Cheyanna M. v. A.C. Nielsen Co.

Decision Date15 September 1998
Docket NumberNo. B115423,B115423
Citation78 Cal.Rptr.2d 335,66 Cal.App.4th 855
CourtCalifornia Court of Appeals Court of Appeals
Parties, 98 Cal. Daily Op. Serv. 7224, 98 Daily Journal D.A.R. 9963 CHEYANNA M., a Minor, etc., Plaintiff and Appellant, v. A.C. NIELSEN COMPANY et al., Defendants and Respondents. ISABEL M. et al., Plaintiffs and Respondents, v. A.C. NIELSEN COMPANY et al., Defendants and Respondents.

Grassini & Wrinkle and Roland Wrinkle, Woodland Hills, for Plaintiff and Appellant.

Glickman & Glickman and Steven C. Glickman, Beverly Hills, for Plaintiffs and Respondents.

Cummins & White, David B. Shapiro, Michael T. Fox, Michael M. Bergfeld, Roper & Folino, James L. Roper and John M. Bergerson, Los Angeles, for Defendants and Respondents.

MASTERSON, Associate Justice.

In this wrongful death action, Cheyanna, a minor born out of wedlock, seeks compensation for the death of her alleged father, David. Cheyanna was born after David was killed. The trial court ruled that Cheyanna lacked standing to pursue a wrongful death action because she could not establish that David was her father. Cheyanna appeals that determination. We reverse.

BACKGROUND

In May 1995, David met Angela in Desert Hot Springs. David was there visiting his brother, and Angela was visiting her aunt. Neither was married. A few days after they met, David and Angela began having sexual relations. They had sexual intercourse several times over a period of approximately 11 days. David used a condom on all but one occasion.

While still in Desert Hot Springs, Angela took a home pregnancy test, which indicated that she was pregnant. 1 Angela told David that she was pregnant. He asked her what she was going to do. She said she did not know. David told Angela that he would leave that decision up to her.

In late May or early June 1995, David left Desert Hot Springs and returned to the Los Angeles area, where he lived with his parents. Angela returned to her home in Banning. Angela did not see David again. She spoke to him once by telephone and asked him if he wanted to see a sonogram of the baby. He said yes and told her that he would come to see her. He never came. Nor did he acknowledge to Angela that he was the baby's father.

On one occasion, Angela's mother tried to reach David by telephone at his parents' home. She ended up talking to David's mother, telling her that David could see the baby after it was born. Later, David's mother asked him if he was the baby's father. He said he did not believe so because he had been with Angela for such a short time. According to his parents, David never held out the baby as his own. 2 One of David's On or about November 11, 1995, David was walking across a street in South Gate when he was hit by an automobile. He died from his injuries. Cesar Hernandez was driving the vehicle, which was registered to his employers, A.C. Nielsen Co. and Dun & Bradstreet, Inc.

close friends, Heriberto Sicairos, stated that David did not tell him anything about Angela or the baby.

On February 2, 1996, Angela gave birth to Cheyanna. David's parents asked Angela to move in with them so they could be close to the baby. Angela did so. Cheyanna refers to David's mother as "ma," meaning "grandma," and to David's father as "da," meaning "grandpa." David's parents have told several people that Cheyanna is their granddaughter. 3

In August 1996, Cheyanna filed this wrongful death action, with Angela acting as her guardian ad litem. Named as defendants were Hernandez, A.C. Nielsen Company, and Dun & Bradstreet, Inc. A separate wrongful death action was filed by David's parents. The two actions were consolidated. In October 1996, the trial court disqualified Angela from acting as Cheyanna's guardian ad litem and appointed Attorney Paul Fukushima to serve in that capacity. 4 The trial court also ordered the South Gate Police Department to produce a sample of David's blood.

In connection with David's death, criminal charges were brought against Hernandez. He was convicted. At the sentencing hearing, one of David's brothers stated that David "has a daughter [and] now she can't see her dad." David's mother also spoke at the hearing, saying, "I have [David's] daughter at home with me. Every time I look at her, it is a reminder of what I lost, but it also soothes the pain that I feel...."

In May 1997, David's parents filed a motion for summary judgment, contending that Cheyanna lacked standing to maintain a wrongful death action. 5 David's parents argued that, to have standing, Cheyanna had to be an "heir" within the meaning of the laws of intestate succession (Prob.Code, §§ 6400-6455). They asserted that she was not an heir because David did not openly hold her out as his child. (See Prob.Code, § 6453, subd. (b)(2).)

In response, Cheyanna argued that standing under the wrongful death statute should not be determined by the laws of intestate succession, but should instead be governed by the Uniform Act on Blood Tests to Determine Paternity (Fam.Code, §§ 7550-7558). 6 Cheyanna further claimed that, even if the laws of intestate succession determine standing in a wrongful death action, she need not prove that David held her out as his child. Given that David died before she was born, Cheyanna asserted that it was impossible for him to hold her out as his "child," i.e., as a human being born alive. In the event of such impossibility, the laws of intestate succession permit a child to establish a parent-child relationship through clear and convincing The trial court ruled that Cheyanna's standing to bring a wrongful death action was determined by the right to inherit under the laws of intestate succession. The court concluded that Cheyanna was not an heir because David had not held her out as his child. Accordingly, the trial court granted the summary judgment motion and entered judgment in favor of all defendants. As a result, David's parents are the only plaintiffs in the action. 7 Cheyanna filed a timely appeal from the judgment. 8

evidence of paternity. (See Prob.Code, § 6453, subd. (b)(3).)

DISCUSSION

Summary judgment is appropriate if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)

" 'A defendant seeking summary judgment has met the burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established [or that there is a complete defense to that cause of action].... Once the defendant's burden is met, the burden shifts to the plaintiff to show that a triable issue of fact exists as to that cause of action.... In reviewing the propriety of a summary judgment, the appellate court independently reviews the record that was before the trial court.... We must determine whether the facts as shown by the parties give rise to a triable issue of material fact.... In making this determination, the moving party's affidavits are strictly construed while those of the opposing party are liberally construed.' ... We accept as undisputed facts only those portions of the moving party's evidence that are not contradicted by the opposing party's evidence.... In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences therefrom must be accepted as true." (A-H Plating, Inc. v. American National Fire Ins. Co. (1997) 57 Cal.App.4th 427, 433-434, 67 Cal.Rptr.2d 113, citations omitted.)

As stated, Cheyanna argues that her standing to maintain an action for wrongful death should be determined by the Uniform Act on Blood Tests to Determine Paternity, not the laws of intestate succession. She further contends that even if the laws of intestate succession apply, she has standing to sue for wrongful death. Finally, she claims that if she does not have standing to sue, then the wrongful death statute unlawfully discriminates against illegitimate children in violation of the equal protection clause of the federal Constitution.

We conclude that Cheyanna's standing to bring a wrongful death action must be determined in accordance with the laws of intestate succession, but we also find that there are triable issues as to whether she has standing to sue. We therefore reverse the judgment. 9

A. Standing to Bring A Wrongful Death Action

California's first wrongful death statute was enacted in 1862. (Stats.1862, ch. 330, pp "(a) When the death of a person is caused by the wrongful act or neglect of another, his or her heirs or personal representatives on their behalf may maintain an action for damages against the person causing the death....

                447-448.)   In 1872, the statute was codified as former section 377 of the Code of Civil Procedure ("section 377").  (See Historical Note, 14 West's Ann.Code Civ. Proc.  (1973 ed.)  §  377, pp. 59-60.)   At the time of its repeal in 1992, section 377 provided in relevant part
                

"(b) For the purposes of subdivision (a), 'heirs ' means only the following:

"(1) Those persons who would be entitled to succeed to the property of the decedent according to the provisions of Part 2 (commencing with Section 6400) of Division 6 of the Probate Code[, i.e., the intestacy laws]...." (Stats.1983, ch. 842, § 12, pp. 3022-3023, italics added, repealed by Stats.1992, ch. 178, § 19, p. 890; see Historical Note, 14 West's Ann.Code Civ. Proc., supra, § 377, at pp. 60-61; Historical and Statutory Notes, 14 West's Ann.Code Civ. Proc. (1998 pocket supp.) § 377, pp. 19-20.) 10

In construing section 377, our Supreme Court stated: "[W]e are persuaded that the Legislature intends to occupy the field of recovery for wrongful death. For this reason the remedy remains a creature of statute in California ... regardless of whether a cause of action for wrongful death did or did not exist at common law.... [p] Because it is a creature of statute, the cause...

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