DALE D. SCHWALBE et al., Plaintiffs and Appellants, v. THOMAS H. JONES, JR., Defendant and Respondent.
S.F. No. 23072
In Bank
Mar. 12, 1976
514
Herbert Resner, Stephen H. Tabor, Belli, Ashe, Ellison & Choulos and Belli, Ashe, Ellison, Choulos & Lieff for Plaintiffs and Appellants.
Robert E. Cartwright, Edward I. Pollock, William H. Lally, Stephen I. Zetterberg, Robert G. Beloud, Ned Good, David B. Baum, Arne Werchick, Elmer Low, Sanford M. Gage, Leonard Sacks and Bruce Cornblum as Amici Curiae on behalf of Plaintiffs and Appellants.
Gassett, Perry, Katzen, Frank & Bondelie, Gassett, Perry, Frank & Bondelie and Ronald L. Stefani for Defendant and Respondent.
OPINION
SULLIVAN, J.-In Brown v. Merlo (1973) 8 Cal.3d 855 [106 Cal.Rptr. 388, 506 P.2d 212, 66 A.L.R.3d 505], we held that former section 17158 of the Vehicle Code, the so-called “guest statute,” was violative of the equal protection guarantees of the United States and California Constitutions insofar as it precluded recovery by a nonowner “guest” against the driver or one legally liable for the conduct of the driver on account of personal injury to or death of the guest proximately resulting from the simple negligence of the driver. We expressly declined at that time to intimate an opinion as to the validity of the remaining portion of the statute, dealing with injury to, or death of, an owner riding as a passenger in his own vehicle.1 Today we squarely confront the latter issue.
Decedent‘s parents, Dale and Leone Schwalbe, brought the instant action against decedent‘s husband, alleging both negligence and willful misconduct. At the close of their evidence the trial court granted defendant‘s motion for nonsuit on the negligence count on the ground that section 17158 precluded recovery on that theory. Trial proceeded on the count alleging willful misconduct, resulting in a verdict for defendant. Plaintiffs appeal from the ensuing judgment. Their major contention, as indicated above, is that the owner portion of former section 17158 (which now constitutes the whole of the present section-see fn. 1, ante) suffers from the same constitutional defect which afflicted the “guest” portion in that the distinction now created between owner-passengers and nonowner-passengers lacks any rational legislative basis. They also contend that the trial court erred in its instructions to the jury on the issue of willful misconduct.
I
“The... basic and conventional standard for reviewing economic and social welfare legislation in which there is a ‘discrimination’ or differentiation of treatment between classes or individuals... 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 and ‘requir[es]
The classification established by former
In Patton v. La Bree (1963) 60 Cal.2d 606 [35 Cal. Rptr. 622, 387 P.2d 398], we were faced with essentially the same question. There it was contended that former
It is here contended, however, that the “fact” upon which our Patton reasoning was premised-i.e., “that an owner generally has the right to direct and control the driver, [while] a nonowner generally does not have that right” is illusory. It is urged that under modern traffic conditions accidents occur with such suddenness that there is no realistic opportunity for intercession by a passenger, whether he be the owner or not. Moreover, it is pointed out, when such an opportunity does exist, verbal warning or command is often ineffective and attempts at physical acquisition of control tend to increase rather than diminish the chances of calamity.
These arguments simply miss the point of our Patton decision. The owner‘s right to direct and control the driver when he allows another to drive his car and himself rides as a passenger distinguishes him from the nonowner-passenger not in terms of his ability to exercise effective control3 but in terms of his standing to seek recovery for injuries which
The rationality and cogency of this determination is best considered in the context of the 1973 reenactment of former
In a line of cases extending at least back to 1966, supported by authorities from other jurisdictions extending back considerably further than that, the courts of this state had indicated that a liability insurance provision excluding the named insured or members of his family from coverage was valid and not in contravention of public policy. (See Travelers Indem. Co. v. Colonial Ins. Co., supra, 242 Cal.App.2d 227, 234 [51 Cal.Rptr. 724]7; Farmers Ins. Exch. v. Geyer (1967) 247 Cal.App.2d 625, 629-632 [55 Cal. Rptr. 861]; Farmers Ins. Exch. v. Brown (1967) 252 Cal.App.2d 120, 122 [60 Cal.Rptr. 1]; Hale v. State Farm Mut. Auto. Ins. Co. (1967) 256 Cal.App.2d 177, 180-181 [63 Cal.Rptr. 819]; Paul Masson Co. v. Colonial Ins. Co. (1971) 14 Cal.App.3d 265, 269 [92 Cal.Rptr. 463]; cf. Farmers Ins. Exch. v. Frederick (1966) 244 Cal.App.2d 776, 781, fn. 3 [53 Cal.Rptr. 457]; see generally Annot., 46 A.L.R.3d 1061.)8 In view of these authorities the Legislature in 1970 had amended
Thus, when in 1973 the Legislature faced the question whether the owner portion of former
Plaintiffs, in order to sustain their position that
Plaintiffs also contend that the trial court erred in its instructions to the jury on the issue of willful misconduct. Although the court instructed the jury on the definition of willful misconduct in accordance with former BAJI No. 5.68, it is urged that it should not have refused to give two proffered instructions, based on Williams v. Carr, supra, 68 Cal.2d 579, which indicated in essence that an intent to injure is not a necessary ingredient of willful misconduct. It is also urged that the court should not have refused to read to the jury certain sections of the Vehicle Code dealing with the basic speed law and the safe towing of vehicles.16
Former BAJI No. 5.68 as then in use provided: “Wilful misconduct means intentional wrongful conduct, done either with knowledge that serious injury probably will result or with a wanton and reckless disregard of the possible results.” This language, in stating that it is the proscribed conduct which must be intentional, clearly implies that the result of that conduct in terms of injury need not be intended. The proffered instructions based on Williams v. Carr, supra, 68 Cal.2d 579, simply make explicit what is clearly implicit in the instructions given. In so doing, however, they place excessive emphasis on intended results at the expense of the quality of conduct. It was not error to refuse to give them in this case.
As to the court‘s refusal to read the Vehicle Code sections, we first observe that mere failure to perform a statutory duty does not in and of itself constitute willful misconduct. (Porter v. Hofman (1938) 12 Cal.2d 445, 448 [85 P.2d 447]; Meek v. Fowler (1935) 3 Cal.2d 420, 425 [45 P.2d 194], and cases and authorities there cited). We recognize of course that
The judgment is affirmed.
Wright, C. J., McComb, J., Clark, J., and Richardson, J., concurred.
TOBRINER, J.-I dissent.
The statute challenged in the instant case is a most peculiar law. From the wide range of automobile accident victims, the statute singles out one very narrow class-automobile passengers who happen to own the car in which they are injured-and bars this, and only this, class of victims from obtaining recovery from drivers who negligently cause their injuries. As I shall explain, this unusual law, which, to my knowledge, has no counterpart in any other jurisdiction in the country, originated as an addition to California‘s automobile guest statute in response to conflicting judicial decisions on whether an “owner-passenger” was a “guest” within the meaning of the guest statute; in that context, the purpose of the statute was somewhat understandable, treating injured owner-passengers in the same manner as the bulk of nonowner-passengers injured during a “social” ride. In Brown v. Merlo (1973) 8 Cal.3d 855 [106 Cal.Rptr. 388, 506 P.2d 212, 66 A.L.R.3d 505], however, this court held the basic automobile guest statute unconstitutional as a denial of the equal protection of the laws; in light of the demise of the underlying guest statute, the instant provision can no longer claim the justification of according injured owner-passengers the same treatment as most injured social guests. In terms of its original purpose, therefore, the statute‘s application has become entirely anamolous and irrational.
Finally, the majority suggest at one point that the challenged statute represents an attempt at legislative “reform” in the automobile liability field. (Ante, pp. 520-521.) As discussed below, I do not believe that it can reasonably be maintained that the Legislature intended to “reform” automobile accident law by depriving injured owner-passengers, and only injured owner-passengers, of a negligence cause of action. Furthermore, if legislative reform is to be made in the automobile accident field, as I believe it should, our Constitution demands that such reform be achieved in a manner which does not “irrationally single out one class of individuals for discriminatory treatment.” (Brown v. Merlo, supra, 8 Cal.3d at p. 882.) With all respect to the majority opinion, I believe the challenged statute exhibits just such an unconstitutional vice.
Before beginning my discussion of the challenged statutory provision, I believe that, in light of one footnote in the majority opinion (ante, pp. 518-519, fn. 2), I should explain what I see as the proper mode of equal protection analysis in a case such as this. I agree completely with the majority that in this case the appropriate equal protection standard of review is the traditional “restrained” review, with the judiciary affording the challenged legislation a presumption of constitutionality and placing a heavy burden of persuasion on the party attacking the statutory provision.
Over the years, both this court and the United States Supreme Court have utilized various formulations in describing the test to be applied in such cases, sometimes requiring the plaintiff to show that the challenged classification scheme does not “bear some rational relationship to a conceivable legitimate state purpose,” (Westbrook v. Mihaly (1970) 2 Cal.3d 765, 784 [87 Cal.Rptr. 839, 471 P.2d 487]), at other times indicating that to be valid, “[a] classification ‘must be reasonable, not arbitrary, and must rest upon some grounds of difference having a fair and substantial relation to the object of the legislation, so that all persons
Although the majority choose to single out one of these alternative formulations as the “appropriate” test,2 I believe all of the various formulations, however phrased, reflect a similar conception of the
Although it is sometimes suggested that the differing equal protection formulations establish different guides for determining the “legislative purpose” against which a classification scheme is to be measured, the apparent linguistic differences are more superficial than real; the cases which utilize the “conceivable legislative purpose” language adopted by the majority, like the cases which incorporate different terminology, refer to a legislative purpose which, though not necessarily articulated in the legislation itself or even in the legislative history, is at least a realistic, plausible purpose which the Legislature may have intended to pursue. (See Note, Developments in the Law-Equal Protection (1969) 82 Harv.L.Rev. 1065, 1078.) Courts do not uphold classification schemes on the basis of a theoretically “conceivable” purpose which may be imagined by a court to justify a particular classification, but which, under all the circumstances, cannot plausibly or realistically be attributed to the Legislature.
The case of Weinberger v. Weisenfeld (1975) 420 U.S. 636 [43 L.Ed.2d 514, 95 S.Ct. 1225], decided by the United States Supreme Court only last year, clearly demonstrates this point. In Weisenfeld, a young widower challenged the constitutionality of a provision of the Social Security Act which provided benefits to a widow who stayed at home to care for a small child upon the death of her wage earning husband, but denied similar benefits to a widower who provided the same fulltime child care after the death of his wage earning wife. The government attempted to justify the distinction as one “reasonably designed to compensate women beneficiaries as a group for the economic difficulties which still confront women who seek to support themselves and their families.” (420 U.S. at p. 648 [43 L.Ed.2d at p. 524]; cf. Kahn v. Shevin (1974) 416 U.S. 351, 355 [40 L.Ed.2d 189, 193, 94 S.Ct. 1734].)
In reaching its conclusion, the Weisenfeld court explicitly emphasized: “This Court need not in equal protection cases accept at face value assertions of legislative purposes, when an examination of the legislative scheme and its history demonstrates that the asserted purpose could not have been a goal of the legislation.” (420 U.S. at p. 648, fn. 16 [43 L.Ed.2d at p. 525].) This is clearly the appropriate judicial approach, for equal protection principles would become meaningless and ineffectual if courts simply engaged in the fantasy of conjuring up a “conceivable,” but entirely unrealistic, purpose that will sustain a statutory classification. In no other area is constitutional adjudication carried on in such highly fictional terms; the application of the equal protection clause demands an equally realistic approach.
When viewed from such a realistic perspective, the purpose of the statutory provision challenged in the instant case becomes relatively clear. The statutory clause at issue, barring an injured owner-passenger from suing the driver of his car to recover for injuries sustained by virtue of the driver‘s negligence, was enacted in 1961 as an explicit amendment
In Ray v. Hanisch (1957) 147 Cal.App.2d 742, 747-751 [306 P.2d 30], the Court of Appeal held that although “the mere fact plaintiff was riding in her own car while it was driven by defendant, her friend, does not classify her as a guest,” the social arrangement between the parties in that case demonstrated, as a matter of law, that the owner had not given “compensation” for the ride; consequently, the court held that the owner-passenger was a “guest” and could not recover. In Ahlgren v. Ahlgren (1960) 185 Cal.App.2d 216 [8 Cal.Rptr. 218], however, on facts closely analogous to the Ray case, the Court of Appeal concluded that an injured owner-passenger was not a “guest” under the guest statute, apparently reasoning that in permitting the driver to use his car, the owner had given “compensation” within the meaning of the act. (See also Ahlgren v. Ahlgren (1957) 152 Cal.App.2d 723, 725 [313 P.2d 88].)
The confusion illustrated by the Ray and Ahlgren cases was not unique to the California scene. Courts in other states had reached varying conclusions on this very issue (see Annot. (1959) 65 A.L.R.2d 312; Note (1957) 4 U.C.L.A.L.Rev. 652; Note (1958) 32 So.Cal.L.Rev. 93) and Dean Prosser had pointedly observed that among the guest statute‘s “knotty little problems involving petty and otherwise entirely inconsequential points of law” was the question: “Can the owner of the car be a guest in it when someone else is driving?” (Prosser, The Law of Torts (4th ed. 1971) § 34, p. 187.)
To eliminate this confusion, the Legislature in 1961 enacted the provision at issue in this case, establishing that a passenger-owner was to
The 1961 “owner-passenger” amendment to the automobile guest statute came before this court for the first time in Patton v. La Bree (1963) 60 Cal.2d 606 [35 Cal.Rptr. 622, 387 P.2d 398]. In Patton the plaintiff, a car owner who had taken her car to an automobile dealer to be serviced, was injured while riding as a passenger; the accident occurred while one of the car dealer‘s employees was driving. Plaintiff claimed initially that because she had paid for the servicing of her car she had given “compensation” for the ride; she then argued that insofar as the amended guest statute distinguished between nonowner-passengers who had given compensation and owner-passengers who had given compensation, allowing recovery by the former but barring recovery by the latter, the statute‘s classification scheme was invalid under the equal protection clause.
Our court rejected that equal protection claim, but the scope of the Patton holding is much narrower than the majority opinion in the instant case suggests. As explained above, the statute before the court in Patton accorded all injured owner-passengers the same treatment as most injured social passengers. While the Legislature had concluded that the giving of compensation represented a real distinction in the “guest” context, and justified differential treatment between those passengers who had paid for the ride and those who had not, the Legislature had apparently concluded that in the context of an “owner-passenger” the concept of giving “compensation” had little meaning; as noted earlier, in some sense every owner-passenger provides some “compensation” (e.g., the rental value of the car) for the ride. (See, e.g., Lorch v. Eglin (1952) 369 Pa. 314 [85 A.2d 841, 843]; Parker v. Leavitt (1960) 201 Va. 919 [114 S.E.2d 732, 737].) Thus, rather than having the application of the guest statute turn on the spurious notion of “compensation” when an owner-passenger was involved, the Legislature provided that all owner-passengers were to be accorded the same treatment as the majority of social guests. Our holding in Patton did no more than uphold such a legislative decision as reasonable.
Contrary to the assertion of the majority, the constitutional issue before our court in the instant case is totally different from the question presented in Patton. At the time Patton was decided, the statutory
In light of the demise of the automobile guest statute in Brown v. Merlo, it is clear that the disparate treatment accorded owner-passengers by the challenged provision bears no rational relation to the original legislative purpose. As we have seen, the provision at issue was enacted in order to treat owner-passengers as “guests” under the guest statute; now that automobile guests are no longer denied recovery for injuries suffered at the hands of a negligent driver, the instant classification clearly does not further the legislative purpose of according owner-passengers the same treatment as such guests, but rather defeats that purpose by singling out owner-passengers for differential treatment from all other automobile accident victims.
Moreover, the present statutory classification scheme cannot be justified by reference to the two legislative purposes, protecting hospitality and combating collusive lawsuits, that had been proffered in support of the basic guest statute. In Brown v. Merlo we explained that the hospitality argument did not support the differential treatment of automobile guests, as distinguished from other varieties of guests, and also ignored the general prevalence of liability insurance. (8 Cal.3d at pp. 864-872.) We further explained that the interest in eliminating collusion could not rationally justify the wholesale preclusion of numerous bona fide claims. (Id., at pp. 872-878.)
In light of our conclusions in Brown v. Merlo, it is clear that these same rationales cannot sustain the owner rule at issue here. In the first place, the preclusion of negligence actions by owners certainly does not rationally further any state interest in promoting hospitality, for unlike the basic guest statute, the owner provision deprives the host of his negligence claim, and not the guest. (See Ahlgren v. Ahlgren, supra, 185 Cal.App.2d 216, 223-225; Peterson v. Winn (1962) 84 Idaho 523 [373 P.2d 925, 928]; Note, Problems of Recovery under the Iowa Guest Statute (1962) 47 Iowa L. Rev. 1049, 1056.) Moreover, even if we assume that in
Second, the legislative objective in preventing collusive litigation can no more justify a rule precluding all actions by owner-passengers than it could a rule eliminating all actions by automobile guests. As we noted in Brown v. Merlo, “[i]nstead of confining its disability to those who actually institute collusive suits, the provision reaches out beyond such persons and burdens the great number of honest automobile [owners]. . . . Although the [equal protection clause does] not require absolute precision in the designation of classifications, [it does] not tolerate classifications which are so grossly overinclusive as to defy notions of fairness or reasonableness. . . . [I]n barring suits by all automobile [owners] simply to protect insurance companies from some collusive lawsuits, the... statute exceeds the bounds of rationality and constitutes a denial of equal protection.” (8 Cal.3d at p. 877; see also Jimenez v. Weinberger, supra, 417 U.S. 628, 636-637; U.S. Dept. of Agriculture v. Moreno, supra, 413 U.S. 528, 537-538; Gomez v. Perez (1973) 409 U.S. 535, 538 [35 L.Ed.2d 56, 59-60, 93 S.Ct. 872]; Glona v. American Guarantee Co. (1968) 391 U.S. 73, 76 [20 L.Ed.2d 441, 444, 88 S.Ct. 1515].)
Although the provision at issue was enacted as an integral part of this state‘s automobile guest statute, the majority do not suggest that the challenged classification scheme bears a rational relation to any legislative purpose related to the guest statute. Instead, the majority opinion appears to suggest that because the provision was reenacted in 1973, after our decision in Brown v. Merlo had invalidated the basic guest statute, the challenged provision was necessarily intended to serve a purpose unrelated to the former guest statute. The instant case, of course, arose under the pre-1973 statute (see ante, p. 516) and thus it is not at all clear what weight, if any, the 1973 reenactment should be given in the instant case. Assuming, however, that the 1973 legislative action is relevant to our present inquiry, I cannot agree with the majority that the provision, either in its pre- or post-1973 forrn, passes constitutional muster.
To begin with, in terms of political realities, I believe that the majority place far too much significance on the “reenactment” of the challenged provision in 1973. Inasmuch as our decision in Brown v. Merlo, supra,
Assuming, however, as do the majority, that in reenacting the provision the Legislature intended to promote some legitimate purpose independent of the original guest statute, it is still necessary to identify a reasonably conceivable legislative purpose which rationally justifies the disparate treatment provided by the provision‘s classification scheme. That classification scheme, once again, singles out those injured automobile passengers who happen to own the car in which they are injured and bars such injured passengers, and only such passengers, from recovering damages for injuries negligently caused by the driver of the vehicle. The peculiar nature of this classification scheme brings to mind the United States Supreme Court‘s admonition in Morey v. Doud (1957) 354 U.S. 457, 464 [1 L.Ed.2d 1485, 1490-1491, 77 S.Ct. 1344], that: ” ‘Discriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the [equal protection] provision.’ [Citations.]”
The majority initially suggest that the challenged provision may be justified on the ground that an owner-passenger has the “right” to direct and control the driver while a nonowner-passenger does not have such right. The opinion, however, never explains the significance, in this context, of the owner‘s ostensible “legal right.” The majority virtually concede that the distinction cannot rest on any significant difference in the ability of an owner, as compared to a nonowner, to prevent automobile accidents. It is common knowledge, of course, that as a result of the speed at which cars now travel and the congestion of streets and freeways, most traffic accidents develop almost instantaneously, leaving any owner-passenger little opportunity to intercede. Moreover, as for those few occasions when he has surrendered the wheel, the owner, to revert to a cliche, is no longer “in the driver‘s seat” and physical intercession in all likelihood would increase rather than reduce the probability of mishap. Finally, and most importantly, the likelihood and effectiveness of physical intercession as well as verbal assistance such as the sounding of a warning are, of course, functions of a passenger‘s presence in the car, not his title to the car.
This suggested “legislative purpose” is simply a non sequitur. The fact that an individual cannot recover damages when he negligently injures himself does not rationally explain why that individual should not be able to recover damages when another person negligently injures him. Under general tort principles, although a principal is vicariously liable for injuries which his agent negligently inflicts on third parties (see
The Legislature has explicitly incorporated these principles into the automobile liability area. Thus, whereas
These provisions establish beyond dispute that in California the general legislative policy is one which holds the negligent driver primarily responsible for injuries he causes. In light of these provisions, it is patently unrealistic to suggest, as the majority do, that the purpose of the challenged provision was to “attribute” or “impute” the driver‘s negligence to the owner so as to bar any recovery by the owner against the negligent driver.
Of course, to the extent that an owner‘s own negligence-in entrusting his car to an incompetent, intoxicated or known careless driver, for example is a proximate cause of his own injury, the owner‘s right to recover would be diminished under governing common law principles. (See Li v. Yellow Cab Co., supra, 13 Cal.3d 804.) The instant statute, however, cannot even be explained as a legislative codification of the now displaced contributory negligence rule, because under the classifications drawn by the present statute even the most careful owner, who selected only the most cautious driver and scrupulously supervised the driving, would be barred from recovery if the driver negligently causes an accident. If the Legislature had intended the provision to encourage owners to use due care in selecting those to whom they entrust their vehicle, the statute would necessarily have distinguished between those owners who did and those who did not use such care. Accordingly, the statute cannot be justified with reference to an owner‘s “right” to control the driver.
In addition to relying on the owner‘s legal right to control and direct the driver, the majority suggest that the classification scheme is rational because the Legislature might have felt it was “unfair” to permit the owner to recover ”at the expense of the driver.” (Original italics.) (Ante,
Even assuming that the majority of outstanding insurance policies issued to owners contain valid clauses excluding coverage of injuries to such owners (cf. State Farm Mut. Auto. Ins. Co. v. Jacober, supra, 10 Cal.3d 193), the majority‘s theory does not explain on what basis the Legislature could rationally decide that it was “unfair” to permit an owner to recover against a negligent driver. It is the basic policy in this state, of course, that every person is responsible for the consequences of his negligent acts (
To reiterate, the statutory classification scheme at issue here is a total anomaly. Enacted to provide injured owner-passengers with the same treatment accorded injured social guests, the statute now operates to deny owner-passengers the legal rights enjoyed by every other class of automobile accident victims. As I have explained, the deprivation of a negligence cause of action to this narrow class of automobile victims is not rationally related to any reasonably conceivable legislative purpose. For this reason, the classification scheme is violative of the state and federal equal protection guarantees and cannot stand.
Mosk, J., concurred.
Notes
Although the event which underlies the instant litigation occurred prior to our Brown decision, and the applicable version of section 17158 was technically that in effect prior to the 1973 amendment, the current statute contains identical language relative to actions by owner-passengers. Therefore we essentially consider here the validity of the current statute. See, e.g., Rinaldi v. Yeager (1966) 384 U.S. 305, 309 [16 L.Ed.2d 577, 580, 86 S.Ct. 1497] (“the distinctions that are drawn [must] have ‘some relevance to the purpose for which the classification is made’ “); McGowan v. Maryland (1961) 366 U.S. 420, 425 [6 L.Ed.2d 393, 399, 81 S.Ct. 1101] (“The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the state‘s objective“); Morey v. Doud (1957) 354 U.S. 457, 465 [1 L.Ed.2d 1485, 1491, 77 S.Ct. 1344] (“a statutory discrimination must be based on differences that are reasonably related to the purpose of the Act in which it is found“); Railway Express v. New York (1949) 336 U.S. 106, 115 [93 L.Ed. 533, 541, 69 S.Ct. 463] (Jackson, J. concurring) (“differentiation must have an appropriate relation to the object of the legislation“); Lindsley v. National Carbonic Gas Co. (1911) 220 U.S. 61, 78 [55 L.Ed. 369, 377, 31 S.Ct. 337] (“The equal protection clause... [invalidates a classification] only when it is without any reasonable basis and therefore is purely arbitrary. ... A classification having some reasonable basis does not offend that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality“); Werner v. Southern Cal. etc. Newspapers (1950) 35 Cal.2d 121, 131 [216 P.2d 825, 13 A.L.R.2d 252] (“A classification is reasonable .. only if there are differences between the classes and the differences are reasonably related to the purposes of the statute“).
We are persuaded that to elevate the aforesaid language into doctrinal concept, and thus to dilute the traditional standard which we have here expressed, would result in the substitution of judicial policy determination for established constitutional principle. (See Note, Judicial Activism in Tort Reform (1974) 21 U.C.L.A.L.Rev. 1566, 1569; see also Note, The Supreme Court of California 1972-1973 (1974) 62 Cal. L. Rev. 406, 648, 652-660; Note, Legislative Purpose, Rationality, and Equal Protection (1972) 82 Yale L.J. 123, 132-138.) Accordingly we note our determination, manifested by our restatement of the
My point, of course, is not that the Cossack formulations are the only “correct” standards because that decision is more recent than D‘Amico. Rather, I simply note that in recent, as in past, years, different formulations of the “restrained” equal protection standard have been continually utilized in an attempt to describe the applicable equal protection test. No one formula can be isolated as the only appropriate test.
In several other recent equal protection cases, the Supreme Court has similarly rejected a “theoretically conceivable” purpose that, under all the circumstances, could not reasonably be attributed to the Legislature. (See, e.g., Jimenez v. Weinberger (1974) 417 U.S. 628, 634 [41 L.Ed.2d 363, 369, 94 S.Ct. 2496]; U.S. Dept. of Agriculture v. Moreno (1973) 413 U.S. 528, 536-537 [37 L.Ed.2d 782, 789-790, 93 S.Ct. 2821]; Eisenstadt v. Baird, supra, 405 U.S. 438, 448-449; cf. McGinnis v. Royster (1973) 410 U.S. 263, 275-277 [35 L.Ed.2d 282, 291-293, 93 S.Ct. 1055].)
We may judicially notice as a matter of generalized knowledge (Evid. Code, § 451, subd. (b)) that substantially all such policies presently contain exclusions of this nature-which exclusions. if stated in unambiguous terms clearly operate to preclude an owner from recovering under his own liability policy under any circumstances, including