Stencel Aero Engineering Corp. v. Superior Court

• Decision Date: 02 April 1976
• Citation: 56 Cal.App.3d 978,128 Cal.Rptr. 691
• Court: California Court of Appeals Court of Appeals
• Parties: STENCEL AERO ENGINEERING CORPORATION et al., Petitioners, v. The SUPERIOR COURT of the State of California FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent; Michael Austin McCARTHY, a minor, by his guardian ad litem Nancy Jean McCarthy, et al., Real Parties in Interest. Civ. 37044.

Page 691

128 Cal.Rptr. 691

56 Cal.App.3d 978

STENCEL AERO ENGINEERING CORPORATION et al., Petitioners, v. The SUPERIOR COURT of the State of California FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent;

Michael Austin McCARTHY, a minor, by his guardian ad litem Nancy Jean McCarthy, et al., Real Parties in Interest.

Civ. 37044.

Court of Appeal, First District, Division 4, California.

April 2, 1976.

As Modified on Denial of Rehearing April 30, 1976.

H. Donald Harris, Jr., James R. Thompson, Lillick McHose & Charles, San Francisco, for Stencel Aero Engineering Corp.

Kevin J. Dunne, Sedgwick, Detert, Moran & Arnold, San Francisco, for Hi-Tek Corp.

George T. Lenahan, Severson, Werson, Berke & Melchior, San Francisco, for Steinthal & Company, Inc.

Abramson & Bianco, William B. Smith, San Francisco, for real parties in interest.

RATTIGAN, Associate Justice.

This proceeding originates on the amended complaint in an action for damages which is pending in respondent court. According to the pleading (hereinafter the 'complaint'), Anthony J. McCarthy was killed in an airplane accident on April 14, 1972. The plaintiffs in the action (and real parties in interest herein) are his widow and his minor son, who sue as his 'heirs,' and Mary Linn, who sues as the special administratrix of his estate. The defendants are the three petitioners herein (Stencel Aero Engineering Corporation (hereinafter 'Stencel Aero'), Steinthal & Company, Inc., and Hi-Tek Corporation), Curtiss-Wright Corporation, McDonnell Douglas Corporation, and fictitious defendants identified as 'Does,' all of whom are collectively alleged to have been the manufacturers of the aircraft involved and of its component parts.

Petitioners seek a writ of mandate requiring respondent court to vacate its order denying, and further requiring it to grant, a motion for judgment on the pleadings as to a single count of the complaint in which the plaintiffs seek punitive damages. The challenged order operated to permit the proof and recovery of punitive damages in the action by all three plaintiffs. The effect of the writ sought would bar the recovery of punitive damages by any plaintiff. Those opposing prospects, and the question presented by the petition, are framed in the format of the full complaint, in which compensatory and punitive damages are pleaded in five counts and by the plaintiffs severally and jointly, as next indicated. The complaint is drafted in conventional legalese, it is long and detailed, and it extensively incorporates allegations from some counts into others. We refrain from quoting it for these reasons, and summarize its five counts by paraphrasing them as follows:

Each count is designated by number as a 'Count And Theory Of Liability.' In the first three, the heirs of the decedent seek to recover damages from the defendants for his allegedly wrongful death in the airplane accident of April 14, 1972. In each of these counts, the two heirs allege that they jointly sustained general damages in the amount of $2,000,000 for the loss of decedent's 'care, comfort, society, protection, and support.' The widow also alleges compensable damages ($700) incurred for his funeral and burial expenses. Each of the three counts pleads a separate theory of defendants' liability for having allegedly caused the fatal accident as manufacturers of the aircraft and its component parts. ¹ From the nature of the damages pleaded, however, it is apparent that each of these counts is based upon the heirs' claimed entitlement to compensatory damages for the decedent's allegedly wrongful death pursuant to Code of Civil Procedure section 377. ²

In the fourth count, the special administratrix seeks $200 in compensatory damages, from the same defendants and upon the same multiple theories of their liability (all of which are combined in the fourth count stated as a single cause of action) for a property damage loss alleged to have been incurred in that amount, By the decedent, in the same accident in which he died but Before his death actually occurred. ³ The fourth count is thus pursued by his personal representative upon the theories that the decedent held the $200 cause of action in his lifetime, against the defendants and upon each and all of the several theories of their alleged liability as pleaded by the heirs (see fn. 1, Ante); that the $200 cause (or causes) of action survived him; and that the representative may accordingly sue upon it (or them) pursuant to Probate Code section 573. ⁴

As will appear in further detail, Code of Civil Procedure section 377 precludes the decedent's heirs from recovering punitive damages for his wrongful death in the accident. (See both statutes as quoted in fns. 2 and 4, Ante; Lange v. Schoettler (1896) 115 Cal. 388, 391, 47 P. 139; Pease v. Beech Aircraft Corp. (1974) 38 Cal.App.3d 450, 460--462, 113 Cal.Rptr. 416.) As will also appear in detail, however, Probate Code section 573 permits his personal representative to recover punitive damages upon the $200 cause of action if it in fact arose in his lifetime, if it survived him, and if he could have recovered punitive damages on it had he lived. (See § 573 as quoted in fn.4, Ante; Pease v. Beech Aircraft Corp., supra, at p. 460, 113 Cal.Rptr. 416; Dunwoody v. Trapnell (1975) 47 Cal.App.3d 367, 368, 120 Cal.Rptr. 859.)

These distinctions present the question in the fifth count of the complaint, in which the heirs and the personal representative jointly replead various allegations of the first four counts, by reference, and further alleged that all three of them are Jointly entitled to recover $10,000,000 in punitive damages. According to the sum of its allegations as incorporated by reference and as expressly pleaded, the fifth count alleges their right to recover punitive damages (1) from the same defendants who were theretofore alleged to have caused both the wrongful death and the decedent's property damage loss in the one accident (2) under two of the three theories of their liability previously pleaded (strict liability in tort and breach of warranty, but not negligence: see fn.1, Ante), and (3) upon the property damage cause of action which the decedent inferably held in his lifetime, and which inferably survived him, by reason of the allegation that his personal property was 'destroyed' in the fatal accident, but 'prior to his death.' (See fn. 3, Ante.)

The Motion For Judgment On The Pleadings

Petitioner Stencel Aero challenged the fifth count (only) by filing a 'Notice Of Motion For Judgment On The Pleadings (Fifth Count and Theory of Liability)' in which it moved 'for a Judgment in its favor . . . on the pleadings in this case, as to the Fifth Count and Theory of Liability of . . . (the) . . . complaint on file herein.' Various materials filed on the motion, both in support and opposition, are hereinafter discussed. (See fn. 6, Post.) Respondent court denied the motion by minute order, without explanation or comment. Petitioners thereupon commenced the present proceeding.

The Propriety Of This Proceeding

As indicated above, real parties' claimed entitlement to punitive damages is isolated in the fifth count against which the motion for judgment on the pleadings was made; and the effect of respondent court's denial of the motion is to permit the recovery of punitive damages in the action. If petitioners were to obtain the full relief sought in the present proceeding, the recovery of such damages by any plaintiff would be barred. The question whether they are recoverable, or not, will have a material effect upon the scope of the issues to be tried and of permissible pretrial discovery in such matters as the wealth of the defendants. (See Coy v. Superior Court (1962) 58 Cal.2d 210, 222--223, 23 Cal.Rptr. 393, 373 P.2d 457; Bertero v. National General Corp. (1974) 13 Cal.3d 43, 65, 118 Cal.Rptr. 184, 529 P.2d 608.) We therefore deem this to be one of the exceptional cases in which we are warranted in considering a petition for mandate although it involves the pleadings in a pending action and arises at a pretrial stage thereof. (See Babb v. Superior Court (1971) 3 Cal.3d 841, 851, 92 Cal.Rptr. 179, 479 P.2d 379; G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 24, 12 Cal.Rptr. 218.)

Petitioners' Contention

As was expressed to respondent court on the motion for judgment on the pleadings, petitioners contend that punitive damages are not recoverable by any plaintiff in real parties' action. ⁵ The contention rests upon the two premises (1) that the decedent's heirs may neither plead nor recover punitive damages for his wrongful death in the fatal accident and (2) that Probate Code section 573 bars the recovery of punitive damages by his personal representative, upon the decedent's $200 property damage loss, because that loss occurred in the same accident. For the reasons next stated, we have concluded that the first premise is valid as to the heirs' entitlement to plead punitive damages, but that the second one fails as to the personal representative's right to do so: we grant qualified relief accordingly.

Discussion

Petitioners' first premise is valid because Code of Civil Procedure section 377, which defines the damages recoverable for the decedent's allegedly wrongful death, excludes any 'damages recoverable under Section 573 of the Probate Code.' (See Section 377 as quoted in fn.2, Ante.) Damages 'recoverable' under section 573 may be awarded to the decedent's 'executor or administrator' only, and they include 'such loss or damage as the decedent Sustained or incurred prior to his death, including any . . . punitive or exemplary damages that the decedent would have been entitled to recover had he lived. . . ..' (See section 573 as quoted in fn. 4, Ante (emphasis again added).)

Punitives damages 'recoverable' under section 573 are therefore among the damages which are not 'recoverable' by the heirs pursuant to section 377, and they may not be...