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Espinosa v. Kirkwood

June 23, 2010

MICHAEL ESPINOSA ET AL., PLAINTIFFS AND APPELLANTS,
v.
KENNETH L. KIRKWOOD, JR., DEFENDANT AND RESPONDENT.



APPEAL from the Superior Court of Riverside County. Paulette D. Barkley, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. (Super. Ct. No. RIC499537).

The opinion of the court was delivered by: Ramirez P.J.

CERTIFIED FOR PUBLICATION

OPINION

Plaintiffs, Michael Espinosa and Angel Vertiz, participated in a burglary along with defendant Kenneth L. Kirkwood, Jr., and fled in a car driven by Kirkwood. While trying to evade the police, Kirkwood collided with two other vehicles during a car chase, causing injuries to both passengers. Plaintiffs sued Kirkwood for damages for their personal injuries, but the trial court granted defendant's motion for summary judgment, dismissing the action as barred by Civil Code section 3333.3, which prohibits recovery of damages if the plaintiff's injuries were in any way proximately caused by the plaintiff's commission of any felony or immediate flight therefrom.

Plaintiffs appealed the dismissal on the ground that there is a triable issue of fact as to whether or not plaintiffs' injuries were caused by the flight from felonious conduct. Because the plaintiffs were passengers, they were "using" the motor vehicle during the flight from their commission of a felony. We affirm.

BACKGROUND

On June 17, 2007, plaintiffs and defendant attempted a residential burglary. They left the scene of the crime in a car driven by defendant Kirkwood. They were spotted by police and a car chase ensued, which ended when their car collided with three other vehicles less than a mile from the burglary scene, rear-ending a vehicle stopped in an intersection. After the collision, Kirkwood attempted to leave the scene on foot without stopping to identify himself. Defendant Kirkwood and plaintiff Vertiz were subsequently convicted of burglary, while plaintiff Espinoza was convicted of attempted burglary. (Pen. Code, §§ 459; 664/459 [RIF137243].)

On May 16, 2008, plaintiffs sued defendant for damages for personal injury. On March 17, 2009, the trial court granted defendant's motion for summary judgment. Plaintiffs appealed.

DISCUSSION

Plaintiffs contend that defendant's motion for summary judgment was erroneously granted. They acknowledge that they were passengers in the vehicle with defendant and that the three individuals were fleeing from the scene of a felony at the time of the incident. However, they contend there was a triable issue of fact as to whether or not their participation in a felony or immediate flight therefrom was a proximate cause of the serious injuries they sustained in the motor vehicle accident. We disagree.

Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. (Code Civ. Proc. § 437c, subd. (a).) The motion shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant meets his or her burden on a motion for summary judgment if that party has proven there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (o)(2); Jenkins v. County of Los Angeles (1999) 74 Cal.App.4th 524, 529.) Because plaintiffs' appeal is from a trial court order granting summary judgment for defendant, we independently examine the record to determine whether there exist triable issues of fact warranting reinstatement of the action. (Morris v. De La Torre (2005) 36 Cal.4th 260, 264, citing Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)

In this case, the motion for summary judgment was grounded upon the affirmative defense that the injuries to plaintiffs were proximately caused by the plaintiffs' immediate flight after the commission of a felony and that the plaintiffs were duly convicted of the felony. (Civ. Code, § 3333.3.) Our task, therefore, is to determine if that statute provides a complete defense to the cause of action.

There is no dispute as to the facts that plaintiffs and defendant were co-participants in the commission of a felony and there is no dispute that defendant was driving, with plaintiffs as passengers in a motor vehicle. And there is no dispute that the collision occurred while the plaintiffs and defendant were fleeing from police immediately after commission of the felony. The plaintiffs' complaint alleges the injuries were attributed to the negligence of defendant. However, plaintiffs assert there is a triable issue of fact as to whether or not their participation in a felony or immediate flight therefrom was a proximate cause of the injuries they sustained in the accident.

To determine whether the plaintiffs, who were principals in the driver's criminal conduct, are barred from recovering against the felon-driver, we look to the language and intent of the ballot initiative, Proposition 213, currently embodied in Civil Code section 3333.3. Regarding the intent of the initiative, the Official Title and Summary for the ballot initiative indicates the drafters' intent to deny "all recovery of damages to a convicted felon whose injuries were proximately caused during the commission of the felony or immediate flight therefrom. (Ballot ...


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