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