Chavez v. Carpenter
| Citation | 91 Cal.App.4th 1433,111 Cal.Rptr.2d 534 |
| Decision Date | 31 August 2001 |
| Docket Number | No. H020339.,H020339. |
| Court | California Court of Appeals |
| Parties | Jose CHAVEZ et al., Plaintiffs and Appellants, v. Gary Arthur CARPENTER, Defendant and Respondent. |
John Kevin Crowley, San Jose, Attorney for Plaintiffs and Appellants.
Grunsky, Ebey, Farrar & Howell, Dennis P. Howell, Leslie J. Karst, Sky, Ebey, Farrar & Howell, Watsonville, Attorneys for Defendant and Respondent.
Appellants Jose and Elsa Chavez brought this civil action for the wrongful death of their adult son, who was killed by a drunk driver. The trial court granted the defendant's motion for summary adjudication on the ground that appellants lacked standing to sue for their son's death. Because we conclude that there are triable issues of material fact on the question of appellants' standing, we reverse the judgment.
Decedent Altie Chavez was the 24-year-old son of appellants Jose and Elsa Chavez. Before his death, decedent lived with appellants, contributing money and services to the household. Though unmarried, decedent had a daughter, Jazmyne Noel Garcia.
On August 24, 1996, decedent was killed in an automobile collision caused by defendant Gary Carpenter, who was driving while intoxicated. Defendant was later convicted of felony manslaughter in connection with the fatal crash.
Decedent was survived both by h:s parents and by his daughter Jazmyne, then two years old. In September 1996, the month after decedent's death, the daughter herself was killed in an unrelated automobile accident.
This civil action was filed in May 1997.1 The complaint included causes of action for negligence and for decedent's wrongful death. The action was brought by appellants, suing both as individuals and as the personal representatives of decedent's estate, and by Jazmyne's mother, Maria Garcia, suing as the successor in interest to the child's estate.
In September 1997, defendant moved for summary adjudication of appellants' wrongful death claim on the ground that appellants lacked standing. Appellants opposed defendant's motion, arguing that they had statutory standing to sue both as decedent's heirs, since he left no surviving issue, and as parents dependent on his support. The trial court, unpersuaded by appellants' arguments, granted defendant's motion for summary adjudication in October 1997. Appellants attempted to appeal the grant of summary adjudication, but that appeal was dismissed as being from a non-appealable order.
Thereafter, the parties settled all the remaining claims in the action. Stipulated judgment was entered June 4, 1999. This timely appeal followed.
The question before us is whether appellants have standing to sue for their son's wrongful death on either of two statutory grounds. Appellants first assert standing as their son's heirs, based on their contention that he left no surviving issue. Alternatively, appellants claim the right to sue as dependent parents. As to that ground, appellants argue that there are material factual disputes concerning the extent to which they relied on their son's support.
Neither party has challenged the appealability of the judgment. "Nonetheless, since the question of appealability goes to our jurisdiction, we are dutybound to consider it on our own motion." (Olson v. Cory (1983) 35 Cal.3d 390, 398, 197 Cal.Rptr. 843, 673 P.2d 720.) We perceive two possible obstacles to appealability in this case: lack of finality and consent.
Finality. A judgment that fails to dispose of all claims between the litigants is not a final, appealable judgment under Code of Civil Procedure, section 904.1, subdivision (a). "[A]n appeal cannot be taken from a judgment that fails to complete the disposition of all the causes of action between the parties even if the causes of action disposed of by the judgment have been ordered to be tried separately, or may be characterized as `separate and independent' from those remaining." (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 743, 29 Cal. Rptr.2d 804, 872 P.2d 143.)
In this case, the appellate record as initially lodged did not adequately demonstrate that all claims of all parties in the two consolidated actions had been finally resolved. We therefore sought additional briefing from the parties on that issue. In response, appellants moved to augment the record with the dismissals filed in each of the two consolidated actions. Having granted appellants' motion to augment the record, we conclude that the dismissals and the judgment, taken together, dispose of all claims in both actions.
Consent. As a general proposition, a party may not appeal a consent judgment. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 399-400, 87 Cal.Rptr.2d 453, 981 P.2d 79.) "Parties cannot create by stipulation appellate jurisdiction where none otherwise exists." (Don Jose's Restaurant, Inc. v. Truck Ins. Exchange (1997) 53 Cal.App.4th 115, 118-119, 61 Cal. Rptr.2d 370, fn. omitted.) But there is an exception for cases in which consent was given solely (Norgart v. Upjohn Co., supra, 21 Cal.4th at p. 400, 87 Cal. Rptr.2d 453, 981 P.2d 79.) This is such a case. Here, it is apparent from the stipulated judgment that the parties did not intend "to settle their dispute fully and finally, but merely to hasten its transfer from the superior court to the Court of Appeal." (Id. at p. 401, 87 Cal.Rptr.2d 453, 981 P.2d 79.)
We are satisfied that the stipulated judgment before us is appealable.
This case comes to us following summary adjudication. Since summary judgment involves pure matters of law, we review a grant of summary judgment de novo. (Buss v. Superior Court (1997) 16 Cal.4th 35, 60, 65 Cal.Rptr.2d 366, 939 P.2d 766; Barton v. Elexsys Internal, Inc. (1998) 62 Cal.App.4th 1182, 1187, 73 Cal. Rptr.2d 212.) In undertaking our independent review of the evidence submitted, we apply the same three-step analysis as the trial court. First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgment in its favor. Finally, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material fact issue. (Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 886-887, 41 Cal.Rptr.2d 740.)
The right to sue for wrongful death did not exist at common law. (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 807, 62 Cal.Rptr.2d 78.) (Justus v. Atchison (1977) 19 Cal.3d 564, 575, 139 Cal.Rptr. 97, 565 P.2d 122, disapproved on other grounds in Ochoa v. Superior Court (1985) 39 Cal.3d 159, 171, 216 Cal. Rptr. 661, 703 P.2d 1.) The Legislature "both created and limited the remedy." (Justus v. Atchison, supra, 19 Cal.3d at p. 572, 139 Cal.Rptr. 97, 565 P.2d 122.)
California first enacted a wrongful death statute in 1862. (Stats. 1862, ch. 330, §§ 1-4, pp. 447-448.) In 1872, the statute was codified as former section 377 of the Code of Civil Procedure. (See Historical Note, 14 West's Ann.Code Civ. Proc. (1973 ed.) § 377, pp. 60-61.) In 1992, the Legislature repealed former section 377 and enacted the current wrongful death statute.
Standing in wrongful death actions is now governed by Code of Civil Procedure Section 377.60.2 As relevant here, that statute permits a cause of action for wrongful death to be asserted by:
Appellants claim standing both under Code of Civil Procedure section 377.60, subdivision (a), as heirs, and under subdivision (b), as dependent parents.
The first subdivision of the wrongful death statute gives standing to those persons "who would be entitled to the property of the decedent by intestate succession," but only "if there is no surviving issue of the decedent." (Code Civ. Proc., § 377.60, subd. (a).) Under the laws of intestate succession, a decedent's parents become heirs where there is no surviving issue. (Prob.Code, § 6402, subd. (b).) But where a decedent leaves issue, "his parents would not be his heirs at all [citations] and therefore not entitled to maintain this [wrongful death] action at all."
The question before us is whether Jazmyne was decedent's surviving issue. If so, she is the only proper plaintiff under this subdivision. If not, appellants are proper plaintiffs, with standing to sue for their son's wrongful death.
In resolving that question, we first note that there is no dispute that decedent fathered Jazmyne. A default judgment of paternity was entered against decedent. He paid child support for the girl. And despite references in the parties' briefs to the lack of confirmation of decedent's paternity through blood testing, appellants do not dispute that Jazmyne was their son's "issue." (See, ...
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