KROUGH v. REYNOLDS PACKING INC (2001)

Court of Appeal, Third District, California.

Christian P. KROUGH, Plaintiff and Appellant, v. REYNOLDS PACKING, INC., Defendant and Respondent.

No. C029948.

Decided: August 29, 2001

James J. Banks,John R. Rueda, Hansen, Boyd, Culhane & Watson, Sacramento, for Plaintiff and Appellant. Kent B. Seitzinger, Seitzinger & Wilkens, Roseville, for Defendant and Respondent.

Civil Code section 3333.4 (hereinafter section 3333.4), enacted by the voters in the 1996 general election as a part of Proposition 213, precludes recovery by an uninsured motorist of noneconomic losses in “any action to recover damages arising out of the operation or use of a motor vehicle.” ¹

The trial court in this case concluded that section 3333.4 precluded plaintiff Christian Krough (hereinafter plaintiff)-an uninsured motorcyclist injured in a vehicular accident caused by an obstruction created by defendant Reynolds Packing, Inc., dba M & R Packing Co. (hereinafter M & R)-from recovering an award of noneconomic damages.

We conclude that the trial court's ruling was correct in light of the California Supreme Court's most recent pronouncement on the statute in Day v. City of Fontana (2001) 25 Cal.4th 268, 105 Cal.Rptr.2d 457, 19 P.3d 1196 (Day ).   In Day, the Court held that section 3333.4 “precludes an uninsured motorcyclist injured in a vehicular accident from recovering an award of noneconomic damages against a [public entity] in an action for nuisance and dangerous condition of public property.”  (Id. at p. 271, 105 Cal.Rptr.2d 457, 19 P.3d 1196.)   By parity of reasoning, we conclude that the statute precludes an uninsured motorcyclist-here, plaintiff-from recovering an award of noneconomic damages against a private entity in an action based on a dangerous condition of private property.   There is absolutely no basis in the statutory language, the ballot arguments, or logic to distinguish between similarly situated public and private entities.   Because we also reject plaintiff's constitutional objections to the statute (which have unanimously been rejected in other appellate decisions), we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The relevant facts are not in dispute and may be briefly stated.²

In August 1996, M & R was harvesting a vineyard located off Turner Road near Lodi, California.   An M & R employee instructed a hauler to park two semi-trailers along the south side of Turner Road, close to the intersection of Turner Road and an access road leading into the vineyard.

At approximately 8:35 a.m. on August 23, 1996, Manuel Martinez, a field worker, was traveling along the access road toward Turner Road. Simultaneously, plaintiff was traveling on his motorcycle eastbound on Turner Road.

According to plaintiff, the placement of the trailers created a visual obstruction of the access road for those traveling east on Turner Road and blocked his view of Martinez's truck.

Martinez attempted a left-hand turn from the access road into the westbound lane of Turner Road. Plaintiff testified that Martinez's truck simply “pulled out from [the] parked trailers and [he] didn't have enough time to stop․” Plaintiff collided with the driver's side of Martinez's truck, causing plaintiff to suffer severe injuries, which rendered him a paraplegic.

Plaintiff brought suit against various individuals, including Martinez, and M & R. Some defendants were dismissed voluntarily from the litigation;  other defendants, save for M & R, reached out-of-court settlements with plaintiff prior to trial.

At the beginning of trial, plaintiff and defendant brought in limine motions, which addressed, inter alia, the issue whether section 3333.4 should be applied to bar plaintiff from recovering noneconomic damages.   The trial court concluded that plaintiff's uninsured status precluded him from seeking noneconomic damages against M & R under the statute.   Accordingly, the jury was instructed that plaintiff was not entitled to “reasonable compensation for any pain, discomfort, fears, anxiety[,] and other mental and emotional distress.”

By special verdict, the jury found that M & R was negligent in its placement of the trailers and that this negligence was a cause of the accident.   The jury also found no comparative fault on the part of the plaintiff.   The jury accordingly awarded plaintiff over $2,000,000 in special damages.   The net judgment, reduced by the amount of plaintiff's settlements with the other defendants, was $1,453,000, plus costs.

M & R did not appeal.   Plaintiff, however, appeals from the judgment, claiming that the trial court's in limine order was erroneous.

DISCUSSION

A

Section 3333.4 was enacted as part of the Personal Responsibility Act of 1996, designated on the ballot as Proposition 213.

As relevant here, the section provides:  “[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 can not establish his or her financial responsibility as required by the financial responsibility laws of this state.” (§ 3333.4, subd. (a)(3).) ³

 The question presented is whether an action to recover damages arising out of the negligent creation of a dangerous condition by a private entity that causes or contributes to a motor vehicle accident is an “action to recover damages arising out of the operation or use of a motor vehicle” within the meaning of section 3333.4.   We conclude that it is.

 “ ‘In construing constitutional and statutory provisions, whether enacted by the Legislature or by initiative, the intent of the enacting body is the paramount consideration.’ ”  (Legislature v. Eu (1991) 54 Cal.3d 492, 505, 286 Cal.Rptr. 283, 816 P.2d 1309, quoting In re Lance W. (1985) 37 Cal.3d 873, 889, 210 Cal.Rptr. 631, 694 P.2d 744;  italics in original.)   And the statutory language is the best indicator of that intent.  (Williams v. Superior Court (1993) 5 Cal.4th 337, 350, 19 Cal.Rptr.2d 882, 852 P.2d 377.)   Rules of statutory construction and recognition of our limited judicial role require an interpretation that honors the text of an initiative where the language is clear and unambiguous.  (See Day, supra, 25 Cal.4th at p. 272, 105 Cal.Rptr.2d 457, 19 P.3d 1196;  In re Lance W., supra, 37 Cal.3d at p. 886, 210 Cal.Rptr. 631, 694 P.2d 744 [“ ‘When statutory language is thus clear and unambiguous there is no need for construction, and courts should not indulge in it’ [citation]”].)

 In this case, plaintiff's action falls squarely within the language of the statute.   He seeks to recover damages for injuries arising out of his operation and use of a motor vehicle when it collided with another vehicle as a result, in part, of M & R's negligence in the placement of two semi-trailers.   That is an action “to recover damages arising out of the operation or use of a motor vehicle.” (§ 3333.4, subd. (a).)

Recently, in Day, the California Supreme Court concluded that “the statute precludes an uninsured motorcyclist injured in a vehicular accident from recovering an award of noneconomic damages against a county and a municipality in an action for nuisance and dangerous condition of public property.”  (25 Cal.4th at p. 271, 105 Cal.Rptr.2d 457, 19 P.3d 1196.)   There, after the plaintiff motorcyclist was struck by a car in an intersection, plaintiff sued, among others, the county and city for creating or maintaining a nuisance and a dangerous condition of public property because of overgrown vegetation on the public and private property that surrounded the intersection, which obstructed motorists' views.   The state high court ruled:  “[T]he instant action against the public entity defendants appears to fall squarely within the terms of section 3333.4.   First, plaintiff was the owner of an uninsured motorcycle. (§ 3333.4, subd. (a)(2).)   Second, plaintiff's action for nuisance and dangerous condition of public property seeks ‘to recover damages arising out of the operation or use of [that] motor vehicle.’  (Id., subd. (a).)  ․ Since section 3333.4 contains no exception for suits against public entities, plaintiff appears statutorily barred from recovering noneconomic damages against the County and the City.” (25 Cal.4th at pp. 273-274, 105 Cal.Rptr.2d 457, 19 P.3d 1196, fn. omitted.)

The Day court continued:

“Although we might well stop here since the facts do not appear to raise any ambiguity or uncertainty as to the statute's application, we shall, ‘in an abundance of caution, ․ test our construction against those extrinsic aids that bear on the enactor's intent.’  [Citation.]   As we shall demonstrate, the legislative history materials reinforce our conclusion that the statute applies to plaintiff's action.

“Section 3333.4 was enacted through passage of Proposition 213 in the November 5, 1996 General Election.   Denominated and publicized as The Personal Responsibility Act of 1996, Proposition 213 sought to restrict the ability of uninsured motorists, convicted drunk drivers and convicted felons to sue for losses suffered in accidents. Because it bears directly on the issue of legislative intent, we review the proposition's ‘Findings and Declaration of Purpose.’   That declaration states in full:

“ ‘(a) Insurance costs have skyrocketed for those Californians who have taken responsibility for their actions.   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 recover unreasonable damages from law-abiding citizens as a result of drunk driving and other accidents, and criminals have been able to recover damages from law-abiding citizens for injuries suffered during the commission of their crimes.

“ ‘(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.

“ ‘(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.’  (Ballot Pamp., Gen. Elec. [(Nov. 5, 1996)] text of Prop. 213, § 2, p. 102 (Ballot Pamphlet).)

“In proposing to deny recovery of noneconomic losses to injured motor vehicle owners or drivers who operate or use vehicles that are ‘not insured as required by the financial responsibility laws of this state’ (§ 3333.4, subd. (a)(2) & (3)), Proposition 213 sought to ‘restore balance to our justice system’ by ensuring that those ‘who fail to take essential personal responsibility’ would ‘not be rewarded for their irresponsibility and law breaking’ (Ballot Pamp., supra, text of Prop. 213, § 2, p. 102).”  (Day, supra, 25 Cal.4th at pp. 274-275, 105 Cal.Rptr.2d 457, 19 P.3d 1196.)

The Day court then explained that public entities are directly and indirectly affected by uninsured motorists.   With respect to the direct effects, the high court observed:  “[W]hen an uninsured driver causes damage to roadways or to other public property on or adjacent to the roadways, including traffic signs, directional signs, traffic signals, street lights, median strips, and landscaping, the public entity suffers a direct harm and public safety may sometimes be placed at risk until repairs to the property are made.   In such situations, the public entity generally is left to bear the entire cost of the repairs necessitated by the uninsured tortfeasor's acts and financial irresponsibility.”  (Day, supra, 25 Cal.4th at pp. 275-276, 105 Cal.Rptr.2d 457, 19 P.3d 1196.)

Secondly, with respect to the indirect effects of uninsured motorists on public entities, the Day court noted that a public entity can be jointly liable with an uninsured tortfeasor, who does not pay his or her share:  “When the negligence of an uninsured driver and the dangerous condition of public property combine to jointly cause injury to an insured driver, both tortfeasors are jointly and severally liable for all economic damages awarded to the insured driver.  [Citation.]   Typically, however, the public entity's right of contribution (Code Civ. Proc., § 875) from the uninsured tortfeasor is meaningless because the tortfeasor is judgment proof.   In such circumstances, the public entity ends up paying all of the insured driver's economic damages while the uninsured driver pays nothing.”  (Day, supra, 25 Cal.4th at p. 276, 105 Cal.Rptr.2d 457, 19 P.3d 1196.)

In light of the foregoing, the Day court concluded:

“[W]ere we to construe the statute as being inapplicable in an action against a public entity based upon property-related theories of liability such as nuisance and dangerous condition of property, such an entity would remain legally responsible to compensate an uninsured driver for both economic and noneconomic losses arising out of vehicular accidents involving its property, while the uninsured driver could continue avoiding any responsibility for his or her fault in damaging such property and injuring third parties.   Such a construction would appear to perpetuate a system of one-sided recovery favoring the uninsured driver at the expense of the law-abiding entity, thus undermining the initiative's goal to prevent such drivers from being ‘rewarded for their irresponsibility and law breaking.’  (Ballot Pamp., supra, text of Prop. 213, § 2, subd. (a), p. 102.)

“Accordingly, section 3333.4 is properly construed as restricting an uninsured motorist's ability to recover noneconomic damages in actions against public entities alleging nuisance and dangerous condition of property.   Not only does the language of section 3333.4, subdivision (a), encompass such actions within its literal scope (‘any action to recover damages arising out of the operation or use of a motor vehicle’), but construing the statute to have such application comports most closely with the initiative's declared intent to ‘restore balance to our justice system’ by barring people who ‘fail to take essential personal responsibility’ from ‘seeking unreasonable damages or from suing law-abiding citizens.’  (Ballot Pamp., supra, text of Prop. 213, § 2, subds. (b), (c), p. 102.)   Neither the language nor the purpose of the statute provides a basis for implying a statutory exemption that would preserve a system whereby uninsured drivers may recover fully for losses caused by public road and roadside conditions while at the same time evading financial responsibility for their own negligence in damaging public roadways and improvements and injuring third persons.”  (Day, supra, at 25 Cal.4th pp. 276-277, 105 Cal.Rptr.2d 457, 19 P.3d 1196, italics in original, fn. omitted.)

B

Although the Supreme Court in Day, supra, 25 Cal.4th at page 282, footnote 8, 105 Cal.Rptr.2d 457, 19 P.3d 1196, noted that it was not addressing the issue of “the liability of a private property owner” where “other concerns may justify a different result,” ⁴ we cannot distinguish Day from such a case on the basis of the statutory language, the legislative history, or logic:  If section 3333.4 bars an uninsured motorcyclist from seeking noneconomic damages from a public entity for a dangerous condition of public property that led to a vehicular accident, then by parity of reasoning, it must bar an uninsured motorcyclist from seeking noneconomic damages from a private party responsible for a dangerous condition of private property that led to a vehicular accident.

After all, the language of section 3333.4 makes no distinction between public and private entities who are defendants.   Instead, it bars noneconomic damages “[i]n any action to recover damages arising out of the operation or use of a motor vehicle” where “[t]he injured person was the operator of a vehicle involved in the accident and the operator can not establish his or her financial responsibility ․” (§ 3333.4, subd. (a)(3).)   Making statutory distinctions that find no hint in the statutory language or context risks judicial invasion of the legislative province;  making such distinctions in the absence of some other clear expression of legislative intent completes the trespass.

In this case, plaintiff asks that we imply a statutory exemption from a statute that covers “any action to recover damages arising out of the operation or use of a motor vehicle” (emphasis added) where the damages arose out of the operation of a motor vehicle that collided with another, caused, in part, by a visual obstruction created by parked vehicles.   In light of the Day court's conclusion that the statute's language covers a claim against a public entity that caused a visual obstruction that led to a vehicular accident, we see no basis in the statutory language for creating an exemption for a private entity that creates a visual obstruction through the use of parked vehicles which leads to a vehicular accident.

Further, the same concerns that favor application of the statute to vehicular collisions caused by a dangerous condition on public property, as expressed by the court in Day, favor the statute's application to a dangerous condition of private property.   Like public entities, private property owners (and particularly those owning parked vehicles) are directly affected by motorists who violate the financial responsibility law.   For example, when an uninsured driver causes damage to private fences, structures, landscaping, and parked cars, the private property owner suffers a direct harm.   In such situations, the private property owner is left to bear the entire cost of the repairs necessitated by the uninsured tortfeasor's acts and financial irresponsibility.

Likewise, as in Day, violators of the financial responsibility law can detrimentally affect the interests of private property owners in an indirect way:  When the negligence of an uninsured driver combines with a dangerous condition of private property to cause injury to an insured driver, both tortfeasors are jointly and severally liable for all economic damages awarded to the insured driver.  (See Buttram v. Owens-Corning Fiberglas Corp. (1997) 16 Cal.4th 520, 528, 66 Cal.Rptr.2d 438, 941 P.2d 71.)   But typically, the private property owner's right of contribution (Code Civ. Proc., § 875) from the uninsured tortfeasor is meaningless because the tortfeasor is judgment proof.   In such circumstances, the private property owner ends up paying all of the insured driver's economic damages, while the uninsured driver pays nothing.  (See Day, supra, 25 Cal.4th at p. 276, 105 Cal.Rptr.2d 457, 19 P.3d 1196.)

Accordingly, adherence to the language of the statute-by applying it to private property owners-advances Proposition 213's purpose to “change the system that rewards individuals who fail to take essential personal responsibility” and to “restore balance to our justice system” (Ballot Pamp., supra, text of Prop. 213, § 2, subds. (b),(c), p. 102), in the same way that the court in Day, supra, 25 Cal.4th at page 276, 105 Cal.Rptr.2d 457, 19 P.3d 1196, concluded that it did:  “Neither the language nor the purpose of the statute provides a basis for implying a statutory exemption that would preserve a system whereby uninsured drivers may recover fully for losses caused by ․ roadside conditions while at the same time evading financial responsibility for their own negligence in damaging public roadways and improvements [fn.] and injuring third persons.”  (Day, supra, 25 Cal.4th at p. 277, 105 Cal.Rptr.2d 457, 19 P.3d 1196, original italics.)

Plaintiff argues that “[plaintiff's] claim against M & R did not arise out of M & R's use or operation of an automobile” because plaintiff “was not in an automobile accident with M & R.” But this argument-which was made before the decision in Day, supra, was issued-obviously cannot survive it.

Plaintiff also argues in a supplemental letter brief ⁵ that the California Supreme Court's earlier decision in Hodges v. Superior Court (1999) 21 Cal.4th 109, 86 Cal.Rptr.2d 884, 980 P.2d 433 (Hodges ) “found the application of the statute to be limited by its terms and intent to automobile claims by uninsured motorists against insured motorists [emphasis added]” and thus that it should not apply here.

Unfortunately for plaintiff, he did not have the benefit of Day, supra, when he analyzed Hodges, as we do.

In Hodges, the California Supreme Court concluded that “[a] products liability claim against an automobile manufacturer falls outside the scope of ․ section 3333.4”-even though the action arguably arose out of the operation of the defectively designed automobile.  (Hodges, supra, 21 Cal.4th at pp. 112-113, 86 Cal.Rptr.2d 884, 980 P.2d 433.)   Noting the language of the statute was not pellucid on the issue, the court turned to the analysis and arguments contained in the official ballot pamphlet for assistance:

“The ballot arguments, considered as a whole ․ indicate that voters were being urged to distinguish between law-abiding motorists who pay for liability insurance, on the one hand, and law-breaking uninsured motorists who refuse to pay for such insurance, on the other.   By limiting the amount of damages available to uninsured motorists, the law-abiding motorists would receive some savings in the form of reduced premiums.   The arguments for and against the measure refer principally to remedying an imbalance in the justice system that resulted in unfairness when an accident occurred between two motorists- one insured and the other not.   There is no suggestion that it was intended to apply in the case of a vehicle design defect.”  “[Accordingly, a] products liability claim against an automobile manufacturer falls outside the scope of ․ section 3333.4.”  (Hodges, supra, 21 Cal.4th at pp. 112-113, 116, 86 Cal.Rptr.2d 884, 980 P.2d 433, fn. omitted;  italics in original.)

However, in Day, the Supreme Court distinguished Hodges on the ground that “there was no necessary connection between the plaintiff's injury and ‘the operation or use’ of the vehicle” in Hodges (Day, supra, 25 Cal.4th at p. 273, 105 Cal.Rptr.2d 457, 19 P.3d 1196), and it further rejected the contention that the statute was intended to inure solely to the benefit of individuals and entities whose automobile insurance policies were implicated in the lawsuit:

“The ballot arguments do not compel plaintiff's construction of the statute․ Here we may reasonably infer from the ballot arguments that a primary aim of Proposition 213 was to protect insured motorists and reduce automobile insurance rates.  [Citation.]   Such arguments, however, did not imply that protection of insured motorists was the initiative's sole aim;  nor did they suggest that reductions in automobile insurance premiums would be the initiative's only effect.   Rather, the express language and declared purpose of the enactment, as well as the ballot arguments' broader focus upon the perceived need to reform a system that had rewarded lawbreakers at the expense of responsible, law-abiding citizens, persuade us that actions such as the instant one fall within a fair and objective reading of section 3333.4.   [Citations.].

“With respect to Hodges, our analysis in that case specifically focused on whether section 3333.4 restricted the ability of an uninsured driver to recover against a car manufacturer in a products liability action․ Neither the statutory language nor the ballot materials, we concluded, reflected any intent ‘to reform a system “unfair” to law-abiding insured motorists by providing a windfall to manufacturers of defective vehicles.’  [Citation.].

“․ [S]ection 3333.4's applicability in this case [Day ] flows directly from the terms of the statute, which preclude recovery of noneconomic damages ‘in any action ․ arising out of the operation or use of a motor vehicle’ (id., subd. (a)) if ‘[t]he injured person was the owner of a vehicle involved in the accident and the vehicle was not insured․’ (id., subd. (a)(2)).”  (Day, supra, 25 Cal.4th at pp. 278-280, 105 Cal.Rptr.2d 457, 19 P.3d 1196, fn. omitted, original italics.)

This case cannot be distinguished from Day on the basis of the statutory language, or any other clear expression of the enactor's intent that the canons of statutory construction honor.   Since the action here arises from a vehicular collision, and thus the operation and use of a motor vehicle, it falls within the plain language of the statute.   Since the purpose of the enactment was to reform a system that allowed uninsured motorists to collect noneconomic damages from the very same parties who could not collect from uninsured motorists damages caused by the uninsured motorists' use or operation of a motor vehicle, the action here comes within the statute's objective.   Therefore, the statute's bar against the recovery of noneconomic damages applies.

C

Plaintiff raises a number of constitutional objections to the application of section 3333.4 in this case.   In conformity with every other Court of Appeal that has addressed similar arguments, we reject them.

1. Equal Protection Challenge

Plaintiff contends that Proposition 213 violates equal protection.

Similar equal protection challenges to Proposition 213 have been rejected by the courts of appeal.  (E.g., Honsickle v. Superior Court (1999) 69 Cal.App.4th 756, 763-764, 82 Cal.Rptr.2d 36 (Honsickle );  Yoshioka v. Superior Court (1997) 58 Cal.App.4th 972, 989-992, 68 Cal.Rptr.2d 553 (Yoshioka );  Quackenbush v. Superior Court (1997) 60 Cal.App.4th 454, 463-467, 70 Cal.Rptr.2d 271.)   Plaintiff adds no arguments that would lead us to believe that these cases were wrongly decided.

The California Supreme Court's most recent explication of the equal protection clauses under both the United States and California Constitutions emphasizes that “ ‘[i]n areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.  [Citations.]   Where there are “plausible reasons” for [the classification] “our inquiry is at an end.” ’  [Citations.]”  (Warden v. State Bar (1999) 21 Cal.4th 628, 644, 88 Cal.Rptr.2d 283, 982 P.2d 154, emphasis in original.)   Further, “when there is a reasonably conceivable justification for a classification, ‘[i]t is ․ “constitutionally irrelevant whether [the] reasoning in fact underlay the legislative decision” ’ [citations], or whether the ‘conceived reason for the challenged distinction actually motivated the legislature.’  [Citation.]”  (Id. at p. 650, 88 Cal.Rptr.2d 283, 982 P.2d 154.)

Plaintiff contends that Proposition 213 violates equal protection because the measure's primary classifications of “insured” and “uninsured” drivers do not bear a rational relationship to the initiative's twin objectives of restoring balance to our justice system and reducing costs:  “The ‘problem’ of ‘skyrocketing auto insurance costs,’ assuming it exists, has nothing to do with damage awards given to innocent accident victims who happen themselves to be uninsured.”

 To the contrary, there is certainly a conceivable state of facts that can provide a rational basis for the distinction in treatment between those who comply with the law (their obligation to have automobile insurance or be financially responsible) and those who do not.   As the ballot arguments observed, “[l]aw-abiding citizens already pay higher insurance premiums to cover uninsured motorists.”  (Ballot Pamp., supra, Argument in Favor of Proposition 213, p. 50.)   Thus, the plausible reason for the distinction between those who abide by the law and those who do not is that reducing recoveries to those who fail to pay into the system both reduces the cost of insurance to those who do pay into the system and encourages those who do not to bring themselves into compliance.   We do not believe that plaintiff can properly argue that distinguishing between those who comply with their financial responsibilities and those who do not is not rationally related to restoring balance in the justice system, even if he would not have drawn the same distinction.

And while plaintiff may argue that high insurance costs have “nothing to do with damage awards given to innocent accident victims who happen themselves to be uninsured,” that argument neglects the other side of the equation-where the uninsured parties are responsible for the accidents for which others' insurers must pay.   Since insurance pools risk, the failure of uninsured motorists to share the costs that the law obligates them to pay, while still receiving the benefits from the system, leaves the law-abiding residents to pick up the tab.   Thus, a rational basis exists for denying noneconomic damages to those who unlawfully do not contribute to the system.   We respectfully remind plaintiff that at least for the past 70 years (since the Great Depression) under the rational basis test for equal protection, the judiciary has been admonished not to substitute its judgment for the Legislature's.   Instead, the rational basis test “ ‘manifests restraint by the judiciary in relation to the discretionary act of a co-equal branch of government;  in so doing it invests legislation involving such differentiated treatment with a presumption of constitutionality․’ ”  (Warden v. State Bar, supra, 21 Cal.4th at p. 641, 88 Cal.Rptr.2d 283, 982 P.2d 154.)   That same counsel of restraint applies when the People, through their initiative power, are the lawmakers.   (See Legislature v. Eu, supra, 54 Cal.3d at p. 501, 286 Cal.Rptr. 283, 816 P.2d 1309 [initiative measures must be upheld “unless their unconstitutionality clearly, positively, and unmistakably appears”].)

Plaintiff also claims that the measure violates equal protection because one of the initiative's goals-restoring balance to the justice system-“is not a legitimate legislative goal because it is at best illusory, and shifts with the prevailing political winds.”   No authority is cited for this proposition.   In any event, that different people can have different opinions on how to restore balance to the justice system is precisely why this is a legislative, not a judicial, task-a task to be left to the collective judgment of the people, not to three judges.

Next, plaintiff claims that Proposition 213 contains arbitrary and irrational-unconstitutional-distinctions in its subclasses.   Of particular concern to plaintiff is that subsection (c) of section 3333.4 permits an uninsured owner of a vehicle, but not an uninsured driver, who is injured by someone convicted of driving under the influence of drugs or alcohol (Veh.Code, §§ 23152, 23153) to recover noneconomic damages. (§ 3333.4, subd. (c);  see fn. 1, ante, for the text.)

 But plaintiff was the owner of his motorcycle and thus could recover noneconomic damages in that circumstance.   He has no standing to challenge a distinction that does not affect him.  “Ordinarily, the courts will not consider the constitutionality of a statute at the request of a person whose rights are not affected by it.”  (7 Witkin, Summary of Cal.Law (9th ed.   1988) Constitutional Law § 59, p. 104;  Allen v. Wright (1984) 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556.)

 Plaintiff also complains:  “An uninsured motorist injured by a driver convicted of drunk driving may recover his general damages.   A similarly situated uninsured motorist injured by an intoxicated tortfeasor who is permitted to plea to a lesser offense ․ is, in contrast, barred from recovery.”   In this case, Martinez, with whom plaintiff collided, was not convicted of driving under the influence but was permitted to plea to misdemeanor reckless driving.  (Veh.Code, § 23103.)   Thus, plaintiff complains that limiting the exception to the prohibition against the recovery of noneconomic damages to only those injuries caused by a motorist convicted of drunk driving is an arbitrary distinction if the motorist is nonetheless drunk.   But limiting the classification of intoxicated tortfeasors to those who are convicted of drunk driving is a reasonable classification:  Applying the exception to those who could have been convicted of drunk driving would require a trial within a trial concerning the criminal conduct of the intoxicated driver.   As the Court of Appeal in Quackenbush, supra, 60 Cal.App.4th at page 467, 70 Cal.Rptr.2d 271, explained:  “Instead of creating its own definition of a felon or a drunk driver and requiring a separate determination of guilt during the personal injury case, Proposition 213 reasonably premised membership in each group upon a criminal conviction.”   The clarity and administrative convenience of that classification is rational.

Plaintiff also argues that “[i]t is preposterous to posit that restoring a general damage claim to an uninsured motorist who is so unfortunate to have had his accident with a driver who is subsequently convicted of felony drunk driving, bears any relationship, rational or otherwise, to the stated goal of lowering automobile insurance rates.”

But the electorate is certainly able to make distinctions among violators of the law-i.e., uninsured and drunk drivers-and to apply harsher treatment to those whose legal violation is deemed more egregious, here, drunk driving.   As the Court of Appeal in Quackenbush, supra, 60 Cal.App.4th at page 467, 70 Cal.Rptr.2d 271, observed:  “Proposition 213 apparently sought to favor uninsured motorists over felons and drunk drivers, a rational objective.”

Accordingly, because we find plausible reasons for the classifications, our inquiry must end.  (Warden v. State Bar, supra, 21 Cal.4th at p. 644, 88 Cal.Rptr.2d 283, 982 P.2d 154.)   Indeed, we must uphold initiatives “unless their unconstitutionality clearly, positively, and unmistakably appears.”   (Legislature v. Eu, supra, 54 Cal.3d at p. 501, 286 Cal.Rptr. 283, 816 P.2d 1309.)

2. Retroactivity

Finally, plaintiff contends that “the retroactive application of the measure violates due process of law.”

Proposition 213 provides:  “This act shall be effective immediately upon its adoption by the voters.   Its provisions shall apply to all actions in which the initial trial has not commenced prior to January 1, 1997.”

Thus, the proposition only applies to trials instituted after its passage.   But since the accident in this case occurred prior to January 1, 1997, application of Proposition 213 would be retroactive as to plaintiff under a theory known as “secondary retroactivity”, i.e., “[retroactivity which] ‘affect [s] the future legal consequences of past transactions․' [Citation.]” (20th Century Ins. Co. v. Garamendi (1994) 8 Cal.4th 216, 281, 32 Cal.Rptr.2d 807, 878 P.2d 566;  italics omitted.)  (In contrast, primary retroactivity obtains when the law alters the past legal consequences of past actions.  (Ibid.))

However, numerous decisions following the passage of Proposition 213 (e.g., Honsickle, supra, 69 Cal.App.4th at p. 765, 82 Cal.Rptr.2d 36;  Yoshioka, supra, 58 Cal.App.4th at pp. 979-989, 68 Cal.Rptr.2d 553), including one by this court (Savnik v. Hall (1999) 74 Cal.App.4th 733, 738-739, 88 Cal.Rptr.2d 417), have concluded that the secondary retroactivity of Proposition 213 violates neither due process nor equal protection.   Quoting Yoshioka, we recently stated, “ ‘numerous courts have held that the right to recover specific types of damages is not a vested right because such rights are created by state and common law independent from the Constitution.   [Citations.]   Therefore, a state and its people may alter such rights.   Such alteration is only forbidden when at the very least the party is deprived of every reasonable method of securing just compensation.   This does not encompass instances where the plaintiff would not recover as much as he would have had the former rule continued.  [Citation.]’  [Citation.]” (Savnik v. Hall, supra, 74 Cal.App.4th at pp. 738-739, 88 Cal.Rptr.2d 417, original italics.)

 Plaintiff argues that the proposition's retroactivity contravenes due process pursuant to the analysis in In re Marriage of Bouquet (1976) 16 Cal.3d 583, 128 Cal.Rptr. 427, 546 P.2d 1371.   But this contention has been expressly rejected in Yoshioka, supra, 58 Cal.App.4th at pages 983-986, 68 Cal.Rptr.2d 553.   We agree with that analysis.

Plaintiff also argues that “Proposition 213 compounds [its] constitutional infirmities by arbitrarily discriminating between uninsured plaintiffs who could bring their cases to trial prior to January 1, 1997, and those who could not․ [¶] ․ Those who were able to get to trial before January 1 differ from those who were not purely by happenstance.”

But since, as we have noted, the drafters of Proposition 213 could have opted to make the measure effective immediately upon its adoption by the voters without running afoul of any constitutional proscription (because the right to recover a specific type of damage is not vested), it certainly does not violate the Constitution to establish a grace period.   Applying Proposition 213 to every case immediately upon adoption would have made it effective in the middle of a trial or an appeal, creating confusion and impacting the parties' preparation for that trial or appeal.   Giving parties a bright line-the commencement of trial-after which the initiative's damage limitation would take effect, and a reasonable grace period to prepare for that trial before the new rule took effect-approximately two months (from November 5, 1996 to January 1, 1997)-was a reasonable means of allowing for an orderly transition of the new rule.   In sum, since secondary retroactivity does not violate either equal protection or due process (Honsickle, supra, 69 Cal.App.4th at p. 765, 82 Cal.Rptr.2d 36;  Yoshioka, supra, 58 Cal.App.4th at pp. 979-989, 68 Cal.Rptr.2d 553), a reasonable transition of that secondary retroactivity does not offend equal protection.

CONCLUSION

We have great sympathy for plaintiff's plight.   But the vehicular collision here falls squarely under Proposition 213, as construed by the California Supreme Court in Day, supra, 25 Cal.4th 268, 105 Cal.Rptr.2d 457, 19 P.3d 1196.   And we must uphold such initiatives “unless their unconstitutionality clearly, positively, and unmistakably appears.”  (Legislature v. Eu, supra, 54 Cal.3d at p. 501, 286 Cal.Rptr. 283, 816 P.2d 1309.)   For social and economic statutes that do not classify persons on the basis of suspect classifications or touch on fundamental rights, the judiciary has been required to defer to the judgment of the people in the enactment of their laws, except where the statutory classification is not rationally related to its objective-that is, where it is arbitrary.   We cannot say that treating differently those who knowingly choose to violate the law (e.g., by driving without insurance) from those who comply with their legal financial responsibilities is arbitrary.   We therefore defer to the collective judgment of the people who adopted section 3333.4.

DISPOSITION

The judgment is affirmed.   Defendant shall recover its costs on appeal.   (Cal. Rules of Court, rule 26(a).)

FOOTNOTES

1.   In full, section 3333.4 provides:“(a) 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.“(b) Except as provided in subdivision (c), an insurer shall not be liable, directly or indirectly, under a policy of liability or uninsured motorist insurance to indemnify for non-economic losses of a person injured as described in subdivision (a).“(c) In the event a person described in paragraph (2) of subdivision (a) was injured by a motorist who at the time of the accident was operating his or her vehicle in violation of Section 23152 or 23153 of the Vehicle Code, and was convicted of that offense, the injured person shall not be barred from recovering non-economic loses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary damages.”

2.   Plaintiff did not file the entire reporter's transcript.   But M & R concedes in its brief that plaintiff's “recitation of the facts at trial as supported by the [r]eporter's [t]ranscript ․ is, for all intents and purposes here, undisputed.”

3.   See footnote 1, ante, for the full text of the statute.

4.   The California Supreme Court is currently addressing this issue in Allen v. Sully-Miller Contracting Co. (2000) 80 Cal.App.4th 245, 95 Cal.Rptr.2d 142, review granted 98 Cal.Rptr.2d 431, 4 P.3d 265 (2000).

5.   We grant both plaintiff's and M & R's applications to submit letter briefs as well as plaintiff's request for judicial notice of the California Ballot pamphlet for the November 5, 1996, election as it relates to Proposition 213.   We have also previously granted plaintiff's request for judicial notice of two court records (the municipal court complaint against Martinez and an advisement of his rights), which plaintiff contends were submitted to the trial court during trial.

KOLKEY, J.

NICHOLSON, Acting P.J., and MORRISON, J., concur.