Scott v. Thompson, No. G041860 (Cal. App. 5/26/2010)

• Decision Date: 26 May 2010
• Docket Number: No. G041860.,G041860.
• Parties: RHONDA SCOTT, Plaintiff and Appellant, v. RUSSEL THOMPSON et al. Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

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RHONDA SCOTT, Plaintiff and Appellant, v. RUSSEL THOMPSON et al. Defendants and Respondents.

No. G041860.

Court of Appeals of California, Fourth District, Division Three.

Filed May 26, 2010.

Certified for Publication

Appeal from a judgment of the Superior Court of Orange County, No. 07CC04217, Geoffrey T. Glass, Judge. Affirmed; stay dissolved.

Law Offices of Fred J. Knez and Fred J. Knez for Plaintiff and Appellant.

Callahan & Blaine, Daniel J. Callahan, Sarah C. Serpa and Jill A. Thomas for Defendant and Respondent Russel Thompson.

Kutak Rock, Edwin J. Richards and Christopher D. Glos for Defendant and Respondent City of Dana Point.

Ford, Walker, Haggerty & Behar, K. Michele Williams and Dina B. Dreizler for Defendants and Respondents Tammy Jo Booth and Christine R. Booth.

OPINION

ARONSON, J.

Rhonda Scott appeals from the trial court's entry of judgment dismissing her claims for wrongful death, negligence, and dangerous condition of public property stemming from a traffic accident in which an intoxicated driver killed her halfbrother, Michael Thompson, as he rode his bicycle in the designated lane along the Pacific Coast Highway. The trial court consolidated Scott's suit with a similar one already filed by the decedent's presumed father, Russel Thompson,¹ against the driver, Tammy Jo Booth, the vehicle's owner, Christine R. Booth, and the City of Dana Point (collectively, defendants). After consolidation, Scott amended her complaint to seek a declaratory judgment rebutting Thompson's status as Michael's presumed father, which would leave Scott, under various statutory provisions including the rules of intestate succession, as Michael's sole heir entitled to sue for his wrongful death and related actions.

The trial court granted Scott's motion to compel blood testing, which revealed Thompson was not Michael's biological father. Thompson nevertheless sought summary adjudication of Scott's plea for declaratory judgment, contending he remained Michael's presumed father despite the test results. Scott did not dispute Michael was born during Thompson's marriage to Michael's mother or that Thompson received Michael into his home, provided for him for a number of years before and after Thompson's eventual divorce from Michael's mother, or that Thompson held Michael out as his own son.

The trial court granted Thompson's motion for summary adjudication, explaining, "Even if Russel[] Thompson is not the biological father of Michael Thompson . . . — and that's what the DNA showed — he is presumed to be the father by virtue of what happened after the birth and therefore he is entitled to have the rights of a father." Because California's wrongful death statute vests priority and exclusive standing in a decedent's surviving parent over a surviving sibling (see Code Civ. Proc., § 377.60, discussed infra), the trial court subsequently granted summary judgment motions in favor of defendants and Thompson against Scott. We stayed the proceedings below to consider on appeal her assertion the DNA test results vested her alone with standing to sue for Michael's death. Alternatively, she argues triable issues of material fact exist on whether she rebutted Thompson's status as a presumed father. Thompson contends Scott lacked standing to challenge his paternity and therefore failed to rebut it. As we explain, we conclude Thompson is correct. Consequently, Scott had no standing to assert her wrongful death and related causes of action, and the trial court did not err in entering judgment against her and dismissing her claims. We therefore affirm the judgment.

I DISCUSSION

Because our introduction disclosed the pertinent facts and procedural history, we turn immediately to the appeal's legal issues. Scott asserts the trial court erred in granting summary judgment in favor of respondents. We review the summary judgment motions de novo to determine whether there is a triable issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); see Hailey v. California Physicians' Service (2007) 158 Cal.App.4th 452, 462.) Lack of standing is a fatal jurisdictional defect that requires judgment against the plaintiff. (Buckland v. Threshold Enterprises, Ltd. (2007) 155 Cal.App.4th 798, 804, 813, 820.) When, as here, the facts relevant to standing are undisputed, "[s]tanding is a question of law that we review de novo." (IBM Personal Pension Plan v. City and County of San Francisco (2005) 131 Cal.App.4th 1291, 1299.)

Thompson contends Scott lacked standing to challenge his role as Michael's presumed father, and therefore lacked standing to pursue a claim for Michael's wrongful death. We agree.

"In California, an action for wrongful death is governed solely by statute, and the right to bring such an action is limited to those persons identified therein." (Jackson v. Fitzgibbons (2005) 127 Cal.App.4th 329, 334.) Put another way, "[b]ecause the right to sue for wrongful death damages is strictly a creature of statute and exists only so far and in favor of such persons as the Legislature has declared [citation], `standing' among multiple claimants is determined by statutory rank." (Nelson v. County of Los Angeles (2003) 113 Cal.App.4th 783, 789 (Nelson).) The wrongful death statute vests standing in the following persons or a personal representative on their behalf: "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." (Code Civ. Proc., § 377.60, subd. (a); see Gordon v. Reynolds (1960) 187 Cal.App.2d 472, 474 [either administratrix or heirs may sue for wrongful death, but not both].) It is undisputed Michael died without a spouse, domestic partner, or issue; consequently, the rules of intestate succession control standing here.

The Probate Code provides that, absent a surviving spouse, domestic partner, or issue, the decedent's intestate estate passes "to the decedent's parent or parents equally" (Prob. Code, § 6402, subd. (b)) or, "[i]f there is no surviving . . . parent, to the issue of the parents" (Prob. Code, § 6402, subd. (c)) — in other words, to the decedent's siblings. Surviving heirs are "those who outlive the decedent." (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1441.) The question therefore is whether Michael had any surviving parents; if not, the right to assert a wrongful death cause of action would pass to his sister, Scott. (See generally Lewis v. Regional Center of East Bay (1985) 174 Cal.App.3d 350, 353 [intestacy statute, as incorporated by wrongful death statute, accords parents priority over more remote relatives in bringing wrongful death action].)

It is undisputed that Michael's mother predeceased him. A "stepparent" or "foster parent" may qualify as a parent for purposes of intestate succession in some instances (Prob. Code, § 6454), but no party asserted Thompson or another man or woman played these roles in Michael's life. As pertinent here, the Probate Code provides that "for the purpose of determining intestate succession," "a relationship of parent and child exists . . . in the following circumstance[]: [¶] . . . between a person and the person's natural parents, regardless of the marital status of the natural parents." (Prob. Code, § 6450.) Probate Code section 6453 specifies in relevant part: "For the purpose of determining whether a person is a `natural parent' as that term is used in this chapter: [¶] (a) A natural parent and child relationship is established where that relationship is presumed and not rebutted pursuant to the Uniform Parentage Act, (Part 3, (commencing with section 7600) of Division 12 of the Family Code)." (Cf. Prob. Code, § 54 [defining, in a circular fashion, a "parent" as "any individual entitled to take as a parent under this code by intestate succession from the child whose relationship is involved"].) Thus, determining priority under the chain of intestate succession requires us to turn, in the circumstances presented here, to the Uniform Parentage Act (UPA or the Act).

As our Supreme Court has explained, the UPA "provides the framework by which California courts make paternity determinations." (Dawn D. v. Superior Court (Jerry K.) (1998) 17 Cal.4th 932, 937 (Dawn D.).) Under the UPA, as enacted in Family Code section 7611, a man is presumed the natural father of a child born during, or within 300 days after the termination of, his marriage to the child's mother.² (§ 7611(a).) A man also attains the status of presumed father if he receives the child into his home and openly holds the child out as his natural son or daughter. (§ 7611(d).) There is no dispute that, by each of these provisions, Thompson is presumed to be Michael's father.

Specifically, Michael was born in October 1972 during Thompson's marriage to Michael's mother — five months into that marriage to be exact — and Scott does not dispute Thompson thereby qualified as Michael's presumed father under section 7611(a). (See generally Dawn D., supra, 17 Cal.4th at pp. 937-938, 942-944 [husband qualified by marriage as presumed father; court held that absent relationship with child, biological father had no statutory standing or due process right to challenge husband's presumed father status].) Also, Scott does not dispute that Thompson received Michael into his home and held him out as his natural son during Michael's early years, thereby qualifying as his presumed father under section 7611(d). Instead, she asserts Thompson provided little or no financial support to Michael after his mother married Raymond Rothweiler when Michael was six or seven years old. Scott contends Thompson had limited contact with Michael as he grew older and that Rothweiler, more than Thompson, acted as a true and...