Mau v. Superior Court

• Decision Date: 05 February 1980
• Citation: 161 Cal.Rptr. 895,101 Cal.App.3d 875
• Parties: Roy Albert MAU, Petitioner, v. SUPERIOR COURT of the State of California, FOR the COUNTY OF LOS ANGELES, Respondent; Peggy Lynn KENT, Real Party in Interest. Civ. 57541.
• Court: California Court of Appeals Court of Appeals

Page 895

161 Cal.Rptr. 895

101 Cal.App.3d 875

Roy Albert MAU, Petitioner, v. SUPERIOR COURT of the State of California, FOR the COUNTY OF LOS ANGELES, Respondent;

Peggy Lynn KENT, Real Party in Interest.

Civ. 57541.

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

Feb. 5, 1980.

Hearing Denied April 3, 1980.

Gilbert, Kelly, Crowley & Jennett and Patrick A. Mesisca, Jr., Los Angeles, for petitioner.

Michael D. Daniels, Beverly Hills, for real party in interest.

BEACH, Associate Justice.

NATURE OF CASE:

Defendant in a negligence action seeks a writ to prohibit the trial court from allowing plaintiff therein to seek punitive damages. We issued an alternative writ and granted hearing.

BACKGROUND:

Petitioner is a defendant in a negligence action arising from a traffic collision. Petitioner admitted liability for the collision. The case was ready to proceed to trial upon the remaining issues of causation for and the extent of plaintiff's injuries and damages. While the instant matter was awaiting trial, the California Supreme Court rendered its decision in Taylor v. Superior Court (1979) 24 Cal.3d 890, 157 Cal.Rptr. 693, 598 P.2d 854, holding that punitive damages are recoverable against an intoxicated driver causing injury. Relying on the Taylor decision, the trial court herein granted plaintiff's request to amend her complaint to allege defendant's intoxication and to include a prayer for punitive damages on the basis that defendant (petitioner herein) was an intoxicated driver at the time of the accident. Petitioner sought writ from this court to prohibit the trial court from allowing the amendment to the complaint and from allowing discovery based on the alleged right to recover punitive damages.

ISSUE AND OUR HOLDING:

The question before us is: shall the decision of Taylor v. Superior Court be given retroactive effect? Our answer is no.

DISCUSSION:

The basis for the recovery of punitive damages in tort actions has been and is California Civil Code section 3294. ¹ It reads: "In an action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud, or malice, express or implied, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant." That section has never been applied to permit recovery against an intoxicated driver causing a collision. In 1937 the Court of Appeal in Strauss v. Buckley (1937) 20 Cal.App.2d 7, 8, 65 P.2d 1352, without reference to the code section, simply stated that in a case arising out of a traffic collision, "punitive damages are not recoverable because of the drunkenness of the defendant." That statement reflected the general common law rule that there was no "punishment" for a non-intentional but negligent act. That common law rule recognized that the purpose of the tort law was to make plaintiff whole, to provide recompense and not to impose punishment. Twenty-one years later in Gombos v. Ashe (1958) 158 Cal.App.2d 517, 322 P.2d 933, the court restated and reaffirmed the general rule. The opinion carefully explained the history, background and reasons therefor. In its decision the court specifically referred to section 3294, holding that the intoxication of the driver of an automobile causing a collision does not constitute the "malice" referred to in section 3294. Taylor expressly disapproved of Gombos and held that section 3294 does in fact provide for the recovery of punitive damages against such an intoxicated driver. The court in Taylor held that the defendant's act of driving a vehicle while intoxicated as pleaded therein stated a cause of action for the recovery of punitive damages. The opinion in Taylor, however, did not state whether the holding thereof shall or shall not be retroactively applied to cases then pending but not yet tried. That matter is presented squarely to us and we must decide it without the assistance of any hints in the majority opinion of Taylor.

We find nothing in the Supreme Court's language in Taylor that compels a particular answer to the specific question before us. Nonetheless, there is discussion in and guidance from other cases of the court. In County of Los Angeles v. Faus (1957) 48 Cal.2d 672, 680, 312 P.2d 680, 685, the court states: "The law is settled that there is no constitutional objection to an appellate court's making a choice for itself, in overruling an earlier decision, whether the new rule declared by it shall operate prospectively only or apply retrospectively. (Citations including Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 363 et seq., 53 S.Ct. 145, 77 L.Ed. 360.) (P) The determination by the court is dependent upon the equities in each case. It is the general rule that a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation and that the effect is not that the former decision was bad law but that It never was the law." (County of Los Angeles v. Faus (1957) Supra, 48 Cal.2d 672, 680-681, 312 P.2d 680, 687, emphasis added.)

Similarly, in Forster Shipbldg. Co. v. County of L. A. (1960) 54 Cal.2d 450, 458-459, 6 Cal.Rptr. 24, 28, 353 P.2d 736, 740, the court explains the traditional view as follows: "Under traditional theory an overruled decision is considered not to have established bad law, but to have merely misstated the law. The overruling decision is deemed to state what the law was from the beginning, and is therefore generally given retroactive effect. (County of Los Angeles v. Faus, 48 Cal.2d 672, 680-681, 312 P.2d 680.)"

If applied here, the theory that the law unequivocally stated in a former decision (Gombos v. Ashe ) was never the law would be pure fiction. Gombos clearly explains the law that had been expressly stated 21 years earlier and which remained the law for 20 years thereafter. The inapplicability of the "it-never-was" theory is made more apparent by the fact that the established law as stated in Gombos was carefully described and explained by a meticulous and careful legal craftsman and scholar, then presiding justice Raymond Peters. Moreover, our reading of Taylor indicates that Taylor makes no pretense of relying on the fiction. The court in Taylor makes clear that its decision is a Change in the law. The majority opinion does not argue or declare any misstatement of the past law by past cases. Rather it boldly faces the admitted need for a new rule based on a changed condition. That condition is the increased seriousness of the problem of the intoxicated driver, a seriousness punctuated by increased death and tragedy. The decision is permeated with support based upon recent decisions, studies and developments. For example, after citing a recent Oregon case which upheld an award of punitive damages against a drunken driver, the Taylor opinion states: "Indeed, under another recent amendment enacted following our Coulter (Coulter v. Superior Court, 21 Cal.3d 144, 145 Cal.Rptr. 534, 577 P.2d 669) decision, the Legislature has expressly acknowledged that 'the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.' (Civ.Code, § 1714, subd. (b).)" (Taylor v. Superior Court (1979) Supra, 24 Cal.3d 890, 897-898, 157 Cal.Rptr. 693, 698, 598 P.2d 854, 858.) Taylor also relies upon such studies as the Third Special Report of the Secretary of Health, Education and Welfare in June 1978 to the U. S. Congress on Alcohol and Health, which cited the 1975 study of traffic deaths involving alcohol, and the February 21, 1979 report of the Comptroller General of the United States Congress calling for the need for increased judicial support (Id. at [101 Cal.App.3d 880] pp. 898-899, 157 Cal.Rptr. 693, 598 P.2d 854.) These examples indicate that this is a new rule, a change from the established rule and required by an increase in the problem in recent years, as confirmed by recent reports.

Another consideration favors prospective application of Taylor. Again, the language of our Supreme Court in County of Los Angeles v. Faus and Forster Shipbldg. Co. provide help. County of Los Angeles v. Faus explains: "A well-recognized exception to this general rule (of retroactive effect) is that, where a constitutional provision or statute has received a given construction by a court of last resort and contracts have been made or property rights acquired under and in accordance with its decision, such contracts will not be invalidated nor will vested rights acquired under the...