Ruttenberg v. Ruttenberg

• Citation: 53 Cal.App.4th 801,62 Cal.Rptr.2d 78
• Decision Date: 21 March 1997
• Docket Number: No. B092022,B092022
• Court: California Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 2101, 97 Daily Journal D.A.R. 3839 Stacy RUTTENBERG, Plaintiff and Appellant, v. Sally RUTTENBERG, et al., Defendants and Respondents.

Page 78

62 Cal.Rptr.2d 78

53 Cal.App.4th 801, 97 Cal. Daily Op. Serv. 2101,

97 Daily Journal D.A.R. 3839

Stacy RUTTENBERG, Plaintiff and Appellant, v. Sally RUTTENBERG, et al., Defendants and Respondents.

No. B092022.

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

March 21, 1997.

Rehearing Denied April 27, 1997.

Review Denied July 9, 1997.

Law Offices of Howard A. Kapp, Beverly Hills, for Plaintiff and Appellant.

Thomas & Price and Christian E. Sanne, Glendale, for Defendants and Respondents.

KITCHING, Associate Justice.

INTRODUCTION

A wrongful death complaint named an heir of the decedent as a nominal defendant, but plaintiffs failed either to serve the complaint on that heir or involve her in the subsequent settlement. Even though the omitted heir had knowledge that the wrongful death action existed, plaintiffs' failure to serve the complaint resulted in the failure to join the omitted heir in plaintiffs' wrongful death suit. In these circumstances, the omitted heir has a right to bring an action against the wrongful death plaintiffs to recover damages for her omission from the underlying lawsuit and settlement. We reverse a judgment granting a motion for judgment on the pleadings, and remand for further proceedings in the omitted heir's lawsuit.

STANDARD OF REVIEW

A defendant may move for judgment on the pleadings on the same basis as a general demurrer. (Ponderosa Homes, Inc. v. City of San Ramon (1994) 23 Cal.App.4th 1761, 1767, 29 Cal.Rptr.2d 26.) The standard of appellate review corresponds to that applied to a judgment following the sustaining of a demurrer. (Gami v. Mullikin Medical Center (1993) 18 Cal.App.4th 870, 876, 22 Cal.Rptr.2d 819.) Thus the motion is confined to the face of the pleading under attack, and accepts all facts alleged in the complaint as true. (Rangel v. Interinsurance Exchange (1992) 4 Cal.4th 1, 7, 14 Cal.Rptr.2d 783, 842 P.2d 82.) "Our task in reviewing a judgment of dismissal following the sustaining of such a demurrer is to determine whether the complaint states, or can be amended to state, a cause of action. For that purpose we accept as true the properly pleaded material factual allegations of the complaint, together with facts that may properly be judicially noticed." (Crowley v. Katleman (1994) 8 Cal.4th 666, 672, 34 Cal.Rptr.2d 386, 881 P.2d 1083.)

FACTS AND PROCEDURAL HISTORY

On March 24, 1994, plaintiff and appellant Stacy Ruttenberg ("Stacy") filed a complaint based on an underlying wrongful death action filed after the death of her father, Harold A. Ruttenberg ("Harold"). The complaint identified Harold's lawful heirs as Stacy (his daughter from a prior marriage) and a group designated as "the Ruttenberg defendants." ¹

Stacy's complaint contained the following allegations relating to the Ruttenberg defendants.

Harold A. Ruttenberg died on June 8, 1989. Within weeks of Harold's death, Stacy attempted to obtain medical records to determine the cause of death and events leading up to his death. Stacy was not able to obtain medical records because she was not Harold's wife and had no legal right to obtain her deceased father's records. Stacy was not able to determine the treatment provided to Harold, the nature of the alleged malpractice leading to Harold's death, or the identities of any potential malpractice defendants. Stacy communicated her inability to obtain these records to the Ruttenberg defendants and requested that they obtain such records. Stacy did not have sufficient information to consider filing an action, and if she had sued the Ruttenberg defendants, she would have been committing malicious prosecution.

The complaint further alleged that after Harold's death, the Ruttenberg defendants filed a wrongful death complaint ("the wrongful death action"). It named as defendants the hospital in which Harold was treated and in which he died, and two physicians who diagnosed and treated Harold. The Ruttenberg defendants knew Stacy was Harold's lawful heir, and the wrongful death complaint named Stacy as a nominal defendant. The Ruttenberg defendants, however, failed to serve Stacy or notify her of the action. The wrongful death complaint stated that Stacy was unwilling to participate in the action, which the Ruttenberg defendants (and their attorneys) knew was false. The Ruttenberg defendants knew Stacy's residential address or could easily have obtained it. They also knew Stacy was interested in pursuing her claim for damages, but did not consult her regarding filing the wrongful death action, offer to join her as a plaintiff, or serve her as a defendant.

The complaint also stated that on March 19, 1993, the Ruttenberg defendants obtained court approval of minors' compromises of Brook and Rachel, with knowledge that Stacy had neither notice nor knowledge of those proceedings and that Stacy was entitled to her fair share of proceeds of the wrongful death action.

The complaint alleged that on April 13, 1993, the wrongful death defendants settled; the settlement included a payment of $425,000 to the Ruttenberg defendants. The settlement, filed on July 2, 1993, was not served on Stacy. Stacy did not learn of the settlement until December 1993 and did not learn the amount of the settlement until January 10, 1994. Stacy was not served with a July 2, 1993, court order finding that the settlement was in good faith pursuant to Code of Civil Procedure section 877.6. The court was not advised of the nature or fact of Stacy's claim, or was falsely told that Stacy was not making a claim or otherwise interested in the action. Since there were no other potential cross-complaints or parties making claims, the good faith settlement order was obtained solely to create the pretense of court approval and a final judgment to bar Stacy's claims without notice to her.

Finally, the complaint asserted that Stacy has received nothing as a result of Harold's death or from the settlement. Because of the Ruttenberg defendants' conduct, she has never learned the true cause or causes of her father's death, causing her to suffer severe emotional distress.

Stacy's complaint alleged causes of action for constructive trust; for accounting and apportionment; for interference with prospective economic advantage; for fraud and abuse of process; for negligent infliction of The trial court granted the Ruttenberg defendants' motion for judgment on the pleadings. On April 11, 1995, plaintiff Stacy Ruttenberg filed a notice of appeal. A signed judgment on the pleadings was filed April 14, 1995. We deem the premature notice to have been timely filed after the judgment. (Dubins v. Regents of University of California (1994) 25 Cal.App.4th 77, 80, fn. 1, 30 Cal.Rptr.2d 336.) Respondents are the Ruttenberg defendants.

emotional distress; and for intentional infliction of emotional distress.

ISSUES

This appeal raises three related issues. First, do the plaintiffs in a wrongful death action have a duty to join all other heirs in that action? Second, what constitutes proper joinder of other heirs? And third, does an omitted heir have a remedy against the heirs who received the proceeds of a wrongful death suit?

DISCUSSION

1. The Wrongful Death Statute and the Requirements of Wrongful Death Action

Code of Civil Procedure section 377.60 ² states in 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: [p] "(a) The decedent's surviving spouse, children, and issue of deceased children, or, if none, the persons who would be entitled to the property of the decedent by intestate succession."

A wrongful death action has a statutory rather than common law origin; the Legislature both created and limited the remedy. (Justus v. Atchison (1977) 19 Cal.3d 564, 572, 139 Cal.Rptr. 97, 565 P.2d 122, overruled on other grounds in Ochoa v. Superior Court (1985) 39 Cal.3d 159, 171, 216 Cal.Rptr. 661, 703 P.2d 1.) Section 377.60 and its predecessor statute, section 377, do not expressly prevent more than one cause of action by a decedent's heirs. Nevertheless wrongful death actions are considered to be "joint, single and indivisible." (Valdez v. Smith (1985) 166 Cal.App.3d 723, 726, 212 Cal.Rptr. 638; Smith v. Premier Alliance Ins. Co. (1995) 41 Cal.App.4th 691, 697, fn. 8, 48 Cal.Rptr.2d 461.)

Cross v. Pacific Gas & Elec. Co. (1964) 60 Cal.2d 690, 694, 36 Cal.Rptr. 321, 388 P.2d 353 defined "joint, single and indivisible" as follows. "In stating that an action for wrongful death is joint, it is meant that all heirs should join or be joined in the action and that a single verdict should be rendered for all recoverable damages; when it is said that the action is single, it is meant that only one action for wrongful death may be brought whether, in fact, it is instituted by all or only one of the heirs, or by the personal representative of the decedent as statutory trustee for the heirs; and when it is said that the action is indivisible, it is meant that there cannot be a series of suits by heirs against the tortfeasor for their individual damages."

The wrongful death statute is "a procedural statute establishing compulsory joinder and not a statute creating a joint cause of action." (Cross v. Pacific Gas & Elec. Co., supra, 60 Cal.2d at p. 692, 36 Cal.Rptr. 321, 388 P.2d 353.) Two conclusions follow from this principle. First, each heir has a personal and separate cause of action, and a separate rather than a joint interest. Second, strict compliance with the statutory procedure is not jurisdictional in the sense that a failure to comply with statutory requirements requires reversal of a judgment. (Id. at pp. 692-694, 36 Cal.Rptr. 321, 388 P.2d 353.)

The latter point applies when wrongful death plaintiffs fail to join all heirs. The superior court has jurisdiction to try a wrongful death action even absent joinder of one or more heirs...