Quiroz v. Seventh Ave. Center

• Citation: 45 Cal.Rptr.3d 222,140 Cal.App.4th 1256
• Decision Date: 27 June 2006
• Docket Number: No. H028298.,H028298.
• Court: California Court of Appeals Court of Appeals
• Parties: Maria G. QUIROZ, Individually and as Successor, etc., Plaintiff and Appellant, v. SEVENTH AVENUE CENTER et al., Defendants and Respondents.

45 Cal.Rptr.3d 222

140 Cal.App.4th 1256

Maria G. QUIROZ, Individually and as Successor, etc., Plaintiff and Appellant, v. SEVENTH AVENUE CENTER et al., Defendants and Respondents.

No. H028298.

Court of Appeal, Sixth District.

June 27, 2006.

John Houston Scott, Lizabeth N. de Vries, The Scott Law Firm, William E. Weiss, Law Offices of William E. Weiss, San Francisco, for Plaintiff and Appellant.

David R. Lucchese, Karen A. Sparks, Galloway, Lucchese, Everson & Picchi, Walnut Creek, Thomas N. Griffin, Leslie J. Karst, Grunsky, Ebey, Farrar & Howell, Watsonville, for Defendants and Respondents.

DUFFY, J.

This action arises from the untimely death in 2001 of Gilbert Quiroz, a dependent adult who resided at Seventh Avenue Center, a skilled nursing facility located in Santa Cruz. While the underlying facts alleged in the lawsuit are heartrending in their human dimension, from a legal standpoint, the case is a procedural train wreck. Despite the confusion of arguments appellant presents on appeal, the case at core raises one predominant and basic question: whether an untimely pleaded survivor cause of action, through which the decedent's successor in interest seeks damages for the decedent's pre-death injuries (and heightened remedies under the Elder Abuse Act),¹ relates back to a timely filed cause of action for wrongful death through which the decedent's heir seeks only compensation for her own injuries. The trial court concluded that such a claim did not relate back and judgment was ultimately rendered against the plaintiff, who now appeals.

Consistently with established law, we hold that the survivor cause of action pleaded a different injury than the wrongful death cause of action. Consequently, the survivor claim does not relate back to the date of the timely filed wrongful death claim and it is therefore barred by the statute of limitations. We further hold that plaintiff is not entitled to heightened remedies available under the Elder Abuse Act in conjunction with her own wrongful death claim, which she voluntarily dismissed in any event. We accordingly affirm the judgment.

LEGAL OVERVIEW OF CLAIMS

This case wound its way through a procedural labyrinth in the trial court. For that reason, and in order to place the issues in this case into proper context, an overview of the types of claims or causes of action we will be discussing is in order before we delve into the maze.

I. Wrongful Death

"At common law, personal tort claims expired when either the victim or the tortfeasor died. [Citation.] Today, a cause of action for wrongful death exists only by virtue of legislative grace. [Citations.] The statutorily created `wrongful death cause of action does not effect a survival of the decedent's cause of action[. Instead,] it "gives to the representative a totally new right of action, on different principles." [Citation.]' [Citation.]" (Armijo v. Miles (2005) 127 Cal.App.4th 1405, 1424, 26 Cal.Rptr.3d 623.) The cause of action "for wrongful death belongs `not to the decedent [or prospective decedent], but to the persons specified' [by statute]. [Citation.]" (Wilson v. John Crane, Inc. (2000) 81 Cal.App.4th 847, 860-861, 97 Cal. Rptr.2d 240, fn. omitted.) It is a new cause of action that arises on the death of the decedent and it is vested in the decedent's heirs. (Grant v. McAuliffe (1953) 41 Cal.2d 859, 864, 264 P.2d 944.)

A cause of action for wrongful death is thus a statutory claim. (Code Civ. Proc., §§ 377.60-377.62.) Its purpose is to compensate specified persons—heirs—for the loss of companionship and for other losses suffered as a result of a decedent's death. (Jackson v. Fitzgibbons (2005) 127 Cal.App.4th 329, 335, 25 Cal.Rptr.3d 478.) Persons with standing to bring a wrongful death claim are enumerated at Code of Civil Procedure section 377.60, which provides in pertinent part: "A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent's personal representative on their behalf: (a) The decedent's surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession."

"The elements of the cause of action for wrongful death are the tort (negligence or other wrongful act), the resulting death, and the damages, consisting of the pecuniary loss suffered by the heirs. [Citations.]" (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 891, p. 350.) The wrongful death statute "limits the right of recovery to a class of persons who, because of their relation to the deceased, are presumed to be injured by his [or her] death [citation] and bars claims by persons who are not in the chain of intestate succession. [Citations.]" (Nelson v. County of Los Angeles (2003) 113 Cal. App.4th 783, 789, fn. 6, 6 Cal.Rptr.3d 650.)

Damages awarded to an heir in a wrongful death action are in the nature of compensation for personal injury to the heir. (McKinney v. California Portland Cement Co. (2002) 96 Cal.App.4th 1214, 1231-1232, 117 Cal.Rptr.2d 849.) "A plaintiff in a wrongful death action is entitled to recover damages for his own pecuniary loss, which may include (1) the loss of the decedent's financial support, services, training and advice, and (2) the pecuniary value of the decedent's society and companionship—but he may not recover for such things as the grief or sorrow attendant upon the death of a loved one, or for his sad emotions, or for the sentimental value of the loss. [Citations.]"² (Nelson v. County of Los Angeles, supra, 113 Cal. App.4th at p. 793, 6 Cal.Rptr.3d 650; Code Civ. Proc., § 377.61.) "The damages recoverable in [wrongful death] are expressly limited to those not recoverable in a survival action under Code of Civil Procedure section 377.34. [Citations.]" (Wilson v. John Crane, Inc., supra, 81 Cal.App.4th at p. 861, 97 Cal.Rptr.2d 240; Code Civ. Proc., § 377.61.)

II. Survivor Claims

Unlike a cause of action for wrongful death, a survivor cause of action is not a new cause of action that vests in the heirs on the death of the decedent. It is instead a separate and distinct cause of action which belonged to the decedent before death but, by statute, survives that event. (Grant v. McAuliffe, supra, 41 Cal.2d at p. 864, 264 P.2d 944.) The survival statutes do not create a cause of action. Rather, "[t]hey merely prevent the abatement of the cause of action of the injured person, and provide for its enforcement by or against the personal representative of the deceased." (Ibid.)

A cause of action that survives the death of a person passes to the decedent's successor in interest and is enforceable by the "decedent's personal representative or, if none, by the decedent's successor in interest." (Code Civ. Proc., § 377.30.) In the typical survivor action, the damages recoverable by a personal representative or successor in interest on a decedent's cause of action are limited by statute 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.)

But there is at least one exception to the rule that damages for the decedent's pre-death pain and suffering are not recoverable in a survivor action. Such damages are expressly recoverable in a survivor action under the Elder Abuse Act if certain conditions are met. Specifically, Welfare and Institutions Code section 15657 provides for heightened remedies, including recovery for the decedent's pre-death pain, suffering, and disfigurement, to a successor in interest to a decedent's cause of action "[w]here it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression fraud, or malice in the commission of this abuse ... in addition to all other remedies provided by law." (See Welf. & Inst. Code., § 15657, subds. (a) & (b).)

The ability of the decedent's successor in interest to recover damages for the decedent's pre-death pain, suffering, or disfigurement under this section specifically trumps the general prohibition on such recovery provided at Code of Civil Procedure section 377.34. (Welf. & Inst.Code, § 15657, subd. (b).) But it is also expressly subject to the dollar amount limitation of Civil Code section 3333.2—a maximum of $250,000 for noneconomic losses in an action for injury against a health care provider based on professional negligence. (Ibid.)

Thus, under the Elder Abuse Act, where neglect or abuse of an elder or dependent adult is reckless or done with oppression, fraud, or malice such that the statutory prerequisites are satisfied, damages for the victim's pre-death pain, suffering, or disfigurement are recoverable in a survivor action pursued by the victim's personal representative or successor in interest, notwithstanding the usual prohibition on such recovery under Code of Civil Procedure section 377.34. (Welf. & Inst. Code, § 15657.) This statutory rule of law does not affect or expand the type of damages recoverable by a decedent's heir in a wrongful death action in which that plaintiff seeks compensation for his or her own injuries, which are separate and distinct from the decedent's pre-death injuries for which compensation is sought in a survivor action. Indeed, appellant's contentions to the contrary, no section of the Elder Abuse Act, or any part of its legislative history, suggests otherwise.

STATEMENT OF THE CASE

With that backdrop in mind, we now turn to the convoluted procedural history of ...