supreme court case no. s084616 4th civil no. … court case no. s084616 4th civil no. e022011 in the...
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Supreme Court Case No. S0846164th Civil No. E022011
IN THE SUPREME COURT
OF THE STATE OF CALIFORNIA
RUSSELL GLEN DAY,
Plaintiff and Appellant,vs.
CITY OF FONTANA,COUNTY OF SAN BERNARDINO
Defendants and Respondents.
Appeal from the San Bernardino County Superior CourtHonorable John P. Wade, Judge
San Bernardino County Superior Court Case No. SCV 273682
OPPOSING BRIEF ON THE MERITS
RINOS, SHEPHARD & MARTIN, LLPDimitrios C. Rinos (SBN 59919)
825 North Parkcenter Drive, Suite 110Santa Ana, California 92705
(909) 784-1551
GREINES, MARTIN, STEIN & RICHLAND LLPKent L. Richland (SBN 51413)
Dana Gardner Adelstein (SBN 158725)9601 Wilshire Boulevard, Suite 544
Beverly Hills, California 90210-5207(310) 859-7811
Attorneys for Defendant and RespondentCITY OF FONTANA
TABLE OF CONTENTS
INTRODUCTION
STATEMENT OF FACTS AND OF THE CASE
LEGAL DISCUSSION
Page
1
3
6
I. THE PLAIN LANGUAGE OF CIVIL CODE SECTION 3333.4INDICATES THAT IT APPLIES TO THE PRESENT ACTIONFOR NUISANCE AND THE DANGEROUS CONDITION OFPUBLIC PROPERTY. 6
A.
B.
Section 3333.4 Applies To "Any Action To RecoverDamages Arising Out Of The Operation Or Use Of AMotor Vehicle"-Language Which, On Its Face, IncludesThe Present Action For Damages Resulting FromPlaintiff s Use Of His Motorcycle.
Section 3333.4's Reference to "Liability or UninsuredMotorist Insurance" Does Not Suggest That the VotersIntended the Statute to Apply Only to Cases of VehicularNegligence.
6
11
II. THE LEGISLATIVE HISTORY OF CIVIL CODE SECTION3333.4 CONFIRMS THAT IT APPLIES TO THE PRESENTACTION FOR NUISANCE AND THE DANGEROUSCONDITION OF PUBLIC PROPERTY. 13
CONCLUSION
A.
B.
C.
Applying Section 3333.4 To Plaintiffs Causes Of ActionFor Nuisance And The Dangerous Condition Of PublicProperty Furthers The Voters' Goal of "Restor[ing] BalanceTo Our Justice System."
Applying Section 3333.4 To Plaintiffs Causes Of ActionFor Nuisance And The Dangerous Condition Of PublicProperty Furthers The Voters' Goal Of Reducing LawsuitsAgainst State And Local Governments, While A Failure ToApply It Would Lead To A Result Contrary To ThatExpress Goal.
Applying Section 3333.4 To Plaintiffs Causes Of ActionFor Nuisance And The Dangerous Condition Of PublicProperty Furthers The Voters' Goal of "Making InsuranceMore Affordable For Everyone."
14
22
25
27
TABLE OF AUTHORITIES
PageCases
Adler v. Department of Motor Vehicles(1991) 228 Cal.App.3d 252 9
Agnew v. Sate Bd. of Equalization(1999)21 Cal.4th 310 12
Allen v. Sully-Miller Contracting Co.(2000) 80 Cal.AppAth 245 5
Amwest Surety Ins. Co. v. Wilson(1995) 11 Cal.4th 1243 21
Bank of the West v. Superior Court(1992) 2 Cal.4th 1254 11
Buttram v. Owens-Corning Fiberglas Corp.(1997) 16 Cal.4th 520 18, 19
Cabral v. Los Angeles County Metropolitan Transportation Authority(1998) 66 Cal.AppAth 907 9
Campbell v. Zolin(1995) 33 Cal.AppAth 489 15, 18
Central Pathology Services Medical Clinic, Inc. v. Superior Court(1992) 3 Cal.4th 181 1, 10
City of Sacramento v. State of California(1990) 50 Cal.3d 51 11
City of South El Monte v. Southern Cal. Joint Powers Ins. Authority(1995) 38 Cal.AppAth 1629 26
Cocking v. State Farm Mut. Automobile Ins. Co.(1970) 6 Cal.App.3d 965 9
Day v. City of Fontana(1999) 76 Cal.AppAth 293 4,5,22
Delaney v. Balcer(1999) 20 Cal.4th 23 10
Delaney v. Superior Court(1990) 50 Cal.3d 785 7,8, 14,21
Droeger v. Friedman, Sloan & Ross(1991) 54 Cal.3d 26 8
11
Evange1atos v. Superior Court(1988) 44 Cal.3d 1188
Fein v. Permanente Medical Group(1985) 38 Cal.3d 137
Garcia v. McCutchen(1997) 16 Cal.4th 469
Hodges v. Superior Court(1999) 21 Cal.4th l09
8
25
12
1,8, 11, 14, 18, 19,20,26
International Business Machines Corp. v. Truck Ins. Exch.(1970) 2 Cal.3d 1026
ITT World Communications, Inc. v. City and County of San Francisco(1985) 37 Cal.3d 859
Jess v. Herrmann(1979) 26 Cal.3d 131
King v. Meese(1987) 43 Cal.3d 1217
Lussier v. San Lorenzo Valley Water Dist.(1988) 206 Cal.App.3d 92
Mercury Ins. Group v. Superior Court(1998) 19 Cal.4th 332
National American Ins. Co. v. Coburn(1989) 209 Cal.App.3d 914
Newson v. City of Oakland(1974) 37 Cal.App.3d 1050
Pacific Gas & Electric Co. v. County of Stanislaus(1997) 16 Cal.4th 1143
Padilla v. Meese(1986) 184 Cal.App.3d 1022
Paterno v. State of California(1999) 74 Cal.App.4th 68
9-10
6
15, 16
15
20
15, 16
9,10
20
6
9
20
People ex rel. Lungren v. Superior Court(1996) 14 Cal.4th 294
Preferred Risk Mutual Ins. Co. v. Reiswig(1999) 21 Cal.4th 208
Santa Clara County Local Transportation Authority v. Guardino(1995) 11 Cal.4th 220
11l
6, 13,20,21
10
8,13
State Farm Fire & Cas. Co. v. Camara(1976) 63 Cal.App.3d 48
Times Mirror Co. v. Superior Court(1991) 53 Cal.3d 1325
United Services Automobile Assn. v. United States Fire Ins. Co.(1973) 36 Cal.App.3d 765
Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital(1994) 8 Cal.4th 100
Statutes
Civil Code section 1431.2
Civil Code section 3333.4
Code of Civil Procedure section 364
Vehicle Code section 16000 et seq.
Texts
Webster's Collegiate Diet,(10th ed. 1994)
Other Authorities
9
13
9
25
8
1 and passim
10
15
8
2,4,16,17,19,23,24,25
Anderson, Factors Commonly Found In Negligent Highway Design andMaintenance Cases and Methods to Reduce Risk(ABA Tort and Insurance Practice Section, Nov. 7, 1986)Municipal Liability: The Search for the Deep Pocket 24
California Ballot Pamp.Text of Proposed Law, Gen. Elec. (Nov. 5, 1996)
Historical and Statutory Notes to 1989 Legislation66A West's Ann. Veh. Code (Supp. 2000)
Young, Intergovenmental Pooling: Scope and Practices(PRIMA 1994)
IV
15
26
INTRODUCTION
In Hodges v. Superior Court (1999) 21 Ca1.4th 109, this Court
characterized insured drivers as Proposition 213's "principal intended
beneficiaries" and said that limiting automobile insurance claims was one of
the initiative's "primary aim[s]." (Id. at p. 115.) From this analysis,
plaintiff would have the Court conclude that insured drivers were
Proposition 213 's only intended beneficiaries and that limiting automobile
insurance claims was the initiative's only aim. The language and legislative
history of Proposition 213, however, make it clear that the voters' goals
were not nearly so limited. Indeed, limiting automobile insurance claims is
just one of several goals reflected in the initiative's language and legislative
history. The Court of Appeal correctly applied Proposition 213 to this case
because doing so furthered each of those goals.
First, by its plain language, Proposition 213 (codified in relevant part
as Civil Code section 3333.4), applies to "any action to recover damages
arising out the operation or use of a motor vehicle." (Emphasis added.}"
While this language is not dispositive of the initiative's reach (Hodges v.
Superior Court, supra, 21 Ca1.4th at pp. 113-114), it suggests as a starting
point that the electorate intended Proposition 213 to apply broadly to all
actions "originat[ing], grow[ing] or flow[ing] from" the use of a motor
vehicle. (Central Pathology Services Medical Clinic, Inc. v. Superior Court
(1992) 3 Ca1.4th 181, 187-188.) The present action, which seeks damages
for the injuries plaintiff suffered as a result of riding his motorcycle, clearly
comes within this plain language.
1/ All further statutory references are to the Civil Code unless otherwiseindicated.
1
Second, while the ballot materials disclose that reducing auto
insurance claims was one of the voters' goals in passing Proposition 213, it
was not their only goal. Indeed, the ballot materials make clear that
reducing automobile insurance claims was part of the voters' more general
aim of "restor[ing] balance to our justice system" by preventing uninsured
drivers-who potentially or actually cause harm for which they cannot
pay-from collecting "huge monetary awards for 'pain and suffering'" from
law abiding citizens who, through insurance or self-insurance, take financial
responsibility for any injuries they may cause, and who also frequently pick
up the tab for injuries caused by uninsured drivers. (Cal. Ballot Pamp., Text
of Proposed Law, Gen. Elec. (Nov. 5, 1996) pp. 50, 102.) Applying
Proposition 213 in this case is consistent with the voters' goal of a balanced
justice system. Like insured drivers, property owners suffer direct
economic injury when uninsured drivers do harm to their property for which
they cannot pay, such as by driving vehicles into traffic signals or street
lights or by damaging public or private roads. And, like drivers, property
owners must either buy insurance to pay for that harm or self-insure.
Applying Proposition 213 to claims against property owners thus restores
balance to the system in a manner specifically contemplated by the voters
who passed Proposition 213.
Third, the ballot materials indicate that a particular aim of the voters
in passing Proposition 213 was to reduce the number of lawsuits filed
against state and local governments, resulting in "an unknown savings to
state and local governments." (Ballot Pamp., supra, p. 49.) Failing to apply
Proposition 213 to this type of case would have the opposite effect. As this
case illustrates, the owner of the property on or near which an automobile
accident occurs is always a potential defendant in resulting litigation. If
these property owners are excluded from Proposition 213's coverage and
2
thus are the only source of noneconomic damages available to uninsured
drivers, collision-related claims against property owners are likely to
increase dramatically. And, since state and local governments are most
often the owners of the property on which automobile accidents occur-and
since they are virtually always the owners of traffic signals and signs that
can be blamed for traffic accidents-they are likely to bear the brunt of this
increased litigation. Permitting uninsured drivers to recover noneconomic
damages from property owners, therefore, is likely to increase, rather than
to decrease, the volume of litigation against state and local governments.
In short, Proposition 213's language and legislative history indicate
that the voters intended the statute to apply to a case such as the present
one, where plaintiff seeks to recover damages from two public entities
responsible for maintaining the street alleged to have been a cause of the
motorcycle accident in which plaintiffwas injured. This Court therefore
should affirm the Court of Appeal's determination that Proposition 213
barred plaintiffs recovery of noneconomic damages from the City of
Fontana and the County of San Bernardino.
STATEMENT OF FACTS AND OF THE CASE
On September 1, 1991, plaintiff Russell Day was injured when the
motorcycle he was driving was struck by a car driven by defendant William
Honda. (AA 54-55.) Plaintiff filed a complaint for damages against
William Honda, Irving Schwartz (the owner ofproperty adjacent to the
intersection where the accident took place), the City of Fontana and the
County of San Bernardino on August 28,1992. (AA 1-7A.) As against the
City and the County, plaintiff alleged causes of action for nuisance and the
dangerous condition of public property, asserting that the intersection where
3
the accident occurred, which was jointly owned and maintained by the City
and the County, constituted a danger to vehicles "because of overgrown
shrubs, trees, bushes and other associated vegetation surrounding the
northeast corner of said intersection, creating a vision obstruction for
motorists traveling through the intersection." (AA 5.)
On November 5, 1996, the voters passed Proposition 213, which
prohibits uninsured drivers from collecting noneconomic damages, such as
for pain, suffering and physical impairment, in any action arising out of the
use or operation of a motor vehicle. (Ballot Pamp., supra, p. 102.) The
County thereafter filed a motion in limine, in which the City joined, to
exclude any damages for pain and suffering because had been uninsured at
the time of the accident. (AA 31-60,61.) The trial court granted the
motion. (AA 93-94.)
On June 18, 1997, a jury found that plaintiff had suffered $454,574
in economic damages and allocated responsibility for those damages
between William Honda, the City of Fontana and the County of San
Bernardino. (AA 100-101.) The trial court entered judgment on the basis
of that verdict on November 19,1997 (AA 152-153), and plaintiff appealed
(AA 158).
The Court of Appeal issued a published opinion affirming the
judgment of the trial court on November 18, 1999. (Day v. City ofFontana
(1999) 76 Cal.AppAth 293.) In its opinion, the appellate court concluded
that applying Proposition 213 to actions for negligence or the dangerous
condition of public property "is consistent with Proposition 213's express
goal ... [of] 'restoring balance to our justice system'" because it would
relieve property owners of a portion of the financial burden that uninsured
drivers impose on them. (Id. at pp. 302-303.) It also concluded that public
entities such as the City and the County were among those persons whom
4
the voters expressly intended Proposition 213 to benefit. (Id. at p. 301.) It
thus held that Proposition 213 was properly applied to this case.
Plaintiff filed a Petition for Review on December 27,1999. On
February 16,2000, this Court granted review as to a single issue: Whether
Civil Code section 3333.4, the portion of Proposition 213 applicable to this
case, applies to an action against a public entity for nuisance or the
dangerous condition of public property.s
'1:./ At the time this Court granted review in the present case, no othercourt had considered this issue. Subsequently, the Second AppellateDistrict, Division Seven, considered the related issue of Proposition 213'sapplicability to an action against a private construction company forpremises liability. (Allen v. Sully-Miller Contracting Co. (2000)80 Cal.App.4th 245.) That court concluded that Proposition 213 did notapply to the case before it, a conclusion that the City of Fontana believeswas erroneous for many of the reasons explained infra.
5
LEGAL DISCUSSION
I.
THE PLAIN LANGUAGE OF CIVIL CODE SECTION
3333.4 INDICATES THAT IT APPLIES TO THE
PRESENT ACTION FOR NUISANCE AND THE
DANGEROUS CONDITION OF PUBLIC PROPERTY.
A. Section 3333.4 Applies To "Any Action To Recover
Damages Arising Out Of The Operation Or Use Of A
Motor Vehicle"-Language Which, On Its Face, Includes
The Present Action For Damages Resulting From
Plaintiff's Use Of His Motorcycle.
The goal of statutory construction is "to ascertain and effectuate the
intent ofthe [lawmakers]." (Pacific Gas & Electric Co. v. County of
Stanislaus (1997) 16 Ca1.4th 1143, 1152.) "Ordinarily, the words of the
statute provide the most reliable indication oflegislative intent" (ibid.);
thus, courts begin the task of statutory interpretation by examining the
language ofthe statute itself (People ex rel. Lungren v. Superior Court
(1996) 14 Ca1.4th 294, 301), interpreting that language '''in accordance with
the natural and ordinary meaning of its words'" (ITT World
Communications, Inc. v. City and County ofSan Francisco (1985)
37 Ca1.3d 859, 865).
On its face, section 3333.4 applies to the present action for nuisance
and the dangerous condition of public property. In relevant part, it
provides:
6
"[I]n any action to recover damages arising out of the
operation or use of a motor vehicle, a person shall not recover
non-economic losses to compensate for pain, suffering,
inconvenience, physical impairment, disfigurement, and other
nonpecuniary damages if ... [t]he injured person was the
operator of a vehicle involved in the accident and the operator
cannot establish his or her financial responsibility as required
by the financial responsibility laws of this state." (Civ. Code,
§ 3333.4, subd. (a).)
The initial clause of this section, "any action to recover damages,"
indicates that section 3333.4 is not limited in its application to any
particular form or type of legal action, i.e., that it was not intended to apply
only to negligence actions, for example. As this Court has explained, "the
word 'any' means without limit and no matter what kind." (Delaney v.
Superior Court (1990) 50 Ca1.3d 785, 798.) Thus, the Court held in
Delaney v. Superior Court that an initiative that provided that a newsperson
"shall not be adjudged in contempt ... for refusing to disclose any
unpublished information" could not be read to apply only to unpublished
information that a newsperson obtained in confidence. (Id. at pp. 796-799.)
The Court said:
"Such a construction might be possible if the voters had used
the phrase 'unpublished information' without the modifier
'any.' They did not do so. The use of the word 'any' makes
clear that Article I, section 2(b) applies to all information,
regardless of whether it was obtained in confidence.... To
restrict the scope of article I, section 2(b) to confidential
information would be to read the word 'any' out of the
7
section. We decline to do so." (Id. at p. 798, emphasis
added.)
(See also Santa Clara County Local Transportation Authority v. Guardino
(1995) 11 Ca1.4th 220,237 [where ballot materials told voters that an
initiative "gives back your right to vote on any tax increases proposed by
your local governments," voters would not have had reason to believe that
the initiative did not apply to a class of special taxes]; Droeger v. Friedman,
Sloan & Ross (1991) 54 Ca1.3d 26, 38 ["The term 'any' (particularly in a
statute) means 'all' or 'every"']; Evangelatos v. Superior Court (1988) 44
Ca1.3d 1188, 1209, fn. 13 [initial clause of Civil Code section 1431.2,
which states that the provision applies "(i)n any action," "negates any
implication that the new several liability rule was to apply only to a specific
category of tort cases"].)
Since the statute thus clearly applies to all actions "arising out of the
operation or use of a motor vehicle," the critical question for purposes of
this case is what that category of actions includes. Although the phrase is
"not pellucid" in all contexts (Hodges v. Superior Court, supra, 21 Ca1.4th
at p. 113), the courts of appeal consistently have held that the "operation or
use of a motor vehicle" is a broad term that includes (but is not limited to)
driving. One court recently explained:
"The term 'operate' is an ordinary word meaning 'to cause to
function.' (Webster's Collegiate Diet. (10th ed. 1994)
p. 815.) A person operates a motor vehicle when the person
causes the motor vehicle to function in the manner for which
the automobile is fitted. The term 'use' is also an ordinary
word. It means to employ, put into action or service, or
8
utilize." (Cabral v. Los Angeles County Metropolitan
Transportation Authority (1998) 66 Cal.App.4th 907, 913.)
Thus, the court said,
"Although driving is included within the concepts of
operation and use of a vehicle, operation is a broader concept
than driving and does not require that the vehicle be in motion
or even have the engine running. (Padilla v. Meese (1986)
184 Cal.App.3d 1022, 1028, fn. 1.) Operation includes
stopping, parking on the highway, and other acts fairly
regarded as a necessary incident to the driving of the vehicle.
(Ibid.) Operation of a motor vehicle includes opening the
driver's door of a parked vehicle to exit, accidentally striking
a passing bicyclist. (Adler v. Department ofMotor Vehicles
(1991) 228 Cal.App.3d 252,258.)" (Id. at pp. 913-914.)
Moreover,
"Use is an even broader concept than operation. It extends to
any activity utilizing the vehicle. (United Services
Automobile Assn. v. United States Fire Ins. Co. (1973)
36 Cal.App.3d 765, 768-769; State Farm Fire & Cas. Co. v.
Camara (1976) 63 Cal.App.3d 48, 53-54.) Putting chains on
a stopped vehicle constitutes a use of the vehicle. (Cocking v.
State Farm Mut. Automobile Ins. Co. (1970) 6 Cal.App.3d
965,971.) So does parking, leaving the doors open, and
failing to set the parking brake. (National American Ins. Co.
v. Coburn (1989) 209 Cal.App.3d 914,920.) Loading and
unloading a vehicle are uses of the vehicle. (International
9
Business Machines Corp. v. Truck Ins. Exch. (1970) 2 Ca1.3d
1026, 1029.)" (Id. at p. 914.)
"Operation or use of a motor vehicle" thus is an extremely broad
term that on its face necessarily includes riding a motorcycle. Therefore,
even if section 3333.4 merely prohibited recovery of noneconomic damages
by uninsured drivers who are injured "while operat[ing] or us[ing] a motor
vehicle," it would by its plain language apply to the present case. In fact,
however, the statute applies even more broadly, to actions "arising out
of'-i.e., "originat[ing], grow[ing] or flow[ing] from"-the use or
operation of a motor vehicle. (See Central Pathology Services Medical
Clinic, Inc. v. Superior Court, supra, 3 Ca1.4that pp. 187-188.)JL There thus
can be no doubt that, at least according to its plain wording, the statute
'2/ While this Court has cautioned that "arising out of' does not have a"single, definitive, meaning" (Delaney v. Baker (1999) 20 Ca1.4th 23,40), itconsistently has held that the phrase "arising out of' broadens a statute'sreach. Thus, for example, in Central Pathology Services Medical Clinic,Inc. v. Superior Court, the Court held that a provision of the Medical InjuryCompensation Reform Act that restricted recovery ofpunitive damages inactions "arising out ofthe professional negligence of a health careprovider" also applied to actions for intentional neglect by health careproviders. (Central Pathology Services Medical Clinic, Inc. v. SuperiorCourt, supra, 3 Ca1.4th at p. 192.) The Court explained that the relevantquestion "is not ... [w]hether professional negligence ... includesintentional torts," but rather "[is] whether a plaintiffs action for damages isone'arising out ofthe professional negligence of a health care provider. '"(Id. at p. 191.) Thus, the Court said, although intentional neglect by healthcare providers is not itself an act ofprofessional negligence, it nonethelessarises out ofprofessional negligence because it is "directly related to themanner in which professional services were provided." (Id. at p. 192; seealso Preferred Risk Mutual Ins. Co. v. Reiswig (1999) 21 Ca1.4th 208,218[although an equitable indemnity action that arose from allegations ofprofessional negligence was not an actionfor professional negligence, itnevertheless was "based upon . . . professional negligence" within themeaning of Code of Civil Procedure section 364; emphasis added].)
10
applies here, where plaintiffwas injured in a collision that occurred while
he was riding his motorcycle.v
B. Section 3333.4's Reference to "Liability or Uninsured
Motorist Insurance" Does Not Suggest That the Voters
Intended the Statute to Apply Only to Cases of Vehicular
Negligence.
The conclusion that section 3333.4 applies to this case is not
undermined, as plaintiff contends, by Civil Code section 3333.4,
subdivision (b), which provides that "an insurer shall not be liable, directly
±I This conclusion is not inconsistent with this Court's analysis in Hodgesbecause the Court repeatedly has held that statutory language may beambiguous in the context of one case and wholly without ambiguity in thecontext of another. (See, e.g., City ofSacramento v. State ofCalifornia(1990) 50 Ca1.3d 51, 71 ["Though section 9(b) seems plain on its face, wefind a latent ambiguity in context"; emphasis added]; Bank ofthe West v.
Superior Court (1992) 2 Ca1.4th 1254, 1265 [determination of ambiguitymust be made in the context of the facts of the case and not in the abstract].)In Hodges, the Court examined section 3333.4 in the context of a defect thatonly "became manifest" during the "operation or use" of the vehicle (21Ca1.4th at p. 113); specifically, plaintiff claimed the car's gas tank wasdefectively designed because it exploded when the car was rear-ended byanother vehicle (id. at p. 112). Because there was no necessary causalconnection because the injury and the "operation or use" of thevehicle-the gas tank presumably would have exploded even if the car hadbeen parked when it was hit from behind-it is not surprising that the Courtfound the statutory language ambiguous in that factual context. Here, bycontrast, there was a necessary causal relationship between the plaintiffsoperation of his motorcycle and the accident for which he claimed the Citywas responsible. Moreover, the legal context of this case is different fromHodges as well; as explained in Section II, post, applying section 3333.4 tothis case does not lead to the absurdity identified by Hodges in the productsliability context, and indeed is fully consistent with the statute's purposeand legislative history.
11
or indirectly, under a policy of liability or uninsured motorist insurance to
indemnify [an uninsured driver] for non-economic losses." According to
plaintiff, this section indicates that the voters intended the statute to apply
only to liability "incurred through the negligent operation ofvehicles."
(Opening Brief on the Merits ["OBM"] 8, 10.) Nothing in this
section implies such a limitation, however. To the contrary, the section's
reference to "liability ... insurance" indicates that the voters intended the
section to apply broadly whenever liability insurance of any kind may be
affected, not just where automobile liability insurance may be affected.
Plaintiffs claim that section 3333.4 applies only to actions for
vehicular negligence also is undermined by a comparison of that section
with section 3333.3, the portion of Proposition 213 applicable to fleeing
felons. Unlike section 3333.4, which applies to "any action to recover
damages arising out of the operation or use of a motor vehicle," section
3333.3 applies more narrowly, to "any action for damages based on
negligence." (Emphasis added.) Interpreting section 3333.4 to apply only
to negligence actions thus reads section 3333.3 's reference to negligence
out of the statute, violating this Court's command to "harmonize" two
statutes that touch upon a common subject "so that no part of either
becomes surplusage." (Garcia v. McCutchen (1997) 16 Ca1.4th469,476;
see also Agnew v. Sate Bd. ofEqualization (1999) 21 Ca1.4th310, 330
["whenever possible, significance must be given to every word in pursuing
the legislative purpose, and the court should avoid a construction that makes
some words surplusage"].)
For all the reasons discussed above, a common sense reading of
section 3333.4 indicates that the statute applies where an uninsured plaintiff
is injured as a consequence of riding his motorcycle. Therefore, absent
12
evidence in the ballot materials suggesting that the voters understood
otherwise, this Court should apply section 3333.4 to the present case.
II.
THE LEGISLATIVE HISTORY OF CIVIL CODE
SECTION 3333.4 CONFIRMS THAT IT APPLIES TO
THE PRESENT ACTION FOR NUISANCE AND THE
DANGEROUS CONDITION OF PUBLIC PROPERTY.
Although section 3333.4's plain language indicates that the statute
applies in the present case, that is not the end of the inquiry. "[W]hile
ambiguity is generally thought to be a condition precedent to interpretation,
this is not always the case. 'The literal meaning of the words of a statute
may be disregarded to avoid absurd results or to give effect to manifest
purposes that, in light of the statute's legislative history, appear from its
provisions considered as a whole.'" (Times Mirror Co. v. Superior Court
(1991) 53 Ca1.3d 1325, 1334, fn. 7.) Thus, although the words ofa statute
are the best indicia of the statute's meaning, "'[t]he words ... must be read
in context, considering the nature and purpose of the statutory enactment.'"
(People ex ref. Lungren v. Superior Court, supra, 14 Ca1.4th at p. 301.)
In the case of a statute enacted by the voters, "the ballot summary
and arguments and analysis presented to the electorate in connection with a
particular measure may be helpful in determining the probable meaning of
uncertain language." (Id. at p. 306.) However, this Court has cautioned
that "[b]allot arguments are not legal briefs and are not expected to cite
every case the proposition might affect." (Santa Clara County Local
Transportation Authority v. Guardino, supra, 11 Ca1.4th at p. 237.) Thus,
"[w]e cannot conclude that, by emphasizing one purpose, perhaps the
13
primary purpose of the measure, the argument misled voters into thinking
[the primary purpose] was the only purpose." (Delaney v. Superior Court,
supra, 50 Ca1.3d at pp. 802-803.)
To determine whether section 3333.4 applied to product liability
actions brought against automobile manufacturers, this Court in Hodges
looked to the ballot materials to answer two questions: (1) Would applying
the statute to causes of action for product liability further the statute's
purposes; and (2) Are automobile manufacturers among the persons whom
the voters intended the statute to benefit? (Hodges v. Superior Court,
supra, 21 Ca1.4th at pp. 115-117.) Because the Court concluded that the
answers to both questions was "no," it held that section 3333.4 did not
apply to the case before it. The result in the present case is very different,
however, both because applying the statute to actions for nuisance and the
dangerous condition ofpublic property furthers the statute's purposes, and
because public entities are among the statute's intended beneficiaries. The
legislative history thus compels the conclusion that section 3333.4 applies
to this case.
A. Applying Section 3333.4 To Plaintiffs Causes Of Action
For Nuisance And The Dangerous Condition Of Public
Property Furthers The Voters' Goal of "Restor[ing]
Balance To Our Justice System."
When California voters passed Proposition 213 in November of
1996, they did so against a backdrop of a nearly seventy-year effort to
require drivers to be financially responsible for injuries they caused while
14
driving.f Although the form of the Financial Responsibility Law (now
codified as Vehicle Code section 16000 et seq.) changed over time, its
essential purpose remained the same: To "assure 'monetary protection to
that ever changing and tragically large group of persons who ... suffer
grave injury through the negligent use of [the] highways by others. '" (Jess
v. Herrmann (1979) 26 Ca1.3d 131, 138-139; see also Mercury Ins. Group
v. Superior Court (1998) 19 Ca1.4th 332, 341.)
Despite the state's increased enforcement efforts, a large percentage
of California drivers-thirty percent, according to Proposition 213's
~ Under the initial version of the law, passed in 1929, drivers wererequired to be "financially responsible" for any injuries they caused butwere required to furnish proof of insurance only when they were at fault inan accident that caused either bodily injury or property damage. (King v.Meese (1987) 43 Ca1.3d 1217, 1220.) Failure to furnish proof of insuranceresulted in the suspension of driving privileges only if the driver was notable to post a bond in the amount determined by the Department of MotorVehicles to be sufficient to meet the likely liability. (Ibid.) By 1974,drivers were required to post a bond or file proof of financial responsibilitywhenever they were involved in accidents that resulted in bodily injury orproperty damage, and by 1984, the law allowed peace officers to requestproof of financial responsibility whenever they issued notices to appear forany alleged moving violation. (Id. at pp. 1220-1221.) Failure to furnishsuch proof subjected the driver to a fine and suspension ofhis or herdriver's license. (Id. at p. 1221.)
In 1989, the Legislature amended the Financial Responsibility Lawonce again, again to expand the law's reach. (Campbell v. Zolin (1995)33 Cal.AppAth 489,493-494.) Until 1989, only an accident that occurredon a public street or highway qualified as a "reportable accident" triggeringa driver's duty to establish compliance with the state's financialresponsibility laws; effective in 1989, however, the Legislature amendedsection 16000 to include "off-highway accidents." (Ibid.) The expressintention of the amendment, according to the findings and declarations thataccompanied it, was "to strengthen enforcement actions against uninsuredmotorists and to provide additional remedies for the victims of uninsuredmotorist accidents." (Ibid.; see also Historical and Statutory Notes to 1989Legislation, 66A West's Ann. Veh. Code (Supp. 2000) foll. § 16000, p. 3.)
15
backers-remained uninsured in 1996. (See Ballot Pamp., supra, p. 50.)
As a result, those drivers' victims did not receive monetary protection from
harm, as the financial responsibility laws intended, but instead were left
with '" empty claim[s] against ... judgment-proof defendant[s]. '" (Jess v.
Hermann, supra, 26 Ca1.3d at p. 139.)
Proposition 213 was presented to the voters as a way of eliminating
this perceived inequity in the existing law. The measure's proponent's told
voters:
"It's against the law to drive under the influence of alcohol or
drugs in California. In most cases it's also against the law to
drive without insurance. Unfortunately, thousands ofpeople
ignore these laws and get rewardedfor it. Drunk drivers and
uninsured motorists can sue law-abiding citizens for huge
monetary awards in addition to being compensated for
medical and other expenses. [~] These huge awards cost
Californians who play by the rules and obey the law $327
million every year! That's not fair! ... Law-abiding citizens
should not be punished for living responsibly! The system
needs to be fixed. Illegal behavior shouldn't be rewarded.
People who break the law must be held accountable for their
actions." (Ballot Pamp., supra, p. 50.)
The need to reform an unfair system also dominated the "Findings
and Declaration of Purpose" of the proposed law. It said:
"Uninsured motorists, drunk drivers, and criminal felons are
law breakers and should not be rewarded for their
irresponsibility and law breaking. However, under current
laws, uninsured motorists and drunk drivers are able to
16
recover unreasonable damages from law-abiding citizens as a
result of drunk driving and other accidents . . .. [,-r]
Californians must change the system that rewards individuals
who fail to take essential personal responsibility." (Ballot
Pamp., supra, p. 102.)
The clear theme of the ballot materials thus was that the tort system
was badly out of balance: Although uninsured drivers did not compensate
the "person[s], business[es], or government[s]" that they harmed when they
were at fault in an automobile accident, they nonetheless recovered "huge
monetary awards" from those same persons or entities if responsibility for
the accident was reversed. (Id. at pp. 49, 50.) This system, voters were
told, was in need of "critical reforms" to "stop lawbreaker from profiting
from their crimes." (Id. at pp. 51, 50.)
How would Proposition 213 reform this broken system? According
to the Argument in Favor of Proposition 213, the initiative "will prevent
drunk drivers, convicted felons and uninsured motorists from collecting
these huge monetary awards, while still protecting their right to be
compensated for medical and out-of-pocket expenses." (Id. at p. 50,
emphasis omitted.) The Analysis of the Legislative Analyst contained a
similar message; it said:
"This measure would prohibit the recovery of noneconomic
losses in certain car accidents. Specifically, an uninsured
driver or a driver subsequently convicted of driving under the
influence of alcohol or drugs (' drunk drivers ') at the time of
the accident could not sue someone at fault for the accident
for noneconomic losses." (Ballot Pamp., supra, p. 49,
emphasis omitted.)
17
The intent of the voters who passed Proposition 213 thus was not
simply to reduce their automobile insurance rates, as plaintiff contends
(OBM 9-10), but to effect a more sweeping reform of a system that allowed
uninsured drivers to collect from a liability pool to which they did not
contribute.s While voters were told that a reduction in their automobile
insurance premiums would be one effect of this reform, nothing in the
ballot materials suggested that that would be the initiative's only effect.
Applying Proposition 213 to actions for nuisance and the dangerous
condition of public property is consistent with the voters' goal of restoring
balance to the justice system. As the courts have recognized, the financial
responsibility laws are intended to insure that the victims of negligent
drivers are compensated not only for bodily injury, but also for "damage to
'vehicles, buildings, or other property located on public and private
property. '" (Campbell v. Zolin, supra, 33 Cal.AppAth at pp. 495-496,
emphasis omitted.) Drivers who violate the financial responsibility laws,
however, do not pay for the damage they cause either to people or to
property. Thus, for example, when an uninsured driver damages public or
private property, such as roads, traffic signals and street lights, the
property's owner must bear the entire cost of necessary repairs. Similarly,
when an uninsured driver and a property owner jointly injure an insured
driver, the property owner pays all of the insured driver's economic
damages, while the uninsured driver pays none. (See Buttram v.
§! This Court did not suggest otherwise in Hodges. While it said therethat reducing automobile insurance was "a primary aim of Proposition213," it did not suggest that it was the initiative's only aim, and indeed itmade clear that reducing automobile insurance was part of the voters' moregeneral goal of "'restoring balance to our justice system. '" (21 Ca1.4th atpp. 115, 117, emphasis added.)
18
Owens-Corning Fiberglas Corp. (1997) 16 Ca1.4th 520, 527 [joint
tortfeasors jointly and severally liable for all economic damages].)
The logic of Proposition 213 thus compels the conclusion that
uninsured drivers, whose failure to procure automobile insurance causes
direct economic harm to property owners, should not be able to collect
noneconomic damages from property owners. Indeed, a contrary result
would directly undermine this express goal because it would permit
uninsured drivers to continue to collect noneconomic damages from a
significant class of "law-abiding citizens" who "play by the rules" and
"obey the law" but who are nonetheless the victims of uninsured drivers'
refusal to do the same. (Ballot Pamp., supra, p. 50.)
Contrary to plaintiffs suggestion (OBM 10), actions for nuisance
and the dangerous condition of public property thus are not analogous to
product liability actions for purposes of applying Proposition 213. As this
Court explained in Hodges, applying Proposition 213 to product liability
actions would give automobile manufacturers "a windfall" because
uninsured drivers do not cause automobile manufacturers any direct or
indirect economic harm. (Hodges v. Superior Court, supra, 21 Ca1.4th at
pp. 115, 118.) Property owners are very differently situated, however,
because, as demonstrated above, uninsured drivers do cause them direct
economic harm. Applying Proposition 213 to actions for nuisance and the
dangerous condition of public property thus does not give property owners a
"windfall," but instead restores a "balance to our justice system" in a
manner specifically contemplated by the voters who passed
Proposition 213.
Property owners differ from vehicle manufacturers in another
significant respect as well. As this Court explained in Hodges and
elsewhere, for reasons of public policy California has long held
19
manufacturers strictly liable for injuries caused by defective products.
(Hodges v. Superior Court, supra, 21 Ca1.4th at p. 118.) This Court has
never recognized the same public policy goals with respect to actions for
nuisance or the dangerous condition of public property unless
ultrahazardous activities are involved. (Lussier v. San Lorenzo Valley
Water Dist. (1988) 206 Ca1.App.3d 92, 104.) And, while plaintiff correctly
suggests that the public has an interest in preventing the torts alleged
against the public entities here (OBM 28-30), that interest is no greater than
its interest in preventing vehicular negligence. (Paterno v. State of
California (1999) 74 Ca1.AppAth 68, 109 ["under certain circumstances,
the worlds of nuisance and negligence overlap and the two become merely
alternative legal theories for redressing what is really the invasion of a
single primary right: the right to the undisturbed enjoyment of one's
property and one's land"]; Newson v. City ofOakland (1974) 37 Ca1.App.3d
1050, 1054 [strict liability does not apply to actions for dangerous condition
ofpublic property].) The public policy concerns that recommend against
applying Proposition 213 to product liability actions thus have no
application here.
The conclusion that Proposition 213 applies to the present case is not
undermined, as plaintiff suggests finally (OBM 11-12), by the absence of a
specific reference in the ballot materials to liability for dangerous real
property or nuisance. According to plaintiff, because the argument in favor
of Proposition 213 focused on actions between two drivers, voters had "no
reason to believe" that Proposition 213 would also affect nuisance and
premises liability claims. (Ibid.) This Court has never limited an
initiative's reach to the cases specifically discussed in the ballot materials,
however. For example, it held in People ex rel. Lungren v. Superior Court,
supra, 14 Ca1.4th 294, that faucet water was a "source of drinking water"
20
within the meaning of Proposition 65 even though the ballot materials had
not explicitly said so. The Court explained:
"The Legislative Analyst did not suggest that all the effects
and ramifications of the Act were being set forth in his brief
summation..'. . In light of the explicit language and purpose
of the statute, and the generality and brevity of the Legislative
Analyst's commentary, the latter cannot plausibly be viewed
as implicitly limiting the scope of the statute in the manner
advocated by defendants." (Id. at p. 308.)
Similarly, in Delaney v. Superior Court, supra, 50 Ca1.3d 785, 802
803, the Court held that Proposition 5, which provided that a reporter "shall
not be adjudged in contempt for 'refusing to disclose any unpublished
information," applied to both confidential and nonconfidential information
even though the ballot materials had emphasized the need for
confidentiality. The Court explained:
"The most reasonable inference is that the proponents chose
to emphasize (in the limited space available for ballot
arguments) what they perceived as the greatest need. We
cannot conclude that, by emphasizing one purpose, perhaps
the primary purpose of the measure, the argument misled
voters into thinking confidentiality was the only purpose."
(Ibid.)
(See also Amwest Surety Ins. Co. v. Wilson (1995) 11 Ca1.4th 1243
[Proposition 103 applied to surety insurance even though the ballot
materials had not specifically told the voters that it would have that effect].)
21
In the present case, therefore, the fact that the ballot materials
highlighted Proposition 213 's effect on automobile insurance rates suggests
no more than that the voters considered a reduction in insurance rates to be
one of the initiative's primary effects. Because applying Proposition 213 to
the present case is consistent with the more general goals highlighted in the
ballot materials, the Court should not hesitate to conclude that it applies
here.
B. Applying Section 3333.4 To Plaintiff's Causes Of Action
For Nuisance And The Dangerous Condition Of Public
Property Furthers The Voters' Goal Of Reducing
Lawsuits Against State And Local Governments, While A
Failure To Apply It Would Lead To A Result Contrary To
That Express Goal.
As the Court of Appeal noted, the electorate expressly considered the
effect that Proposition 213 would have on public entities and concluded that
public entities, like private citizens, should benefit from the initiative's
application. (Day v. City ofFontana, supra, 76 Cal.AppAth at p. 301.Yli
Indeed, the ballot materials were very explicit that state and local
governments would profit from Proposition 213's passage. Voters were
told:
1/ By attaching significance to the Legislative Analyst's analysis ofProposition 213 's anticipated effect on state and local government, the Cityis not, as plaintiffhas suggested, suggesting "a blanket exemption for publicentity liability to uninsured drivers for non-economic damages."(OBM 12.) The City is suggesting, however, that in determining whetherProposition 213 applies to this case, the Court must consider whether thatapplication furthers the electorate's goals of reducing the number oflawsuits filed against state and local governments.
22
"Under existing law, someone who has suffered injury in a
car accident may sue the person, business, or government at
fault for the injury in order to recover related losses. These
losses can include both economic losses (such as lost wages,
medical expenses, and property damage) and noneconomic
losses (such as pain and suffering). [~] This measure would
prohibit the recovery of noneconomic losses in certain car
accidents. Specifically, an uninsured driver or a driver
subsequently convicted of driving under the influence of
alcohol or drugs ('drunk drivers') at the time of the accident
could not sue someone at fault for the accident for
noneconomic losses." (Ballot Pamp., supra, p. 49, emphasis
added and omitted.)
As a result, voters were told, state and local governments would face
fewer lawsuits brought by uninsured drivers who would be restricted in
their "ability ... to sue for injury losses in the above situations." (Ibid.)
Thus, "there would be an unknown savings to state and local governments
as a result of avoiding these lawsuits." (Ibid.)§£
Applying Proposition 213 to actions against public entities for
nuisance and the dangerous condition ofpublic property clearly is
§../ Plaintiff suggests that the Legislative Analyst's reference to reducedlitigation against state and local governments addressed only the eliminationof liability to fleeing felons and thus that it has no significance to thepresent case. (OBM 14.) Plaintiffs contention is not supported by thepublic record, however. Indeed, the Legislative Analyst said thatProposition 213 would reduce lawsuits against state and local governmentsby "[r]estricting the ability ofpeople to sue for injury losses in the abovesituations"-i.e., when a driver is injured either while driving withoutinsurance or while fleeing a crime scene. (Ballot Pamp., supra, p. 49,emphasis added.)
23
consistent with the voters' goal of reducing the volume of litigation against
state and local governments. Failing to do so, moreover, is likely to have
the opposite result, increasing, rather than decreasing, public entity liability.
As this case demonstrates, the owner of the land on or near which an
automobile accident occurs is always a potential defendant in the resulting
litigation..2{ If uninsured drivers can collect noneconomic damages only
from property-owner defendants, those drivers are more likely to pursue
property owners in order to recover some portion of their noneconomic
damages. And since state and local governments are most often the owners
of the land on or near which automobile accidents occur-and they are
virtually always the owners of traffic signals and signs that can be blamed
for accidents-they are likely to be the hardest hit by this change in
litigation patterns. Permitting uninsured drivers to recover noneconomic
damages from property owners, thus, will not relieve voters of the burden of
paying "huge monetary awards" to "people who break the law" (id. at
p. 50), but instead will simply change the source through which voters pay
those monetary awards, from their automobile insurance to their tax dollars.
2.1 The anecdotal evidence provided by this case is confirmed by a 1986report to the American Bar Association, which reported that the legalliability of governments for death and injuries resulting from street andhighway defects had been steadily rising over the last decade and that in1983 alone, claims of this type filed against the state of California exceeded$2.1 billion. (Anderson, Factors Commonly Found In Negligent HighwayDesign and Maintenance Cases and Methods To Reduce Risk (ABA Tortand Insurance Practice Section, Nov. 7, 1986) Municipal Liability: TheSearch For The Deep Pocket, p. 45.)
24
C. Applying Section 3333.4 To Plaintiff's Causes Of Action
For Nuisance And The Dangerous Condition Of Public
Property Furthers The Voters' Goal of "Making
Insurance More Affordable For Everyone."
Finally, as noted above, the ballot materials clearly told voters that
Proposition 213 would reduce insurance premiums. (Id. at pp. 50-51.)
While the initiative's proponents suggested that automobile insurance
would be affected most dramatically, they did not suggest that Proposition
213 would affect only automobile insurance. Instead, they told voters that
Proposition 213 would have widespread benefit by "making insurance more
affordable for everyone." (Id. at p. 51)
Applying Proposition 213 to the present action is consistent with the
electorate's goal of reducing insurance premiums. As this Court has
explained in the context of the Medical Injury Compensation Reform Act,
reducing an insured's potential liability for noneconomic damages is
rationally related to the objective of reducing insurance costs. (Fein v.
Permanente Medical Group (1985) 38 Ca1.3d 137, 159.) Exempting actions
from the limitation on noneconomic damages, on the other hand, threatens
this objective of reducing insurance costs by "resurrecting the ... instability
associated with unlimited noneconomic damages and increasing the overall
cost of ... insurance to account for these larger recoveries." (Western
Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8 Ca1.4th
100, 112.) Thus, applying Proposition 213 to actions against owners of
property is rationally related to reducing property insurance costs, and
exempting them from coverage by Proposition 213 would have precisely the
opposite effect.
25
Contrary to plaintiffs assertions (OBM 10), actions for nuisance and
the dangerous condition ofpublic property thus differ significantly from
product liability actions for purposes of applying Proposition 213. As this
Court noted in Hodges, uninsured drivers affect neither the automobile
insurance rates nor the "other insurance rates" of automobile manufacturers.
(Hodges v. Superior Court, supra, 21 Ca1.4th at p. 115.) Applying
Proposition 213 to product liability actions thus would result in "a windfall"
for those manufacturers. (Id. at p. 118.) Applying Proposition 213 to
actions for nuisance and the dangerous condition ofpublic property does
not create a windfall for property owners, however, because uninsured
drivers do have a direct effect on their insurance rates.
Moreover, if Proposition 213 were applied only to cases that
implicate the automobile insurance pool, as plaintiff suggests (OBM 10),
many public entities would not share to any extent in the reduction of
insurance premiums that the voters intended. This is so because, rather than
purchase automobile insurance, many public entities purchase combined
coverage for a variety of risks, such as automobile liability, general liability,
workers' compensation and public officials liability. (Young,
Intergovernmental Pooling: Scope and Practices (PRIMA 1994) pp. 16-18.)
Many others, because they are unable to procure insurance of any kind, self
insure or join municipal self-insurance pools. (See generally City ofSouth
El Monte v. Southern Cal. Joint Powers Ins. Authority (1995) 38
Cal.AppAth 1629, 1633.) Limiting Proposition 213 to cases that implicate
the automobile insurance pool, then, will have the effect of excluding public
entities from the reduction in insurance rates that the voters contemplated.
26
CONCLUSION
For all the foregoing reasons, this Court's analysis in Hodges, as
well as the language and legislative history of Proposition 213, strongly
suggest that Proposition 213 does apply to plaintiffs action against the City
and County for nuisance and dangerous condition ofpublic property. This
Court therefore should affirm the Court of Appeal's conclusion that
plaintiff cannot recover noneconomic damages from the City and County.
Dated: May 24, 2000
RINOS, SHEPHARD & MARTIN, LLPDimitrios C. Rinos
GREINES, MARTIN, STEIN & RICHLAND LLPKent L. RichlandDana Gardner Adelstein
By _Dana Gardner Adelstein
Attorneys for Defendant and Respondent CITY OFFONTANA
27