County of Los Angeles v. Superior Court

Citation21 Cal.4th 292,981 P.2d 68,87 Cal.Rptr.2d 441
Decision Date12 August 1999
Docket NumberNo. S053930,S053930
Parties, 981 P.2d 68, 80 Fair Empl.Prac.Cas. (BNA) 862, 99 Cal. Daily Op. Serv. 6486, 1999 Daily Journal D.A.R. 8291 COUNTY OF LOS ANGELES et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; Kim A. Schonert, as Personal Representative, etc., Real Party in Interest
CourtUnited States State Supreme Court (California)

De Witt W. Clinton, County Counsel; Gutierrez & Preciado, Calvin R. House, Pasadena, Nohemi Gutierrez Ferguson and Gabrielle Harner Brumbach for Petitioners.

No appearance for Respondent.

Hadsell & Stormer, Barbara Enloe Hadsell, Virginia Keeny and Lise Anderson, Pasadena, for Real Party in Interest.

Catherine Fisk, Los Angeles; and Karl Manheim, Los Angeles, for Protection and Advocacy, Inc., as Amicus Curiae on behalf of Real Party in Interest.


Patricia Cordova brought an action in state court against the Los Angeles County Sheriff's Department and certain others alleging sexual harassment by her coworkers and supervisors. She asserted violations of state law as well as a federal statute, 42 United States Code section 1983, which creates a cause of action for violations, by those wielding state authority, of a person's civil rights under the federal Constitution. While the action was pending, plaintiff died in a car accident.

California law allows a deceased plaintiff's estate to maintain an action pending at the plaintiff's death and to recover any damages, including punitive damages, to which the plaintiff would have been entitled, with one exception: it precludes the estate from obtaining any damages for the plaintiff's pain and suffering. (Code Civ. Proc., § 377.34.) Here, plaintiff's husband, Kim A. Schonert, pursued on behalf of her estate the action his deceased wife had brought in state court. The superior court found section 377.34's ban against recovery for pain and suffering applicable only to the claims plaintiff had asserted under state law. To apply this statute to the federal civil rights claims, the court ruled, would be inconsistent with the policies underlying the federal civil rights law.

The Court of Appeal upheld the trial court's ruling. We disagree.

A. Survival Actions in California

When, as here, a plaintiff dies while a personal injury action is pending, California allows the action to be maintained by "the decedent's personal representative or, if none, by the decedent's successor in interest." (Code Civ. Proc., § 377.30.) This is commonly called a survival action. By statute, "the damages recoverable are limited to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement." (Code Civ. Proc., § 377.34, italics added (hereafter section 377.34).) This is the state statute at issue here.

Under the common law, by contrast, "all causes of action for personal torts abated on the death of either the injured party or the tortfeasor." (Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 293, 63 Cal.Rptr.2d 74, 935 P.2d 781, italics added; see generally Prosser & Keeton on Torts (5th ed. 1984) § 125A, p. 940 [the common law drew a distinction between property rights, such as a right to recover money due on a contract or restitution owed because of conversion, and personal rights, such as a right to recover compensation for injury to the person; the former survived a plaintiff's death, but the latter abated].) This was the law in California until 1949, when our Legislature enacted this state's first statute allowing for the survival of personal tort actions. (Sullivan v. Delta Air Lines, Inc., supra, 15 Cal.4th 288, 297, 63 Cal.Rptr.2d 74, 935 P.2d 781.) That statute, codified as Civil Code section 956, provided that causes of action for personal injury did not abate upon the death of the plaintiff, but it expressly limited the damages in such actions to "loss of earnings and expenses sustained or incurred as a result of the injury by the deceased prior to his death," and it specifically excluded "damages for pain, suffering or disfigurement " and punitive or exemplary damages. (Stats.1949, ch. 1380, § 2, p. 2400, italics added.)

A dozen years later, in 1961, the Legislature repealed section 956 of the Civil Code and moved its provisions, with certain amendments, to former section 573 of the Probate Code. (Stats.1961, ch. 657, § 2, p. 1868; Sullivan v. Delta Air Lines, Inc., supra, 15 Cal.4th 288, 298, 63 Cal.Rptr.2d 74, 935 P.2d 781.) At that time, the Legislature had before it a recommendation by the California Law Revision Commission (Commission) to discontinue the provision in the 1949 survivorship legislation precluding the estate of the deceased plaintiff from recovering damages for pain, suffering, or disfigurement. (Recommendation and Study Relating to Survival of Actions (Oct.1960) 3 Cal. Law Revision Com. Rep. (1961) pp. F-5 -- F-7 (hereafter 1961 Law Revision Commission Report).) To disallow such damages, the Commission reasoned, "produces a windfall for the wrongdoer." (Id. at p. F-7.)

But the study that accompanied the 1961 Law Revision Commission Report and was drafted by the Commission's research consultant, Attorney Leo V. Killion, expressed a contrary view: " '[D]amages should not be awarded for the deceased's pain and suffering, bodily disfigurement, or loss of a member of his body. Such injuries are strictly to the person of the deceased and, in and of themselves, do not lessen the value of his estate and are not of such a transmissible nature that they should be made the basis of legal liability or an award of compensatory damages after the victim's death. If the deceased were still alive, a recovery of money damages would tend to compensate him for the pain and suffering endured because of the wrongdoer's tort....' " (1961 Law Revision Com. Rep., supra, at p. F-22, quoting Killion, Wrongful Death Actions in California--Some Needed Amendments (1937) 25 Cal.L.Rev. 170, 190.) But after the plaintiff's death, according to the study, "such peculiarly personal elements of damage as pain [and] suffering" would not be redressed by damages to the estate. (1961 Law Revision Com. Rep., supra, at p. F-23.)

The Legislature apparently found Killion's view persuasive, for it chose not to adopt the recommendation of the 1961 Law Revision Commission to discontinue the statutory ban against recovery of damages for "pain, suffering or disfigurement." (Stats.1961, ch. 657, § 2, p. 1868.) But the Legislature did adopt the Commission's recommendation to allow the estate to recover punitive or exemplary damages. (Ibid.; see 1961 Law Revision Com. Rep., supra, at p. F-11.)

Some 30 years later, in 1992, the Legislature enacted section 377.34, which now governs recovery of damages in survival actions. (Stats.1992, ch. 178, § 20, p. 892.) The Legislature left intact the ban against an estate's recovery of damages for the deceased plaintiff's "pain, suffering, or disfigurement." (§ 377.34.)

B. Federal Civil Rights Actions

The federal statute at issue here is 42 United States Code section 1983 (hereafter sometimes referred to as the federal civil rights statute or section 1983), one of the Reconstruction-era statutes included in the Civil Rights Act of 1871. It creates a cause of action in favor of "the party injured" against "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage of any State ..., subjects, or causes to be subjected, any ... person ... to the deprivation of any rights, ... secured by the Constitution and laws...." (42 U.S.C. § 1983.)

Section 1983 " 'is not itself a source of substantive rights,' but merely provides 'a method for vindicating federal rights elsewhere conferred.' " (Albright v. Oliver (1994) 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114, quoting Baker v. McCollan (1979) 443 U.S. 137, 144, fn. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433.) As relevant here, it allows an action against state or local officials for intentional gender discrimination, including sexual harassment, as a violation of the right to "the equal protection of the laws" protected under the Fourteenth Amendment to the federal Constitution. (Andrews v. City of Philadelphia (3d Cir.1990) 895 F.2d 1469 [sexual harassment actionable under section 1983 as Fourteenth Amendment violation]; Bohen v. City of East Chicago, Ind. (7th Cir.1986) 799 F.2d 1180; see Washington v. Davis (1976) 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 [violation of Fourteenth Amendment's equal protection clause requires proof of intentional discrimination]; 6 Larson, Employment Discrimination (2d ed. 1998) Reconstruction Statutes, § 102-01, pp. 102.2--102-3.)

Federal law is silent on the remedies available to those suing for a violation of their civil rights under section 1983. (See Carey v. Piphus (1978) 435 U.S. 247, 255, 98 S.Ct. 1042, 55 L.Ed.2d 252.) Therefore, courts can look to "both federal and state rules on damages ..., [choosing] whichever better serves the policies expressed in the federal statute[ ]." (Sullivan v. Little Hunting Park, Inc. (1969) 396 U.S. 229, 240, 90 S.Ct. 400, 24 L.Ed.2d 386.) This means that the remedies available in section 1983 actions may include equitable relief as well as compensatory and punitive damages. (Smith v. Wade (1983) 461 U.S. 30, 35, 103 S.Ct. 1625, 75 L.Ed.2d 632; Carey v. Piphus, supra, at pp. 256-264, 98 S.Ct. 1042; Sullivan v. Little Hunting Park, Inc., supra, at pp. 238-241, 90 S.Ct. 400; but see City of Newport v. Fact Concerts, Inc. (1981) 453 U.S. 247, 264-271, 101 S.Ct. 2748, 69 L.Ed.2d 616 [plaintiffs may not recover punitive damages under section 1983 against an offending government entity]; see also 6 Larson, Employment Discrimination, supra, Reconstruction Statutes, § 105.01 et seq.,...

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