Mayo v. White

• Decision Date: 17 March 1986
• Citation: 178 Cal.App.3d 1083,224 Cal.Rptr. 373
• Court: California Court of Appeals Court of Appeals
• Parties: Myzella MAYO, as Administrator, etc., Plaintiff and Appellant, v. Ruby WHITE, Defendant and Respondent. Civ. F004428.

Page 373

224 Cal.Rptr. 373

178 Cal.App.3d 1083

Myzella MAYO, as Administrator, etc., Plaintiff and Appellant, v. Ruby WHITE, Defendant and Respondent.

Civ. F004428.

Court of Appeal, Fifth District, California.

March 17, 1986.

Paul S. Mosesian, Inc., a Professional Corporation, and James F. Tritt, Fresno, for plaintiff and appellant

Robert L. Kimball, and Peter C. Morris, Fresno, for defendant and respondent.

OPINION

BEST, Associate Justice.

This case presents the novel question of whether the personal representative of a deceased minor may maintain an action for wrongful death on behalf of the decedent's siblings where the parents survive the minor but later disclaim their interest in the minor's estate. We will hold that the personal representative of a decedent may maintain an action for wrongful death only on behalf of the "heirs" as defined by the intestacy provisions of the Probate Code, ¹ and that such action cannot be maintained on behalf of persons who become substitute heirs by virtue of the true "heirs" disclaiming their interest in the estate of the decedent.

On April 12, 1982, Kenneth Harold White II, aged three years, was riding a "mini hot cycle" around the swimming pool in the backyard of his home, when the cycle overturned, and he was thrown into the pool. He died the following day. Plaintiff, Myzella Mayo, as special administrator of the estate of the minor, filed a complaint for wrongful death against K-Mart Corporation, Carolina Enterprises, Inc., and the decedent's parents, Ruby and Kenneth White. The complaint alleges Ruby and Kenneth White "have duly renounced heirship and any interests they may have in the decedent's Estate, and therefore are no longer heirs at law of the decedent." Consequently, the suit was brought on behalf of decedent's two sisters and one brother as the heirs at law.

The complaint alleged in the first cause of action that K-Mart and Carolina Enterprises, Inc., were liable for decedent's death because a defect in the design of the boy's mini-cycle caused it to be unstable and have a propensity to overturn. The second and third causes of action alleged that Ruby and Kenneth White were responsible for their son's death in negligently failing to supervise and care for the boy's safety and in negligently maintaining their premises by failing to fence the swimming pool and otherwise make the backyard safe for minor children.

Defendant Ruby White demurred both generally and specially to the complaint contending, respectively, (1) the brother and sisters were not "heirs" of the decedent within the meaning of Code of Civil Procedure section 377, and (2) the complaint was uncertain because it failed to state whether the renunciation of heirship was written or oral or properly filed. The trial court sustained the special demurrer and also sustained the general demurrer without leave to amend.

Plaintiff appeals from the judgment dismissing her complaint.

Plaintiff contends that the decedent's siblings are "heirs," and by virtue of the renunciation of heirship by the parents, plaintiff, as the personal representative of the decedent, is entitled to maintain this lawsuit on behalf of said siblings. Defendant contends that even if the parents' disclaimers were executed properly in writing and filed as required by Probate Code section 190.1, ² said disclaimers only allow the siblings to inherit the decedent's estate and have no effect on their right to maintain an action for wrongful death. For reasons that follow, we will agree with defendant but will hold that plaintiff should be allowed to amend her complaint.

An action for wrongful death is statutory in nature, and "Because it is a creature of statute, the cause of action for wrongful death 'exists only so far and in favor of such person as the legislative power may declare.' " (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.)

At the time of decedent's death, Code of Civil Procedure section 377 provided in pertinent part:

"(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, or in case of the death of such wrongdoer, against the personal representative of such wrongdoer, whether the wrongdoer dies before or after the death of the person injured....

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

"(1) Those persons who would be entitled to succeed to the property of the decedent according to the provisions of Division 2 (commencing with Section 200) of the Probate Code, ...

"Nothing in this subdivision shall be construed to change or modify the definition of 'heirs' under any other provision of law." (Emphasis added.)

In creating a cause of action for wrongful death, the Legislature has defined "heirs" as those persons who would be entitled to succeed to the decedent's property under the laws of intestate succession as provided in the Probate Code. At the time of the minor's death, the succession of the minor's property, having died intestate, was governed by Probate Code section 225. ³ This statute provided that when the decedent leaves neither spouse nor issue, the estate goes to decedent's parents and only if the parents are dead, to decedent's brothers and sisters. (Prob.Code, § 225.) Therefore, the parents, Ruby and Kenneth White, are the only proper heirs at law for purposes of maintaining a wrongful death action under Code of Civil Procedure section 377. The brother and sisters of decedent, while potential heirs under Probate Code section 225, are not proper heirs at law and are ineligible to bring an action under Code of Civil Procedure section 377. (Rothman v. United States (1977) 434 F.Supp. 13, 17-18; Evans v. Shanklin (1936) 16 Cal.App.2d 358, 360-363, 60 P.2d 554; see also Steed v. Imperial Airlines (1974) 12 Cal.3d 115, 120-121, 115 Cal.Rptr. 329, 524 P.2d 801 [discusses Evans v. Shanklin ].)

Plaintiff, however, alleged in the complaint that the parents renounced heirship and any interest in the estate of decedent. By virtue of this renunciation, plaintiff argues decedent's brother and sisters become the heirs at law and may maintain an action for wrongful death. Under the Probate Code, a beneficiary of an interest in property may disclaim that interest by filing a disclaimer as provided in the Probate Code. (Prob.Code, § 275.) ⁴ The disclaimer must be in writing and signed by the disclaimant. It also must identify the creator of the interest, describe the interest disclaimed and state the extent of the disclaimer. (Prob.Code, § 278.) Such a disclaimer causes the interest disclaimed to "descend, go, be distributed, or continue to be held (1) as to a present interest, as if the disclaimant had predeceased the creator of the interest...." (Prob.Code, § 282.)

Plaintiff contends that, due to the renunciation, the parents are treated as though they had predeceased the decedent, and they would not be eligible to succeed to decedent's estate under the laws of intestate succession. Hence, plaintiff argues the parents may not be heirs under Code of Civil Procedure section 377, and the brother and sisters of decedent should be allowed to bring the suit for wrongful death. An identical argument, however, was made and rejected in Lewis v. Regional Center of the East Bay (1985) 174 Cal.App.3d 350, 220 Cal.Rptr. 89.

In the Lewis case, the paternal grandparents of a deceased minor filed an action for wrongful death against various defendants. At the time of filing the action, the minor's parents and half-brother were living. After the minor's death, the parents and half-brother filed disclaimers under the Probate Code, waiving their interests in the estate of the minor. Defendants moved for summary judgment on the ground that the grandparents had no standing to sue because they could not be heirs when the parents and half-brother were still alive. The trial court granted summary judgment, and the Court of Appeal affirmed the judgment. (Lewis v. Regional Center of the East Bay, supra, 174 Cal.App.3d at pp. 351-352, 220 Cal.Rptr. 89.)

The Lewis court first noted that Code of Civil Procedure section 377 defines heirs as those persons succeeding to the property of the decedent in accordance with the laws of intestate succession. Furthermore, under such laws the grandparents would not succeed to any property unless the minor died without issue, spouse, parent, brother, sister or descendant of a deceased brother or sister. The court rejected the argument that the disclaimer statutes had to be read in conjunction with the intestate succession statutes to determine heirship under Code of Civil Procedure section 377. In this regard, the appellate court stated:

"The two sections concern different legal interests and property rights and are contained in separate parts of the Probate Code. The wrongful death statute provides a right to be compensated for a tort which is personal and cannot be assigned. The disclaimer statutes allow an heir in either testate or intestate estates to disclaim his interest in decedent's property. To read together statutory provisions which the Legislature adopted for different purposes would place a judicial gloss on the statutes which the plain meaning and legislative history does not support.

"Nor have plaintiffs offered any evidence that the policy behind both statutes is the same and must be harmonized. The purpose of the wrongful death statute is to permit recovery of compensation by heirs for economic loss and loss of consortium resulting from the death. (Justus v. Atchison, supra, 19 Cal.3d at p. 581 [139 Cal.Rptr. 97, 565 P.2d 122].) The plaintiffs in such action stand in such a close relation to the decedent as to be presumed to be injured...