Russell v. Superior Court

• Decision Date: 19 September 1986
• Citation: Russell v. Superior Court, 230 Cal.Rptr. 102, 185 Cal.App.3d 810 (Cal. App. 1986)
• Court: California Court of Appeals
• Parties: James RUSSELL, Petitioner, v. The SUPERIOR COURT of Alameda County, Respondent. ASBESTOS CLAIMS FACILITY DEFENDANTS et al., Real Parties in Interest. A035818.

Page 102

230 Cal.Rptr. 102

185 Cal.App.3d 810

James RUSSELL, Petitioner, v. The SUPERIOR COURT of Alameda County, Respondent ASBESTOS CLAIMS FACILITY DEFENDANTS et al., Real Parties in Interest.

A035818.

Court of Appeal, First District, Division 5, California.

Sept. 19, 1986.

Review Denied Oct. 30, 1986. ^*

Bryce C. Anderson, Concord, Harry F. Wartnick, Cartwright, Sucherman & Slobodin, San Francisco, Joseph D. Davis, Los Angeles, for petitioner.

No appearance for respondent.

Kelly C. Wooster, Stephen M. Snyder, James L. Miller, Barbara A. Caulfield, Brobeck, Phleger & Harrison, Eliot S. Jubelirer, Morgenstein, Ladd & Jubelirer, James N. Penrod, Hassard, Bonnington, Rogers & Huber, San Francisco, Eugene Brown, Jr. Deborah A. Freeman, Hardin, Cook, Loper, Engel & Bergez, Oakland, John R. Reese, Carole S. Ungvarsky, McCutchen, Doyle, Brown & Enersen, San Francisco, for real parties in interest.

Fred J. Hiestand, Sacramento, for amicus curiae on behalf of real parties in interest.

LOW, Presiding Justice.

We hold that the Fair Responsibility Act of 1986, popularly known as "Proposition 51," is not retroactive.

Petitioner James Russell is plaintiff in a personal injury action pending before respondent superior court. Russell alleges he has contracted a lung disease from exposure to asbestos, and names as defendants several companies who manufactured or distributed the asbestos products to which Russell was exposed during his lifetime. The defendants' liability was governed by the traditional principle of joint and several liability: if a defendant was found to be a proximate cause of Russell's injuries, even if not the sole proximate cause, that defendant could be held liable to Russell for all of his damages, subject to the defendant's right of indemnification from other responsible parties. (See generally, American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899.)

Russell's suit was awaiting trial on June 3, 1986, when the voters approved Proposition 51 and enacted the Fair Responsibility Act of 1986 (hereafter interchangeably "Act" or "Proposition 51"). The Act purports to eliminate joint and several liability for noneconomic damages, primarily damages for pain and suffering, and substitutes a rule of several liability only. A tortfeasor would be liable only for a percentage of a plaintiff's noneconomic damages, in proportion to the tortfeasor's actual responsibility for the injury. The Act's core provision is new Civil Code section 1431.2, subdivision (a), which provides that "[i]n any action for personal injury, property damage or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgment shall be rendered against that defendant for that amount." (Ballot Pamp., Prop. 51 (June 3, 1986) p. 33.)

As an initiative measure, the Act went into immediate effect the day following the election. While it clearly applied prospectively to causes of action arising after its passage, the Act contained no express provision for retroactive application to pending cases based on causes of action which had already accrued prior to its effective date. The issue of retroactivity was litigated in a number of superior courts. If Proposition 51 were retroactive, codefendants in tort cases would no longer be subject to a judgment for the total amount of the plaintiff's damages; their liability for noneconomic harm would be reduced to a percentage of the total. Furthermore, tort defendants argued that the percentage calculation should take into account the fraction of responsibility of those tortfeasors absent from the case due to immunity, bankruptcy or other reasons. If the liability of absent defendants were considered, the comparative percentages of fault of the present defendants would correspondingly decrease, and the sum total of their individual percentages would not add up to the total. As a result, a plaintiff faced with absent defendants, such as Russell, could receive less than the total amount of awardable damages for noneconomic harm.

Russell and real parties in interest both filed motions in limine on the retroactivity question. The superior court ruled that the Act was retroactive and applied to Russell's cause of action. Russell petitioned the Supreme Court for a writ of mandate in the exercise of its original jurisdiction. The court declined to hear the matter in the first instance and transferred the matter to this court. We conclude the trial court's ruling in favor of retroactivity was in error. Accordingly, we issue the peremptory writ.

I

We do not determine the constitutionality of Proposition 51 or interpret its substantive provisions. We decide only that the Act is not retroactive, and may apply only to causes of action which accrue on or after its effective date of June 4, 1986.

A retroactive statute is one which " 'affects rights, obligations, acts, transactions and conditions which are performed or exist prior to the adoption of the statute.' " (Aetna Cas. & Surety Co. v. Ind. Acc. Com. (1947) 30 Cal.2d 388, 391, 182 P.2d 159, quoting American States W. S. Co. v. Johnson (1939) 31 Cal.App.2d 606, 613, 88 P.2d 770; see 2 Sutherland, Statutory Construction (4th ed. 1973) § 41.01, p. 245.) Retroactive laws are generally disfavored because the parties affected have no notice of the new law affecting past conduct. "[S]uch laws disturb feelings of security in past transactions." (2 Sutherland, supra, § 41.04, at p. 253, fn. omitted.) Consequently, newly enacted statutes are presumed to apply prospectively only unless a clear intent to the contrary is expressed by the Legislature. (Ibid.; Aetna Cas. & Surety Co. v. Ind. Acc. Com., supra, at p. 393, 182 P.2d 159; see White v. Western Title Ins. Co. 40 Cal.3d 870, 884, 221 Cal.Rptr. 509, 710 P.2d 309.) The Civil Code, which Proposition 51 amends, specifically embodies this presumption: "No part of [this Code] is retroactive, unless expressly so declared." (Civ.Code, § 3.) Only when the legislative intent is clear is retroactive application permissible; even then the Legislature is not empowered to retroactively legislate to the impairment of contracts or the abrogation of vested rights. (See In re Marriage of Buol (1985) 39 Cal.3d 751, 757, 218 Cal.Rptr. 31, 705 P.2d 354; 2 Sutherland, supra, §§ 41.04-41.07, 41.09 at pp. 252-276, 280-281.)

Because the Act was enacted as an initiative measure, we look to the intent of the voters to assess the requisite legislative intent for retroactive application. (See Mannheim v. Superior Court (1970) 3 Cal.3d 678, 91 Cal.Rptr. 585, 478 P.2d 17.) However, we must first resolve real parties' argument that the Act is not subject to the presumption against retroactivity because it is a "procedural" and not a "substantive" statute.

Analyses of statutory retroactivity frequently distinguish between "substantive" and "procedural" statutes. Substantive laws, affecting substantive rights, invoke the general disfavor of retroactivity and are subject to the presumption against such application. Such statutes "affect the legal rights and obligations arising out of past actions" (Joseph v. Lowery (1972) 261 Or. 545, 495 P.2d 273, 275) and " ' "vary existing obligations contrary to their situation when entered into" ' " (Costa v. Lair (1976) 241 Pa.Super. 517, 363 A.2d 1313, 1314). In contrast, it is said that statutory changes affecting matters of procedure only, or modifying a remedy and not a substantive right, may be freely applied to past transactions without recourse to the presumption and the corollary assessment of legislative intent. (See, e.g., Commitment of Askew (La.App.1978) 359 So.2d 227, 229; Joseph v. Lowery, supra, 495 P.2d at p. 275; Costa v. Lair, supra, 363 A.2d at p. 1314.)

Real parties claim the Act is merely "procedural." They argue that nothing in the Act changes rules of substantive liability or diminishes the total amount of recovery theoretically available to the plaintiff; ¹ the Act merely alters the "measure of damages" by reallocating recoverable noneconomic damages among individual defendants according to the percentage of actual fault. We disagree.

The substantive-procedural distinction does not prevail in California because both "procedural" and "substantive" statutes are subject to the presumption against retroactive effect. (Aetna Cas. & Surety Co. v. Ind. Acc. Com., supra, 30 Cal.2d at pp. 394-395, 182 P.2d 159; Perry v. Heavenly Valley (1985) 163 Cal.App.3d 495, 503, 209 Cal.Rptr. 771; see DiGenova v. State Board of Education (1962) 57 Cal.2d 167, 173, 18 Cal.Rptr. 369, 367 P.2d 865 [rule against retroactivity "is the same with respect to all statutes, and none of them is retroactive unless the Legislature has expressly so declared." (Emphasis added.) ].)

Real parties nevertheless contend that a line of Supreme Court decisions supplies authority for the retroactive application of procedural statutes free of the disabling presumption. These decisions, however, involve statutory changes in the measure of damages which the Supreme Court found were clearly intended by the Legislature to have retroactive effect. The question in those cases was not whether an intent need be found to overcome the presumption, but whether the Legislature with a clear intent to retroactively legislate had the power to do so, i.e., whether the new law would interfere with a contract or a vested right. (See Tulley v. Tranor (1878) 53 Cal. 274, 278-279; Feckenscher v. Gamble (1938) 12 Cal.2d 482, 499-500, 85 P.2d 885; Stout v. Turney (1978) 22 Cal.3d 718, 727-728, 150 Cal.Rptr. 637, 586 P.2d 1228; see also Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co. (1977) 66...