King v. Pac. Gas & Elec. Co.

• Decision Date: 22 August 2022
• Docket Number: A163843
• Citation: 82 Cal.App.5th 440,298 Cal.Rptr.3d 464
• Parties: Ashley KING, as Personal Representative, etc., Plaintiff and Respondent, v. PACIFIC GAS AND ELECTRIC COMPANY, et al., Defendants and Respondents; Erica Martinez Wasdin, Movant and Appellant.
• Court: California Court of Appeals Court of Appeals

82 Cal.App.5th 440

298 Cal.Rptr.3d 464

Ashley KING, as Personal Representative, etc., Plaintiff and Respondent,

v. PACIFIC GAS AND ELECTRIC COMPANY, et al., Defendants and Respondents;Erica Martinez Wasdin, Movant and Appellant.

A163843

Court of Appeal, First District, Division 3, California.

Filed August 22, 2022

Danko Meredith, Michael S. Danko, Los Angeles, and Michael S. Smith, for Plaintiff and Respondent.

Rovens Lamb, Steven Lamb, Los Angeles; Law Offices of Jennifer Dodge, Jennifer Dodge, for Defendants and Respondents.

Arias Sanguinetti Wang & Torrijos, Elise Sanguinetti and Jamie G. Goldstein, for Intervener and Appellant.

Cunningham Swaim, Michael Terhar, Jonathan Hembree, and Joseph Mkryan, for Intervener and Appellant.

Petrou, J.

We are asked to decide whether an heir¹ is categorically precluded from intervening as a matter of right ( Code Civ. Proc.,² § 387, subd. (d)(1)(B) ) in a pending lawsuit filed by the personal representative of the decedent's estate to recover damages for wrongful death (§§ 377.60–377.62). We find there is no such blanket prohibition, and an heir must be granted leave to intervene as a matter of right so long as the statutory requirements for intervention have been met.

Here, the trial court denied the motion to intervene on the incorrect basis that there was no legal authority allowing an heir to intervene in a wrongful death action filed by the decedent estate's personal representative and the trial court failed to consider whether the heir's interests were adequately represented by the personal representative. We shall reverse and remand with directions to the trial court to reconsider the motion to intervene.

FACTUAL AND PROCEDURAL BACKGROUND

Movant and appellant Erica Martinez Wasdin (Wasdin) is the surviving spouse of the decedent, Jimmy Wasdin. Plaintiff and respondent Ashley King is the decedent's former spouse and mother of his minor child.

On June 2, 2020, Jimmy Wasdin was killed in a helicopter crash near Fairfield, California. He left as his sole heirs Wasdin (his surviving wife) and his minor child with King. At the time of his death, the decedent and King were both residents of Alabama. On November 2, 2020, an Alabama probate court issued letters of administration, naming King as the personal representative of the decedent's estate.

On November 4, 2020, King, as personal representative, filed this California action against defendants and respondents Pacific Gas and Electric Company and PJ Helicopters, Inc. The complaint alleges one cause of action for wrongful death on behalf of the heirs and seeks to recover damages on their behalf for loss of the decedent's care, comfort, society, services, support, and love.

On September 9, 2021, Wasdin filed a motion to intervene as a matter of right (mandatory intervention) pursuant to section 387, subdivision (d)(1)(B), which provides, in pertinent part, that a court "shall, upon timely application, permit a nonparty to intervene" in an action if "[t]he person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person's ability to protect that interest, unless that person's interest is adequately represented by one or more of the existing parties." (Ibid. )

In support of her motion, Wasdin addressed the four elements required to support mandatory intervention: (1) timeliness; (2) her interest related to the subject action; (3) the impairment of her interest if intervention was denied; and (4) the inadequacy of King's representation of her (Wasdin's) interest. Among other arguments in opposition, King asserted the one-action rule – which precludes an heir from filing an independent action after a decedent's personal representative has filed a cause of action for wrongful death – barred Wasdin's ability to intervene. King also asserted that any complaints about the inadequacy of her representation of Wasdin's interest in the wrongful death action should be addressed by the Alabama probate court that appointed King as personal representative.

The trial court denied Wasdin's motion to intervene:

Wasdin cites no statutory or case authority supporting her contention that an heir should be permitted to intervene in a wrongful death action brought by the personal representative. Her position is irreconcilable with the principles that a wrongful death action is "wholly statutory in origin" and that "the right to bring such an action is limited to those persons identified" in the wrongful death statute, Code of Civil Procedure section 377.60. ( Stennett v. Miller (2019) 34 Cal.App.5th 284, 290 .) Under section 377.60, "[e]ither the decedent's personal representative on behalf of the heirs or the specified heirs ... may assert the wrongful death claim – but not both." ( Adams v. Superior Court (2011) 196 Cal.App.4th 71, 77 .) Any concerns regarding the adequacy of Plaintiff Ashley King to serve as the personal representative of decedent's estate representing all of decedent's heirs, including Wasdin, must be directed to the Alabama probate court that appointed her.

Wasdin appealed. (See County of Alameda v. Carleson (1971) 5 Cal.3d 730, 736, 97 Cal.Rptr. 385, 488 P.2d 953 [person who is denied the right to intervene in an action "may appeal from the order denying intervention"]; Noya v. A.W. Coulter Trucking (2006) 143 Cal.App.4th 838, 841, 49 Cal.Rptr.3d 584 ["[a]n order denying a motion to intervene is appealable when it finally and adversely determines the right of the moving party to proceed in the action"].)

DISCUSSION

I. Applicable Law

a. Intervention

Our Code of Civil Procedure describes the concept of intervention as follows: "An intervention takes place when a nonparty, deemed an [intervener], becomes a party to an action or proceeding between other persons by doing any of the following: (1) Joining a plaintiff in claiming what is sought by the complaint; (2) Uniting with a defendant in resisting the claims of a plaintiff. (3) Demanding anything adverse to both a plaintiff and a defendant." ( § 387, subd. (b).) The "language strongly suggests that an intervention under the Code of Civil Procedure is not to be treated as a separate action, but rather is viewed as coming within the original, main action. This analysis is consistent with our Supreme Court's observation in Belt Casualty Co. v. Furman (1933) 218 Cal. 359, 362 , that the main purpose of intervention is ‘to obviate delay and multiplicity of actions by creating an opportunity to those directly interested in the subject matter to join in an action already instituted .’ " ( Rhode v. National Medical Hosp . (1979) 93 Cal.App.3d 528, 537, 155 Cal.Rptr. 797 ( Rhode ), original italics.)

Section 387 allows for both permissive (subd. (d)(2)) and mandatory intervention (subd. (d)(1)). At issue in the case before us is solely mandatory intervention: the trial court "shall , upon timely application, permit a nonparty to intervene in the action or proceeding" if the "[t]he person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person's ability to protect that interest, unless that person's interest is adequately represented by one or more of the existing parties." ( § 387, subd. (d)(1)(B), italics added.)

Section 387, subdivision (d)(1)(B) is in substance the exact counterpart to rule 24(a) of the Federal Rules of Civil Procedure (28 U.S.C.): "On timely motion, the court must permit anyone to intervene who: [¶] ... [¶] (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest." (Id. , adopted Apr. 30, 2007, eff.

Dec. 1, 2007.) Hence "[i]n assessing [the] requirements" for mandatory intervention, "we may take guidance from federal law." ( Edwards v. Heartland Payment Systems, Inc . (2018) 29 Cal.App.5th 725, 732, 240 Cal.Rptr.3d 815.)

In evaluating a movant's entitlement to mandatory intervention, "the threshold question is whether the person seeking intervention has ‘an interest relating to the property [or ] transaction which is the subject of the action.’ [Citation.] ... [¶] In addition to demonstrating an interest in the property or transaction that is the subject of the action, a person seeking intervention must also show that he or she ‘is so situated that the disposition of the action may as a practical matter impair or impede that person's ability to protect that interest. [Citations.] Once this showing is made, the court must permit the person to intervene unless the ‘person's interest is adequately represented by existing parties.’ " ( Siena Court Homeowners Assn. v. Green Valley Corp. (2008) 164 Cal.App.4th 1416, 1423–1424, 79 Cal.Rptr.3d 915, original italics.) If a movant meets the requirements for mandatory intervention, "the fact that such intervention would add to the complexity of the action, create delay or adversely affect the original parties is of no moment." ( California Physicians’ Service v. Superior Court (1980) 102 Cal.App.3d 91, 96, 162 Cal.Rptr. 266.)

b. Wrongful Death Cause of Action

"Wrongful death actions are statutory in nature and governed by the Code of Civil Procedure. Section 377.60 establishes a cause of action in favor of specified heirs of a person whose death is ‘caused by the wrongful act or neglect of another.’ The damages that may be awarded in a wrongful death action are those that, ‘under all the circumstances of the case, may be just.’ ( § 377.61.)" ( Corder v. Corder (2007) 41 Cal.4th 644, 651, fn., 61 Cal.Rptr.3d 660, 161 P.3d 172 omitted ( Corder ).)

In Estate of Riccomi (1921) 185 Cal. 458, 197 P....