proposition 51 ( Civ. Code, § 1431 et seq.), whichmodified the traditional common law joint and severalliability doctrine by limiting an individual tortfeasor'sliability for noneconomic damages to a proportion ofsuch damages equal to the tortfeasor's own percentage offault, is not unconstitutionally vague. Although languageof the proposition may not provide a certain answer forevery possible situation in which the modified joint andseveral liability doctrine may come into play, applicationof the statute in many instances will be quite clear.Application of the statute in ambiguous situations can beresolved by trial and appellate courts in time-honored,case-by-case fashion by reference to the language andpurposes of the statutory scheme as a whole.

(2) Constitutional Law § 113--Substantive DueProcess--Statutory Vagueness and Overbreadth. --Solong as a statute does not threaten to infringe on exerciseof rights under U.S. Const., 1st Amend., or otherconstitutional rights, ambiguities, even if numerous, donot justify the invalidation of the statute on its face. In

order to succeed on a facial vagueness challenge to alegislative measure that does not threaten constitutionallyprotected conduct, a party must do more than identifysome instances in which the application of the statutemay be uncertain or ambiguous; he must demonstrate thatthe law is impermissibly vague in all of its applications.

(3) Statutes § 19--Construction--Initiatives. --Thejudiciary's traditional role of interpreting ambiguousstatutory language or filling in the gaps of statutoryschemes is as applicable to initiative measures as it is tomeasures adopted by the Legislature.

(4) Constitutional Law § 83--EqualProtection--Classification--Judicial Review--TortReform Proposition. --On appeal of a judgmentupholding the validity of Proposition 51 (limiting anindividual joint tortfeasor's liability for noneconomicdamages to a proportion of such damages equal to thetortfeasor's own percentage of fault; Civ. Code, § 1431 etseq.), the traditional "rational relationship" standard, andnot the more stringent "strict scrutiny" standard, wasapplicable in determining whether the propositionviolated equal protection guarantees due to allegedlyimpermissible distinctions between economic andnoneconomic damages and between plaintiffs injured bysolvent tortfeasors and those injured by insolvent ones.

(5) Torts § 9--Persons Liable--Joint and SeveralTortfeasors--Limitation of Liability for NoneconomicDamages--Equal Protection. --Proposition 51 (limitingan individual joint tortfeasor's liability for noneconomicdamages to a proportion of such damages equal to thetortfeasor's own percentage of fault; Civ. Code, § 1431 etseq.) does not violate equal protection guarantees. Thereis no constitutional impediment to differential treatmentof economic and noneconomic losses, and the propositionreflects no intent to discriminate between injured victimson the basis of the solvency of the tortfeasors by whomthey are injured. The doctrine of joint and several liabilitymodification or revision; rather, the allocation of tortdamages among multiple tortfeasors is an entirelyappropriate subject for legislative resolution.

(6a) (6b) (6c) (6d) (6e) (6f) Torts § 9--PersonsLiable--Joint and Several Tortfeasors--Limitation ofLiability for Noneconomic Damages--RetroactiveApplication. --In a personal injury action, the trial courterred in holding that Proposition 51 (limiting anindividual joint tortfeasor's liability for noneconomicdamages to a proportion of such damages equal to the

44 Cal. 3d 1188, *; 753 P.2d 585, **;


tortfeasor's own percentage of fault; Civ. Code, § 1431 etseq.) should constitutionally be applied to cases triedafter its effective date, where the cause of action arosebefore the effective date of the proposition. Under Civ.Code, § 3 (no provision of the code is retroactive unlessexpressly so declared), and the general principle ofprospectivity, the absence of any express provisiondirecting retroactive application strongly supportedprospective operation of the measure. Further, there wasnothing in the legislative history to suggest thatretroactivity was even considered during the enactmentprocess; and retroactive application could have unfairconsequences for all parties who acted in reliance on thethen existing state of law.

(7) Statutes § 5--Operation andEffect--Retroactivity--Tort Reform Statute. --Theapplication of a tort reform statute to a cause of actionthat arose prior to the effective date of the statute but thatis tried after the effective date constitutes retroactiveapplication of the statute.

(8) Statutes § 5--Operation andEffect--Retroactivity--Presumption as toProspectivity. --Legislation must be considered asaddressed to the future, not to the past. A retroactiveoperation will not be given to a statute that interferes withantecedent rights unless such be the unequivocal andinflexible import of the terms, and the manifest intentionof the Legislature. [Disapproving Andrus v. MunicipalCourt (1983) 143 Cal. App. 3d 1041 [192 Cal. Rptr.341], insofar as that case suggests that where oneprovision of a code states that other provisions of thecode are not retroactive unless expressly so declared, thatprovision has no application to amendments to the codeand applies only to the original provisions of the code.]

(9) Statues § 5--Operation and Effect--Effect of NoExpress Provision as to Retroactivity. --Even when astatute does not contain an express provision mandatingretroactive application, the legislative history or thecontext of enactment may provide a sufficiently clearindication that the Legislature intended the statute tooperate retrospectively that it may be found appropriateto accord the statute retroactive application.

(10) Statutes § 19--Construction--Initiatives.--Initiative measures are subject to the ordinary rules andcanons of statutory construction.

(11) Statutes § 5--Operation and Effect--Retroactivity

--Presumption as to Prospectivity. --The presumptionof prospectivity of a legislative enactment assures thatreasonable reliance on current legal principles will not bedefeated in the absence of a clear indication of alegislative intent to override such reliance.

(12) Statues § 5--Operation andEffect--Retroactivity--Presumption as toProspectivity--Effect and Cases Concerning Measuresof Damages for Conversion. --The line of casesapplying statutory amendments that modify the legalmeasure of damages recoverable in an action forwrongful conversion of personal or real property to alltrials conducted after the effective date of the revisedstatute cannot properly be interpreted as displacingordinary principles of statutory interpretation with regardto the question of retroactivity.

COUNSEL: Daniel C. Cathcart, DeborahMitzenmacheer and Magana, Cathcart & Pierry forPetitioner in No. B021968 and Real Parties in Interest inNo. B022000 Evangelatos.

Browne Greene, Douglas DeVries, Harvey R. Levine,Charles O'Reilly, Sanford Gage, Don Caffray, LeonardSachs, James R. McGrath, Ian Herzog, Bryce C.Anderson, Burton Danziger and Steven Kazan as AmiciCuriae on behalf of Petitioner in No. B021968 and RealParties in Interest Evangelatos in No. B022000.

No appearance for Respondent.

Michael J. Bonesteel, Roy G. Weatherup, Dennis K.Wheeler, Thomas M. Moore, Jose H. Garcia, Haight,Dickson, Brown & Bonesteel, Steven C. Smith and Rich& Ezer for Petitioner in No. B022000 and Real Parties inInterest in No. B021968 Van Waters & Rogers, Inc.

Michael J. Breining, Skadden, Arps, Slate, Meagher &Flom, Malcolm E. Wheeler, Charlotte A. Lowell, Fred J.Hiestand, Kelly C. Wooster, Stephen M. Snyder,Brobeck, Phleger & Harrison, Howard J. Privett, Bill E.Schroeder, Richard A. Goette, Jonathan M. Gordon,McCutcheon, Black, Verleger & Shea, Michael J. Brady,Paul D. Herbert, James K. Hahn, City Attorney (LosAngeles), John T. Neville and Richard M. Helgeson,Assistant City Attorneys, Ronald A. Zumbrun, John H.Findley and Sharon L. Browne as Amici Curiae on behalfof Petitioner in No. B022000 and Real Parties in Interestin No. B021968 Van Waters & Rogers, Inc.

44 Cal. 3d 1188, *; 753 P.2d 585, **;


JUDGES: Opinion by Arguelles, J., with Mosk, ActingC. J., Broussard and Panelli, JJ. concurring. Separateconcurring and dissenting opinion by Kaufman, J., withEagleson, J., and Anderson (Carl W.), J., * concurring.

* Presiding Justice, Court of Appeal, FirstAppellate District, Division Four, assigned by theActing Chairperson of the Judicial Council.

OPINION BY: ARGUELLES

OPINION

[*1192] [**586] [***630] In June 1986, thevoters of California approved an initiative measure, theFair Responsibility Act of 1986 ( Civ. Code, §§ 1431to1431.5) -- popularly known as, and hereafter referredto, as Proposition 51 -- which modified the traditional,common law "joint and several liability" doctrine,limiting an individual tortfeasor's liability fornoneconomic damages to a proportion of such damagesequal to the tortfeasor's own percentage of fault. 1 Just afew weeks after the election, the underlying [*1193]personal injury action in this case -- which arose out of aJuly 1980 accident and which had been pending fornearly five years prior to the June 1986 election -- wasassigned for trial. Before the trial began, the partiesrequested the trial court to determine, inter alia, whetherthe newly revised joint and several liability doctrinewould apply to this case. Plaintiff contended that the newlegislation should not be applied for a number of reasons,maintaining (1) that Proposition 51 is unconstitutional onits face, and (2) that, in any event, the measure does notapply retroactively to causes of action which accruedprior to its [**587] effective date. 2 Defendantscontested both arguments.

1 The complete text of Proposition 51 and allrelevant portions of the election pamphlet,including the Legislative Analyst's analysis andthe arguments of the proponents and opponents,are set forth in an appendix to this opinion.2 Under article II, section 10, subdivision (a) ofthe California Constitution, the measure went intoeffect on June 4, 1986, the day after the election.

The trial court concluded (1) that Proposition 51 isconstitutional on its face and (2) that it should be appliedto all cases coming [***631] to trial after its effectivedate, including this case, regardless of when the cause ofaction accrued. Reviewing the trial court's ruling in these

consolidated pretrial writ proceedings, the Court ofAppeal upheld the trial court's determination in allrespects, declining -- with respect to the retroactivityissue -- to follow another recent Court of Appealdecision, Russell v. Superior Court (1986) 185 Cal. App.3d 810 [230 Cal. Rptr. 102], which had concluded thatProposition 51 does not apply retroactivity to causes ofaction which arose prior to the initiative's effective date.Because of the importance of the issues and the conflictin Court of Appeal decisions on the retroactivityquestion, we granted review.

As we shall explain, we have concluded that theCourt of Appealjudgment should be affirmed in part andreversed in part. On the constitutional question, we agreewith the Court of Appeal that plaintiff's facialconstitutional challenge to Proposition 51 is untenable.Past decisions of this court make it quite clear that theinitiative measure -- in modifying the common law rulegoverning the potential liability of multiple tortfeasors --violates neither the due process nor equal protectionguaranties of the state or federal Constitution. Althoughthe proposition's language leaves a number of issues ofinterpretation and application to be decided in futurecases, those unsettled questions provide no justificationfor striking down the measure on its face.

On the question of retroactivity, we conclude that theCourt of Appeal erred in ruling that Proposition 51applies to causes of action which accrued before themeasure's effective date. [HN1] It is a widely recognizedlegal principle, specifically embodied in section 3 of theCivil Code, that in the absence of a clear legislative intentto the contrary statutory enactments apply [*1194]prospectively. The drafters of the initiative measure inquestion, although presumably aware of this familiarlegal precept, did not include any language in theinitiative indicating that the measure was to applyretroactively to causes of action that had already accruedand there is nothing to suggest that the electorateconsidered the issue of retroactivity at all. Althoughdefendants argue that we should nonetheless infer alegislative intent on the part of the electorate to apply themeasure retroactively from the general purpose andcontext of the enactment, the overwhelming majority ofprior judicial decisions -- both in California andthroughout the country -- which have considered whethersimilar tort reform legislation should apply prospectivelyor retroactively when the statute is silent on the pointhave concluded that the statute applies prospectively.

44 Cal. 3d 1188, *; 753 P.2d 585, **;


Reflecting the common-sense notion that it may be unfairto change "the rules of the game" in the middle of acontest, these authorities persuasively demonstrate that[HN2] the general legal presumption of prospectivityapplies with full force to a measure, like the initiative atissue here, which substantially modifies a legal doctrineon which many persons may have reasonably relied inconducting their legal affairs prior to the new enactment.

Contrary to the extravagant rhetoric of the dissentingopinion, our conclusion that Proposition 51 must properlybe interpreted to apply prospectively does not postpone ordelay the operative effect of Proposition 51 and is in noway inconsistent with the fact that the measure wasadopted in response to a liability crisis. As we explain,the new legal doctrine established by Proposition 51[**588] went into effect the day following the passage ofthe initiative and could immediately be relied on byinsurance companies to reduce insurance premiums andby potential tort defendants to resume activities they mayhave curtailed because of the preexisting joint and severalliability rule. Indeed, although the dissenting opinionvigorously asserts that Proposition 51's relationship to aliability crisis proves that the electorate must haveintended that the measure would be applied retroactively,that assertion is clearly belied by the numerous recent tortreform statutes, adopted in other states in response to thesame liability crisis, which, by their terms, are expresslyprospective in operation. (See post, pp. 1219-1220.) Asthese statutes demonstrate, [***632] a prospectiveapplication of Proposition 51 is totally compatible withthe history and purpose of the initiative measure.

I.

In July 1980, plaintiff Gregory Evangelatos, an18-year-old high school student, was seriously injured inhis home, apparently while attempting to make fireworkswith chemicals purchased from a retail store. In July1981, plaintiff filed an action for damages against theretailer (Student Science [*1195] Store, Inc.), thewholesale distributor (Van Waters & Rogers, Inc.), andfour manufacturers of the chemicals he was using,alleging that defendants were liable for his injuries onboth negligence and strict liability theories. The causesof action against three of the manufacturers weredismissed on summary judgment and plaintiff voluntarilydismissed the action against the fourth manufacturer.The case proceeded against the retailer and the wholesaledistributor of the chemicals.

On June 23, 1986, almost five years after the actionhad been filed, the case was assigned for trial. Before thetrial began, plaintiff and the two remaining defendantsfiled motions with the trial court seeking a determinationwhether Proposition 51, which had been approved by thevoters just three weeks earlier at the June 3, 1986,election, would be applied in this case. The motionssought a determination of the constitutional validity ofthe proposition and, if valid, a resolution of variousquestions relating to the applicability and properinterpretation of the measure.

After briefing, the trial court issued a lengthy writtenstatement, ruling on five separate issues. The courtconcluded (1) that Proposition 51 was validly enacted andis not unconstitutional on its face; (2) that the measureapplies to all cases, including the present proceeding,which had not gone to trial before June 4, 1986, the dateon which the initiative measure became effective,regardless of when the cause of action arose; (3) that indetermining each defendant's "several" liability for aportion of plaintiff's noneconomic damages under theproposition, the trier of fact may consider the conduct ofall persons whose fault contributed to plaintiff's injury,not just the conduct of plaintiff and defendants who areparties to the action; (4) that future medical expenses andloss of future earnings are "economic damages" withinthe meaning of Proposition 51 for which defendantsremain jointly and severally liable; and (5) that forpurposes of apportioning fault in this case, the summaryjudgment that had been entered in favor of threemanufacturers constituted a determination that nocausative fault could properly be attributed to them.

Immediately following the ruling, plaintiff and oneof the defendants (Van Waters & Rogers, Inc.) filedseparate mandate petitions in the Court of Appeal,challenging different aspects of the trial court's decision.The Court of Appeal initially denied both petitionssummarily, and the parties then sought review in thiscourt. Shortly before the petitions reached us, anotherCourt of Appeal rendered its decision in [**589] Russellv. Superior Court, supra, 185 Cal. App. 3d 810, holdingProposition 51 inapplicable to all causes of action whichaccrued before the measure's effective date. On October29, 1986, our court denied a petition for review in Russelland transferred the two petitions in this matter to theCourt of Appeal with [*1196] directions to issuealternative writs. Our order directed the Court ofAppeal's attention to the Russell decision.

44 Cal. 3d 1188, *1194; 753 P.2d 585, **587;

246 Cal. Rptr. 629, ***631; 1988 Cal. LEXIS 104

On remand, the Court of Appeal issued alternativewrits, consolidated the matters for briefing and argument,and ultimately concluded that the trial court had correctlyresolved all of the questions at issue, including the facialconstitutionality of the measure and its applicability tothe instant case. Although the Court of Appealrecognized that the Russell court had reached a contraryconclusion on the retroactivity issue, it disagreed with theRussell decision, concluding that, while the initiativemeasure contained no express or affirmative indicationthat the measure was intended to apply retroactively, inits view "the legislative intent was for the statute to takeeffect [***633] immediately and to apply to as manycases as feasible." Finding that it would be undulydisruptive to require retrial of all tort cases that had beentried before the enactment of Proposition 51 but in whichjudgments had not yet become final, the Court of Appealconcluded that "[the] maximum feasible application ofthe Act is to all cases yet to be tried, including this one."

Both plaintiff and defendant petitioned for review,and we granted review to resolve the important questionspresented by the case.

II.

Before analyzing either the constitutional orretroactivity issues, we believe it may be useful to placeProposition 51's modification of the common law jointand several liability doctrine in brief historicalperspective.

Prior to the adoption of comparative negligenceprinciples in California in the mid-1970's, the jury, inassessing liability or awarding damages in an ordinarytort action, generally did not determine the relativedegree or proportion of fault attributable either to theplaintiff, to an individual defendant or defendants, or toany nonparties to the action. Under the then-prevailingtort doctrines, the absence of any inquiry into relativeculpability had potentially harsh consequences for bothplaintiffs and defendants. On the one hand, if a plaintiffwas found to be at all negligent, no matter how slight,under the contributory negligence rule he was generallyprecluded from obtaining any recovery whatsoever. (Seegenerally 4 Witkin, Summary of Cal. Law (8thed. 1974)Torts, § 683, p. 2968 and authorities cited.) On the otherhand, if a defendant was found to be at all negligent,regardless of how minimally, under the joint and severalliability rule he could be held responsible for the fulldamages sustained by the plaintiff, even if other

concurrent tortfeasors had also been partially, or evenprimarily, responsible for the injury. (See id., § 35, pp.2333-2334.) Moreover, the governing [*1197] rules atthat time gave the plaintiff unilateral authority to decidewhich defendant or defendants were to be sued (see id., §37, p. 2335); a defendant who had been singled out forsuit by the plaintiff generally had no right to bring othertortfeasors into the action, even if the other tortfeasorswere equally or more responsible for the plaintiff's injury(see id., § 46, p. 2346). 3

3 The Contribution Act of 1957 ( Code Civ.Proc., §§ 875- 880) ameliorated the situationsomewhat by permitting a pro rata division ofdamages when the plaintiff sued more than onedefendant and a joint judgment was enteredagainst the defendants. That act only applied,however, in instances in which a judgment hadbeen entered against multiple defendants, and, if aplaintiff chose not to join a principally culpabletortfeasor in the action, the defendant ordefendants who had been singled out for suit hadno right to contribution.

In Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119Cal. Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393], thiscourt took an initial step in modifying this traditionalcommon law structure, ameliorating the hardship to theplaintiff by abrogating [**590] the all-or-nothingcontributory negligence doctrine and adopting in its placea rule of comparative negligence. Li held that "thecontributory negligence of the person injured . . . shallnot bar recovery, but the damages awarded shall bediminished in proportion to the amount of negligenceattributable to the person recovering." (13 Cal.3d at p.829.)

In American Motorcycle Assn. v. Superior Court(1978) 20 Cal.3d 578 [146 Cal. Rptr. 182, 578 P.2d899], our court took the next step in modifying thetraditional structure, this time altering the preexistingcommon law doctrines to diminish the hardship todefendants. Although the American Motorcycle courtconcluded that the traditional common law joint andseveral lability doctrine should be retained -- relying, inpart, on the fact that at that time the "overwhelmingmajority" of jurisdictions that had adopted comparativenegligence had also retained the joint and several liabilityrule (20 Cal.3d at p. 590) -- at the same time theAmerican Motorcycle court held (1) that plaintiffs should

44 Cal. 3d 1188, *1196; 753 P.2d 585, **589;


no longer have the unilateral right to determine whichdefendant [***634] or defendants should be included inan action and that defendants who were sued could bringother tortfeasors who were allegedly responsible for theplaintiff's injury into the action through cross-complaints(20 Cal.3d at pp. 604-607), and (2) that any defendantcould obtain equitable indemnity, on a comparative faultbasis, from other defendants, thus permitting a fairapportionment of damages among tortfeasors. (See 20Cal.3d at pp. 591-598.)

Subsequent cases established that under theprinciples articulated in American Motorcycle, supra, 20Cal.3d 578, a defendant may pursue a comparativeequitable indemnity claim against other tortfeasors either(1) by filing a cross-complaint in the original tort actionor (2) by filing a separate indemnity action after payingmore than its proportionate share of [*1198] thedamages through the satisfaction of a judgment orthrough a payment in settlement. (See, e.g., Sears,Roebuck & Co. v. International Harvester Co. (1978) 82Cal. App. 3d 492, 496 [147 Cal. Rptr. 262]; AmericanBankers Ins. Co. v. Avco-Lycoming Division (1979) 97Cal. App. 3d 732, 736 [159 Cal. Rptr. 70].) In addition,more recent decisions also make clear that if one or moretortfeasors prove to be insolvent and are not able to beartheir fair share of the loss, the shortfall created by suchinsolvency should be apportioned equitably among theremaining culpable parties -- both defendants andplaintiffs. (See, e.g., Paradise Valley Hospital v.Schlossman (1983) 143 Cal. App. 3d 87 [191 Cal. Rptr.531]; Ambriz v. Kress (1983) 148 Cal. App. 3d 963 [196Cal. Rptr. 417].)

Although these various developments served toreduce much of the harshness of the originalall-or-nothing common law rules, the retention of thecommon law joint and several liability doctrine producedsome situations in which defendants who bore only asmall share of fault for an accident could be left with theobligation to pay all or a large share of the plaintiff'sdamages if other more culpable tortfeasors wereinsolvent.

The initiative measure in question in this case wasaddressed to this remaining issue. While recognizing thepotential inequity in a rule which would require aninjured plaintiff who may have sustained considerablemedical expenses and other damages as a result of anaccident to bear the full brunt of the loss if one of a

number of tortfeasors should prove insolvent, the draftersof the initiative at the same time concluded that it wasunfair in such a situation to require a tortfeasor whomight only be minimally culpable to bear all of theplaintiff's damages. As a result, the drafters crafted acompromise solution: [HN3] Proposition 51 retains thetraditional joint and several liability doctrine with respectto a plaintiff's economic damages, but adopts a rule ofseveral liability for noneconomic damages, providing thateach defendant is liable for only that portion of theplaintiff's noneconomic damages which is commensuratewith that defendant's degree of fault [**591] for theinjury. 4 It was this compromise measure -- which drewheavily [*1199] upon a number of bills which had beenpassed by the Senate but not by the Assembly in anumber of preceding legislative sessions (see Sen. BillNo. 75 (1985-1986 Reg. Sess.); Sen. Bill No. 575(1983-1984 Reg. Sess.); [***635] Sen. Bill No. 500(1981-1982 Reg. Sess.)) -- that was adopted by theelectorate in the June 1986 election.

4 [HN4] Civil Code section 1431.2, whichconstitutes the heart of Proposition 51, provides infull: "(a) In any action for personal injury,property damage, or wrongful death, based uponprinciples of comparative fault, the liability ofeach defendant for non-economic damages shallbe several only and shall not be joint. Eachdefendant shall be liable only for the amount ofnon-economic damages allocated to thatdefendant in direct proportion to that defendant'spercentage of fault, and a separate judgment shallbe rendered against that defendant for thatamount. [para. ] (b)(1) For purposes of thissection, the term 'economic damages' meansobjectively verifiable monetary losses includingmedical expenses, loss of earnings, burial costs,loss of use of property, costs of repair orreplacement, costs of obtaining substitutedomestic services, loss of employment and loss ofbusiness or employment opportunities. [para. ](2) For the purposes of this section, the term'non-economic damages' means subjective,non-monetary losses including, but not limited to,pain, suffering, inconvenience, mental suffering,emotional distress, loss of society andcompanionship, loss of consortium, injury toreputation and humiliation."

Although Proposition 51 is the first legislative

44 Cal. 3d 1188, *1197; 753 P.2d 585, **590;


modification of the joint and several liability doctrine tobe enacted in California, in recent years analogousstatutory alterations of the traditional common law jointand several liability rule have been adopted by manystates throughout the country, often as part of acomprehensive legislative implementation of comparativefault principles. The revisions of the joint and severalliability doctrine in other jurisdictions have taken avariety of forms: several states have abolished joint andseveral liability entirely and replaced it with a "pure"several liability rule, 5 other states have formulatedvarious guidelines to distinguish between more culpableand less culpable tortfeasors and have adopted severalliability only for the less culpable tortfeasors, 6 and stillothers, like California, have distinguished betweendifferent categories of damages sustained in an injury,retaining some form of joint and several liability for"economic" or "medically related" damages, whileadopting some form of several liability for "pain andsuffering" and other noneconomic damages. 7 Thus,while Proposition [**592] 51 unquestionably made a[*1200] substantial change in this state's traditional tortdoctrine, when viewed from a national perspective itbecomes apparent that the measure's modification of thecommon law joint and several liability rule was not anisolated or aberrant phenomenon but rather paralleledsimilar developments in the evolution andimplementation of the comparative-fault principle inother states.

5 At least five states apply a "pure" severalliability rule. (See, e.g., Kan. Stat. Ann. §60-258a(d) (1983); Vt. Stat. Ann. tit. 12, § 1036(Supp. 1987); Ohio Rev. Code Ann. § 2315.19(Page 1981); Utah Code Ann. §§ 78-27-38,78-27-40 (1987); Colo. Rev. Stat. § 13-21-111.5(1987). See also Wash. Rev. Code Ann. §4.22.070 (West Supp. 1987) [adopting severalliability as a general rule, but retaining joint andseveral liability in several, specified areas]; Nev.Rev. Stat. Ann. § 41.141 (Supp. 1987) [same].)6 At least four states have adopted such anapproach. (See, e.g., Iowa Code Ann. § 668.4(West 1987) [joint and several liability does notapply to defendants who bear less that 50 percentof fault]; Minn. Stat. Ann. § 604.02(1) (WestSupp. 1988) [if state or municipal defendant'sfault is less than 35 percent, "it is jointly andseverally liable for an amount no greater thantwice the amount of fault"]; Mo. Ann. Stat. §

538.230 (Vernon Supp. 1987) [in medicalmalpractice cases "any defendant against whoman award of damages is made shall be jointlyliable only with those defendants whoseapportioned percentage of fault is equal to or lessthan such defendant"]; Tex. Civ. Prac. & Rem.Code Ann. § 33.013 (Vernon 1988) [defendantseverally liable unless percentage of fault isgreater than 20 percent, or, in specified actions,defendant's fault is greater than plaintiff's].)7 At least four states, in addition to California,have embraced such a rule. (See, e.g., N.Y. Civ.Prac. L. & R. § 1601 (McKinney Supp. 1987)[when defendant's liability is less than 50 percent,defendant's liability for plaintiff's noneconomicloss shall not exceed that of defendant's equitableshare; numerous categories of cases excepted];Fla. Stat. Ann. § 768.81(3) (West Supp. 1987)[joint and several liability abolished, except wherea defendant's percentage of fault equals orexceeds that of a particular claimant, thedefendant is jointly and severally liable for theclaimant's economic damage]; Ore. Rev. Stat. §18.485 (1983) [defendants severally liable fornoneconomic damages, and jointly and severallyliable for economic damages unless defendant isless at fault than plaintiff or less than 15 percent atfault in which case defendant only severally liablefor economic damages]; Ill. Ann. Stat. ch. 110,paras. 2-1117, 2-1118 (Smith-Hurd Supp. 1987)[all defendants jointly and severally liable formedical expenses, defendants who are less than25 percent at fault severally liable for all otherdamages, defendants who are more than 25percent at fault jointly and severally liable for allother damages].)

Having briefly reviewed the historical backgroundof Proposition 51, we turn initially to plaintiff's broadclaim that the Court of Appeal erred in failing to strikedown the initiative measure as unconstitutional on itsface.

III.

Plaintiff contends that Proposition 51 is faciallyunconstitutional on two separate grounds, asserting (1)that the measure is "too vague and ambiguous" to satisfythe due process requirements of either the state or federalConstitutions, and (2) that the enactment violates both the

44 Cal. 3d 1188, *1199; 753 P.2d 585, **591;


state and federal equal protection clauses by establishingclassifications that are not rationally [***636] related toa legitimate state interest. As we shall see, both of theseconstitutional claims are similar to contentions raised justa few years ago in a series of cases challenging thevalidity of a variety of provisions of another legislativetort reform measure, the Medical Injury CompensationReform Act of 1975 (MICRA) (Stats. 1975, 2d Ex. Sess.1975-1976, chs. 1, 2, pp. 3949-4007), an enactmentwhich modified a number of common law tort doctrinesin the medical malpractice area. Our decisions in theearlier MICRA cases clearly establish that plaintiff'scurrent constitutional challenges lack merit.

A.

(1a) Plaintiff initially contends that Proposition 51 isunconstitutionally vague. Relying on the United StatesSupreme Court's classic statement of the vaguenessdoctrine in Connally v. General Const. Co. (1926) 269U.S. 385, 391 [70 L. Ed. 322, 328, 46 S. Ct. 126] -- "astatute which either forbids or requires the doing of an actin terms so vague that men of common intelligence mustnecessarily guess at its meaning and differ as to itsapplication, violates the first essential of due process oflaw" -- plaintiff maintains that Proposition 51 is subjectto just such a criticism. To support his [*1201]contention, plaintiff catalogues a series of questionsrelating to the application of Proposition 51 to which hesuggests the language of the measure provides no clearanswer. 8 He asserts that the existence of these numerousunanswered questions renders the measureunconstitutionally vague on its face and warrants theinvalidation of the enactment in its entirety.

8 Plaintiff's petition for review lists thefollowing allegedly unanswered questions as tothe proposition's application:

"1. Does it retroactively apply to this case?

"2. Does it apply if the jury finds Gregory 0%at fault?

"3. Does it apply if the jury finds Van Waters& Rodgers liable based on strict productsliability?

"4. [Does it] apply if the jury finds StudentScience acted intentionally

"5. If the jury finds Gregory more than 0% atfault how is his recovery adjusted?

"6. Who bears the burden of naming andserving other parties?

"7. Can the special verdict form contain acatch-all 'other' box or must such parties ornon-parties be specified and limited to theevidence adduced at trial?"

Plaintiff's contention is plainly flawed. Many,probably most, statutes are ambiguous in some respectsand instances invariably arise under which the applicationof statutory language may be unclear. (2) [HN5] So longas a statute does not threaten to infringe on the exerciseof First Amendment or other constitutional rights,however, such ambiguities, even if numerous, do notjustify the invalidation of a statute on its face. In order tosucceed on a facial vagueness challenge to a legislativemeasure that does not threaten constitutionally protectedconduct -- like the initiative measure at issue here -- aparty must do more than identify some instances in whichthe application of the statute may be uncertain orambiguous; he must demonstrate [**593] that "the lawis impermissibly vague in all of its applications." (Italicsadded.) ( Hoffman Estates v. Flipside, Hoffman Estates(1982) 455 U.S. 489, 497 [71 L. Ed. 2d 362, 371, 102 S.Ct. 1186].) Plaintiff clearly has not satisfied this burden.

Plaintiff's vagueness claim echoes a similarconstitutional argument that was raised in American Bank& Trust Co. v. Community Hospital (1984) 36 Cal.3d359, 377-378 [204 Cal. Rptr. 671, 683 P.2d 670, 41A.L.R.4th 233], with respect to section 667.7 of the Codeof Civil Procedure, a section of MICRA which providedfor the periodic payment of judgments in medicalmalpractice cases under certain circumstances. InAmerican Bank, plaintiff claimed, inter alia, that thestatutory provision mandating periodic payment "should .. . be struck down as unconstitutionally 'void forvagueness, ambiguity and unworkability,' because itleaves unanswered many questions as to how a trial courtis to actually formulate a comprehensive paymentschedule without the benefit of very detailed special juryverdicts." (36 Cal.3d at p. 377.) After noting that thepractical problems [***637] of application [*1202]were by no means insurmountable, we went on to pointout that "[in] any event, plaintiff provides no authority tosupport its claim that the remaining uncertainties whichmay inhere in the statute provide a proper basis for

44 Cal. 3d 1188, *1200; 753 P.2d 585, **592;


striking it down on its face. As with other innovativeprocedures and doctrines -- for example, comparativenegligence -- in the first instance trial courts will dealwith novel problems that arise in time-honoredcase-by-case fashion, and appellate courts will remainavailable to aid in the familiar common law task of fillingin the gaps in the statutory scheme. [Citation.]" ( Id. at p.378.)

Precisely the same reasoning applies in this case.(1b) Although the language of Proposition 51 may notprovide a certain answer for every possible situation inwhich the modified joint and several liability doctrinemay come into play, the application of the statute inmany instances will be quite clear. Thus, for example,while plaintiff cites the statute's lack of clarity on theretroactivity issue, there is no question but that the statuteapplies to causes of action accruing after its effectivedate; similarly, although plaintiff complains that thestatute is not clear as to whether it applies to causes ofaction based on intentional tortious conduct or how itshould be applied with respect to cases involving absenttortfeasors, the statute's application in an ordinarymultiple tortfeasor comparative negligence action inwhich all tortfeasors are joined is not in doubt. Further,as stated in [HN6] American Bank, supra, 36 Cal.3d 359,when situations in which the statutory language isambiguous arise, the statute's application can be resolvedby trial and appellate courts "in time-honored,case-by-case fashion," by reference to the language andpurposes of the statutory schemes as a whole. (3) Thejudiciary's traditional role of interpreting ambiguousstatutory language or "filling in the gaps" of statutoryschemes is, of course, as applicable to initiative measuresas it is to measures adopted by the Legislature. (See, e.g.,Amador Valley Joint Union High Sch. Dist. v. State Bd.of Equalization (1978) 22 Cal.3d 208, 244-246 [149 Cal.Rptr. 239, 583 P.2d 1281].) (1c) Accordingly, there is nomerit to plaintiff's claim that the statute should be struckdown as unconstitutionally vague on its face.

B.

(4) (see fn. 9.) (5) Plaintiff alternatively contendsthat Proposition 51 violates the state and federal equalprotection guaranties, allegedly because theclassifications drawn by the statute are not rationallyrelated to a legitimate state interest. 9 Plaintiff claims inparticular that the statute is [*1203] invalid under[**594] the equal protection clause (1) because it

discriminates between the class of injured persons whosuffer economic damage and the class of injured personswho suffer noneconomic damage providing fullprotection for those who suffer economic damage but alesser protection for those who suffer noneconomicdamage, and (2) because it improperly discriminateswithin the class of victims who suffer noneconomicdamage, permitting full recovery for victims who areinjured by solvent tortfeasors, but providing only partialrecovery to victims injured by insolvent tortfeasors. Bothclaims are clearly without merit.

9 Although plaintiff also suggests that theproposition's classifications should be evaluatedunder a more stringent, "strict scrutiny" standard,the controlling decisions make it clear that thetraditional "rational relationship" equal protectionstandard is applicable here. (See, e.g., AmericanBank & Trust Co., supra, 36 Cal.3d 359, 373, fn.12; Fein v. Permanente Medical Group (1985) 38Cal.3d 137, 161-164 [211 Cal. Rptr. 368, 695P.2d 665].)

Plaintiff's challenge to the proposition's disparatetreatment of economic and noneconomic damagesparallels a similar equal protection attack that wasdirected at Civil Code section 3333.2, a provision ofMICRA which placed a $ 250,000 limit on thenoneconomic damages which may be recovered in amedical malpractice action, but which placed no similarlimit on economic damages. In rejecting that equalprotection challenge in Fein v. Permanente [***638]Medical Group, supra, 38 Cal.3d 137, we explained[HN7] that there is clearly a rational basis fordistinguishing between economic and noneconomicdamages and providing fuller protection for economiclosses, 10 and observed that "[the] equal protection clausecertainly does not require the Legislature to limit avictim's recovery for out-of-pocket medical expenses orlost earnings simply because it has found it appropriate toplace some limit on damages for pain and suffering andsimilar noneconomic losses." (38 Cal.3d at p. 162.) Insimilar fashion, the equal protection clause clearly doesnot require a state to modify the traditional joint andseveral liability rule as it applies to economic damages,simply because the state has found it appropriate to limitan individual tortfeasor's potential liability for an injuredperson's noneconomic damages. Indeed, the distinctionwhich Proposition 51 draws between economic andnoneconomic damages is, in general terms, less severe

44 Cal. 3d 1188, *1202; 753 P.2d 585, **593;


than the statutory distinction upheld in Fein; Proposition51 places no dollar limit on the noneconomic damages aplaintiff may properly recover, but simply provides thateach individual tortfeasor will be liable only for thatshare of the plaintiff's noneconomic damages which is[*1204] commensurate with the tortfeasor's comparativefault. There is no constitutional impediment to suchdifferential treatment of economic and noneconomiclosses.

10 In Fein, the court pointed out that legalcommentators had long questioned whether soundpublic policy supported the comparable treatmentof economic and noneconomic damages,explaining that "[thoughtful] jurists and legalscholars have for some time raised seriousquestions as to the wisdom of awarding damagesfor pain and suffering in any negligence case,noting, inter alia, the inherent difficulties inplacing a monetary value on such losses, the factthat money damages are at best only imperfectcompensation for such intangible injuries and thatsuch damages are generally passed on to, andborne by, innocent consumers. [HN8] While thegeneral propriety of such damages is, of course,firmly imbedded in our common lawjurisprudence [citation], no California case ofwhich we are aware has ever suggested that theright to recover for such noneconomic injuries isconstitutionally immune from legislativelimitation or revision." (Footnote omitted.) (38Cal.3d at pp. 159-160.)

Nor is Proposition 51 vulnerable to constitutionalattack on the basis of plaintiff's claim that it improperlydiscriminates within the class of plaintiffs who havesuffered noneconomic harm. Plaintiff asserts that thestatute draws an arbitrary distinction between personswith noneconomic damages who have been injured bysolvent tortfeasors and those who have been injured byinsolvent defendants, permitting full recovery ofnoneconomic damages by the former class but onlypartial recovery by the latter class. The terms of theproposition itself, however, reflect no legislative intent todiscriminate between injured victims on the basis of thesolvency of the tortfeasors by whom they are injured;instead, the measure quite clearly is simply intended tolimit the potential liability of an individual defendant fornoneconomic damages to a proportion commensuratewith that defendant's personal share of fault.

Although one consequence of the statute's adoptionof several liability for noneconomic [**595] damageswill be that persons who are unfortunate enough to beinjured by an insolvent tortfeasor will not be able toobtain full recovery for their noneconomic losses, thatconsequence does not render the provisionunconstitutional. Under any tort liability scheme, aplaintiff who is injured by a single tortfeasor who provesto be insolvent is, of course, worse off than a plaintiffwho is injured by a single tortfeasor who can pay anadverse judgment. Such "differential [HN9] treatment"flowing from the relative solvency of the tortfeasor whocauses an injury, however, has never been thought torender all tort statutes unconstitutional or to require thestate to compensate plaintiffs for uncollectible judgmentsobtained against insolvent defendants. And while thecommon law joint and several liability doctrine has in thepast provided plaintiffs a measure of protection from theinsolvency of a tortfeasor when there are additionaltortfeasors who are financially able to bear the totaldamages, plaintiff has cited no case which suggests thatthe joint and several liability doctrine is a constitutionally[***639] mandated rule of law, immune from legislativemodification or revision. As with other common law tortdoctrines -- like the doctrines at issue in the recent line ofMICRA decisions (see, e.g., American Bank & Trust Co.v. Community Hospital, supra, 36 Cal.3d 359, 366-374[modification of common law doctrine providing forpayment of judgment in lump sum]; Barme v. Wood(1984) 37 Cal.3d 174 [207 Cal. Rptr. 816, 689 P.2d 446][modification of collateral source rule]; Fein v.Permanente Medical Group, supra, 38 Cal.3d 137[limitation of noneconomic damages]) -- the allocation oftort damages among multiple tortfeasors is an entirelyappropriate subject for legislative resolution. In thisregard, it is worth recalling that Proposition [*1205] 51does not require the injured plaintiff to bear the entire riskof a potential tortfeasor's insolvency; solvent defendantscontinue to share fully in such risk with respect to aplaintiff's economic damages.

In sum, although reasonable persons may disagree asto the wisdom of Proposition 51's modification of thecommon law joint and several liability doctrine, themeasure is not unconstitutional on its face.

IV.

(6a) Plaintiff's second major contention is that evenif the lower courts were correct in upholding the

44 Cal. 3d 1188, *1203; 753 P.2d 585, **594;


constitutionality of the proposition, the trial court andCourt of Appeal were nonetheless in error in concludingthat the newly enacted statute should apply retroactivelyto causes of action -- like the present action -- whichaccrued prior to the effective date of the initiativemeasure. Plaintiff points out that prior to the enactment ofProposition 51 many individuals -- both plaintiffs anddefendants -- relied on the then-existing joint and severalliability doctrine in deciding which parties to join inlitigation and whether to accept or reject settlement offersrelating to such preexisting claims, and plaintiff contendsthat because there is nothing in the terms of theproposition which indicates that it is to applyretroactively to defeat such reliance, the lower courtserred in giving it such an application. In response,defendants contend that retroactive application iswarranted in light of the nature and purposes of theinitiative measure.

A.

Before analyzing the retroactivity principles andprecedents discussed by both parties, we must address athreshold contention, raised by a number of amici, whoassert that there is no need to consider the retroactivityissue at all in this case. Althoughdefendants themselvesdo not suggest that application of Proposition 51 tocauses of action which accrued prior to its effective datebut which did not come to trial until after such effectivedate would constitute only a prospective, rather than aretroactive, application of the measure, several amicihave put forth that suggestion, arguing that by confiningthe measure's operation to trials conducted after theinitiative's effective date the Court of Appeal simplyapplied Proposition 51 prospectively. The Court ofAppeal did not rest its conclusion [**596] on this theoryand, as we explain, the governing cases do not supportamici's contention.

In Aetna Cas. & Surety Co. v. Ind. Acc. Com. (1947)30 Cal.2d 388 [182 P.2d 159] -- perhaps the leadingmodern California decision on the subject -- the sameargument was raised by injured parties who contendedthat a new statute, increasing workers' compensationbenefits, should be applied [*1206] to awards made bythe workers' compensation board after the effective dateof the new statute, even though the awards pertained toinjuries which the workers had suffered before the newlegislation was enacted. The injured employees arguedthat such an application of the statute to future awards

would constitute a prospective, rather than a retroactive,application of the statute.

In Aetna Cas., this court, speaking through ChiefJustice Gibson, emphatically rejected the argument,explaining that "'[[HN10] a] retrospective law is onewhich affects rights, obligations, acts, transactions and[***640] conditions which are performed or exist priorto the adoption of the statute.'" (30 Cal.2d at p. 391.)"Since the industrial injury is the basis for anycompensation award, the law in force at the time of theinjury is to be taken as the measure of the injured person'sright of recovery." ( Id. at p. 392.) (7) Decisions of boththe United States Supreme Court and the courts of oursister states confirm that the application of a tort reformstatute to a cause of action which arose prior to theeffective date of the statute but which is tried after thestatute's effective date would constitute a retroactiveapplication of the statute. (See, e.g., Winfree v. Nor. Pac.Ry. Co. (1913) 227 U.S. 296 [57 L. Ed. 518, 33 S. Ct.273]; Joseph v. Lowery (1972) 261 Or. 545 [495 P.2d273].) Accordingly, amici's argument that the legalprinciples relating to the retroactive application ofstatutes are not relevant in this case is clearly withoutmerit.

B.

The fact that application of Proposition 51 to theinstant case would constitute a retroactive rather than aprospective application of the statute is, of course, justthe beginning, rather than the conclusion, of our analysis.Although plaintiff maintains that a retroactive applicationof the statute would be unconstitutional (cf. In reMarriage of Buol (1985) 39 Cal.3d 751, 759-764 [218Cal. Rptr. 31, 705 P.2d 354]), defendants properlyobserve that in numerous situations courts have upheldlegislation which modified legal rules applicable topending actions. (See, e.g., [HN11] San BernardinoCounty v. Indus. Acc. Com. (1933) 217 Cal. 618, 627-629[20 P.2d 673].) Because the question whether a statute isto apply retroactively or prospectively is, in the firstinstance, a policy question for the legislative body whichenacts the statute, before reaching any constitutionalquestion we must determine whether, as a matter ofstatutory interpretation, Proposition 51 should properlybe construed as prospective or retroactive. If, as a matterof statutory interpretation, the provision is prospective,no constitutional question is presented.

(8) In resolving the statutory interpretation question,

44 Cal. 3d 1188, *1205; 753 P.2d 585, **595;


we are guided by familiar legal principles. In the recentdecision of United States v. Security [*1207] IndustrialBank (1982) 459 U.S. 70, 79-80 [74 L. Ed. 2d 235,243-244, 103 S. Ct. 407], Justice (now Chief Justice)Rehnquist succinctly captured the well-established legalprecepts governing the interpretation of a statute todetermine whether it applies retroactively orprospectively, explaining: "[HN12] The principle thatstatutes operate only prospectively, while judicialdecisions operate retrospectively, is familiar to every lawstudent. [Citations.] This court has often pointed out:'[The] first rule of construction is that legislation must beconsidered as addressed to the future, not to the past . . .. The rule has been expressed in varying degrees ofstrength but always of one import, that a retrospectiveoperation will not be given to a statute which interfereswith antecedent rights . . . unless such be "theunequivocal and inflexible import of the terms, and themanifest intention of the legislature."' [Citation.]" (Italicsadded.)

[**597] California authorities have long embracedthis general principle. As Chief Justice Gibson wrote forthe court in Aetna Cas. & Surety Co. v. Ind. Acc. Com.,supra, 30 Cal.2d 388 -- the seminal retroactivity decisionnoted above -- "[it] is an established canon ofinterpretation that statutes are not to be given aretrospective operation unless it is clearly made to appearthat such was the legislative intent." (30 Cal.2d at p.393.) This rule has been repeated and followed ininnumerable decisions. (See, e.g., White v. Western TitleIns. Co. (1985) 40 Cal.3d 870, 884 [221 Cal. Rptr. 509,710 P.2d 309]; Glavinich v. Commonwealth Land TitleIns. Co. (1984) 163 Cal. App. 3d 263, 272 [209 Cal.Rptr. 266]. See generally5 Witkin, Summary of Cal. Law(8th ed. 1974) Constitutional Law, § 288, pp.3578-3579.)

Indeed, [HN13] Civil Code section 3, one of thegeneral statutory provisions governing the interpretationof all the provisions of the [***641] Civil Code --including the provision at issue in this case -- represents aspecific legislative codification of this general legalprinciple, declaring that "[no] part of [this Code] isretroactive, unless expressly so declared." (Italics added.)11 Like similar provisions found in many other codes(see, e.g., Code Civ. Proc., [*1208] § 3; Lab. Code, § 4),section 3 reflects the common understanding thatlegislative provisions are presumed to operateprospectively, and that they should be so interpreted

"unless express language or clear and unavoidableimplication negatives the presumption." ( Glavinich v.Commonwealth Land Title Ins. Co., supra, 163 Cal. App.3d 263, 272.)

11 In In re Marriage of Bouquet (1976) 16Cal.3d 583, 587, footnote 3 [128 Cal. Rptr. 427,546 P.2d 1371], the court specifically recognizedthat "[section] 3 of the Civil Code embodies thecommon law presumption against retroactivity,"and numerous decisions of this court haverecognized that comparable provisions in othercodes represent legislative embodiments of thisgeneral legal principle. (See, e.g., Aetna Cas. &Surety Co. v. Ind. Acc. Com., supra, 30 Cal.2d388, 395 [Lab. Code]; In re Estrada (1965) 63Cal.2d 740, 746 [48 Cal. Rptr. 172, 408 P.2d948] [Pen. Code]. See also [HN14] DiGenova v.State Board of Education (1962) 57 Cal.2d 167,172-173 [18 Cal. Rptr. 369, 367 P.2d 865].) Tothe extent that dictum in a footnote in the Court ofAppeal decision in Andrus v. Municipal Court(1983) 143 Cal. App. 3d 1041, 1045-1046,footnote 1 [192 Cal. Rptr. 341], discussing asimilar provision of the Code of Civil Procedure,suggests that such a provision has no applicationto amendments to such codes and applies only tothe original provisions of the codes, that dictum iscontrary to the numerous Supreme Courtdecisions noted above and must be disapproved.(See also Estate of Frees (1921) 187 Cal. 150,155-156 [201 P. 112] and cases cited.)

The dissenting opinion -- relying on passages in afew decisions of this court to the effect that thepresumption of prospectivity is to be "subordinated . . . tothe transcendent canon of statutory construction that thedesign of the Legislature be given effect . . . [and] is to beapplied only after, considering all pertinent factors, it isdetermined that it is impossible to ascertain thelegislative intent" ( Marriage of Bouquet, supra, 16Cal.3d 583, 587 [italics deleted]; Mannheim v. SuperiorCourt (1970) 3 Cal.3d 678, 686-687 [91 Cal. Rptr. 585,478 P.2d 17]; In re Estrada, supra, 63 Cal.2d 740, 746)-- apparently takes the position that the well-establishedlegal principle which Justice Rehnquist suggested was"familiar to every law student" (see United States v.Security Industrial Bank, supra, 459 U.S. 70, 79 [74 L.Ed. 2d 235, 243]) is inapplicable in this state and thatCivil Code section 3 and other similar statutory

44 Cal. 3d 1188, *1206; 753 P.2d 585, **596;


provisions have virtually no effect on a court'sdetermination of whether a statute applies prospectivelyor retroactively. The language in the decisions relied onby the dissent, however, generally has not been, andshould not properly be, interpreted to mean thatCalifornia has embraced a unique application of thegeneral prospectivity principle, distinct from theapproach followed in other jurisdictions (see generally 2Sutherland on Statutory Construction (4th ed. 1986) §41.04, pp. 348-350), so that the principle that statutes arepresumed to operate prospectively ordinarily has nobearing on a court's analysis of the retroactivity questionand may properly be considered by a [**598] court onlyas a matter of last resort and then only as a tie-breakingfactor.

In the years since Estrada, supra, 63 Cal.2d 740,Mannheim, supra, 3 Cal.3d 678, and Marriage ofBouquet, supra, 16 Cal.3d 583, both this court and theCourts of Appeal have generally commenced analysis ofthe question of whether a statute applies retroactivelywith a restatement of the fundamental principle that"legislative enactments are generally presumed to operateprospectively and not retroactively unless the Legislatureexpresses a different intention." (See, e.g., Fox v. Alexis(1985) 38 Cal.3d 621, 637 [214 Cal. Rptr. 132, 699 P.2d309]; White v. Western Title Co., supra, 40 Cal.3d 870,884; Hoffman v. Board of Retirement (1986) 42 Cal.3d590, 593 [229 Cal. Rptr. 825, 724 P.2d 511]; Baker v.Sudo (1987) 194 Cal. App. 3d 936, 943 [240 Cal. Rptr.38]; Sagadin v. Ripper (1985) 175 Cal. App. 3d 1141,1156 [221 Cal. Rptr. [***642] 675]; Glavinich v.Commonwealth Land Title Ins. Co., supra, 163 Cal. App.3d 263, 272.) These numerous precedents demonstratethat California continues to adhere to the time-honoredprinciple, codified [*1209] by the Legislature in CivilCode section 3 and similar provisions, that in the absenceof an express retroactivity provision, a statute will not beapplied retroactively unless it is very clear from extrinsicsources that the Legislature or the voters must haveintended a retroactive application. The language inEstrada, Mannheim, and Marriage of Bouquet should notbe interpreted as modifying this well-established,legislatively-mandated principle.

(6b) Applying this general principle in the presentmatter, we find nothing in the language of Proposition51which expressly indicates that the statute is to applyretroactively. 12 Although each party in this case attemptsto stretch the language of isolated portions of the statute

to support the position each favors, 13 we believe that afair reading of the proposition as a whole makes it clearthat the subject of retroactivity or prospectivity wassimply not addressed. As we have explained, under CivilCode section 3 and the general principle of prospectivity,the absence of any express provision directing retroactiveapplication strongly supports prospective operation of themeasure. Although defendants raise a number of claimsin an attempt to escape the force of this well-establishedprinciple of statutory interpretation, none of theircontentions is persuasive.

12 The full text of Proposition 51 is set out in theappendix to this opinion.13 Plaintiff, taking his cue in part from a portionof the Court of Appeal decision in Russell v.Superior Court, supra, 185 Cal. App. 3d 810,818-819, suggests that the use of the word "shall"in various passages in the statute indicates that thedrafters intended only a future operation. Asdefendants contend, however, in context we thinkit is more likely that the use of "shall" wasintended to reflect the mandatory nature of theprovision, rather than to refer to its temporaloperation.

Defendants, in turn, rely on the initial clauseof Civil Code section 1431.2, which states simplythat the provision is to apply "[in] any action . . .." That familiar language, however, merelynegates any implication that the new severalliability rule was to apply only to a specificcategory of tort cases -- like the earlier medicalmalpractice tort legislation -- and provides noindication that a retroactive application wascontemplated. Similar [HN15] broad, generallanguage in other statutory provisions has notbeen considered sufficient to indicate a legislativeintent that the statute is to be appliedretroactively. (See, e.g., United States v. SecurityIndustrial Bank, supra, 459 U.S. 70, 82, fn. 12 [74L. Ed. 2d 235, 245] ["'[a] few words of generalconnotation appearing in the text of statutesshould not be given a wide meaning contrary to asettled policy, "excepting as a different purpose isplainly shown.'" [Citation]"]; Un. Pac. R.R. v.Laramie Stock Yards (1913) 231 U.S. 190,199-202 [58 L. Ed. 179, 182-183, 34 S. Ct. 101].)

C.

44 Cal. 3d 1188, *1208; 753 P.2d 585, **597;


Defendants initially contend that even though there isno express language in the statute calling for retroactiveapplication, an intent that the provision should applyretroactively can clearly be inferred from the objectivesof the legislation, as reflected in the stated "findings anddeclaration of purpose" accompanying the provision[**599] and in the ballot arguments which [*1210]were before the voters at the time the measure wasadopted. 14 (9) As defendants [***643] correctly pointout, [HN16] on a number of occasions in the past wehave found that even when a statute did not contain anexpress provision mandating retroactive application, thelegislative history or the context of the enactmentprovided a sufficiently clear indication that theLegislature intended the statute to operate retrospectivelythat we found it appropriate to accord the statute aretroactive application. (See, e.g., Marriage of Bouquet,supra, 16 Cal.3d 583; Mannheim, supra, 3 Cal.3d 678,686.) 15

14 [HN17] Civil Code section 1431.1, theintroductory section of Proposition 51 which setsforth various "findings" and a "declaration ofpurpose," provides in full: "The People of theState of California find and declare as follows:[para. ] (a) The legal doctrine of joint and severalliability, also known as 'the deep pocket rule', hasresulted in a system of inequity and injustice thathas threatened financial bankruptcy of localgovernments, other public agencies, privateindividuals and businesses and has resulted inhigher prices for goods and services to the publicand in higher taxes to the taxpayers. [para. ] (b)Some governmental and private defendants areperceived to have substantial financial resourcesor insurance coverage and have thus beenincluded in lawsuits even though there was littleor no basis for finding them at fault. Under jointand several liability, if they are found to shareeven a fraction of the fault, they often are heldfinancially liable for all the damage. The People-- taxpayers and consumers alike -- ultimately payfor these lawsuits in the form of higher taxes,higher prices and higher insurance premiums.[para. ] (c) Local governments have been forcedto curtail some essential police, fire and otherprotections because of the soaring costs oflawsuits and insurance premiums. Therefore, thePeople of the State of California declare that toremedy these inequities, defendants in tort actions

shall be held financially liable in closer proportionto their degree of fault. To treat them differently isunfair and inequitable. [para. ] The People of theState of California further declare that reforms inthe liability laws in tort actions are necessary andproper to avoid catastrophic economicconsequences for state and local governmentalbodies as well as private individuals andbusinesses."15 In In re Estrada, supra, 63 Cal.2d 740, thecourt also held that a statutory enactment shouldbe applied retroactively despite the absence of anexpress retroactivity clause, but that case involvedconsiderations quite distinct from the ordinarystatutory retroactivity question. In Estrada, theLegislature had amended a criminal statute toreduce the punishment to be imposed on violators;the amendment mitigating punishment wasenacted after the defendant in Estrada hadcommitted the prohibited act but before hisconviction was final. Following the rule appliedby the United States Supreme Court and amajority of states (see 63 Cal.2d at p. 748), theEstrada court concluded that the defendant shouldreceive the benefit of the mitigated punishment"because to hold otherwise would be to concludethat the Legislature was motivated by a desire forvengeance, a conclusion not permitted in view ofmodern theories of penology." (63 Cal.2d at p.745.)

Although some of the broad language inEstrada was subsequently invoked in the civilcontext in the Mannheim, supra, 3 Cal.3d 678,and Marriage of Bouquet, supra, 16 Cal.3d 583,decisions, the rationale for the Estrada rulingbears little relationship to the determination of theretroactivity of most nonpenal statutes, and, asnoted below, other jurisdictions have not appliedthe special rule applicable to ameliorative penalprovisions in determining the retroactivity of ageneral tort reform measure like Proposition 51.We similarly conclude that the Estrada decisionprovides no guidance for the resolution of thiscase.

(6c) Defendants assert that consideration of thefactors deemed relevant to the inquiry into legislativeintent in those cases -- e.g., "'[the] context [of thelegislative enactment], the object in view, the evils to be

44 Cal. 3d 1188, *1209; 753 P.2d 585, **598;


remedied, the history of the times and of legislation uponthe same subject'" ( Marriage of [*1211] Bouquet,supra, 16 Cal.3d 583, 587) -- supports retroactiveapplication of the legislation at issue here. As we shallexplain, we cannot agree.

To begin with, unlike Marriage of Bouquet orMannheim, there is nothing in either the statutory"findings and declaration of purpose" or the brochurematerials which suggests that, notwithstanding theabsence of any express provision on retroactivity, theretroactivity question was actually consciouslyconsidered during the enactment process. In Marriage ofBouquet, the court, in concluding that the statute at issuein that case should be applied retroactively, relied, in part,on the Legislature's adoption of a resolution, shortly after[**600] the enactment of the measure, indicating that theretroactivity question was specifically discussed duringthe legislative debate on the measure and declaring thatthe provision was intended to apply retroactively (seeMarriage of Bouquet, supra, 16 Cal.3d at pp. 588-591);in Mannheim, the statute in question incorporated byreference a separate statutory scheme which hadexpressly been made retroactive, and the Mannheim courtreasoned that the Legislature must have intended the laterstatute to have a parallel application to the provision onwhich it was expressly fashioned. (See Mannheim,supra, 3 Cal.3d at pp. 686-687.) Defendants can point tonothing in the election brochure materials which provideany comparable confirmation of an actual intention on thepart of the drafters or electorate to apply the statuteretroactively.

Indeed, when "'the history of the times and oflegislation upon the same subject'" [***644] ( Marriageof Bouquet, supra, 16 Cal.3d at p. 587) is considered, itappears rather clear that the drafters of Proposition 51, inomitting any provision with regard to retroactivity, musthave recognized that the statute would not be appliedretroactively. As we have noted briefly above, the tortreform measure instituted by Proposition 51 paralleledsomewhat similar tort reform legislation -- MICRA --which was enacted in the mid-1970's in response to aliability insurance crisis in the medical malpractice field.In Bolen v. Woo (1979) 96 Cal. App. 3d 944, 958-959[158 Cal. Rptr. 454] and Robinson v. Pediatric AffiliatesMedical Group, Inc. (1979) 98 Cal. App. 3d 907, 911-912[159 Cal. Rptr. 791], two separate panels of the Court ofAppeal addressed the question whether one of the tortreform provisions of MICRA should apply retroactively

to a cause of action that accrued prior to MICRA'senactment but which was tried after the act went intoeffect. In both Bolen and Robinson, the courts held thatin the absence of a specific provision in the legislationcalling for such retroactive application, the generalpresumption of prospective application should apply; theBolen court observed that if the Legislature had intendedthe statute to apply retroactively it "could very easilyhave inserted such language in the statute itself. It chosenot to do so." (96 Cal. App. 3d at p. 959.) Because atleast one of the principal institutional proponents anddrafters of Proposition51 was very [*1212] muchinvolved in the post-MICRA litigation, 16 it appearsinescapable that -- given the Bolen and Robinsondecisions -- the drafters of Proposition 51 would haveincluded a specific provision providing for retroactiveapplication of the initiative measure if such retroactiveapplication had been intended. (Cf. Aetna Cas. & SuretyCo., supra, 30 Cal.2d 388, 396 ["it [HN18] must beassumed that the Legislature was acquainted with thesettled rules of statutory interpretation, and that it wouldhave expressly provided for retrospective operation of theamendment if it had so intended."].) Since the draftersdeclined to insert such a provision in the proposition --perhaps in order to avoid the adverse politicalconsequences that might have flowed from the inclusionof such a provision -- it would appear improper for thiscourt to read a retroactivity clause into the enactment atthis juncture.

16 The Association for California Tort Reform(ACTR) is one of numerous organizations thathave filed amici curiae briefs in this case. In itsbrief, ACTR states that it sponsored thelegislation that was "the precursor to and modelfor Proposition 51" and that its chairman "was theofficial proponent who filed Proposition 51 withthe California Attorney General requestingpreparation of a title and summary for placementon the ballot." ACTR participated as an amicus inmany of the leading MICRA cases. (E.g.,American Bank & Trust Co. v. CommunityHospital, supra, 36 Cal.3d 359; Fein v.Permanente Medical Group, supra, 38 Cal.3d137.)

D.

Defendants contend, however, that whether or notthe drafters of the proposition intended that the measure

44 Cal. 3d 1188, *1210; 753 P.2d 585, **599;


would apply retroactively, it is the intent of the electoratethat is controlling, and they maintain that, in light of thepurposes of the proposition, [**601] it is evident thatthe voters must have intended a retroactive application.

This argument, while novel, is flawed in a number offundamental respects. To begin with, [HN19] althoughthe intent of the electorate would prevail over the intentof the drafters if there were a reliable basis fordetermining that the two were in conflict, in the presentcase there is simply no basis for finding any suchconflict. Neither the Legislative Analyst's analysis ofProposition 51 nor any of the statements of theproponents or opponents that were before the voters inthe ballot pamphlet spoke to the retroactivity question,and thus there is no reason to believe that the electorateharbored any specific thoughts or intent with respect tothe retroactivity issue at all. (10) Because past cases havelong made it clear that [HN20] initiative measures aresubject to the ordinary rules and canons of statutoryconstruction (see, e.g., Carter v. Seaboard Finance Co.(1949) 33 Cal.2d 564, 579-582 [203 P.2d 758]; AmadorValley Joint Union High Sch. Dist. v. State Bd. ofEqualization, [***645] supra, 22 Cal.3d 208, 244-246),informed members of the electorate who happened toconsider the retroactivity issue would presumably haveconcluded that the measure -- like other statutes -- wouldbe [*1213] applied prospectively because no expressprovision for retroactive application was included in theproposition.

(6d) Furthermore, defendants' claim that the"remedial" purpose of the measure necessarilydemonstrates that the electorate must have intended thatthe proposition apply retroactively cannot be sustained.Although the "findings and declaration of purpose"included in the proposition clearly indicate that themeasure was proposed to remedy the perceived inequitiesresulting under the preexisting joint and several liabilitydoctrine and to create what the proponents considered afairer system under which "defendants in tort actionsshall be held financially liable in closer proportion totheir degree of fault" ( Civ. Code, § 1431.1 ), such[HN21] a remedial purpose does not necessarily indicatean intent to apply the statute retroactively. Most statutorychanges are, of course, intended to improve a preexistingsituation and to bring about a fairer state of affairs, and ifsuch an objective were itself sufficient to demonstrate aclear legislative intent to apply a statute retroactively,almost all statutory provisions and initiative measures

would apply retroactively rather than prospectively. Inlight of the general principles of statutory interpretationset out above, and particularly the provisions of CivilCode section 3, the contention is clearly flawed. (See,e.g. Aetna Cas. & Surety Co. v. Ind. Acc. Com., supra,30 Cal.2d at p. 395.) 17

17 Justice Gibson's opinion in Aetna Cas. &Surety Co., supra, clearly demonstrates theuntenability of defendants' claim that the remedialnature of a statute is sufficient to support aninference that the statute was intended to applyretroactively. As noted above, in Aetna thequestion before the court was whether a statutewhich increased workers' compensation benefitsshould be applied to workers who had sustainedwork-related injuries prior to the enactment of thenew law but who were not awarded benefits untilafter the new statute took effect. In that case,unlike the present matter, of course, it was theinjured parties who sought retroactive applicationof the statute; the workers argued that in light ofthe remedial nature of the increased benefits andthe statutory mandate that provisions of theworkers' compensation law be liberally construedto extend benefits to injured workers ( Lab. Code,§ 3202), the court should infer an intent on thepart of the Legislature to apply the actretroactively even though the act contained noexpress provision to that effect.

In rejecting the argument, the Aetna courtobserved: "No authority is cited for the noveldoctrine which would require the court to ignorethe rule against retroactive operation with respectto statutes increasing benefits to persons favoredby remedial legislation. [HN22] The rule ofliberal construction and the rule that statutesshould ordinarily be construed to operateprospectively are neither inconsistent normutually exclusive . . . . It would be a mostpeculiar judicial reasoning which would allow onesuch doctrine to be invoked for the purpose ofdestroying the other. It seems clear, therefore,that the legislative intent in favor of theretrospective operation of a statute cannot beimplied from the mere fact that the statute isremedial and subject to the rule of liberalconstruction." (Italics added.) ( Aetna Cas. &Surety Co., supra, 30 Cal.2d at p. 395.)

44 Cal. 3d 1188, *1212; 753 P.2d 585, **600;


What defendants' contention overlooks is that thereare special considerations -- quite distinct from the meritsof the substantive [**602] legal change embodied in thenew legislation -- that are frequently triggered by the[*1214] application of a new, "improved" legal principleretroactively to circumstances in which individuals mayhave already taken action in reasonable reliance on thepreviously existing state of the law. Thus, [HN23] thefact that the electorate chose to adopt a new remedial rulefor the future does not necessarily demonstrate an intentto apply the new rule retroactively to defeat thereasonable expectations of those who have changed theirposition in reliance on the old law. (11) The presumptionof prospectivity assures that reasonable reliance oncurrent legal principles will not be defeated in theabsence of a clear indication of a legislative intent tooverride such reliance.

The Oregon Supreme Court's decision in Joseph v.Lowery, supra, 495 P.2d 273 illustrates the point quitewell, in a context closely related to the instant case.Thequestion at issue in Joseph was whether a newlyenacted comparative-negligence statute should be appliedretroactively to a [***646] cause of action whichaccrued before the passage of the statute but which didnot come to trial until after the new law went into effect.The plaintiff in that case, like defendants in this case,argued forcefully that the court should infer from theremedial nature of the legislative change that theLegislature intended to apply the newly enacted, moreequitable comparative negligence rule to all cases triedafter the passage of the new legislation, even when thecause of action accrued prior to the enactment; theplaintiff emphasized, in this regard, that the defendant's"primary conduct" at the time of the accident wasobviously not undertaken in reliance on the contributorynegligence doctrine.

The Oregon Supreme Court rejected the plaintiff'sargument for retroactive application of the statute,explaining: "Certainly, no one has an accident upon thefaith of the then existing law. However, it would come asa shock to someone who has estimated his probableliability arising from a past accident, and who hasplanned his affairs accordingly, to find that hisresponsibility therefor is not to be determined as of thehappening of the accident but is also dependent uponwhat the legislature might subsequently do. Every day itis necessary in the conduct of the affairs of individualsand of businesses to make a closely calculated estimate of

the responsibility or lack thereof resulting from anaccident or from other unforeseen and unplannedcircumstances and to act in reliance on such estimate.We believe there is merit in the prior view of this court,as demonstrated by its decisions, that, [HN24] in theabsence of an indication to the contrary, legislative actsshould not be construed in a manner which changes legalrights and responsibilities arising out of transactionswhich occur prior to the passage of such acts." (495 P.2dat p. 276.) The vast majority of other courts -- includingthe United States Supreme Court -- which have faced thequestion whether a remedial statute replacing theall-or-nothing contributory negligence doctrine [*1215]with a more equitable comparative negligence rule shouldbe applied retroactively to causes of action which accruedprior to the date of the comparative negligence statute,when the enactment is silent on the retroactivity issue,have reached the same conclusion as the Joseph court,applying the new remedial statute prospectively only. 18

18 See, e.g., Winfree v. Nor. Pac. Ry. Co., supra,227 U.S. 296; Brewster v. Ludtke (1933) 211 Wis.344 [247 N.W. 449, 450]; Edwards v. Walker(1973) 95 Idaho 289 [507 P.2d 486, 488];Dunham v. Southside National Bank (1976) 169Mont. 466 [548 P.2d 1383]; Rice v. Wadkins(1976) 92 Nev. 631 [555 P.2d 1232, 1233]; Smithv. Shreeve (Utah 1976) 551 P.2d 1261, 1262,footnote 2; Scammon v. City of Saco (Me. 1968)247 A.2d 108, 110; Costa v. Lair (1976) 241 Pa.Super. 517 [363 A.2d 1313, 1314-1315]; Viers v.Dunlap (1982) 1 Ohio St.3d 173 [438 N.E.2d881]; contra, Godfrey v. State (1975) 84 Wash.2d959 [530 P.2d 630].

Many of the recent comparative negligencestatutes are not silent on the point, but specificallyaddress the prospective/retroactive question. (Seegenerally Schwartz, Comparative Negligence (2ded. 1986) §§ 8.3-8.5, pp. 143-152.) Of thenumerous statutes which expressly speak to theissue, all but two specifically provide forprospective operation. (Ibid.) The UniformComparative Fault Act, drafted by the NationalConference of Commissioners on Uniform StateLaws as a model for state laws on the subject,similarly contains a provision which mandatesprospective application, declaring that "[this] Actapplies to all [claims for relief] [causes of action]which accrue after its effective date." (§ 10.)

44 Cal. 3d 1188, *1213; 753 P.2d 585, **601;


[**603] (6e) Although, as we have noted, there isno indication that the voters in approving Proposition 51consciously considered the retroactivity question at all, ifthey had considered the issue they might have recognizedthat retroactive application of the measure could result inplacing individuals who had acted in reliance on the oldlaw in a worse position than litigants under the new law.We briefly examine why retroactive application of theproposition could have such a consequence.

To begin with, plaintiffs whose causes of actionarose long before Proposition 51 was enacted will oftenhave reasonably relied on the preexisting joint andseveral liability doctrine in deciding which potentialtortfeasors to sue and which not to sue. Given the jointand several liability rule, plaintiffs may reasonably havedetermined that while [***647] there may have beenother tortfeasors -- in addition to the defendants named intheir complaint -- who might also be responsible for theirinjuries, there was no reason to go to the added expenseand effort to attempt to join such other tortfeasors, sinceplaintiffs could recover all of their damages -- economicand noneconomic -- from the named defendants. Suchplaintiffs would have understood, of course, that underthe then-governing rules, the named defendants couldbring any additional tortfeasors into the suit throughcross-complaints if the defendants desired.

While Proposition 51 itself, of course, does not bar aplaintiff from joining additional tortfeasors -- indeed, itseffect in the future well may be to encourage plaintiffs tojoin every conceivable responsible party -- the [*1216]retroactive application of the measure to preexistingcauses of action would frequently have the effect ofdepriving plaintiffs of any opportunity to recover theproportion of noneconomic damages attributable toabsent tortfeasors, because in many cases the statute oflimitations on the plaintiff's preexisting cause of actionagainst such an absent tortfeasor will have run before theenactment of Proposition 51. 19 Thus, while there isnothing in the language or legislative history ofProposition 51 to suggest that the electorate intended tocut off a plaintiff's opportunity to obtain full recovery fornoneconomic damages, the retroactive application of themeasure would frequently have just such an effect.

19 Although in the present case we do not knowthe additional parties plaintiff may have chosen tosue if Proposition 51 had been in effect at theoutset of the litigation, defendants -- in connection

with their post-Proposition 51 filings -- havesuggested that some responsibility for the accidentmay lie either with some of plaintiff's friends orwith plaintiff's parents. The statute of limitationson any cause of action plaintiff may have hadagainst such individuals has, of course, long sincerun.

In similar fashion, retroactive application of theproposition to actions which were pending prior to theadoption of the measure would frequently defeat thereasonable expectations of parties who entered intosettlement agreements in reliance on the preexisting jointand several liability rule. Acting on the assumption thatany nonsettling defendants would remain fully liable forboth economic and noneconomic damages, plaintiffs inpre-Proposition 51 actions may frequently have settledwith some defendants for a lesser sum than they wouldhave accepted if they were aware that the remainingdefendants would only be severally liable fornoneconomic damages. By contrast, plaintiffs who settlecauses of action accruing after Proposition 51 would befully aware of the applicable principles.

Furthermore, retroactive application of Proposition51 could also have unanticipated, adverse consequencesfor settling defendants as well. As noted above, underpre-Proposition 51 law, a defendant could choose to enterinto a settlement agreement with the plaintiff whichsettled the plaintiff's entire claim against all defendants,and could thereafter bring an equitable comparativeindemnity action against other tortfeasors to compel themto bear their fair share of the amount which the settlingdefendant had paid in settlement of the plaintiff's claim.(See, e.g., [**604] Sears, Roebuck & Co. v.International Harvester Co., supra, 82 Cal. App. 3d 492,496; American Bankers Ins. Co. v. Avco-LycomingDivision, supra, 97 Cal. App. 3d 732, 736.) Underpreexisting law, if a settling defendant pursued such acourse of action and if one or more of the culpabletortfeasors proved to be insolvent, the shortfall caused bysuch insolvency would be shared on an equitable basis byall of the solvent tortfeasors. (See, e.g., Paradise ValleyHospital v. Schlossman, supra, 143 Cal. App. 3d 87, 93.)If Proposition 51 were applied [*1217] retroactively tocauses of action that accrued prior to its enactment,however, a nonsettling tortfeasor who was faced with anindemnity claim brought by a settling tortfeasor would beable to limit his liability for noneconomic damages to apercentage equal to his own personal degree of fault, and

44 Cal. 3d 1188, *1215; 753 P.2d 585, **602;


the settling tortfeasor -- who had entered into [***648]the settlement in reliance on the preexisting state of thelaw -- would be left to absorb by himself any proportionof the noneconomic damages that was attributable to aninsolvent tortfeasor or tortfeasors.

Thus, retroactive application of the measure to pastlitigation could have unexpected and potentially unfairconsequences for all parties who acted in reliance on thethen-existing state of the law. Prospective application ofthe measure, while withholding the remedial benefits ofthe provision from defendants in pending actions, wouldassure that all parties to litigation were aware of the basic"ground rules" when they decided whom to join in theaction and on what terms the case should be settled.

Of course, we do not suggest that most or even manyvoters were aware of the consequences that would resultfrom the retroactive application of Proposition 51. Areview of these consequences does indicate, however,that a voter who supported the remedial changesembodied in Proposition 51 would not necessarily havesupported the retroactive application of those changes todefeat the reasonable expectations of individuals who hadtaken irreversible actions in reliance on the preexistingstate of the law.

To avoid misunderstanding, a caveat is in order. Itis no doubt possible that an informed electorate, aware ofthe consequences of retroactive application, wouldnonetheless have chosen to make the statute retroactive ifthe retroactivity or prospectivity issue had been directlypresented to it. The crucial point is simply that becauseProposition 51 did not address the retroactivity question,we have no reliable basis for determining how theelectorate would have chosen to resolve either the broadthreshold issue of whether the measure should be appliedprospectively or retroactively, or the further policyquestion of how retroactively the proposition shouldapply if it was to apply retroactively: i.e., whether thenew rule should apply to cases in which a complaint hadnot yet been filed, to cases which had not yet come totrial, to cases in which a trial court judgment had not yetbeen entered, or to cases which were not yet final onappeal. 20

20 The dissenting opinion asserts that in light ofthe remedial purposes of Proposition 51, "theinference is virtually inescapable' that theelectorate intended the proposition to apply to alltrials conducted after the effective date of the

measure. (See, post, at pp. 1232-1233.) Thedissenting opinion apparently overlooks the fact,however, that most states which enacted tortreform measures similar to Proposition 51 inresponse to the same liability crisis whichprecipitated Proposition 51, and whichspecifically addressed the retroactivity issue intheir statutes, did not provide for retroactiveapplication of the newly enacted reforms to allcases tried after the new enactment. (See, post, atpp. 1219-1220.) In light of these otherenactments, it is difficult to understand how thedissent can find it "inescapable" from the contextand purpose of the enactment that such aretroactive application must have been intended.

[*1218] As we have explained above, thewell-established presumption that statutes applyprospectively in the absence of a clearly expressedcontrary intent gives recognition to the fact thatretroactive application of a statute often entails the kindof unanticipated consequences we have discussed, andensures that courts do not assume that the Legislature orthe electorate intended such consequences unless suchintent clearly [**605] appears. Because in the presentmatter there is nothing to suggest that the electorateconsidered these results or intended to depart from thegeneral rule that statutory changes operate prospectively,prospective application is required. 21

21 The dissenting opinion discusses a number ofcases which it suggests support the propositionthat remedial statutes are generally intended toapply retroactively. (See post, pp. 1233-1235.)The cases discussed by the dissent, however, didnot involve general tort reform statutes, likeProposition 51, but rather concerned statutoryenactments implementing procedural changes incircumstances in which it was unlikely thatretroactive application would defeat a party'sreasonable reliance on the displaced proceduralrule.

In its discussion of the proper interpretationof remedial statutes, the dissent makes no mentionof the numerous decisions of both the UnitedStates Supreme Court and of state courtsthroughout the country which haveoverwhelmingly concluded that a tort reformstatute, which is silent on the retroactivity

44 Cal. 3d 1188, *1217; 753 P.2d 585, **604;


question, should be applied prospectively tocauses of action accruing after the effective dateof the new statute. (See fn. 18, ante, p. 1215.)

[***649] E.

Defendants next argue that even if the remedialnature of Proposition 51 is not sufficient to indicate anintent on the part of the electorate to apply the measureretroactively, this court should infer such an intent fromthe fact that the measure's statement of purpose and theelection brochure arguments demonstrate that theproposition was adopted to meet a liability insurancecrisis. Defendants maintain that because it will be yearsbefore causes of action which accrue after the effectivedate of the proposition actually come to trial, aprospective application of the measure would noteffectuate the purpose of alleviating the insurance crisisand thus could not have been intended by the electorate.For a number of reasons, we conclude that this argumentcannot be sustained.

To begin with, defendants' account of theconsequences of prospective application of the measure isinaccurate in a number of significant respects. First,because liability insurance premiums are based in part, ifnot exclusively, on the damages that the insurancecompany anticipates it will incur for the risks which willbe covered by the policy, any anticipated reduction indamages to be awarded in the future for causes of actionwhich arise [*1219] during policy periods following theact should logically be reflected in an immediatereduction in the premiums which potential defendantspay for post-act insurance coverage. Thus, prospectiveapplication of the proposition could reasonably have beenexpected to afford immediate benefits to potentialdefendants. Similarly, to the extent governmental orother activities had been curtailed because of the fear ofthe anticipated financial consequences of futureaccidents, the knowledge that any such future incidentswould be governed by the provisions of Proposition 51would logically support prompt resumption of theactivities.

Moreover, because the insurance premiums whichpotential defendants had paid prior to the enactment ofProposition 51 for coverage of pre-Proposition 51accidents were presumably computed, at least in part, onthe assumption that the then-prevailing joint and severalliability doctrine would apply to the covered incidents, aretroactive application of the measure might be expected

to provide a windfall to defendants' insurers, rather than adirect benefit to the insureds themselves because theinitiative contained no provision requiring insurers toreturn any portion of previously collected premiums totheir insureds. Indeed, this potential consequence ofretroactive application may have been one reason thedrafters of the measure chose not to include an expressretroactivity provision in the measure; if this potentialinsurance company windfall from retroactive applicationhad been brought to the attention of the electorate, itmight well have detracted from the popularity of themeasure.

Finally, defendants' suggestion that a prospectiveapplication of Proposition 51 will mean that it will beyears before the measure will affect the actual damagespaid by defendants in tort cases overlooks the fact that thevast majority of tort actions [**606] are resolved bysettlement rather than by trial. Because the amounts atwhich cases are settled reflect the defendant's potentialliability at trial, the effects of Proposition 51 on damagesactually paid by defendants are likely to be felt at a muchearlier date than defendants predict even if the measure isapplied prospectively.

Thus, we cannot agree that prospective application isinconsistent with the objective of alleviating aliability-insurance crisis.

Indeed, a review of other statutory provisions,similar to Proposition 51, which were enacted in otherstates at approximately the same time as Proposition 51and in response to the same concerns over the effects ofhigh liability insurance premiums, 22 demonstrates thatthis factor does [***650] not necessarily [*1220]evidence an intent to apply the statute retroactively to allcases tried after the effective date of the enactment. Inthe numerous statutes altering the joint and severalliability rule which were enacted throughout the countryin 1986 and 1987, the various state legislatures not onlyadopted different substantive variants of several liability(see fns. 5, 6, 7, ante), but also arrived at differingconclusions as to whether the newly enacted statutesshould be applied retroactively to preexisting causes ofaction. Several of the new statutes were explicitly madeapplicable only to causes of action accruing after the dateof the new legislation ( Fla. Stat. Ann. § 768.71(2) (WestSupp. 1987); Mo. Ann. Stat. § 538.235 (Vernon Supp.1987); Ill. Ann. Stat., ch. 110, note following paras.2-1117, 2-1118 (Smith-Hurd Supp. 1987); 1987 Nev.

44 Cal. 3d 1188, *1218; 753 P.2d 585, **605;


Stat., ch. 709, § 2), some of the enactments apply only tocases filed on or after the effective date of the statute(1986 Colo. Sess. Laws, ch. 108, § 7; 1986 Wash. Laws,ch. 305, § 910; 1986 N.Y. Laws, ch. 682, § 12; 1987 Tex.Acts, 70th Leg., 1st C.S., ch. 2, § 4.05, in Tex. Civ. Prac.& Rem. Code Ann., note following § 9.001 (Vernon1988)), and only one of the statutes -- which adopted aseveral liability rule limited to less culpablegovernmental defendants -- applies to cases "pending onor commenced on or after" the date of the enactment(1986 Minn. Laws, ch. 455, § 95). These varyingresponses, of course, are relevant to the question beforeus only inasmuch as they demonstrate that otherlegislative bodies which enacted statutes in response tothe same liability crisis that precipitated Proposition 51and which consciously focused on the retroactivityquestion arrived at different conclusions of whether, andto what extent, such a statutory modification should applyto preexisting causes of action. Because the provisionbefore us is silent on the question, the generalpresumption which dictates a prospective application inthe absence of a clear contrary intent must control.

22 The preambles of a number of the 1986 and1987 statutes closely track the "Findings andDeclaration of Purpose" in Proposition 51. (See,e.g., 1986 Wash. Laws, ch. 305, § 100; Tex. Acts1987, 70th Leg., 1st C.S., ch. 2, § 1.01, in Tex.Civ. Prac. & Rem. Code Ann., note following §9.001 (Vernon 1988).)

The California decision most closely on pointdirectly supports this conclusion. As noted above, inBolen v. Woo, supra, 96 Cal. App. 3d 944, 958-959, theCourt of Appeal addressed the question whether one ofthe tort reform provisions of MICRA should applyretroactively to a cause of action that accrued prior toMICRA's enactment but that was tried after the act wentinto effect. The defendant in Bolen, like defendants inthis case, relied heavily on the fact that the preamble ofMICRA demonstrated that the measure was adopted inresponse to a crisis caused by "skyrocketing" liabilityinsurance costs 23 and argued that that purposeestablished [**607] an intent [*1221] to apply the actretroactively. The Bolen court rejected the contention,relying on the general principle of prospectivity discussedabove and emphasizing that if the Legislature hadintended the statute to apply retroactively it "could veryeasily have inserted such language in the statute itself. Itchose not to do so." (96 Cal. App. 3d at p. 959.)

23 The preamble to MICRA read in part: "TheLegislature finds and declares that there is a majorhealth care crisis in the State of Californiaattributable to skyrocketing malpractice premiumcosts and resulting in a potential breakdown of thehealth delivery system, severe hardships for themedically indigent, a denial of access for theeconomically marginal, and depletion ofphysicians such as to substantially worsen thequality of health care available to citizens of thisstate. The Legislature, acting within the scope ofits police powers, finds the statutory remedyherein provided is intended to provide anadequate and reasonable remedy within the limitsof what the foregoing public health and safetyconsiderations permit now and into theforeseeable future." (Stats. 1975, 2d Ex. Sess.1975-1976, ch. 2, § 12.5, p. 4007.)

In light of Bolen, if the proponents of Proposition 51felt that the liability crisis necessitated a retroactiveapplication of the measure's provisions, it seems evidentthat they would have included an express retroactivityprovision in the proposition.

F.

Defendants next argue that, despite the absence ofany express retroactivity provision, Proposition 51 shouldbe applied retroactively by analogy to this court'sretroactive [***651] application of the decisions in Li v.Yellow Cab, supra, 13 Cal.3d 804, and AmericanMotorcycle Association v. Superior Court, supra, 20Cal.3d 578, to at least some cases that were pending atthe time those decisions were rendered. (See Li, supra,13 Cal.3d 804, 829; Safeway stores, Inc. v. Nest-Kart(1978) 21 Cal.3d 322, 333-334 [146 Cal. Rptr. 550, 579P.2d 441].) For a number of reasons, those decisions donot support defendants' claim.

First, both Li, supra, 13 Cal.3d 804, and AmericanMotorcycle, supra, 20 Cal.3d 578, involved changes incommon law tort doctrine that were made by judicialdecision, not statutory enactment. As the earlierquotation from Chief Justice Rehnquist makes clear, as ageneral rule there is a fundamental difference between theretroactivity of statutes and the retroactivity of judicialdecisions: "The principle that statutes operate onlyprospectively, while judicial decisions operateretrospectively, is familiar to every law student.[Citations.]" ( United States v. Security Industrial Bank,

44 Cal. 3d 1188, *1220; 753 P.2d 585, **606;


supra, 459 U.S. 70, 79 [74 L. Ed. 2d 235, 243].) It isbecause of this difference in the governing legalprinciples that in most states in which the comparativenegligence rule has been adopted through judicialdecision -- like California -- the newly adopted rule hasbeen applied to at least some pending cases (seeSchwartz, Comparative Negligence (2d ed. 1986) § 8.2,pp. 140-143), while in those states in which comparativenegligence has been established by statute, the changehas almost uniformly been applied prospectively. (Seeid., §§ 8.3, 8.4, pp. 143-149; see also fn. 17, ante.) Thus,the fact that the [*1222] judicial modifications of tortdoctrines in Li and American Motorcycle were accordedsome retroactive application provides no support fordefendants' claim that the subsequent legislativemodification of a tort doctrine in Proposition 51 shouldapply retroactively.

Second, defendants' argument overlooks a related,but somewhat more fundamental, point. Because in theLi, supra, 13 Cal.3d 804, and American Motorcycle,supra, 20 Cal.3d 578, cases it was the court which madethe policy decision that the common law rules at issue inthose cases should be changed, the court was theappropriate body to determine whether or not the newrule should be applied retroactively and, if so, howretroactively. (See generally Gt. Northern Ry. v. SunburstCo. (1932) 287 U.S. 358 [77 L. Ed. 360, 53 S. Ct. 145, 85A.L.R. 254]; Peterson v. Superior Court (1982) 31 Cal.3d147, 151-153 [181 Cal. Rptr. 784, 642 P.2d 1305].) Inthe present case, by contrast, it was the electorate whomade the policy decision to implement a change in thetraditional common law rule, and thus it was the voterswho possessed the authority to decide the policy questionof whether the new statute should be appliedretroactively. Unlike in Li or in American Motorcycle, inthis case our court has no power to impose its own viewsas to the wisdom or appropriateness of applyingProposition 51 retroactively. Because, as we havediscussed above, the proposition is silent on theretroactivity [**608] question, Civil Code section 3 andwell-founded principles of statutory interpretationestablish that the statute must be interpreted to applyprospectively.

G.

Finally, defendants contend that Proposition 51should be applied retroactively by analogy to a line ofCalifornia cases, beginning with Tulley v. Tranor (1878)

53 Cal. 274, which have applied a number of statutoryamendments, which modified the legal measure ofdamages recoverable in an action for wrongfulconversion of personal or real property, to all trialsconducted after the effective date of the revised statute.(See also Feckenscher v. Gamble (1938)) 12 Cal.2d 482[85 P.2d 885]; Stout v. Turney (1978) 22 Cal.3d 718, 727[150 Cal. Rptr. 637, 586 P.2d 1228].) 24

24 In Tulley, supra, 53 Cal. 274, the question atissue was the application of the amended versionof Civil Code section 3336, setting forth themeasure of damages for wrongful conversion ofpersonal property. At the time the cause of actionin Tulley arose, section 3336 provided, inter alia,that "[the] detriment caused by the wrongfulconversion of personal property is presumed to bethe value of the property at the time ofconversion, with the interest from that time, or,where the action has been prosecuted withreasonable diligence, the highest market value ofthe property at any time between the conversionand the verdict, without interest, at the option ofthe injured party . . ." (italics added); prior to thetrial of the action, the section was amended todelete the emphasized portion of the statute.

In Feckenscher, supra, 12 Cal.2d 482, thestatutory change at issue involved a revision ofCivil Code section 3343, pertaining to themeasure of damages in a real estate fraud action.Although the opinion does not quote the versionof section 3343 in effect at the time the actionarose, it appears that at that point the statutepermitted a defrauded plaintiff to recover a sumequal to the difference between defendant'srepresentation as to the value of the propertywhich plaintiff received and the actual value ofthat property; as revised, section 3343 permittedrecovery of "the difference between the actualvalue of that with which the defrauded personparted and the actual value of that which hereceived . . . ."

Stout, supra, 22 Cal.3d 718, likeFeckenscher, supra, 12 Cal.2d 482, dealt with arevision of Civil Code section 3343, setting forththe measure of damages in a real estate fraudaction.

[*1223] [***652] To begin with, we believe

44 Cal. 3d 1188, *1221; 753 P.2d 585, **607;


defendants clearly overstate the scope of the Tulley lineof cases in suggesting that those decisions establish abroad rule that in California any statutory provisionwhich affects the amount of damages which an injuredperson may recover is presumptively retroactive. As wehave seen, the seminal decision in Aetna Cas. & SuretyCo., supra, 30 Cal.2d 388 -- decided long after Tulley,supra, 53 Cal. 274 -- applied the general presumption ofprospective application to a statutory provision whichincreased the damages or benefits recoverable in aworkers' compensation action. Similarly, the tworelatively recent MICRA cases noted above ( Bolen v.Woo, supra, 96 Cal. App. 3d 944; Robinson v. PediatricsAffiliates Medical Group, Inc., supra, 98 Cal. App. 3d907) applied the traditional principle of prospectiveapplication to a provision of MICRA which affected thedamages which a plaintiff could recover in a medicalmalpractice action. ( Civ. Code, § 3333.1 [modificationof collateral source rule].) Indeed, in our even morerecent decision in White v. Western Title Ins. Co., supra,40 Cal.3d 870, 884, this court, after noting that "'"[it] is[HN25] a general rule of construction . . . that, unless theintention to make it retrospective clearly appears from theact itself, a statute will not be construed to have thateffect"' [citations]," went on to observe that "[this] rule isparticularly applicable to a statute which diminishes orextinguishes an existing cause of action." (Italics added.)(Ibid.) Thus, it is not accurate to suggest that the ordinarypresumption of prospectivity is inapplicable to any statutewhich modifies damages; after all, Civil Code section 3,which codifies the common law presumption ofprospectivity with respect to provisions of the Civil Code,contains no exception for statutes relating to damages.

Instead, Tulley, supra, 53 Cal. 274, and its progenywere primarily concerned with an entirely separate issue.In Aetna Cas. & Surety Co., supra, 30 Cal.2d 388, ourcourt, in discussing Feckenscher [**609] v. Gamble,supra, 12 Cal.2d 482-- one of the cases in the Tulley line-- observed that in Feckenscher the court had found thatthe language of the statute in question showed that theLegislature intended the measure to be appliedretroactively, and that "the court was concerned mainlywith the question of whether the Legislature has power togive those laws such retroactive effect." (30 Cal.2d at p.393.) The Tulley decision, too -- after finding that thestatutory [*1224] language left "no reasonable doubtthat the amendment was intended to be applicable to acase in which the conversion had occurred prior to itspassage" (53 Cal. at p. 278) 25 -- focused primarily on the

question [***653] of whether the Legislature had theconstitutional authority to apply a new measure ofdamages to causes of action which accrued prior to theenactment of the new statute but which came to trial afterthe enactment, concluding that the Legislature did havesuch authority. (See 53 Cal. at pp. 279-280.) Thus, whileTulley and its progeny do provide support for the claimthat it is not necessarily unconstitutional for theLegislature to alter the measure of damages with respectto preexisting causes of action, those decisions do notpurport to reject the ordinary presumption ofprospectivity or to adopt a new legal standard fordetermining whether the Legislature intended a statute tobe retroactive or prospective; the decisions simply foundthat the language of the statutes at issue in those casesdemonstrated that the measures were intended to applyretroactively.

25 In reaching its conclusion on the statutoryinterpretation issue, the Tulley court relied on thefact that the section in question provided that"[the] detriment caused by the wrongfulconversion of personal property is presumed to be. . ." (italics added), reasoning that "[the]expression 'is presumed to be' indicates that it wasintended to establish a legal presumption tooperate, and which could only operate, at the trialof the cause . . . ." (53 Cal. at pp. 278-279.)

As we have noted above, of course, the questionwhether Proposition 51 may constitutionally be appliedretroactively is quite distinct from the question whetherthe proposition should be properly interpreted asretroactive or prospective as a matter of statutoryinterpretation. (12) The Aetna Cas. & Surety Co. decisionmakes it clear that the Tulley line of cases cannotproperly be interpreted as displacing ordinary principlesof statutory interpretation with regard to the question ofretroactivity. (See Aetna Cas. & Surety Co., supra, 30Cal.2d at pp. 393-394.) Other jurisdictions have alsogenerally applied the traditional presumption ofprospective application to statutes which modify theamount of damages recoverable in tort actions. (Seegenerally Annot. (1964) 98 A.L.R.2d 1105; Annot.(1977) 80 A.L.R.3d 583, 601-602.)

In any event, Proposition 51 is quite unlike thestatutory provisions at issue in Tulley, supra, 53 Cal. 274,or its progeny in a number of important respects. First ofall, unlike the statutes in those cases, Proposition 51 does

44 Cal. 3d 1188, *1223; 753 P.2d 585, **608;


not purport to alter either the measure or the total amountof damages that a plaintiff may recover for a particulartort. Although Proposition 51 does affect the amount ofnoneconomic damages a particular tortfeasor may berequired to pay when more than one tortfeasor isresponsible for an injury, and may have the effect ofreducing a plaintiff's ultimate recovery if one or moretortfeasors are insolvent, nothing in the measure evidencea legislative [*1225] objective of denying a plaintiff theopportunity to obtain full recovery for both economic andnoneconomic damages by joining all responsibletortfeasors and collecting the appropriate proportion ofnoneconomic damages from each tortfeasor. As we havediscussed above, however, retroactive application of themeasure would often have the effect of placing plaintiffsin pending actions in a worse position than plaintiffs infuture actions, since plaintiffs in pending actions may nolonger have the ability to join all potentially liabletortfeasors because of the statute of limitations. Thus,whereas application of the statutory provisions at issue inthe Tulley line of cases to both pending and future actionsat least accorded like treatment to current and futureplaintiffs, retroactive application in this case would nothave an equalizing effect, [**610] but would impose aunique detriment on one class of plaintiffs. Accordingly,it is more difficult to assume in this case, than it was inthe Tulley cases, that retroactive application wasintended.

Second, given the nature of the statutory revision atissue in the Tulley line of cases, it was unlikely that theparties in pending actions had taken any irreversibleactions or changed their position in reliance on thepreexisting measure of damages. By contrast, asdiscussed above, many plaintiffs and defendants inpending actions undoubtedly relied on the preexistingjoint and several liability rule in conducting theirlitigation prior to enactment of Proposition 51. On thisground, too, their is more reason in this case than in theTulley decisions to question whether a retroactiveapplication of the statute was intended.

Finally, it is impossible to ignore that the statutorychange at issue here, modifying a long-standing commonlaw doctrine applicable [***654] to all negligenceactions, represents a much more substantial andsignificant change in the law than the narrow statutorymodifications at issue in the Tulley cases. Because of thewidespread impact of retroactive application ofProposition 51, the need for an express statement of

legislative intent becomes all the more essential.

Accordingly, the Tulley line of cases does notsupport the retroactive application of Proposition 51. 26

26 Although defendants in this case have notembraced the argument, several amici contendthat Proposition 51 should be appliedretroactively on the ground that the measure is"procedural" rather than "substantive." The Courtof Appeal, while concluding that retroactiveapplication was warranted, nonetheless expresslyrejected this argument, reasoning that because theprovision could have a substantial effect on adefendant's liability or a plaintiff's recovery, "itssubstantive effect is evident."

We agree with the Court of Appeal thatretroactive application cannot be supported bycharacterizing Proposition 51 as merely a"procedural" statute. In addressing the questionwhether the retroactivity question may beresolved by denominating a statute as"substantive" or "procedural," the court in AetnaCas. & Surety, supra, 30 Cal.2d 388, 394,explained: "In truth, the [HN26] distinction relatesnot so much to the form of the statute as to itseffects. If substantial changes are made, even in astatute which might ordinarily be classified asprocedural, the operation on existing rights wouldbe retroactive because the legal effects of pastevents would be changed, and the statute will beconstrued to operate only in futuro unless thelegislative intent to the contrary clearly appears."As explained above, retroactive application ofProposition 51 to preexisting causes of actionwould have a very definite substantive effect onboth plaintiffs and defendants who, during thepending litigation, took irreversible actions inreasonable reliance on the then-existing state ofthe law. (See also 3 Harper et al., Law of Torts(2d ed. 1986) § 10.1, p. 7 ["The joint and severalliability imposed on joint tortfeasors orindependent concurrent tortfeasors producing anindivisible injury is a 'substantive liability' to payentire damages. This differs from what might bedescribed as a 'procedural liability' to be joinedwith other tortfeasors as defendants in a singleaction."].)

[*1226] H.

44 Cal. 3d 1188, *1224; 753 P.2d 585, **609;


Having reviewed defendants' numerous arguments,we think it may be useful, in conclusion, to take a lastlook at one particularly instructive precedent. In Winfreev. Nor. Pac. Ry. Co. (1913) 227 U.S. 296 [57 L. Ed. 518,33 S. Ct. 273], the United States Supreme Court wasfaced with a question of statutory interpretation verysimilar to the question which is before us today. In 1908,the Federal Employers Liability Act -- which grantedrailroad workers who had been injured in the course oftheir employment the right to bring a negligence action infederal court against the employer -- had been amendedto replace the doctrine of contributory negligence withcomparative negligence. In Winfree, the plaintiff claimedthat although the injury in that case had preceded the1908 act, the comparative negligence doctrine shouldnonetheless be applied because the matter had not gone totrial until after the act had gone into effect. The plaintiffmaintained that because even before the 1908 enactmentthe defendant railroad should have known that it could beheld liable if its negligence resulted in a worker's injury,there was no reason to deny the plaintiff the benefit of thenew comparative negligence rule.

In Winfree, the Supreme Court rejected the plaintiff'scontention and held that the [**611] statute could notproperly be applied to preexisting causes of action. Inreaching its conclusion, the court relied on "the [HN27]almost universal rule that statutes are addressed to thefuture, not to the past. They usually constitute a newfactor in the affairs and relations of men and should notbe held to affect what has happened unless, indeed,explicit words be used or by clear implication thatconstruction be required." (227 U.S. at p.301 [57 L. Ed.at p. 520].) Because the 1908 amendment "introduced anew policy and quite radically changed the existing law,"the court emphasized that it was particularly the kind ofstatute that "should not be construed as retrospective." (Id. at p. 302 [57 L. Ed. at p. 520].)

As we have explained, precisely the same principle isapplicable here. (6f) Proposition 51 "introduced a newpolicy" which will have a [*1227] broad effect on mosttort actions in California. Under Civil Code section 3 andthe general principles of statutory interpretation,[***655] if the measure was intended to be appliedretroactively, a provision directing retroactive applicationshould have been included. In the absence of such anexpress declaration of retroactivity, we conclude that theproposition must be interpreted as prospective.

V.

Because we have concluded that the Court of Appealerred in finding that Proposition 51 applies retroactivelyto this case, there is no need to reach the additionalissues, relating to the interpretation and application ofvarious portions of the proposition, which were discussedby the Court of Appeal.

The decision of the Court of Appeal is affirmedinsofar as it upholds the constitutionality of Proposition51, but is reversed insofar as it holds that Proposition 51applies to causes of action that accrued prior to theeffective date of the initiative measure.

Each party shall bear its own costs in theseproceedings.

[*1243contd] [SEE APPENDIX IN ORIGINAL]

CONCUR BY: KAUFMAN (In Part)

DISSENT BY: KAUFMAN (In Part)

DISSENT

[*1227contd] [**617] [***661] KAUFMAN, J.I concur in the majority's holding that Proposition 51, theFair Responsibility Act of 1986 (hereafter Proposition 51or the Act) violates neither the due process nor the equalprotection guarantees of the state or federal Constitutions.I respectfully dissent, however, from its holding thatProposition 51 does not apply to causes of action whichaccrued before the measure's effective date. I conclude,as did the Court of Appeal, that the Act was designed toapply to all cases yet to be tried, including the instantone. Therefore, I would affirm the judgment of the Courtof Appeal in its entirety.

Discussion

Because "nothing in the language of Proposition 51 .. . expressly indicates that the statute is to applyretroactively," the majority concludes that it must applyprospectively. (Majority opn. at p. 1209.) Hence, themajority holds that the modified rule of joint and severalliability enacted by the electorate shall not apply to any"cause of action" that accrued prior to the Act's effectivedate even if suit had not been filed before Proposition51's enactment.

[*1228] The majority grounds its holding on three

44 Cal. 3d 1188, *1226; 753 P.2d 585, **610;


fundamental assumptions: 1) that section 3 of the CivilCode requires an express statement of retroactive intent,2) that if the drafters of the Act had intended a retroactiveapplication, they would have said so in the proposition,and 3) that a retroactive intent may not legitimately beinferred from sources other than the proposition itself.Each of these assumptions, as I shall explain, is legallyincorrect and inconsistent with prior decisions of thiscourt.

Aside from these three erroneous legal assumptions,the majority justifies its holding on two additionalpractical considerations. Application of the Act to allcases untried on its effective date, the majority asserts,would result in: 1) unfairness to plaintiffs who may haverelied on the former rule of joint and several liability inmaking such tactical litigation decisions as whom to sue,and with whom and for how much to settle, and 2) anunwarranted "windfall" to insurance companies whichcomputed their pre-Proposition 51 premiums on the basisof the former law. As will appear from the discussionwhich follows, these asserted practical considerations arefor the most part incorrect factually and in any event areunsound as a basis for decision.

The presumption of prospectivity said to be codifiedin Civil Code section 3 does not require an expressstatement of retroactive intent, nor does the absence ofsuch a statement in the Act indicate that its drafters musthave intended that the presumption should apply. Theparamount consideration here, as in any other matter ofstatutory construction, is to ascertain the intent of theenacting body so as to effectuate the purpose of the law.

A wide variety of factors may be relevant to thedetermination of whether the enacting body intended anew statute to be given retroactive effect. As more fullyexplained below, two factors of particular relevance hereare the Act's history and its express remedial purposes.When these are considered in light of the relevant factsand decisional law, the conclusion becomes nearlyinescapable that the Act's purposes can be fully servedonly if it is applied to all cases not tried prior to itseffective date.

As to the practical ramifications of an application ofthe Act to cases not tried before its effective date, adispassionate analysis reveals the majority's concerns tobe largely groundless. Indeed the majority implicitlyconcedes as much by holding that the Act shall not applyto any cause of action that accrued prior to its effective

date regardless of whether the plaintiff has taken anysteps which could even arguably be construed as"reliance" on the former law.

I conclude, finally, by noting the strange logic thatwould attempt to justify a retrospective application of theradical restructuring of tort liability [*1229] which thiscourt effected in Li v. Yellow Cab Co. (1975) 13 Cal.3d804 [***662] [119 Cal. Rptr. 858, 532 P.2d 1226, 78A.L.R.3d 393], [**618] yet condemn as "unfair" aretrospective application of the relatively limited reformenacted by the electorate through Proposition 51. Theinconsistency does little credit to this court, or to theprinciple and appearance of judicial impartiality.

1. Legislative Purpose and the Presumption ofProspectivity

The first and essentially the only real point of themajority opinion -- intoned, however, with the drumbeatregularity of a Hindu mantra -- is that the "presumptionof prospectivity" is dispositive absent an expressstatement of legislative intent to the contrary. No matterhow often repeated, however, the point is profoundlymistaken. This court has held that the presumption ofprospectivity codified in Civil Code section 3 is relevant"only after, considering all pertinent factors, it isdetermined that it is impossible to ascertain thelegislative intent." (Italics added, In re Estrada (1965) 63Cal.2d 740, 746 [48 Cal. Rptr. 172, 408 P.2d 948];accord Fox v. Alexis (1985) 38 Cal.3d 621, 629 [214 Cal.Rptr. 132, 699 P.2d 309]; In re Marriage of Bouquet(1976) 16 Cal.3d 583, 587 [128 Cal. Rptr. 427, 546 P.2d1371]; Mannheim v. Superior Court (1970) 3 Cal.3d 678,686-687 [91 Cal. Rptr. 585, 478 P.2d 17].) As Estradacounseled, "That rule of construction . . . is not astraightjacket. Where the Legislature has not set forth inso many words what it intended, the rule of constructionshould not be followed blindly in complete disregard offactors that may give a clue to the legislative intent." (63Cal.2d at p. 746; accord In re Marriage of Bouquet,supra, 16 Cal.3d at p. 587; Mannheim v. Superior Court,supra, 3 Cal.3d at pp. 686-687.)This has long been therule. (See, e.g., Estate of Frees (1921) 187 Cal. 150, 156[201 P. 112] [retroactive operation may be "inferred . . .from the words of the statute taken by themselves and inconnection with the subject matter, and the occasion ofthe enactment . . . ." (Italics added.)].) And as this courthas recently reaffirmed, "An express declaration that theLegislature intended the law to be applied retroactively is

44 Cal. 3d 1188, *1228; 753 P.2d 585, **617;


not necessarily required." ( Fox v. Alexis, supra, 38Cal.3d at p. 629.)

The majority attempts to distinguish our holdings inMannheim, supra, 3 Cal.3d 678 and Marriage ofBouquet, supra, 16 Cal.3d 583, on the ground that thereis no evidence in this case to show "the retroactivityquestion was actually consciously considered during theenactment process." (Majority opn. at p. 1211, italicsadded.) None of our prior decisions, however, has eversuggested that Civil Code section 3 requires proof of a"conscious" legislative decision that a statute or initiativeshould operate retroactively. On the contrary, Estrada,Mannheim, Marriage of Bouquet and Fox, supra, 38Cal.3d 621, all emphatically reaffirm the traditional rulethat legislative intent may -- indeed must -- in the absenceof an express declaration be [*1230] "deduced" from a"wide variety" of "pertinent factors," including the"context of the legislation, its objective, the evils to beremedied, the history of the times and of legislation uponthe same subject, public policy, and contemporaneousconstruction . . . ." ( Fox v. Alexis, supra, 38 Cal.3d at p.629; In re Marriage of Bouquet, supra, 16 Cal.3d at p.591; Mannheim v. Superior Court, supra, 3 Cal.3d at pp.686-687; In re Estrada, supra, 63 Cal.2d at p. 746.)

The majority's fundamental misunderstanding ofthese basic principles leads it into other errors. Thus, themajority assumes that "the drafters of Proposition 51would have included a specific provision providing forretroactive application of the initiative measure if suchretroactive application had been intended." (Majorityopn. at p. 1212.) That is a false assumption. As we haveseen, where the language of the statute is silent, the courts[***663] may not automatically assume that the enacting[**619] body must have intended that the law shouldapply prospectively. On the contrary, the presumption ofprospectivity "[is] to be applied only after, consideringall pertinent factors, it is determined that it is impossibleto ascertain the legislative intent." ( In re Estrada, supra,63 Cal.2d at p. 746, italics added.)

Indeed, if we properly assume that the proponents ofProposition 51 were aware of the relevant law when theychose to remain silent, it is not unlikely that they assumedthe Act would apply to all cases not yet tried, and thushad no reason to expressly so provide. As the majoritynotes, statutes which modify the recoverability ofdamages have frequently been held by this court to beapplicable to cases not yet tried. (See, e.g. Tulley v.

Tranor (1878) 53 Cal. 274; Feckenscher v. Gamble(1938) 12 Cal.2d 482 [85 P.2d 885]; Stout v. Turney(1978) 22 Cal.3d 718 [150 Cal. Rptr. 637, 586 P.2d1228].) 1 Contrary to the majority's assumption,therefore, if anything may reasonably be inferred fromthe Act's silence (which I do not strongly advocate,inasmuch as the evidence of intent is controlling) it is thatthe Act should apply retrospectively to all cases not yettried.

1 Proposition 51, of course, does not actuallychange the amount of damages that plaintiffs maybe awarded, but merely modifies the allocation ofnoneconomic damages among tortfeasors. Thus, itconstitutes less of a change than a modification ofthe measure of damages so as to reduce theamount recoverable.

Nor does Bolen v. Woo (1979) 96 Cal. App. 3d 944[158 Cal. Rptr. 454], the "decision most closely on point"according to the majority, suggest otherwise. The issuein that case was whether an amendment to the Civil Code(§ 3333.1) which abrogated the "collateral source" rule inactions against health care providers appliedretroactively. The Bolen court noted that prior to passageof the legislation, the Legislative Counsel rendered anopinion which counseled that the statute "would fallwithin the proscription [*1231] against retroactiveapplication . . . ." (96 Cal. App. 3d at p. 958.) Thus,"[armed] . . . with . . . counsel's opinion on retroactivity . ..," the Bolen court concluded, the Legislature's silencecould be considered sufficient proof of its intent that thestatute should apply prospectively. ( Id. at p. 959.) Themajority's reliance on Bolen for the proposition that merelegislative silence triggers the presumption ofprospectivity is clearly misplaced.

2. Retroactive Intent and Remedial Purpose

Based on the mistaken notion that the presumption ofprospectivity governs absent an express declaration to thecontrary, the majority concludes that a retroactive intentmay not validly be inferred from other sources.However, the law is precisely to the contrary. We haveconsistently held that the presumption applies "only after,considering all pertinent factors, it is determined that it isimpossible to ascertain the legislative intent." ( In reEstrada, supra, 63 Cal.2d at p. 746, italics added.) As werecently reaffirmed in Fox v. Alexis, supra, 38 Cal.3d621, a "wide variety of factors may be relevant to oureffort to determine whether the Legislature intended a

44 Cal. 3d 1188, *1229; 753 P.2d 585, **618;


new statute to be given retroactive intent. The context ofthe legislation, its objective, the evils to be remedied, thehistory of the times and of legislation upon the samesubject, public policy, and contemporaneous constructionmay all indicate the legislative purpose." ( Id. at p. 629.)Two factors of particular relevance here are the "historyof the times" and the perceived "evils to be remedied" bythe Act.

The majority laudably prefaces its discussion ofProposition 51 with a "brief historical perspective."(Majority opn. at pp. 1196-1199.) The perspectiveprovided, however, consists almost entirely of priordecision of this court. There is, curiously, almost nomention of the dramatic context in which Proposition 51was conceived and adopted, of the so-called "liabilitycrisis" or [***664] the pitched battle among governmentagencies, [**620] business interests, insurers, andconsumer advocates over the origins of the perceivedcrisis or the efficacy of Proposition 51 to alleviate it; nomention of the increasingly common multimillion dollartort judgments or the alleged inequities of the"deep-pocket" rule that saddled public agencies and otherinstitutions with damages far beyond their proportion offault; no mention of the prohibitive insurance premiumsthat had forced numerous persons and entities fromdoctors to day-care centers, municipal corporations tocorporate giants, to either go "bare" or go out of business;and no mention, finally, of the electorate's overwhelmingapproval, by a vote of 62 percent to 38 percent, of thetort-reform measure designed to mitigate this crisis, theFair Responsibility Act of 1986, or Proposition 51.

An awareness of historical context illuminates morethan merely the spirit of the Act; it clarifies the letter ofthe law, as well. The text of the Act [*1232] beginswith an unusually forthright statement of "Findings andDeclaration of Purpose." The Act sets forth three specificfindings: "(a) The legal doctrine of joint and severalliability, also known as the 'deep pocket rule', has resultedin a system of inequity and injustice that has threatenedfinancial bankruptcy of local governments, other publicagencies, private individuals and businesses and hasresulted in higher prices for goods and services to thepublic and in higher taxes to the taxpayers. [para. ] (b) . .. Under joint and several liability, if ['deep pocketdefendants'] are found to share even a fraction of thefault, they often are held financially liable for all thedamage. The People -- taxpayers and consumers alike --ultimately pay for these lawsuits in the form of higher

taxes, higher prices and higher insurance premiums.[para. ] (c) Local governments have been forced to curtailsome essential police, fire and other protections becauseof the soaring costs of lawsuits and insurance premiums."

In light of these express findings, the Act explicitlydeclares that its purpose is "to remedy these inequities"by holding defendants "liable in closer proportion to theirdegree of fault. To treat them differently is unfair andinequitable." The Act "further [declares] that reforms inthe liability laws in tort actions are necessary and properto avoid catastrophic economic consequences for stateand local governmental bodies as well as privateindividuals and businesses."

Thus, it is clear from the plain language of the Act aswell as from the context in which it was adopted, thatProposition51 was conceived in crisis, and dedicated tothe proposition that the "'deep pocket rule' has resulted ina system of inequity and injustice." Its express goals wereno less than to avert "financial bankruptcy," to "avoidcatastrophic economic consequences," to stave off"higher taxes" and "higher prices," and to preserve"essential" public services.

In light of these express remedial purposes, theinference is virtually inescapable that the electorateintended Proposition 51 to apply as soon and as broadlyas possible. When the electorate voted to reform asystem perceived as "inequitable and unjust," theyobviously voted to change that system now, not in five orten years when causes of action that accrued prior toProposition 51 finally come to trial. When they voted toavert "financial bankruptcy" and "catastrophic economicconsequences, " to stave off "higher prices . . . and highertaxes," and to preserve essential public "services," theyclearly voted for immediate relief, not gradual reform fiveor ten years down the line. A crisis does not call forfuture action. It calls for action now, action across theboard, action as broad and as comprehensive as theConstitution will allow. It is clear that the purposes ofProposition 51 will be [*1233] fully served only if it isapplied to all cases not tried prior to its effective date.

The law not only permits, but compels such aninference. When legislation seeks to remedy an existinginequity or to impose a less severe penalty than under theformer law, the courts of this state have long held that theenacting body must have intended that the statute shouldapply to matters that occurred prior to its enactment.[***665] This concept found classic expression [**621]

44 Cal. 3d 1188, *1231; 753 P.2d 585, **619;


in In re Estrada, supra, 63 Cal.2d 740, where we held,notwithstanding the statutory presumption againstretroactivity, that when an amendatory statute lesseningpunishment becomes effective prior to the final date ofjudgment, the amendment applies rather than the statutein effect when the prohibited act occurred. ( Id. at pp.744-745.) The amendment in question had indicated alegislative determination that the former punishment wastoo severe. Therefore, we reasoned, the Legislature musthave intended that the new statute should apply to everycase to which it constitutionally could apply, for "to holdotherwise would be to conclude that the Legislature wasmotivated by a desire for vengeance," an objectivecontrary to civilized standards of justice. ( Id. at p. 745;accord People v. Durbin (1966) 64 Cal.2d 474, 479 [50Cal. Rptr. 657, 413 P.2d 433]; Holder v. Superior Court(1969) 269 Cal. App. 2d 314, 316-317 [74 Cal. Rptr.853].)

The courts have applied similar reasoning to statutesdesigned to remedy inequities in the civil law. "In theconstruction of remedial statutes . . . regard must alwaysbe had for the evident purpose for which the statute wasenacted, and if the reason of the statute extends to pasttransactions, as well as to those in the future, then it willbe so applied . . . ." ( Abrams v. Stone (1957) 154 Cal.App. 2d 33, 42 [315 P.2d 453], italics added; accordCoast Bank v. Holmes (1971) 19 Cal. App. 3d 581, 595[97 Cal. Rptr. 30].)

For example, In Harrison v. Workmen's Comp.Appeals Bd. (1974) 44 Cal. App. 3d 197 [118 Cal. Rptr.508], the court held that an amendment to the LaborCode which provided a cutoff date of five years foremployer exposure to claims of occupational injuryapplied retrospectively to injuries incurred prior to theamendment's effective date. After reviewing the"procedural morass," delays and expense attendant uponthe former law, the court concluded that the remedialpurpose of the law required a retrospective applicationnotwithstanding the absence of language in the statutemanifesting such an intent: "[The] amended legislationwas designed and introduced for the purpose ofameliorating the procedural morass which has faced theboard in multiple defendant cases. Thus, it is clear thatthe purpose of the amendment was to remedy animmediate situation which was imposing undue delay andexpense upon litigants and hardship upon disabledemployees . . . [The] object of that legislation will not beeffectuated unless [*1234] the board is permitted to

apply the amendment retrospectively as well asprospectively. We conclude that it was the intent of theLegislature that it be so applied." ( Id. at pp. 205-206,italics added.)

Like reasoning also supported the decision in City ofSausalito v. County of Marin (1970) 12 Cal. App. 3d 550[90 Cal. Rptr. 843],where the court held that anamendment to the Government Code which relaxed theprocedural standards governing local zoning proceedingsapplied retroactively. "It reasonably appears that theLegislature enacted section 65801 as a curative statutefor the purpose of terminating recurrence of judicialdecisions which had invalidated local zoning proceedingsfor technical procedural omissions. [Citations.] Thislegislative purpose would be fully served only if thesection were applied . . . regardless of whether theoffending procedural omission occurred before or afterthe section's enactment." ( Id. at pp. 557-558, italicsadded.)

In Andrus v. Municipal Court (1983) 143 Cal. App.3d 1041 [192 Cal. Rptr. 341], the issue was whether anamendment that repealed the statutory right to appealfrom an extraordinary writ proceeding in the superiorcourt challenging an action in the municipal court,applied to appeals filed before the effective date of thelegislation. Though the language of the amendment wassilent as to intent, the court concluded that the "obviousgoal of the amendment . . . suggests the logic ofretroactive application." ( Id. at p. 1046, italics added.)The former statute, the court noted, provided broaderappellate review [***666] of relatively trivial matters inthe [**622] municipal court than was accorded anaccused in the superior court. Therefore, "[to] denyretroactive application to the amendment," the courtconcluded, "is to subscribe to the notion that theLegislature desired to postpone the demise of aprocedural loophole which was inequitable to defendantsaccused of more serious offenses, [and] placedunnecessary and redundant burdens on the appellatecourts . . . . . We find that proposition absurd." ( Id. at p.1047, italics added.)

It is, therefore, a fairly prosaic rule which holds thata retrospective intent may be inferred from a specific andcompelling remedial purpose. The question before us iswhether such an inference is justified in this case. Asnoted earlier, Proposition 51 was designed with theexpress intent to "remedy . . . inequities" in the existing

44 Cal. 3d 1188, *1233; 753 P.2d 585, **621;


rule of joint and several liability, inequities whichthreatened grave and imminent harm to the public weal.Indeed, such reform was "necessary," the Act declared,"to avoid catastrophic economic consequences for stateand local governmental bodies as well as privateindividuals and businesses." (Italics added.) If this wasnot language evocative of "the logic of retroactiveapplication" ( Andrus v. Municipal Court, supra, 143 Cal.App. 3d at p. 1046), then nothing is.

[*1235] To deny retroactive application to the Actwould infer an intent to postpone the repeal of a rulewhich its drafters expressly condemned as inequitableand unjust. Indeed, it would infer an intent to perpetuatethat rule in potentially thousands of actions that accruedprior to the Act's effective date. Instead of a fair anduniform system of liability, it would infer that the draftersintended a dual system of justice, where the courts wouldapply a reformed rule of joint and several liability to oneset of defendants, and a discredited, inequitable rule toanother. I find that proposition patently untenable as wellas unjust.

Nevertheless, the majority insists that a retroactiveintent may not be inferred from a clear and compellingstatement of remedial purpose. The reason, according tothe majority, is that "[most] statutory changes are . . .intended to . . . bring about a fairer state of affairs" andtherefore "almost all statutory provisions and initiativemeasures would apply retroactively rather thanprospectively." (Majority opn. at p. 1213.) Furthermore,the majority asserts, this court rejected a similar argumentnearly 40 years ago in Aetna Cas. & Surety Co. v. Ind.Acc. Com. (1947) 30 Cal.2d 388 [182 P.2d 159]. Neitherof these contentions withstands scrutiny.

Aetna concerned the retroactivity of an amendmentto the Labor Code that increased workers' compensationbenefits. In support of a retrospective application of thelaw, the injured workers relied on the statutory mandatethat provisions of the Workers' Compensation Act are tobe "liberally construed" to extend their benefits to injuredworkers. ( Lab. Code, § 3203.) We rejected the workers'argument, however, holding that a retrospective intentcould not be "implied from the mere fact that the statuteis remedial and subject to the rule of liberalconstruction." (30 Cal.2d at p. 395.) The doctrine of"liberal construction" and the presumption ofprospectivity, we noted, were merely two canons ofconstruction, and "[it] would be a most peculiar judicial

reasoning," we observed, "which would allow one suchdoctrine to be invoked for the purpose of destroying theother." (30 Cal.2d at p. 395.)

Aetna therefore stands for the simple proposition thatone general canon of construction (that workers'compensation provisions are to be "liberally" construed)does not supersede another (that statutes are presumed toapply prospectively). The case at bar bears noresemblance to Aetna. Here the evidence relating toremedial intent consists not of abstract principlesunrelated to the statute at issue, but of clear andunmistakable statements of particular remedial purposesin the Act itself, and of similar indications implicit in thehistory of the Act. The cases and authorities previouslycited not only permit, but demand that we examine theseexpressions of remedial [***667] purpose for whateverclues they may provide on the question of retroactivity,[**623] and nothing in Aetna, supra, 30 Cal.3d 388,indicates otherwise.

[*1236] There is equally little merit to themajority's assertion that the Act's remedial purposes areirrelevant because many statutes could be described as"remedial." The argument suggests that courts arepowerless to weigh the probative value of the evidence ofremedial purpose in each case, and decide whether aninference of retrospective intent reasonably and logicallyfollows. Indeed, that is precisely the sort of functionwhich courts perform daily.

Moreover, the purpose here was not merelyremedial; it was to remedy a crisis. The question beforeus is whether, from that purpose, it may reasonably beinferred that the Act should apply to all cases not triedprior to its effective date. The evidence and our priordecisions overwhelmingly demonstrate that the answer tothat question is "yes."

3. The Fairness Issue

A. The Insurance "Windfall"

I am greatly troubled by the majority's apparentconcern that application of the Act to cases untried on theAct's effective date would result in an unwarranted"windfall" to insurance companies because theycomputed their pre-Proposition 51 premiums on the basisof the former rule of unlimited joint and several liability.A little perspective here is in order. In Li v. Yellow Cab,supra, 13 Cal.3d 804,this court abrogated the traditional

44 Cal. 3d 1188, *1234; 753 P.2d 585, **622;


all-or-nothing doctrine of contributory negligence andadopted in its place a rule of comparative negligence. Afew years later, in American Motorcycle Assn. v. SuperiorCourt (1978) 20 Cal.3d 578 [146 Cal. Rptr. 182, 578P.2d 899], we applied similar comparative faultprinciples to multiple tortfeasors, but retained thetraditional rule of joint and several liability. In each case,we held that the new rule "shall be applicable to all casesin which trial has not begun before the date this decisionbecomes final . . . ." (Italics added, Li v. Yellow Cab Co.,supra, 13 Cal.3d at p. 829; Safeway Stores, Inc. v.Nest-Kart (1978) 21 Cal.3d 322, 334 [146 Cal. Rptr. 550,579 P.2d 441] [applying retroactively the rule adopted inAmerican Motorcycle].)

By thus retrospectively eliminating the existingcomplete defense of contributory negligence and yetretaining joint and several liability, this court imposedsubstantially increased liability upon insurancecompanies under policies the premiums for which hadbeen calculated on the basis of the preexisting law. Yetwe expressed no concern in those decisions that insurancecompanies were thereby compelled to pay greatlyincreased sums with respect to risks they could not haveanticipated and for which they were not compensated.Nor did we decline to apply our abrupt change in the lawretrospectively because to do so would have been"unfair." On the contrary, we applied our rulings asbroadly as constitutionally permissible, notwithstanding[*1237] strenuous objections that such a radicalalteration of existing law required legislative rather thanjudicial action, because we were "persuaded that logic,practical experience, and fundamental justice counselagainst the retention of the doctrine renderingcontributory negligence a complete bar to recovery . . . ."( Li v. Yellow Cab Co., supra, 13 Cal.3d at pp. 812-813,italics added.)

Consistency and impartiality would appear todemand, at the very least, that this court view the fiscalconsequences to insurance companies of a retrospectiveapplication of Proposition 51, with the same cooldetachment it manifested in Li and American Motorcycle.Proposition 51, after all, was also designed to remedycertain perceived injustices in the existing tort liabilitysystem. If a retrospective application results in a"windfall" to insurers, what of it? Where the logic andjustice of a retroactive application is otherwisecompelling, I perceive no principled basis for holding tothe contrary simply because the insurance industry might

benefit.

Indeed, if the majority's assertion that a retroactiveapplication will result in savings [***668] to insurers iscorrect (the contention is premised on speculation, not onany hard evidence), it would appear to militate in[**624] favor rather than against retroactivity. Aspreviously discussed, one of the goals of Proposition 51was to slow the insurance-premium spiral by holdingdefendants liable for noneconomic damages only inproportion to their percentage of fault. As set forth in theAct's findings, the so-called insurance crisis "threatenedfinancial bankruptcy of local governments . . . higherprices for goods and services to the public and highertaxes to taxpayers." To the extent that the Act results inless exposure and smaller payouts than insurancecompanies might otherwise have anticipated, it onlyserves to further these goals.

The majority's inflated concern with insurance"windfalls" is thus largely misguided. That concern does,however, expose the unstated bias underlying themajority's opinion. Implicit in the majority's analysis isthe assumption that Proposition 51 was essentially aprivate-interest bill designed to offer aid and comfort tocorporate defendants; the broader its scope, therefore, thegreater the prejudice to plaintiffs. However, if we wereto judge the question before us strictly on a standard offairness to plaintiffs, there is no doubt that the balancewould fall squarely on the side of retroactivity. The Act'sstatement of findings makes clear that its purpose was notexclusively or even principally to aid insurancecompanies. Ultimately, it is plaintiffs, not insurers, whosuffer when tortfeasors lack insurance to pay judgments.It is the community as a whole, not the insuranceindustry, which suffers when day-care centers must closebecause they cannot afford insurance. Parochial interests,to be sure, supported the Act, but the People enacted it.[*1238] Their decision deserves an application equal tothe pressing social and economic concerns which inspiredit.

B. The "Reliance" Issue

Of course, in response to all of the arguments thatmilitate in favor of retroactivity, one may justly recallthat one party's gain is another party's loss. Proposition51 purported to remedy an "inequity" in the existingjoint-and-several doctrine by abrogating the rule as itapplied to noneconomic damages. Though the Actplaced no limit on the amount of noneconomic damages

44 Cal. 3d 1188, *1236; 753 P.2d 585, **623;


that plaintiffs could be awarded, it restricted plaintiffs'right to full recovery of such damages in some instancesby allowing recovery as to those damages fromdefendants only in proportion to their fault.

Courts may properly consider whether theretrospective application of a statute would affectsubstantial rights, or substantially alter rules on which theparties have detrimentally relied. ( Hoffman v. Board ofRetirement (1986) 42 Cal.3d 590, 593 [229 Cal. Rptr.825, 724 P.2d 511].) 2 The question presented, therefore,is whether an application of the Act to all cases not triedprior to its effective date would, as the majority asserts,unfairly deprive plaintiffs of "a legal doctrine on which[they] may have reasonably relied in conducting theirlegal affairs prior to the new enactment." (Majority opn.at p. 1194.)

2 Indeed, courts have long attempted todistinguish statutes that affect "substantive" rightsfrom those that affect merely "procedural" rightsin determining the propriety of retrospectiveoperation. (See, e.g. Abrams v. Stone, supra, 154Cal. App. 2d 33 at p. 41; Coast Bank v. Holmes,supra, 19 Cal. App. 3d at pp. 593-594.) Somecourts have even suggested that statutes whichaffect only "procedural" matters should not bedefined as "retroactive" when applied to eventsthat occurred prior to their effective date. (See,e.g. Coast Bank v. Holmes, supra, 19 Cal. App.3d at pp. 593-594; Morris v. Pacific Electric Ry.Co. (1935) 2 Cal.2d 764, 768 [43 P.2d 276].) Asthe majority correctly observes, however, thiscourt has long since rejected such a distinction.(See Aetna Cas. & Surety Co. v. Ind. Acc. Com.,supra, 30 Cal.2d at pp. 394-395.) The criticalissue is not the form of the statute but its"effects." ( Id. at p. 394.)

The majority concludes that an application of theAct to cases not tried before its effective date would placepersons who "acted in reliance on the old law in a worseposition than litigants under the new law." (Majority opn.at p. 1215.) Two examples of such [***669] detrimentalreliance are suggested. First, the majority opines thatplaintiffs whose causes of action arose before Proposition[**625] 51 "will often have reasonably relied on thepreexisting joint and several liability doctrine in decidingwhich potential tortfeasors to sue and which not to sue."(Majority opn. at p. 1215.) Thus, the majority suggests

that in reliance on the old joint and several rule, plaintiffs'attorneys "often" refrained from filing suit againstpotentially liable defendants in order to save their clientsthe "added expense" of service of process. (Majorityopn. at p. 1215.)

[*1239] There is no evidence that this occurred inany substantial number of cases. On the contrary, generalexperience teaches that plaintiffs usually sue everyonewho might be liable for damages. Indeed, in most casesthe former rule of joint and several liability encouragedplaintiffs to name as many defendants as possible becausethe entire judgment could be recovered from any onedefendant, no matter how minimally liable. In theunlikely event, however, that a potentially liabledefendant was actually omitted from a complaint inreliance on the former rule, it obviously constituted atactical decision by the plaintiff to take advantage of apart of the old rule that was entirely unfair to marginallyliable, deep-pocket defendants, a part of the veryunfairness Proposition 51 was intended to remedy.

The other "reliance" factor cited by the majorityconcerns settlements. The majority suggests thatplaintiffs in pre-Proposition 51 cases "may frequentlyhave settled with some defendants for a lesser sum thanthey would have accepted if they were aware that theremaining defendants would only be severally liable fornoneconomic damages." (Majority opn. at p. 1216.) Amoment's thought reveals that this contention, like thefirst, contains far less than meets the eye.

First, the argument again runs counter to commonexperience. In a case with multiple defendants of varyingdegrees of solvency, plaintiffs rarely settle first with the"deep-pocket" defendants in order to pursue thedefendants who are effectively judgment-proof. Wherethe "deep pocket" defendant does settle first, however, itis not likely to be for substantially less than the case isworth, since there is little likelihood of substantialrecovery from the remaining defendants.

Second, it is well to recall exactly what Proposition51 provides. It repeals the joint and several rule only asapplied to noneconomic damages, i.e. pain and suffering,emotional distress, loss of consortium and the like. ( Civ.Code, § 1431.2, subd. (b)(2).) It has no effect whatsoeveron the joint and several rule as applied to the morecommon tort damages -- medical expenses, loss ofearnings, loss of property, costs of repair or replacement,and loss of employment or business opportunities. ( Civ.

44 Cal. 3d 1188, *1238; 753 P.2d 585, **624;


Code, § 1431.2, subd. (b)(1).) Thus, whatever reliance asettling plaintiff may have placed on the former rule ofjoint and several liability, that reliance remains largelyundisturbed by the enactment of Proposition 51.

Finally, it is clear that with or without the formerjoint and several rule, a good faith settlement (at leastsince our decision in Tech-Bilt, Inc. v. Woodward-Clyde& Associates (1985) 38 Cal.3d 488 [213 Cal. Rptr. 256,698 P.2d 159]) must fall within a reasonable range of thesettlor's proportionate share of liability. ( Id. at p. 499.)As this court further recognized in Tech-Bilt, everysettlement involves a multitude of factors which couldreasonably [*1240] impel a plaintiff to settle for lessthan the settling defendant's proportionate share of fault.For example, "'a disproportionately low settlement figureis often reasonable in the case of a relatively insolvent,and uninsured, or underinsured, joint tortfeasor.'" ( Id. atp. 499, quoting from Stambaugh v. Superior Court (1976)62 Cal. App. 3d 231, 238 [132 Cal. Rptr. 843].) Otherfactors include the "recognition that a settlor should payless in settlement than he would if he were found liableafter a trial," as well as the obvious avoidance [***670]of the risk, costs and inconvenience of trial. (Ibid.)

[**626] We do not mean to suggest by this that theformer "deep pockets" rule may not have influencedsome plaintiffs to settle for less than a defendant'sproportionate share of noneconomic damages. To theextent any such settlement was for substantially less thanthe settling defendant's estimated range of liability,however, it was unfair to nonsettling defendants andshould not have been sanctioned by the trial court in thefirst place. ( Tech-Bilt, supra, 38 Cal.3d at p. 499.)Moreover, when the former rule is viewed as only oneout of a myriad of factors that may have legitimatelyinfluenced plaintiffs' decisions to settle for less than adefendant's proportionate share of liability, the questionof reliance becomes rather hopelessly speculative. Therole that the former joint-and-several rule may haveplayed in the overall decisionmaking process is certainlyfar less significant than the majority implies.

In light of the foregoing, it is no surprise that themajority itself studiously ignored the "reliance" argumentwhen formulating its holding in this matter. For themajority broadly holds that the Act shall not apply to any"cause of action" that accrued prior to its effective date,regardless of whether plaintiffs have manifested even theslightest potential reliance on the former law. If the

"reliance" argument had any merit, the majority surelywould have tailored its decision to hold, at a minimum,that the Act would be inapplicable only to cases filedprior to its effective date. Its failure to do so reveals themakeweight nature of its "reliance" and "unfairness"arguments.

In sum, I am not persuaded by the majority'sassertion that a retrospective application of Proposition51 would result in a significant diminution of plaintiffs'rights or expectations under the former law. 3 On thecontrary, it is clear that the purposes of the Act and theinterests of the public as a whole would be served only byan application of the Act to all cases not yet tried prior toits effective date.

3 Needless to say, we find no merit in plaintiffs'related contention that a retrospective applicationof the Act would result in an unconstitutionaldeprivation of vested rights.

I would note, finally, that our earlier discussion of Liv. Yellow Cab Co., supra, 13 Cal.3d 804 and AmericanMotorcycle Assn. v. Superior Court, [*1241] supra, 20Cal.3d 578, also bears directly on the issue of fairness toparties who might have relied on the preexisting law. Asthe majority acknowledges, our decision to apply theprinciples of Li and American Motorcycle retrospectivelyaffected substantial rights and expectations arising out oftransactions that occurred before those decisions. Therelatively limited reform effected by Proposition 51 palesin comparison. Yet the same court that unhesitatinglydetermined to apply retroactively the sweeping changeseffected by Li, now purports to be offended when thesame broad application is urged for the limited reformcontained in Proposition 51. It is a puzzlement.

It is an irony, as well. For although, as the majoritynotes, Li, supra, 13 Cal.3d 804, "served to reduce muchof the harshness of the original all-or-nothing commonlaw rules, the retention of the common law joint andseveral liability doctrine" in American Motorcycle, supra,20 Cal.3d 578, nevertheless perpetuated other inequities.Proposition 51 "was addressed," the majority observes, tothese remaining problems. (Majority opn. at pp.1197-1198.) If the inequities in the rule of contributorynegligence compelled a retrospective application of Li,notwithstanding its impact on settled expectations, surelythe injustice inherent in the unlimited rule of joint andseveral liability compels an equally broad application ofProposition 51.

44 Cal. 3d 1188, *1239; 753 P.2d 585, **625;


The majority, however, concludes otherwise, arguing thatbecause Li, supra, 13 Cal.3d 804, was a judicial decision"the court was the appropriate body to determine whetheror not the new rule should be [**627] appliedretroactively . . . ." (Majority opn. at p. 1222.) No onesuggests otherwise. The point, however, concerns thefairness of the court's decision to apply Li retroactively,not its power to do so.

The majority also attempts to distinguish Li on theground that "statutes operate . . . prospectively, whilejudicial decisions operate retrospectively." (Majority opn.at p. 1221.) This not only misstates the general rule asapplied to statutes (the intent of the enacting bodygoverns the interpretation of statutes, not the presumptionof prospectivity), but distorts the rule as to judicialdecisions, as well. For judicial decisions are notautomatically governed by a mindless "presumption" ofretroactivity any more than statutes are governed by apresumption of prospectivity. As this court carefullyexplained in Peterson v. Superior Court (1982) 31 Cal.3d147, 152 [181 Cal. Rptr. 784, 642 P.2d 1305], "[The]question of retroactivity [of judicial decisions] dependsupon considerations of fairness and public policy." ( Id.at p. 152; accord Safeway Stores, Inc. v. Nest-Kart,supra, 21 Cal.3d at p. 333; In re Marriage of Brown(1976) 15 Cal.3d 838, 850 [126 Cal. Rptr. 633, 544 P.2d561, 94 A.L.R.3d 164].) As we further explained, theissue comprehends such considerations as the "extent ofthe public reliance upon [*1242] the former rule," the"purpose to be served by the new rule," and the "effect onthe administration of justice of a retroactive application."(Id. at pp. 152-153; see also Isbell v. County of Sonoma(1978) 21 Cal.3d 61, 74-75 [145 Cal. Rptr. 368, 577 P.2d188]; Neel v. Magana, Olney, Levy, Cathcart & Gelfand

(1971) 6 Cal.3d 176, 193 [98 Cal. Rptr. 837, 491 P.2d421].)

If considerations of fairness, public policy and thepurposes of the new rule announced in Li, supra, 13Cal.3d 804, compelled its retroactive application,notwithstanding the extensive reliance placed by insurersand others upon the former rule, surely the same broadapplication of Proposition 51 is compelled here. It is astrange logic indeed which can justify the retrospectiveapplication of a virtual revolution in the common law ofcivil liability, yet later deny similar scope to an enactmentof the electorate designed to redress certain lingeringinequities in that selfsame revolution. Perhaps thecommentators will be able to reconcile these differingresults. I cannot.

For the foregoing reasons, I would affirm thedecision of the Court of Appeal in its entirety. 4

4 Because of its conclusion that Proposition 51does not apply to the case at bar, the majoritydoes not reach the additional issues decided by theCourt of Appeal and briefed by the parties,relating to the apportionment of damages tononjoined defendants, and the meaning of"economic" damages under Proposition 51. Iwould affirm the Court of Appeal's well reasonedholding that under Proposition 51, damages mustbe apportioned among the "universe" oftortfeasors, as well as its holding that "economic"damages include future medical expenses andfuture loss of earnings.

44 Cal. 3d 1188, *1241; 753 P.2d 585, **626;


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