HONDO COMPANY v. Robert Medina, as Co-administrator, etc., et. al., Real Parties in Interest.

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Court of Appeal, Second District, Division 2, California.

HONDO COMPANY, Inc., et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; Robert Medina, as Co-administrator, etc., et. al., Real Parties in Interest.

No. B121129.

Decided: October 09, 1998

Horvitz & Levy, Barry R. Levy, Sandra J. Smith, Encino, Jon B. Eisenberg, Oakland, Daniel E. Hoffman, Daniel R. Friedenthal and Mark H. Herskovitz, Glendale, for Petitioners. No appearance for Respondent. Lund & Caplan, Long Beach, and Richard A. Caplan, Los Angeles, for Real Party in Interest.

 Petitioners, Hondo Company, Inc. and Ramon Baldovinos, seek a writ of mandate directing the superior court to vacate its order denying petitioners' motion in limine.   The question is whether Civil Code section 3333.4, subdivision (a) (hereafter “section 3333.4(a)”) 1 precludes recovery of non-economic damages in wrongful death actions by the heirs of uninsured motorists.   We hold that, in the circumstance before us, it does.


Bobbie Jean King died when her vehicle collided with a dump truck driven by Baldovinos and owned by Hondo Company, Inc.   King owned the vehicle she was driving, and had no automobile insurance at the time of the accident.

King's estate filed a complaint against petitioners alleging wrongful death and survival causes of action.   The estate sought damages for the “loss of care, comfort [and] society” suffered by King's five adult children.   Petitioners asserted as an affirmative defense that the estate's recovery of damages is limited by section 3333.4(a).   Petitioners then filed a motion in limine to preclude any evidence, testimony or references related to non-economic damages, and for an order barring any attempt by the King estate to proceed with any claim for non-economic damages.

The superior court denied petitioners' motion in limine, stating, “[W]ell, clearly the intent of the initiative was to preclude the recovery of pain and suffering, general damages ․ but that's not the type of non-economic damages that are being sought in the wrongful death action, but rather the monetary value of the loss of society, comfort and affection and companionship on the part of heirs of the decedent.  [¶] I think under the wrongful death cause of action to preclude the recovery of those damages would not carry forth the intent of the initiative.”   This petition followed.


Petitioners contend that section 3333.4(a) precludes recovery of non-economic damages in wrongful death actions by the heirs of uninsured motorists.


A. Writ Relief

Prerogative writs are appropriate “to review questions of first impression that are of general importance to the trial courts and to the profession, and where general guidelines can be laid down for future cases.”  (Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, 185-186, fn. 4, 23 Cal.Rptr. 375, 373 P.2d 439.)

B. Section 3333.4(a)

The pertinent part of section 3333.4(a) reads as follows:

“Except as provided in subdivision (c), in 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 any of the following applies:

“(1) The injured person was at the time of the accident operating the vehicle in violation of Section 23152 or 23153 of the Vehicle Code, and was convicted of that offense.

“(2) The injured person was the owner of a vehicle involved in the accident and the vehicle was not insured as required by the financial responsibility laws of this state.

“(3) The injured person was the operator of a vehicle involved in the accident and the operator can not establish his or her financial responsibility as required by the financial responsibility laws of this state.” 2

C. Constitutionality of Section 3333.4

The courts have upheld the constitutionality of section 3333.4 in Yoshioka v. Superior Court (1997) 58 Cal.App.4th 972, 68 Cal.Rptr.2d 553, and Quackenbush v. Superior Court (1997) 60 Cal.App.4th 454, 70 Cal.Rptr.2d 271.  Yoshioka upheld the prospective and retroactive application of the initiative, and addressed the intent of the initiative.  (Yoshioka, supra, 58 Cal.App.4th at pp. 979, 983, 68 Cal.Rptr.2d 553.)

D. Rules of Statutory Interpretation

Sections 3333.4 and 3333.3 comprise the whole of the Personal Responsibility Act of 1996 which was enacted by voter initiative (Proposition 213) on November 5, 1996.3  Initiative-based statutes are subject to the same rules of construction as are legislation-based statutes.  (Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 540, 277 Cal.Rptr. 1, 802 P.2d 317.)

 Statutory interpretation requires a three-step process.   First, a court should examine the actual language of the statute, giving the words their ordinary, everyday meaning.  (Halbert's Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal.App.4th 1233, 1238, 8 Cal.Rptr.2d 298.)   If the meaning is without ambiguity, doubt, or uncertainty, then the language controls and there is nothing to “interpret” or “construe.”   (Id. at p. 1239, 8 Cal.Rptr.2d 298.)   If the meaning of the words is not clear, a court must take the second step and refer to the legislative history.  (Ibid.) The final step, which is to apply reason, practicality, and common sense to the language at hand, should only be taken when the first two steps have failed to reveal clear meaning.   If possible, the words should be interpreted to make them workable and reasonable, in accord with common sense and justice, and to avoid an absurd result.  (Ibid.) The parts of a statute must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole.  (Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224.)   We now apply this approach to section 3333.4(a).

E. Application of Rules

1. Plain Language

The estate contends that the superior court correctly interpreted section 3333.4(a) to mean that heirs of uninsured drivers injured in traffic collisions are entitled to recover nonpecuniary damages in wrongful death actions.   The estate interprets section 3333.4(a) to mean that the only “person” who cannot recover nonpecuniary damages is the “injured person” who is the “owner” or “operator” of the uninsured vehicle which is involved in the accident.   The estate points out that even though King's children were injured and suffered damages as a result of their mother's death, they did not own or operate the uninsured vehicle involved in the accident.   The estate concludes, therefore, that King's heirs are not the type of “injured person” referred to in section 3333.4(a)(1), (a)(2) or (a)(3), and that as a result, they are entitled to seek nonpecuniary damages in their wrongful death lawsuit.   The estate claims that the fact that the statute does not refer to wrongful death actions supports this conclusion.

 Petitioners urge us to compare the broad language in subdivision (a) with the narrower language in subdivision (a), paragraphs (2) and (3).   Subdivision (a) uses the broad phrases “in any action,” and “a person,” while subdivision (a), paragraphs (2) and (3) specify that the “injured person” is the owner or operator of the uninsured vehicle involved in the accident.   Petitioners argue that the decision not to use the term “injured person” in the introductory paragraph of subdivision (a) shows that section 3333.4 is not limited to actions brought by the owner and/or operator of the uninsured vehicle-that the statute encompasses all litigants, including wrongful death plaintiffs, and all actions.   Petitioners, recognizing that the statute does not specifically address wrongful death lawsuits, argue that the inclusion of the phrase, “and other nonpecuniary damages” necessarily includes damages recoverable in wrongful death actions such as the loss of decedent's care, comfort, and society.4

Although the language of section 3333.4(a) suggests the interpretation urged by petitioners, the language is not unambiguous on its face.   Therefore, we are required to review the legislative history of the initiative as well as the historical circumstances of its enactment in order to determine the intent of the electorate.  (California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 844, 157 Cal.Rptr. 676, 598 P.2d 836.)

2. Legislative History

 Initiative ballot arguments are considered the equivalent of the legislative history of a legislative enactment.  (County of Sacramento v. Fair Political Practices Com. (1990) 222 Cal.App.3d 687, 693, fn. 2, 271 Cal.Rptr. 802.) To ascertain the intent of the electorate it is appropriate to consider the official statements made to the voters in connection with the proposition.  (Diamond International Corp. v. Boas (1979) 92 Cal.App.3d 1015, 1034, 155 Cal.Rptr. 616.)

The estate claims that Proposition 13 was aimed at perceived wrongdoers, such as uninsured motorists, who themselves were injured in an accident.   Section 2 of Proposition 213 states in part, “(a)․   Uninsured motorists, drunk drivers, and criminal felons are law breakers, and should not be rewarded for their irresponsibility and law breaking ․ [¶$ ․ [¶] (c) Therefore, the People of the State of California do hereby enact this measure to restore balance to our justice system by limiting the right to sue of criminals, drunk drivers, and uninsured motorists.”   The analysis by the legislative analyst states, “Specifically, an uninsured driver or a driver subsequently convicted of driving under the influence of alcohol or drugs (‘drunk drivers') at the time of an accident could not sue someone at fault for the accident for noneconomic losses․”  (Ballot Pamp., analysis of Prop. 213 by the Legislative Analyst as presented to the voters, Gen. Elec. (Nov. 5, 1996).)   The estate contends that these phrases demonstrate that the only intent of the initiative was to punish wrongdoers, and that to apply the statute to wrongful death actions would be to punish innocent victims, i.e., heirs.

Although we believe that punishing law-breakers was one intent of the initiative, the estate fails to recognize that another objective of Proposition 213 was to ease the economic burden on insured motorists and taxpayers.   Section 2 of Proposition 213 states in part, “(a) Insurance costs have skyrocketed for those Californians who have taken responsibility for their actions ․ [¶] (b) Californians must change the system that rewards individuals who fail to take essential personal responsibility to prevent them from seeking unreasonable damages or from suing law-abiding citizens.”

According to the Yoshioka court, the electorate's intent in passing Proposition 213 was twofold.   First, “restoring balance to our justice system” which includes “decreasing the number of lawsuits, [and] reducing annual court-related costs to state and local governments.”   Second, “reducing costs of mandatory automobile insurance” which “addresses the need to reduce skyrocketing insurance premiums by encouraging motorists to buy liability insurance.”  (Yoshioka v. Superior Court, supra, 58 Cal.App.4th at p. 983, 68 Cal.Rptr.2d 553.)

According to the proponents of the initiative, drunk drivers and uninsured motorists sue law-abiding citizens for huge awards that cost Californians who obey the laws $327 million a year.  (Ballot Pamp., Gen. Elec. (Nov. 5, 1996), Argument in Favor of Prop. 213, p. 50.)  “Law-abiding citizens already pay higher insurance premiums to cover uninsured motorists.   Law-abiding citizens should not be punished for living responsibly!   The system needs to be fixed ․”  (Ibid.) Restricting the ability of certain people to sue for injury losses would reduce the number of lawsuits handled by the courts as well as annual court-related costs.   Also, fewer lawsuits would be filed against the state and local governments.   In addition, the restrictions placed on uninsured motorists and drunk drivers could result in somewhat lower premiums for auto insurance.  (Ballot Pamp., analysis of Prop. 213 by the Legislative Analyst as presented to the voters, Gen. Elec. (Nov. 5, 1996).)

A review of the legislative materials reveals that the subject of survivors was not addressed.   This suggests the construction urged by the estate is correct.5  On the other hand, what the legislative history makes clear is that one of the primary purposes of Proposition 213 was to bring insurance costs down for law-abiding citizens who own and/or drive vehicles.   This implies the construction urged by petitioners is correct.   Because the language of the statute is not clear on its face, and because the legislative history supports the construction urged by both parties, we are required to “apply reason, practicality, and common sense” to the language of section 3333.4(a) in an effort to produce a result “in accord with common sense and justice, and to avoid an absurd result.”  (Halbert's Lumber, Inc. v. Lucky Stores, Inc., supra, 6 Cal.App.4th at p. 1239, 8 Cal.Rptr.2d 298.)

3. Reason, Practicality, and Common Sense

Although section 3333.4(a) does not directly address the issue of wrongful death suits filed by the heirs of the uninsured motorist, the inclusion of wrongful death actions furthers the aforementioned intent of the electorate to restore balance to the justice system and to reduce costs of mandatory automobile insurance.  (Yoshioka v. Superior Court, supra, 58 Cal.App.4th at p. 983, 68 Cal.Rptr.2d 553.)   The application of section 3333.4(a) to wrongful death actions encourages motorists to purchase insurance not only to protect themselves, but also to protect their heirs.

Reason guides us to believe that if uninsured motorists cannot recover for non-economic damages it follows that their heirs cannot recover either.   It would not be in the interest of justice to force law-abiding citizens to pay large rewards to the heirs of wrongdoers.6  If the electorate had intended to create an exception for wrongful death actions, it easily could have included such an exception in the text of the initiative.   While it is true that the King heirs are not wrongdoers themselves, the non-economic damages they seek arose out of the operation or use of a motor vehicle by a wrongdoer, i.e., a driver who was not insured as required by the financial responsibility laws of this state.

Section 3333.3, like section 3333.4(a) uses the broad terms “any action” and “a person.”   Although these sections were adopted at the same time and for the same purpose, it does not mean that the terms “a person” and “any action” mean the same in both statutes.   Even if we assume that the “person” referred to in section 3333.3 means the “plaintiff” who was injured while committing a felony, or while fleeing therefrom, such result does not mean that the words “a person” as used in section 3333.4 must be interpreted in the same way.   Section 3333.3 clearly states that the plaintiff is the injured person, while section 3333.4 does not state who the plaintiff is.   This suggests, we believe, that section 3333.4 was intended to include a broader range of actions than section 3333.3.7

 The courts have held that a wrongful death action is a new action rather than a surviving action, yet it is derivative to the extent that the wrongful death plaintiff “ ‘stands in the shoes' of the decedent” (Argonaut Ins. Co. v. Superior Court (1985) 164 Cal.App.3d 320, 324, 210 Cal.Rptr. 417), and the wrongful death claimants are subject to the same defenses that could have been asserted against the decedent.  (Saenz v. Whitewater Voyages, Inc. (1990) 226 Cal.App.3d 758, 763-764, 276 Cal.Rptr. 672.)

 The estate contends that the “stands in the shoes of the decedent” doctrine is inapplicable to this case.   According to the estate, petitioners claim that the heirs cannot recover for the loss of care, comfort, and society suffered because King herself could not recover for these losses had she lived.   The estate contends that if we apply the doctrine as urged by petitioners, the King heirs will be unable to recover any damages, including economic damages.   We find no support for this argument in either the doctrine or the initiative.   The “stands in the shoes of the decedent” doctrine, as applied to this case, simply means that petitioners are entitled to assert the defense provided in section 3333.4(a) against the estate just as they could have against King herself had she survived.   The doctrine does not prohibit the estate from recovering economic damages.

We conclude that the language of section 3333.4(a) must be construed as applying to wrongful death actions.   To hold otherwise, we believe, would defeat the general purpose of the statute.8


Accordingly, the writ is granted.   The superior court is directed to set aside its order denying petitioners' in limine motion and to enter a new and different order granting petitioners' motion.   The temporary stay is vacated.   The parties are to bear their own costs.


1.   All further statutory references are to the Civil Code unless otherwise noted.

2.   Subdivision (b) of section 3333.4 addresses the right of insurers.   Subdivision (c) of section 3333.4 applies to owners of uninsured vehicles who are injured by someone driving under the influence of alcohol or drugs.   Subdivisions (a)(1), (b) and (c) of section 3333.4 do not apply to the facts of this case.

3.   Section 3333.3 states that “[i]n any action for damages based on negligence, a person may not recover any damages if the plaintiff's injuries were in any way proximately caused by the plaintiff's commission of any felony, or immediate flight therefrom, and the plaintiff has been duly convicted of that felony.”  (Italics added.)

4.   Nonpecuniary damages include the loss of care, comfort, and society.  (Krouse v. Graham (1977) 19 Cal.3d 59, 67, 137 Cal.Rptr. 863, 562 P.2d 1022.)

5.   We do not find the lack of reference to wrongful death actions conclusive as to the intent of the electorate.   For example, we cannot believe that the electorate intended to allow a parent to recover non-economic damages in a wrongful death action when his/her uninsured child is killed while driving an uninsured vehicle owned by the uninsured parent.

6.   The electorate included an express exception in section 3333.4, subdivision (c).   Although owners of uninsured vehicles are prohibited from recovering non-pecuniary damages under the circumstances set forth in subdivisions (a) and (b), they are not precluded from recovering nonpecuniary damages if they are injured by a drunk driver.   Subdivision (c) recognizes the obvious, i.e., that there are degrees of wrongdoing.   In other words, although an owner of an uninsured vehicle may be a wrongdoer because he or she has failed to comply with financial responsibility laws, we, as a society consider drunk driving to be a more severe form of wrongdoing.

7.   Petitioners and the King estate also discuss MICRA (the Medical Injury Compensation Reform Act of 1975, section 3333.2) as an “analogous” statute.   We do not believe that MICRA is analogous to section 3333.4 because the intent of MICRA was evident from the plain language of the statute.   The Legislature specifically included wrongful death actions in the statute, stating in pertinent part, “(a) In any action for injury against a health care provider based on professional negligence, the injured plaintiff shall be entitled to recover noneconomic losses ․ [¶] (b) In no action shall the amount of damages for noneconomic losses exceed two hundred fifty thousand dollars ($250,000). [¶] (c) For the purposes of this section:  ․ (2) ‘Professional negligence’ means a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death ․”  (Italics added.)   InYates v. Pollock (1987) 194 Cal.App.3d 195, 199, 239 Cal.Rptr. 383, based on the plain language of the statute we held that the $250,000 limitation on non-economic damages applies to wrongful death actions.  “We have no difficulty ascertaining the legislative intent of this statute since it is unambiguous on its face.   Its plain language unequivocally manifests a desire to place a $250,000 cap on awards for noneconomic damages in all medical malpractice litigation, whether recovery is sought by patients who have themselves suffered personal injuries or by the survivors of such victims who initiate suits for wrongful death.”  (Ibid.) Simply because the Legislature included wrongful death actions in the text of section 3333.2 does not make it safe to assume that the failure of the drafters to include such actions in the text of section 3333.4 means that they intended to exclude wrongful death actions from the initiative.

8.   This issue is pending before our Supreme Court in Horwich v. Superior Court, Cal.App. [77 Cal.Rptr.2d 245] (S073129, review granted Sept. 30, 1998).

NOTT, Associate Justice.

BOREN, P.J., and FUKUTO, J., concur.