I respectfully dissent. Because I conclude Civil Code section 3333.4 cannot be applied retroactively to bar petitioner’s right *994to nonpecuniary damages, I find it unnecessary to consider the other issues addressed in the majority opinion.
As discussed in the majority opinion, Proposition 213 contains a clause which purports to terminate ongoing claims for noneconomic damages filed before the proposition’s passage unless they actually came to trial within the two months between that date and January 1, 1997. The case before this court falls in this category. It was filed in 1995 but, as is typical in Los Angeles, trial had not yet commenced as of the first day of 1997. In my view this attempted retroactivity provision in Proposition 213 is both ambiguous and unconstitutional, whatever the constitutionality of this proposition for lawsuits filed after January 1, 1997.
I. The Proposition Is So Ambiguous as to Whether It Bars Nonpecuniary Damage Awards for Cases First Filed After Its Passage or for Those Already Filed Which Had Not Reached Trial by January 1,1997, That It Cannot Be Presumed the Voting Majority of the Electorate Chose to Make the New Law Retroactive.
In the second sentence of a paragraph labeled “Section 4. Effective date” Proposition 213 states “[i]ts provisions shall apply to all actions in which the initial trial has not commenced prior to January 1, 1997.” In an effort to argue away any ambiguity in this particular sentence, the majority opinion points to the earlier and more prominent sentence contained in the language of the ballot statement. My colleagues contend this section clarifies the retroactive nature of this enactment. In my view, however, the earlier and more prominent sentence creates ambiguity and not clarity. That clause reads: “A Yes vote on this measure means: Uninsured drivers . . . could no longer sue someone who was at fault for the accident for non-economic losses (such as pain and suffering).” The common meaning of “no longer sue” is “can no longer file a claim for non-economic losses” not that you no longer can complete a lawsuit for noneconomic losses which already has been filed. The phrase “can no longer,” in turn, means “cannot after the proposition becomes law.” Accordingly, in the ballot statement the voter was being told that after the proposition becomes law no one will be able to file a claim for noneconomic losses.
There is no escaping the conclusion the two sentences—one in the ballot statement far more voters read and telling them what the proposition really means and the other sentence at the end of the proposition itself which few voters read—are inconsistent. One says the proposition only bars new claims for nonpecuniary damages and the other says it bars such claims even in ongoing'lawsuits unless they are brought to trial by January 1, 1997. The *995conflicting sentences, in turn, create an ambiguity as to what the proposition means. As a result, it is difficult to say the words of this initiative package are “so clear, strong and imperative that no other meaning can be annexed to them" as is required to impute an intent on the part of the voters to apply such legislation retroactively. (U.S. Fidelity Co. v. Struthers Wells Co. (1908) 209 U.S. 306, 314 [28 S.Ct. 537, 539, 52 L.Ed. 804].)
This is not a case where the ballot statement simply failed to alert the voter the initiative itself, contrary to most, contained an unusual provision making it retroactive as to already filed litigation. Here the ballot statement conveys misinformation or at a minimum creates a false impression on that very question. The proponent’s ballot statement only says the initiative prevents the filing of future claims for nonpecuniary damages. Meanwhile, hidden in the initiative is a single sentence purporting to apply it retroactively and thus also eliminate past claims of this nature. It is entirely possible the proponents of this proposition were merely careless in drafting the ballot statement language creating this erroneous impression about what the proposition would do. But if the electorate is told they are voting for one kind of provision in a ballot statement and the proposition contains contrary language, especially as to issues as vital and constitutionally sensitive as retroactivity, the initiative process no longer can fulfill its important role as the ultimate expression of popular will. Instead it will be open to misuse as an instrument for confusing the electorate and producing counterfeit expressions of the voting public’s choices. Thus, in order to protect and preserve the integrity of the initiative process the courts must be ever vigilant against the kind of inconsistency between ballot statement and proposition language found in this case.
II. Assuming the Proposition Is Clearly Intended to Be Retroactive, It Would Be Unconstitutional to Terminate Retroactively Petitioner’s Vested Right.
In the nearly 150 years of California’s history, and under the common law for centuries before that, all people injured as petitioner was have been entitled to damages in “the amount which will compensate for all the detriment proximately caused” them by another’s negligent (or reckless or intentional) act.1 Proposition 213 changed all that for those unable or unwilling to buy auto liability insurance (as well as drunk drivers and fleeing *996felons), denying them any compensation for “non-pecuniary” detriment they might suffer as victims of another’s wrongful (including criminal) acts arising out of the operation or use of a vehicle. (Civ. Code, § 3333.4, subd. (a)(2)-(3).)
This change in the law took away the long-standing right to recover nonpecuniary damages for over one-quarter of California’s motorists2 and over one-third of those in Los Angeles County3—literally millions of people. Accepting the majority’s interpretation of the voters’ intent, Proposition 213’s changes “shall apply to all actions in which the initial trial has not commenced prior to January 1, 1997.” Thus, included in the millions Proposition 213 embraces is a small subset of uninsured motorists who had not only suffered their injuries in vehicle accidents occurring in the period before the voters passed Proposition 213 but who had filed lawsuits before that date and included claims for nonpecuniary damages. For these people, the change applies retroactively. Petitioner is one of this unfortunate few.
Due process does not permit retroactive application of a law which deprives a person of a “substantive (or vested) right” as opposed to a mere “procedural right” in violation of due process. (Roberts v. Wehmeyer (1923) 191 Cal. 601, 612 [218 P. 22]; In re Marriage of Buol (1985) 39 Cal.3d 751, 756 [218 Cal.Rptr. 31, 705 P.2d 354]; Wexler v. City of Los Angeles (1952) 110 Cal. App.2d 740, 747 [243 P.2d 868], distinguished on another point in Leupe v. Leupe (1942) 21 Cal.2d 145, 148 [130 P.2d 697]; Coombes v. Getz (1932) 285 U.S. 434 [52 S.Ct. 435, 76 L.Ed. 866].) As Witkin explains: “A retrospective or retroactive law is not invalid as such . . . [f] Such a law is invalid, however, ... if it deprives a person of a vested right or substantially impairs such right, thereby denying due process.” (7 Witkin, Summary of Cal. Law (9th ed. 1988) Constitutional Law, § 486, p. 675.) But deciding whether retroactivity offends due process also requires the balancing of several factors. “In determining whether a retroactive law contravenes the due process clause, we consider such factors as the significance of the state interest served by the law, the importance of the retroactive application of the law to the effectuation of that interest, the extent of reliance upon the former law, the legitimacy of that reliance, the extent of actions taken on the basis of that reliance, and the extent to which the retroactive application of the new law would disrupt those actions.” (In re Marriage of Bouquet (1976) 16 Cal.3d 583, 592 [128 Cal.Rptr. 427, 546 P.2d 1371], holding clarified in *997Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208-1209 [246 Cal.Rptr. 629, 753 P.2d 585] [courts should presume legislative enactments should only be applied respectively]).
I begin with an inquiry about just what sort of right new Civil Code section 3333.4 eliminates.
III. The Right to “Non-Pecuniary” Damages Is a Vested Right Entitled to Protection From Retrospective Deprivation.
What Proposition 213 characterizes as “non-pecuniary” damages represents the entirety of what society has decided is the best it can do when someone suffers injury to his or her personhood, his or her very being. The rest, the so-called “pecuniary” damages just replace the money the injured party lost because of what the guilty party did to him or her—chiefly the hospital bills to be paid and the wages the injured party is unable to earn while recuperating. But if the injured person writhes in pain for months or years in a bum ward, or is blinded or loses a limb or turned into a quadriplegic, or loses most of his intellect or even becomes a human “vegetable” because of brain damage, or suffers any of a thousand other personal horrors, because of another’s negligence or worse—“non-pecuniary” damages provide the only recourse available for any of this harm.
Unlike the statutory “benefits” which some courts have held the Legislature can take away retroactively without offending due process (Graczyk v. Workers’ Comp. Appeals Bd. (1986) 184 Cal.App.3d 997 [229 Cal.Rptr. 494, 58 A.L.R.4th 1245]), an injured party’s chance to obtain compensation for nonpecuniary injuries from the party that caused the injury is neither a “benefit” nor statutory in origin. It is a “right” not a “benefit” and one that is a fundamental tenet of the common law. As one leading treatise explains: “The cardinal principle of damages in Anglo-American law is that of compensation for the injury caused to plaintiff by defendant’s breach of duty. . . .
“What then is compensation? The primary notion is that of repairing plaintiff’s injury or of making him whole as nearly as that may be done by an award of money. The ‘remedy [should] be commensurate to the injury sustained.’ ‘[W]hoever does an injury to another is liable in damages to the extent of that injury.’ ” (4 Harper, James & Gray, The Law of Torts (2d ed. 1986) Damages in Accident Cases, § 25.1, pp. 490, 493, fns. omitted.)
It is often said money cannot truly compensate this kind of pain or these kinds of losses. But this is not justification for doing away with “non-pecuniary” damages. Rather the observation simply states an undeniable *998truth. Money is not an adequate substitute for the loss of a limb or its equivalent; it is just the only—or at least the best—we can do.4 “[I]t is the aim of the law to attain at least a ‘rough correspondence between the amount awarded as damages and the extent of the suffering,’ or other intangible loss.” (4 Harper, James & Gray, The Law of Torts, supra, Damages in Accident Cases, § 25.1, p. 493, fn. omitted.)
There also is an economic dimension to so-called “non-economic” damages. As noted law and economics expert Judge Richard Posner has observed, “We disagree with those students of tort law who believe that pain and suffering are not real costs and should not be allowable items of damages in a tort suit. No one likes pain and suffering and most people would pay a good deal of money to be free of them. If they were not recoverable in damages, the cost of negligence would be less to the tortfeasors and there would be more negligence, more accidents, more pain and suffering, and hence higher social costs.” (Kwasny v. U.S. (7th Cir. 1987) 823 F.2d 194, 197.)
The majority opinion relies on a line of cases which states the Legislature may retroactively reduce damages or place a “cap” on damages without running afoul of the constitution. (Maj. opn. ante, at p. 988.) But Proposition 213 does far more than that. It eliminates recovery of any compensation for a major class of injuries people typically suffer in vehicle accidents, that is, injuries to the person—the pain and suffering they endure for moments or years, the emotional distress accompanying disfigurement, the lost enjoyment and increased aggravation of having to live life as a paraplegic, and like injuries. No, this proposition does not merely establish a cap on compensation for these very real injuries; it eliminates such compensation entirely. In effect, it says we will continue to pay you for the damage to your property interests—your medical bills and lost income—but not for the damage to your person. In my view, the right to compensation for damage to the person—and not merely the property losses which may accompany a so-called “personal injury”—is a “substantive right” and a “vested right.” The loss of such a right is not merely an adjustment or a cap or a reduction in the amount of damages, but the total elimination of the species of damages most closely related to our status as human beings and not mere bill payers and workhorses.
That the voting majority which enacted Proposition 213 retains their own right to compensation for these losses, while taking it away from the *999unfortunate quarter or third of the population, only serves to underscore the value most people place on this right. Assuming it can be denied prospectively, this is the sort of substantive indeed fundamental right which cannot be taken away retroactively.
Petitioner’s right to recover nonpecuniary damages for his past injuries is also “vested” in another sense. He had filed his action for such damages with the court long before Proposition 213 was proposed or passed. So it was not a mere inchoate right or an expectancy of compensation, but a full-blown chose in action appellant possessed. The law looks with special disfavor on statutes which purport to retroactively change substantive rights for ongoing litigation. (Wexler v. City of Los Angeles, supra, 110 Cal.App.2d 740, 747 [statutory change making father necessary party in action for child’s death does not apply retroactively to mother’s lawsuit]; Morris v Pacific Electric Ry. Co. (1935) 2 Cal.2d 764 [43 P.2d 276] [defendant entitled to rely on old statute making plaintiff’s speed limit violation per se contributory negligence since new statute enacted after lawsuit commenced could not be applied retroactively to deprive defendant of this defense].) If defendants are entitled to retain defenses existing when lawsuits were filed against them, certainly plaintiffs should be entitled to retain the right to damages existing when they filed their lawsuits.
IV. On Balance, Retroactive Application of Civil Code Section 3333.4 Harms Uninsured Plaintiffs Who Already Have Filed Cases More Than It Furthers the Legitimate Goals of the Legislation.
Not only is this right “vested” and of great importance to those who sought nonpecuniary damages before enactment of Proposition 213, but on balance retroactive deprivation of this right harms petitioner and like persons more than it furthers the goals of the proposition. First, assuming only prospective application of Civil Code section 3333.4, insurance rates will go down by nearly as much and nearly as quickly as they would if already filed claims for nonpecuniary damages were not allowed to proceed to trial. Insurance rates were set and already collected on the assumption uninsured motorists would still be receiving nonpecuniary damages. So there would not be any immediate reduction in insurance premiums anyway. The relatively small tail of already filed cases involving uninsured motorists will not affect future premiums substantially compared to the many thousands of such claims which will not be filed at all after the effective date of the act.
And, again assuming only prospective application, there will be just as great a decrease in uninsured motorists on our highways as there would if the law were enforced retroactively. A retroactive deprivation of the right to *1000recover nonpecuniary damages comes too late to affect past decisions not to obtain automobile insurance. If Civil Code section 3333.4 is to encourage more drivers to obtain auto insurance or to discourage those that do not from using their cars, it can do so only after its enactment.
On the other side of the balance, consider how fundamentally unfair it is to deprive petitioner retroactively of this substantive right to be compensated for injury to his person not just his property interests. It is unfair in the sense he lacked the opportunity to know and adjust his behavior in such a way as to avoid this loss. Had he known this was the risk of driving without insurance, he may have been able to adjust his budget enough to pay those premiums.5 Or, alternatively, he may have elected not to drive and instead worked out some alternative means of transportation. But at the time petitioner was deciding whether to buy auto insurance instead of other necessities he had no reason to fear he would lose his long-standing right to compensation for injuries to his person as well as his property. He made that choice years before Civil Code section 3333.4 took away this long-standing right. The same is true when he decided to drive his own car without insurance instead of seeking alternative transportation. He made these irrevocable decisions before they carried consequences nearly as serious as the loss of the right to seek compensation for injuries to petitioner’s person if someone injured him while he was driving his vehicle.
Retroactive application also is fundamentally unfair because petitioner filed and litigated this case for over a year—and made settlement calculations and other litigation decisions—in reliance on his entitlement to damages for injury to his person. For all we know, he may have insisted on demands he would not have made or rejected offers he would have accepted during the course of the litigation had he known this crucial form of damages would not be available to him. Thus, petitioner’s “legitimate expectations ... are substantially disregarded in favor of needless retroactivity.” (In re Marriage of Buol, supra, 39 Cal.3d 751, 763.)
*1001And, finally, it is unfair because the time frame was so short it was not feasible to bring his case to trial. Yet others similarly situated may through pure chance or good fortune or different geography or a kind judge have been able to commence their trials by December 31, 1996, and thus saved their substantive right to damages for injuries to the person. “If the statute operates immediately to cut off the existing remedy, or within so short a time as to give the party no reasonable opportunity to exercise his remedy, then the retroactive application of it is unconstitutional as to such party.” (Rose-field Packing Co. v. Superior Court (1935) 4 Cal.2d 120, 122-123 [47 P.2d 716]; Aronson v. Superior Court (1987) 191 Cal.App.3d 294, 297 [236 Cal.Rptr. 347].)
So-called “procedural changes” ordinarily can be imposed retroactively without offending due process. (7 Witkin, Summary of Cal. Law, supra, Constitutional Law, § 492, p. 682.) But even such changes must allow those affected a reasonable time to protect their substantive rights. “[T]he Legislature cannot, by a purported change in procedure, cut off all remedy.” {Id. at § 493, p. 683, citing inter alia Lane v. Wilson (1939) 307 U.S. 268 [59 S.Ct. 872, 83 L.Ed. 1281], holding it was unconstitutional to enact a statute giving African-Americans only a 12-day period to register or lose their right to vote.) If retroactive procedural changes are unconstitutional when they fail to allow sufficient time to protect substantive rights, a fortiori, retroactive changes in substantive law are unconstitutional if they provide those affected an inadequate time to save their existing rights.
For these reasons, I would issue the writ and require the trial court to admit evidence and instruct on nonpecuniary damages. In my view, the two problems of constitutional infirmity and conflict between ballot statement and initiative language reinforce each other. The obvious unfairness underlying that infirmity makes it still more doubtful a majority of voters knowingly chose to change the rules for ongoing litigation. So it is even more reasonable to strip Proposition 213 of its retroactivity on that ground alone. Simultaneously, the initiative package’s ambiguous message renders it less likely a decision to rule the attempted retroactivity provision unconstitutional would contravene the electorate’s true intent.
On November 18, 1997, the opinion was modified to read as printed above.
The current statutory expression of this common law right is found in Civil Code section 3333, originally enacted in 1872. “For the breach of an obligation not arising from contract, the measure of damages, ... is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.” (Civ. Code, § 3333.)
California Department of Insurance Statistical Analysis Bureau, Commissioner’s Report on Underserved Communities (Feb. 1995) at page CA-1. The bureau reported 27.75 percent of vehicles registered in California were uninsured in 1995.
California Department of Insurance Statistical Analysis Bureau, Commissioner’s Report on Underserved Communities, supra, at page LA-7. The bureau reported 37.11 percent of vehicles registered in Los Angeles County were uninsured in 1995.
In the barbarous era of “an eye for an eye,” the victim may have gained some psychic compensation when his family revenged his lost limb or other injury by separating the assailant from his own limb or by inflicting the same pain on that person. But one of the primary functions of the system of monetary compensation and the legal system itself is to substitute an orderly transfer of money from perpetrator to victim for the violence of personal physical revenge.
For many if not most uninsured drivers this may not be a viable option. The California Department of Insurance reports a direct and dramatic correlation between poverty and the absence of auto insurance coverage. This is especially acute in Los Angeles County, where the average auto insurance premium is double that in Northern California. (Cal. Dept. of Insurance Statistical Analysis Bureau, Automobile Premium Survey (1996) Executive Summary, p. 2.) Sadly, the low-income areas often also are the high premium areas. For instance, in one zip code in South Central Los Angeles (90044) analysts found the premium for a minimum liability policy was $2,321 a year for a safe driver who had no points on his or her record. (Ibid.) Yet the average per capita income in that same zip code was $7299. Thus, even typical safe drivers living in that area who wished to drive an insured vehicle would have to pay a third of their annual income to obtain a minimal policy. Is it any wonder 67.89 percent of vehicles in that zip code are uninsured? (Cal. Dept, of Insurance Statistical Analysis Bureau, Commissioner’s Report on Underserved Communities, supra, at p. LA-2.)