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Los Angeles Wrongful Death Action

California

,

United States of America

Issue

What damages can a parent recover in a wrongful death action based on the death of their adult child?

Conclusion

The parents of a decedent may bring a wrongful death action if there is no surviving spouse or issue of the decedent. (Cal. Code Civ. Proc. § 377.60, Cal. Prob. Code § 6402, Nelson v. County of Los Angeles)

Additionally, a parent may bring a wrongful death action if they were dependent on the decedent. (Cal. Code Civ. Proc. § 377.60, Perry v. Medina)

Dependency is determined on a case-by-case basis and parents must show that they were actually dependent, to some extent, upon the decedent for the necessaries of life. If a parent receives financial support from their adult child that aids them in obtaining things such as shelter, clothing, food, and medical treatment, the parent is dependent upon their child. (Perry v. Medina)

A plaintiff in a wrongful death action is entitled to recover damages for their own pecuniary loss, which may include: (1) the loss of the decedent's financial support, services, training and advice; and, (2) the pecuniary value of the decedent's society and companionship. (Corder v. Corder, Nelson v. County of Los Angeles, Mendoza v. City of W. Covina, Ure v. Maggio Bros. Co.)

A plaintiff in a wrongful death action can not recover damages for the grief or sorrow attendant upon the death of a loved one, for their sad emotions, or for the sentimental value of the loss. (Corder v. Corder, Nelson v. County of Los Angeles, Mendoza v. City of W. Covina, Ure v. Maggio Bros. Co.)

Factors relevant when assessing a claimed loss of society, comfort, and affection may include the closeness of the family unit, the depth of their love and affection, and the character of the deceased as kind, attentive, and loving. (Mendoza v. City of W. Covina, Corder v. Corder, Nelson v. County of Los Angeles)

Because the damages awarded in a wrongful death action must compensate the plaintiff for the pecuniary loss they suffered due to the decedent's wrongful death, the plaintiff's life expectancy limits the time during which the damages may accrue and for which they may be awarded. (Ure v. Maggio Bros. Co.)

In Nelson v. County of Los Angeles, parents brought a wrongful death action after the death of their adult son and the jury awarded them $2 million in damages. The California Court of Appeal for the Second District reversed the damages award after finding that, given the facts of the case, a rational person would not value the parents' lost comfort, society, and companionship at $2 million. The Court found that the parents were not in frequent contact with their son before his death, had not seen their son in the 20 years preceding his death, and did not receive any financial support from him. Furthermore, the son's future financial prospects at the time of his death were limited as he was recently paroled, addicted to cocaine, and suffered from health problems.

Law

Cal. Code Civ. Proc. § 377.60 establishes a cause of action for the death of a person caused by the wrongful act or neglect of another. Subdivision (a) provides that the decedent's surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons who would be entitled to the property of the decedent by intestate succession, may bring the action. Subdivision (b)(1) further provides that whether or not qualified under subdivision (a), if they were dependent on the decedent, the putative spouse, children of the putative spouse, stepchildren, parents, or the legal guardians of the decedent may bring the action:

A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent's personal representative on their behalf:

(a) The decedent's surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession. If the parents of the decedent would be entitled to bring an action under this subdivision, and the parents are deceased, then the legal guardians of the decedent, if any, may bring an action under this subdivision as if they were the decedent's parents.

(b)

(1) Whether or not qualified under subdivision (a), if they were dependent on the decedent, the putative spouse, children of the putative spouse, stepchildren, parents, or the legal guardians of the decedent if the parents are deceased.

(2) As used in this subdivision, "putative spouse" means the surviving spouse of a void or voidable marriage who is found by the court to have believed in good faith that the marriage to the decedent was valid.

(c) A minor, whether or not qualified under subdivision (a) or (b), if, at the time of the decedent's death, the minor resided for the previous 180 days in the decedent's household and was dependent on the decedent for one-half or more of the minor's support.

[...]

Cal. Prob. Code § 6402 sets out the general order by which an intestate estate passes to specified people who are related in some way to the decedent. Subdivision (b) sets out that where there is no surviving spouse of the decedent and no surviving issue of the decedent, then the estate passes to the decedent's parent or parents equally:

Except as provided in Section 6402.5, the part of the intestate estate not passing to the surviving spouse, under Section 6401, or the entire intestate estate if there is no surviving spouse, passes as follows:

(a) To the issue of the decedent, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240.

(b) If there is no surviving issue, to the decedent's parent or parents equally.

[...]

Nelson v. County of Los Angeles, 113 Cal. App.4th 783, 6 Cal.Rptr.3d 650 (Cal. App. 2003) ("Nelson") involved a claim brought by parents for the wrongful death of their adult son. The California Court of Appeal for the Second District found that the parents had standing to bring the wrongful death suit pursuant to Cal. Code Civ. Proc. § 377.60 because it was established that they were the decedent's parents and, more than five years after the decedent's death, no previously unknown child or missing spouse had come forward to assert a claim against the defendant or anyone else (at 788-789):

During a pretrial conference, the County filed a "Request for Determination of Preliminary Fact" in which it asked the trial court to determine that the Nelsons lacked standing to prosecute this action because some of Dwayne's prison records refer to statements by him in which he said he had children. Although it is undisputed that the Nelsons were Dwayne's parents, and although no one else has ever asserted a claim to Dwayne's estate or to any relationship

[6 Cal.Rptr.3d 655]

with him, the County's position was and is that the Nelsons had the affirmative obligation to prove that Dwayne was not survived by a spouse or child. The County said the issue had to be determined by the court before they could proceed to the merits of the Nelsons' wrongful death claim.4

The trial court agreed, and a hearing was held at which the Nelsons (without objection) presented Mrs. Nelson's deposition testimony to establish that Dwayne (who was about 40 at the time of his death) never married and never had any children. To dispute that fact, the County presented some of Dwayne's prison records to show that he had at various times over a period of eight or ten years told prison employees that he had one, or sometimes two, or sometimes three children. In rebuttal the Nelsons presented conflicting prison records to show that Dwayne had at other times told various prison officials that he never married and did not have any children.

At the conclusion of the hearing, the trial court found the prison records were inadmissible hearsay because the statements made to the prison employees were simply not trustworthy. As the court put it, Dwayne sometimes said "he was single and [other times] that he was married and that he was divorced, that he had no kids, that he had one kid, that he had two kids, that he had three kids." There was also the fact that the prison records stated that Dwayne "suffered from hallucinations, [and] that he was ... a narcotics addict." The trial court concluded that the Nelsons had established their standing.

[113 Cal.App.4th 789]

B.

Subdivision (a) of section 377.60 of the Code of Civil Procedure provides that a cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent's personal representative on their behalf: "The decedent's surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession."5 Because the right to sue for wrongful death damages is strictly a creature of statute and exists only so far and in favor of such persons as the Legislature has declared (Justus v. Atchison (1977) 19 Cal.3d 564, 575, 139 Cal.Rptr. 97, 565 P.2d 122, disapproved on another ground in Ochoa v. Superior Court (1985) 39 Cal.3d 159, 171, 216 Cal.Rptr. 661, 703 P.2d 1), "standing" among multiple claimants is determined by statutory rank.6

[6 Cal.Rptr.3d 656]

It was and is undisputed that the Nelsons were Dwayne's parents, and we consider it safe to assume now, more than five years after Dwayne's death, that no lost child or missing spouse is likely to come forward to assert a claim against the County or anyone else.

In Perry v. Medina, 237 Cal.Rptr. 532, 192 Cal.App.3d 603 (Cal. App. 1987), a mother brought a wrongful death action against the driver and owner of the automobile in which her adult son was riding when he was killed in an accident. At the time of the accident, the deceased was in the process of divorcing his wife and had a minor child. His mother asserted she was a "dependent parent" under the terms of the wrongful death statute at that time (now replaced by Cal. Code Civ. Proc. § 377.60) and thus could bring this wrongful death action. The California Court of Appeal for the Fifth District held that dependency should be determined on a case-by-case basis and parents must show that they were actually dependent, to some extent, upon the decedent for the necessaries of life. If a parent receives financial support from their child which aids them in obtaining things such as shelter, clothing, food, and medical treatment, the parent is dependent upon their child. Thus, the Court found that a factual question existed as to whether the mother was dependent on her son at the time of his death where the son gave the mother $50 a month and $100 worth of groceries a month and the mother lived off a very meager income (at 536-537):

Dependency should be determined on a case-by-case basis. No strict formula can be applied nor did the Legislature suggest a formula as it did in subdivision (b)(3) of Code of Civil Procedure section 377. The Hazelwood v. Hazelwood, supra, 57 Cal.App.3d 693, 129 Cal.Rptr. 384 test is a good one and should apply. The parents must show that they "were actually dependent, to some extent, upon the decedent for the necessaries of life." (Id. at p. 698, 129 Cal.Rptr. 384, emphasis added.) Thus a parent cannot claim they are dependent within the meaning of Code of Civil Procedure section 377 if they receive financial support from their children which merely makes available to them some of the niceties of life they might not otherwise be able to afford. But, if a parent receives financial support from their child which aids them in obtaining the things, such as shelter, clothing, food and medical treatment, which one cannot and should not do without, the parent is dependent upon their child. The death of that child in this type of situation results in a distinct pecuniary loss to the parent which requires the parent to find aid elsewhere for the basic things we all need. Public policy supports the Hazelwood test. Civil Code section 206 provides:

"It is the duty of the father, the mother, and the children of any person in need who is unable to maintain himself by work, to maintain such person to the extent of their ability. The promise of an adult child to pay for necessaries previously furnished to such parent is binding. A person who is receiving aid to the aged shall be deemed to be a person in need who is unable to maintain himself by work."

It is public policy that family take care of family when possible. Someone who causes the wrongful death of a child who provides the necessaries of life to his or her parent has deprived that parent of support which he or she depended upon and should be responsible for compensating that loss.

Appellant lived on a meager $400 a month. Decedent brought her $100 worth of groceries a month. They both ate from the groceries he brought. After he moved out of the apartment and stopped paying $100 a month in rent, decedent gave her $50 a month in addition to the groceries. Although in this day and time $50 a month and some food to eat may seem like a very small amount, its value is greatly increased when viewed in the perspective that appellant lived on $400 a month, $200 of which paid her rent. Considering all reasonable inferences in favor of appellant, there was

Page 537

a factual question whether appellant was dependent on decedent at the time of his death.

In Corder v. Corder, 161 P.3d 172, 61 Cal.Rptr.3d 660, 41 Cal.4th 644 (Cal. 2007), the Supreme Court of California explained that as a general matter, damages for wrongful death are limited to the pecuniary loss suffered by the person or persons who are entitled to bring the wrongful death action. This pecuniary loss may be a loss arising from deprivation of something which the statutory beneficiary would have been legally entitled to if the person had lived, or it may be a pecuniary loss arising from the deprivation of something which, from all the circumstances of the particular case, could reasonably be expected that the beneficiary would have received from the deceased had they lived. As an example, the Court noted that there might be a reasonable expectation that the statutory beneficiaries would have continued to receive financial assistance or services having a financial value from that person (at 672):

Before elaborating on Wife's contentions, we find it useful to review the rules governing the recovery available in wrongful death actions. As a general matter, damages for wrongful death "`are measured by the financial benefits the heirs were receiving at the time of death, those reasonably to be expected in the future, and the monetary equivalent of loss of comfort, society and protection.'" (Benwell v. Dean (1967) 249 Cal.App.2d 345, 349, 57 Cal.Rptr. 394 (Benwell).) Specifically, this means that "[n]o damages can be given for the pain or anguish suffered by the person who is killed, the damages ... being limited to the pecuniary loss suffered by the person or persons for whose benefit the right of action is given by reason of the death of the victim. [Citation.] This pecuniary loss may be a loss arising from a deprivation of something to which the statutory beneficiary would have been legally entitled if the person had lived, or it may be a pecuniary loss arising from the deprivation of something which, from all the circumstances of the particular case, it could reasonably be expected such beneficiary would have received from the deceased had his life not been taken — even though the obligation resting on the deceased to bestow such benefit may have been but a moral obligation. [Citations.] Thus, there might be a reasonable expectation that if the life of a deceased had continued he might have accumulated a greater estate, and that the increased estate would have been inherited by the statutory beneficiaries as his heirs. Or, there might be a reasonable expectation that if the life of a deceased had not been taken the statutory beneficiaries, or some of them, would have continued to receive from the one who was killed financial assistance, or services having a financial value. These are illustrations of direct financial benefits for the loss of which damages may be awarded." (Griffey v. Pacific Electric Railway Co. (1922) 58 Cal.App. 509, 516-517, 209 P. 45 (Griffey).)

In addition to damages for the loss of direct financial benefits, damages for the pecuniary value of the society, comfort, and protection that is lost through the wrongful death of the decedent may be recovered as damages in a wrongful death action. The Court explained that, depending on the nature of the relationship between the deceased and the statutory beneficiary, these damages may be considerable, but recovery is not available for the grief or sorrow attendant upon the death of a loved one (at 672):

In addition to these types of direct financial benefits, "there is that less tangible and not so immediate, but nevertheless real, pecuniary benefit which often may reasonably be expected from a continuance of the `society, comfort and protection' of the deceased." (Griffey, supra, 58 Cal.App. at p. 517, 209 P. 45.) The pecuniary value of the society, comfort, and protection that is lost through the wrongful death of a spouse, parent, or child may be considerable in cases where, for instance, the decedent had demonstrated a "kindly demeanor" toward the statutory beneficiary and rendered assistance or "kindly offices" to that person. (Beeson v. Green Mountain G.M. Co. (1880) 57 Cal. 20, 38, 1880 WL 2030 [opn. on rehg.].) In this regard, however, recovery is not available in wrongful death actions for the grief or sorrow attendant upon the death of a loved one. (See Krouse v. Graham (1977) 19 Cal.3d 59, 69, 137 Cal.Rptr. 863, 562 P.2d 1022.)

In Mendoza v. City of W. Covina, 206 Cal.App.4th 702, 141 Cal.Rptr.3d 553, 12 Cal. Daily Op. Serv. 5979, 2012 Daily Journal D.A.R. 7115 (Cal. App. 2012), the California Court of Appeal for the Second District explained that pursuant to Cal. Code Civ. Proc. § 377.61, the trier of fact in a wrongful death action may award such damages as are just under all the circumstances of the case. The factors relevant when assessing a claimed loss of society, comfort, and affection may include the closeness of the family unit, the depth of their love and affection, and the character of the deceased as kind, attentive, and loving (at 720-721):

Under Code of Civil Procedure section 377.61, the trier of fact in a wrongful death action may award such damages as are just under all the circumstances of the case. Damages for wrongful death are measured by the financial benefits the heirs were receiving at the time of death, those reasonably to be expected in the future, and the monetary equivalent of loss of comfort, society, and protection. (Corder v. Corder (2007) 41 Cal.4th 644, 661, 61 Cal.Rptr.3d 660, 161 P.3d 172 (Corder).) Recovery for emotional distress—grief and sorrow—is not allowed. (Id. at p. 662, 61 Cal.Rptr.3d 660, 161 P.3d 172.)

[...]

Cases allowing recovery for pecuniary value of loss of affection, society, and comfort “suggest a realization that if damages truly were limited to ‘pecuniary’ loss, recovery frequently would be barred by the heirs' inability to prove such loss. The services of children, elderly parents, or nonworking spouses often do not result in measurable net income to the family unit, yet unquestionably the death of such a person represents a substantial ‘injury’ to the family unit for which just compensation should be paid.” (Krouse v. Graham (1977) 19 Cal.3d 59, 68, 137 Cal.Rptr. 863, 562 P.2d 1022.) “Recovery for loss of affection and society in a wrongful death action thus fulfills a deeply felt social belief that a tortfeasor who negligently kills someone should not escape liability completely, no matter how unproductive his victim.” (Borer v. American Airlines, Inc. (1977) 19 Cal.3d 441, 452, 138 Cal.Rptr. 302, 563 P.2d 858, italics added.) Factors relevant when assessing a claimed loss of society, comfort, and affection may include the closeness of the family unit, the depth of their love and affection, and the character of the deceased as kind, attentive, and loving. (Corder, supra, 41 Cal.4th at p. 662, 61 Cal.Rptr.3d 660, 161 P.3d 172.)

In Nelson, supra, the Court of Appeal explained that a plaintiff in a wrongful death action is entitled to recover damages for their own pecuniary loss, which may include: (1) the loss of the decedent's financial support, services, training and advice; and, (2) the pecuniary value of the decedent's society and companionship. The plaintiff may not recover for such things as the grief or sorrow attendant upon the death of a loved one, for their sad emotions, or for the sentimental value of the loss (at 793):

A plaintiff in a wrongful death action is entitled to recover damages for his own pecuniary loss, which may include (1) the loss of the decedent's financial support, services, training and advice, and (2) the pecuniary value of the decedent's society and companionship — but he may not recover for such things as the grief or sorrow attendant upon the death of a loved one, or for his sad emotions, or for the sentimental value of the loss. (Overly v. Ingalls Shipbuilding, Inc. (1999) 74 Cal.App.4th 164, 176, 87 Cal.Rptr.2d 626; Ure v. Maggio Bros. Co., Inc. (1938) 24 Cal.App.2d 490, 496, 75 P.2d 534; Krouse v. Graham (1977) 19 Cal.3d 59, 68-69, 72, 137 Cal.Rptr. 863, 562 P.2d 1022.)

In Nelson, the Court reversed the jury's $2 million damages award after finding that, given the facts of the case, a rational person would not value the parents' lost comfort, society, and companionship at $2 million. The Court found that the parents were not in frequent contact with their son before his death, had not seen their son in the 20 years preceding his death, and did not receive any financial support from him. The son's future financial prospects at the time of his death were limited as he was recently paroled, addicted to cocaine, and suffered from health problems. Based on these facts, the Court concluded that the jury included in its calculations some measure of damages for the parents' emotional distress or some amount intended to punish the defendant for its conduct; thus the damages award could not stand (at 793-794):

The evidence establishes these facts: Dwayne was born in 1957, in Chicago. In 1969, when Dwayne was about 12 years old, Mr. and Mrs. Nelson separated. In 1970, Mrs. Nelson and Dwayne moved to Tennessee. When he was 18, Dwayne left Mrs. Nelson's home and ended up in California. It is undisputed that Dwayne did not see either of his parents at any time during the 20 years preceding his death. Indeed, at the time of Dwayne's death in 1998, neither Mr. nor Mrs. Nelson knew his address or telephone number. They did not know he had been incarcerated for substantial periods of time, did not know about his medical problems, did not know about his drug addiction, could not name any of his friends, and did not receive any financial support from him.

Charitably put, Dwayne's future financial prospects at the time of his death were limited. He was recently paroled (he had been in and out of prison several times during the preceding 20 years) and addicted to cocaine, and was sufficiently deranged to stand in the middle of a busy intersection, shooting a loaded gun into the air and at passing motorists. Had he survived the arrest, it is more probable than not that (as an expert testified at trial) he would have

[113 Cal.App.4th 794]

been convicted of several felonies and sentenced to state prison for up to 21 years (there was no evidence to the contrary).

The most that Mr. and Mrs. Nelson could say is that they occasionally spoke to Dwayne by phone, and each offered about a half-dozen cards they had received from their son over a period of several years. Most of Mrs. Nelson's testimony focuses on the understandable but noncompensable emotional distress she suffered as a result of Dwayne's death, and Mr. Nelson did not appear at trial (his deposition testimony was read to the jury, and he too described his emotional distress).

We do not doubt the parents' expressions of love, but we are unable to say that a rational person would value their lost "comfort, society, and companionship" at $2 million. The inescapable conclusion is that the jury included in its calculations some measure of damages for the parents' emotional distress, or some amount intended to punish the County for its conduct. In either event, the damage award simply cannot stand. (Krouse v. Graham, supra, 19 Cal.3d at p. 69, 137 Cal.Rptr. 863, 562 P.2d 1022 [the "cases uniformly have held that a wrongful death recovery may not include such elements as the grief or sorrow attendant upon the death of a loved one," or "compensation for sad emotions and injured feelings," or the sentimental value of the loss]; Don v. Cruz (1982) 131 Cal.App.3d 695, 707, 182 Cal.Rptr. 581 [a damage award is not supported by substantial evidence if it is so grossly disproportionate as to raise a presumption that it is the result of passion or prejudice]; Fields v. Riley (1969) 1 Cal.App.3d 308, 314, 81 Cal.Rptr. 671 [defense verdict explained on theory that "jury apparently concluded that the plaintiff-father suffered no pecuniary loss, nor did he suffer a loss of the child's comfort and society through his death" because father and son lived in different states, and saw each other but seldom]; Ford Motor Co. v. Superior Court (1981) 120 Cal.App.3d 748, 751, 175 Cal.Rptr. 39 ["it has long been established in California that punitive damages may not be recovered in a wrongful death action"].)

For these reasons, the damage award must be reversed.

The earlier case of Ure v. Maggio Bros. Co., 24 Cal. App. 2d 490, 1938 Cal. App. LEXIS 937, 75 P.2d 534 (Cal. App. January 21, 1938) involved a wrongful death action brought by the decedent's mother pursuant to an earlier version of the wrongful death statute now codified at Cal. Code Civ. Proc. § 377.60. The California Court of Appeal for the Fourth District explained that because the damages awarded in a wrongful death action must compensate the plaintiff for the pecuniary loss they suffered as a result of the decedent's wrongful death, the plaintiff's life expectancy furnished the limit of time during which the damages may accrue and for which they may be awarded. In this case, the mother was 79 years old and her normal life expectancy was about five years (at 491-492):

"In cases arising under section 377, referring to adults only and where the pecuniary loss of those who are heirs of the victim are to be considered and estimated, this is the settled rule. In Sneed v. Marysville etc. Co., 149 Cal. 704, 710 [87 Pac. 376], the victim was an adult unmarried man, twenty-two years of age, his father and mother being apparently the only heirs. He was living with them and working out for himself. The court said: 'This pecuniary loss may be either a loss arising from the deprivation of something to which such heirs would have been legally entitled if the person had lived, or a loss arising from a deprivation of benefits which from all the circumstances of the particular case, [*492] it could be reasonably expected such heirs would have received from the deceased had his life not been [**4] taken, although the obligation resting on him to bestow such benefits on them may have been a moral obligation only.'"

The accident in which Mary Ray Ure, the daughter of plaintiff, was killed, happened on March 28, 1936. At that time the plaintiff, aged seventy-nine years, had a normal life expectancy of about five years, and Mary, aged forty-seven years, of slightly more than twenty-three years. As the damages awarded must be compensation for the pecuniary loss suffered by plaintiff, her life expectancy furnishes the limit of time during which the damages may accrue and for which they may be awarded. (Griffey v. Pacific Elec. Ry. Co., 58 Cal. App. 509 [209 Pac. 45, 49].)

The Court explained that while the jury has some discretion in determining the amount of damages for the loss of comfort and society in a wrongful death action, the jury is always bound by the fundamental rule that pecuniary damage is the limit of recovery and the amount must bear some reasonable relation to the pecuniary loss shown by the evidence. The Court found that the award of $10,000 in general damages to the mother was excessive because it was not supported by the evidence. The Court explained that to sustain the damages award there would have to be some competent evidence supporting the finding that the services which would have been rendered by the deceased during the remaining five years of the mother's normal life expectancy were reasonably worth the net sum of $10,000, or $2,000 per year. The reasonable value of such services were susceptible of proof, but no such proof was in the record (at 497-498):

"It is not possible to measure in exact terms of money the loss which a surviving husband, wife or child may have sustained through being deprived of the comfort and society of the deceased spouse or parent. For this reason, some play is allowed to the discretion of the jury by the provision of section 377 that such damages may be allowed as under all the circumstances of the case may be just. But in fixing the amount, the jury is always bound by the fundamental rule that pecuniary damage is the limit of recovery, and the

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