Boeken v. Philip Morris Usa, Inc.

• Decision Date: 11 February 2008
• Docket Number: No. B198220.,B198220.
• Citation: 72 Cal.Rptr.3d 454,159 Cal.App.4th 1391
• Parties: Judy BOEKEN, Plaintiff and Appellant, v. PHILIP MORRIS USA, INC., Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

72 Cal.Rptr.3d 454

159 Cal.App.4th 1391

Judy BOEKEN, Plaintiff and Appellant, v. PHILIP MORRIS USA, INC., Defendant and Respondent.

No. B198220.

Court of Appeal, Second District, Division 5.

February 11, 2008.

Law Offices of Michael J. Piuze, Michael J. Piuze, Los Angeles; and Kenneth Chesebro for Plaintiff and Appellant.

Horvitz & Levy, Lisa Perrochet, Adam M. Flake, Encino; Shook, Hardy & Bacon, Lucy E. Mason and Patrick J. Gregory, San Franscico, for Defendant and Respondent.

MOSK, J.

INTRODUCTION

In affirming the trial court's judgment of dismissal, we hold that the final adjudication on the merits of plaintiffs loss-of-consortium claim against defendant results in a res judicata bar of plaintiffs subsequent wrongful death action for loss-of-consortium damages against' defendant arising from the same injury to plaintiffs spouse that was the basis of the adjudicated loss-of-consortium claim.

BACKGROUND

In March 2000, Richard Boeken (Mr. Boeken), the husband of plaintiff and appellant Judy Boeken (plaintiff), brought an action against defendant and respondent Philip Morris USA, Inc. (Philip Morris) alleging that cigarettes manufactured by Philip Morris caused Mr. Boeken's terminal lung cancer. Mr. Boeken prevailed in his lawsuit and obtained a judgment against Philip Morris for $5.5 million in compensatory damages and $50 million in punitive damages. (See Boeken v. Philip Morris Inc. (2005) 127 Cal.App.4th 1640, 26 Cal.Rptr.3d 638.) Philip Morris satisfied that judgment.

In October 2000, white Mr. Boeken's lawsuit was pending, plaintiff brought a separate action against Philip Morris seeking damages for loss of consortium. Plaintiff alleged that Mr. Boeken, as a result of his illness, was "unable to perform the necessary duties as a spouse" involving "the care, maintenance and management of the family home" and that plaintiff suffered a "loss of love, affection, society, companionship, sexual relations, and support ...." Plaintiff further alleged that Mr. Boeken "will not be able to perform such work, services, and duties in the future," and thus she was "permanently deprived and will be deprived of the consortium of Plaintiffs spouse...." In February 2001, for reasons not indicated in the record, plaintiff voluntarily dismissed her loss-of-consortium claim with prejudice.¹

In January 2002, Mr. Boeken died of his cancer. In June 2006, plaintiff filed this wrongful death action against Philip Morris pursuant to Code of Civil Procedure section 377.60²—part of the California wrongful death statute. Plaintiff filed suit in her individual capacity; as trustee of the Richard and Judy Boeken Revocable Trust; and as the guardian ad litem of her minor son, Dylan Boeken. In her individual capacity, plaintiff sought to recover funeral expenses³ for Mr. Boeken and "[g]eneral damages for the loss of love, companionship, comfort, affection, society, solace, and moral support" that she suffered as the result of Mr. Boeken's death. This appeal concerns only the claim asserted by plaintiff in her individual capacity.

Philip Morris demurred to plaintiffs complaint, arguing that because plaintiffs loss-of-consortium and wrongful death claims were both based on the same primary right, plaintiffs dismissal with prejudice of her loss-of-consortium claim resulted in the res judicata bar of her wrongful death claim. The trial court agreed, concluding that the loss-of-consortium and wrongful death actions sought essentially the same damages. The trial court reasoned that because plaintiff had the opportunity to litigate her right to such damages in her prior action, she was precluded from asserting a cause of action to recover those damages in this lawsuit. The trial court sustained the demurrer without leave to amend as to the claim asserted by plaintiff in her individual capacity. Plaintiff timely appealed.⁴

DISCUSSION

A. Standard of Review

An appeal from a judgment dismissing an action after the trial court sustains a demurrer without leave to amend presents a question of law that we review de novo. (McCall v. PacifiCare of Cal Inc. (2001) 25 Cal.4th 412, 415, 106 Cal. Rptr.2d 271, 21 P.3d 1189; Batt v. City and County of San Francisco (2007) 155 Cal.App.4th 65, 71, 65 Cal.Rptr.3d 716; Morgan Creek Residential v. Kemp (2007) 153 Cal.App.4th 675, 683, 63 Cal.Rptr.3d 232.) We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865, 62 Cal.Rptr.3d 614, 161 P.3d 1168.) We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6, 40 Cal.Rptr.3d 205, 129 P.3d 394.) We also consider matters that may be judicially noticed, for a complaint otherwise good on its face is subject to demurrer when facts judicially noticed render it defective. (Ibid.; see § 430.30, subd. (a).) If the facts necessary to show that an action is barred by res judicata are within the complaint or subject to judicial notice, a trial court may properly sustain a general demurrer on that ground. (Tensor Group v. City of Glendale (1993) 14 Cal.App.4th 154, 159, 17 Cal.Rptr.2d 639; Frommhagen v. Board of Supervisors (1987) 197 Cal.App.3d 1292, 1299, 243 Cal. Rptr. 390; Carroll v. Puritan Leasing Co. (1978) 77 Cal.App.3d 481, 485, 143 Cal. Rptr. 772.)

B. Res Judicata and the Primary Rights Doctrine

"`Res judicata' describes the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.... Under the doctrine of res judicata, if a plaintiff prevails in an action, the cause is merged into the judgment and may not be asserted in a subsequent lawsuit; a judgment for the defendant serves as a bar to further litigation of the same cause of action." (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896-897, 123 Cal. Rptr.2d 432, 51 P.3d 297, fn. omitted (Mycogen ); see also § 1908, subd. (a)(2).) "Under this doctrine, all claims based on the same cause of action must be decided in a single suit; if not brought initially, they may not be raised at a later date. `"Res judicata precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief."` [Citation.] A predictable doctrine of res judicata benefits both the parties and the courts because it `seeks to curtail multiple litigation causing vexation and expense to the parties and wasted effort and expense in judicial administration.' [Citation.]" (Mycogen, supra, 28 Cal.4th at p. 897, 123 Cal.Rptr.2d 432, 51 P.3d 297.)⁵

Res judicata applies if (1) the judgment in the prior proceeding is final and on the merits; (2) the present proceeding is on the same cause of action as the prior proceeding; and (3) the parties in the present proceeding or parties in privity with them were parties in the prior proceeding. (In re Anthony H. (2005) 129 Cal.App.4th 495, 503, 28 Cal.Rptr.3d 575; Federation of Hillside & Canyon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1202, 24 Cal.Rptr.3d 543; see Busick v. Workmen's Comp. Appeals Bd. (1972) 7 Cal.3d 967, 972, 104 Cal.Rptr. 42, 500 P.2d 1386; Bernhard v. Bank of America. (1942) 19 Cal.2d 807, 810-811,122 P.2d 892.) The doctrine of res judicata not only bars litigation of matters that actually were litigated in the prior action, but also those matters that could have been litigated in that action. (Busick v. Workmen's Comp. Appeals Bd., supra, 7 Cal.3d at p. 975, 104 Cal.Rptr. 42, 500 P.2d 1386.)

Plaintiff does not dispute that the dismissal with prejudice of her loss-of-consortium claim operated as a final adjudication of the merits of that claim. (Johnson v. County of Fresno (2003) 111 Cal.App.4th 1087, 1095-1096, 4 Cal.Rptr.3d 475; Rice v. Crow (2000) 81 Cal.App.4th 725, 733-734, 97 Cal.Rptr.2d 110.) Nor does plaintiff dispute that the parties in her prior and present lawsuits are the same.⁶ Thus, the sole issue is whether plaintiffs loss-of-consortium and wrongful death claims constitute the same "cause of action."

For purposes of res judicata, the term "cause of action" refers neither to the legal theory asserted by a plaintiff nor to the remedy the plaintiff seeks. (Mycogen, supra, 28 Cal.4th at pp. 904, 123 Cal.Rptr.2d 432, 51 P.3d 297; Slater v. Blackwood (1975) 15 Cal.3d 791, 795-796, 126 Cal.Rptr. 225, 543 P.2d 593 (Slater.)) Instead, "California has consistently applied the `primary rights' theory, under which the invasion of one primary right gives rise to a single cause of action." (Slater, supra, 15 Cal.3d at p. 795, 126 Cal.Rptr. 225, 543 P.2d 593.) As the California Supreme Court, explained, "The primary right theory is a theory of code pleading that has long been followed in California. It provides that a `cause of action' is comprised of a `primary right' of the plaintiff, a corresponding `primary duty' of the defendant, and a wrongful act by the defendant constituting a breach of that duty. [Citation.] The most salient characteristic of a primary right is that it is indivisible: the violation of a single primary right gives rise to but a single cause of action. [Citation.] ... [¶] As far as its content is concerned, the primary right is simply the plaintiffs right to be free from the particular injury suffered. [Citation.]" (Crowley v. Katleman (1994) 8 Cal.4th 666, 681, 34 Cal.Rptr.2d 386, 881 P.2d 1083; accord, Grisham v. Philip Morris U.S.A., Inc. (2007) 40 Cal.4th 623, 641, 54 Cal. Rptr.3d 735, 151 P.3d 1151; Mycogen, supra, 28 Cal.4th at p. 904, 123 Cal.Rptr.2d ,432, 51 P.3d 297; 4 Witkin, California Procedure (4th ed. 1997) Pleading, § 24, p. 85, quoting Pomeroy, Code Remedies (5th ed.), p. 528 ["`the primary right and, duty and the delict or wrong...