APPEAL from a judgment of the Superior Court of Los Angeles County, David L. Mining, Judge. Affirmed. (Los Angeles County Super. Ct. No. BC372007).
The opinion of the court was delivered by: Aldrich, J.
Certified for Publication 05/27/2010 (order attached)
Plaintiff, Teckla Chude, an uninsured driver, suffered second degree burns when she spilled the coffee she had just purchased at the drive-through window of defendant Jack in the Box (JIB). Her negligence action was resolved after the trial court granted JIB's motion for summary adjudication of Chude's claim for non-economic damages. The court relied on Proposition 213, Civil Code section 3333.4,*fn1 which bars uninsured motorists and convicted drunk drivers from recovering non-economic damages in certain cases. At issue in Chude's appeal is whether section 3333.4 precludes Chude from recovering an award of non-economic damages. We hold that it does and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The following facts are undisputed: Chude drove to the JIB on Cesar Chavez Boulevard in Los Angeles in her own car. Arriving at the drive-through menu board, Chude stopped her car and placed an order for a breakfast sandwich and a cup of hot coffee. She then drove into the drive-through lane and pulled up to the drive-through window. Chude remained seated in the driver's seat of her car, in her seatbelt, with the engine running, the transmission in "drive," and her foot on the brake pedal. After Chude paid for her order, the JIB employee handed her the food and the cup of coffee. Chude took the coffee from the employee and brought it inside her car. The cup dropped into her lap leaving the lid in her hands. Coffee apparently pooled on the seat below her. Chude's car rolled forward and so she put the transmission in "park." However, she could not open the car door to unbuckle her seatbelt because the car was too close to a wall, with the result that Chude spent two to three minutes "tying to get [her] butt off . . . the" seat and out of the pooled coffee. Chude suffered second degree burns and skin discoloration to her buttock and thigh. Her buttock injuries prevented her from working, sitting, or driving, and so she missed two weeks of school and received an incomplete, and missed an opportunity for an internship.
Chude brought her action against JIB alleging negligence and seeking both economic and non-economic damages. JIB answered the complaint generally and specifically denying each of the allegations, and posed, as one of its 40 affirmative defenses, that section 3333.4 precluded Chude from recovering non-economic damages against JIB because she was injured while operating her motor vehicle, which was not insured. JIB moved for summary adjudication on this ground and asserted, among its undisputed facts, that neither Chude nor her automobile were covered by automobile liability insurance at the time of the incident. Thus, Chude did not have financial responsibility as provided for in Vehicle Code section 16021.*fn2 Meanwhile, it is JIB's policy not to serve anyone at a drive-through window who is not in a motorized vehicle. At the time of the incident, JIB maintained a policy of liability insurance through which it was insured for the damages and claims that arose from this incident.
The trial court granted JIB's motion. The parties stipulated to entry of judgment and Chude timely appealed.
Chude contends that section 3333.4 does not apply in this case to preclude her recovery of non-economic damages.
"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." (Day v. City of Fontana (2001) 25 Cal.4th 268, 274 (Day.))
Section 3333.4 "prohibits uninsured motorists . . . from collecting non-economic damages in any action arising out of the operation or use of a motor vehicle." (Yoshioka v. Superior Court (1997) 58 Cal.App.4th 972, 978.) In relevant part, it 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 non-pecuniary damages if any of the following applies: [¶] . . . [¶] (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." (§ 3333.4, subd. (a)(2), italics added.)
Preliminarily, we observe that Chude does not deny that she owned the car and that it was not insured. The question here is whether Chude's lawsuit is an "action to recover damages arising out of the operation or use of a motor vehicle" under subdivision (a), such as would trigger the bar of ...