Does a plaintiff have to forfeit her appeal of her claim for funeral expenses in a wrongful death action?

Moreover, as noted, funeral expenses are recoverable in wrongful death actions. ( Francis v. Sauve, supra, 222 Cal.App.2d at p. 124, 34 Cal.Rptr. 754.) The majority concludes that plaintiff forfeited her appeal of her claim for funeral expenses in the present case. (Maj. opn., ante, 108 Cal.Rptr.3d at 810, n. 2, 230 P.3d at 345-346, n. 2.) Be that as it may, the majority does not contest that, but for this forfeiture, plaintiff was not barred from pursuing a wrongful death action in which funeral expenses could be recovered. Moreover, as noted, a loss of consortium action does not include damages for loss of economic support and therefore does not bar a wrongful death claimant from seeking such damages.² So, the necessary implication of the majority opinion appears to be that a wrongful death action consists of several separate primary rights: the right to economic support, the right to consortium, the right to funeral expenses, and only the loss of consortium primary right is foreclosed by a prior common law loss of consortium action.

But there is no authority for parsing a wrongful death claim in this manner into separate primary rights. Indeed, in a wrongful death suit in which the causes of action were denominated as: (1) negligence; (2) strict liability; (3) breach of implied warranty; and (4) wrongful death, one Court of Appeal noted that [m]ore properly characterized ..., the plaintiffs' suit consisted of but one true cause of action, that cause of action being for the injury they had suffered as a result of the wrongful death of the decedent [citation], and the four causes of action were actually counts based on the same primary right of plaintiffs and the same primary duty of defendants, each of which merely alleged additional circumstances out of which the primary right and primary duty arose. ( Barrett v. Superior Court (1990) 222 Cal.App.3d 1176, 1181-1182, 272 Cal.Rptr. 304, italics added.) In other words, wrongful death is most properly characterized as consisting of a single primary

[230 P.3d 356]

right, created by statute and arising at the time of decedent's death, to be free of various pecuniary losses that result from tortious conduct leading to a spouse's or child's death. This statutorily created primary right is plainly distinct from the common law cause of action for loss of consortium arising from a nonfatal injury.

[230 P.3d 356]