LAW OFFICES
OF
ANDREA LYNN RICE
A Professional Corporation
12100 Wilshire Boulevard
Suite 780
Los Angeles, California 90025
Telephone (310) 207-3717
Facsimile (310) 207-6785
Appellate Attorney
LIABILITY UPDATE
February 29, 2008
In Romero v. Pacific Gas & Electric Company 2007 Daily Journal D.A.R 15957, the Third Appellate District of the California Court of Appeal held that a tortfeasor waives the protection of the “one action rule” when it enters into a settlement of a wrongful death action that does not include an heir who has been made a nominal defendant in the action pursuant to section 382 but has not been served.
The son of plaintiff Jose Romero and Linda Brekelmans was killed in an accident involving defendant Pacific Gas & Electric Company (PG & E). Linda Brekelmans brought a wrongful death action against PG & E, naming but not serving her husband as a nominal defendant under Code of Civil Procedure section 382. She settled the action with PG & E without the participation of Romero and it was dismissed. Romero then brought this action for wrongful death against PG & E. Romero appealed from the judgment of dismissal after the trial court sustained PG &E’s demurrer without leave to amend. The Court of Appeal reversed.
A cause of action for wrongful death is authorized by Code of Civil Procedure section 377.60. That statute has been interpreted to authorize only a single action, in which all the decedent’s heirs must join. Any heir who does not consent to be joined as a plaintiff in the wrongful death action must be named as a defendant pursuant to Code of Civil Procedure section 382. (Salmon v. Rathjens (1907) 152 Cal. 290, 295.) If an heir is not included in the original wrongful death action, the heir may not subsequently bring an independent action against the tortfeasor unless the tortfeasor had knowledge of the existence of the heir at the time of the settlement. (Valdez v. Smith (1985) 166 Cal.App.3d 723, 726-727.)
The court observed that a tortfeasor waives the protection of the one action rule by settling with less than all the known heirs if such heirs are not a party to the action. (Valdez v. Smith, supra, 166 Cal.App.3d 723 at p. 731.) An heir named as a nominal defendant under section 382 but not served with a summons and complaint is not properly joined in the action, and accordingly is not a party to the action. (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 804.) “Nevertheless, PG & E argued that it was protected by the one action rule because Romero was ostensibly joined in the action, and PG & E had no knowledge that Romero had not been served. It seeks implied reliance on the bare inference that because Romero was named as a nominal defendant under section 382 that it could act as if he had elected not to seek recompense for the wrongful death of his son. We disagree. . . . A person named as a nominal defendant and properly joined is ‘in reality, [a] plaintiff [ ] in the case.’ (Watkins v. Nutting (1941) 17 Cal.2d 490, 498, 110 P.2d 384.) . . .”
The court noted that, in this case, Romero was not served and was not a party to the action. “It is not a defense to the waiver rule that the defendant was unaware that a known heir joined as a nominal defendant was not served. The defendant has the burden and the means of determining whether an heir has been served and accordingly its failure to do so does not take the case out of the rule of the Valdez case. Moreover, the naming of an heir as a nominal defendant is notice of the existence of the heir sufficient to bring the case within Valdez v. Smith, supra.”
The court pointed out that the one action rule does not apply if the tortfeasor voluntarily elects to settle the case with less than all of the heirs, having knowledge of the omitted heir’s existence and status as an heir. (Valdez v. Smith, supra, 166 Cal.App.3d at p. 731.) Valdez held that “when . . . the defendant in a pending action has actual knowledge of the existence, identity and status of an omitted heir and fails to have said omitted heir made a party to the action, a settlement and dismissal with prejudice of the pending action will not bar a subsequent action by the omitted heir against the defendant.”
The exception to the one action rule also applies if the tortfeasor is on notice of the omitted heir’s existence, whether or not it has actual knowledge of the existence of such heirs. (Gonzales v. Southern California Edison Co. (1999) 77 Cal.App.4th 485, 491.) The court in Gonzales held that even though the deposition testimony did not confer actual knowledge of the parents’ status as an heir, it put the tortfeasors on notice and they should be held to both actual knowledge or knowledge that reasonably could be discovered through investigation. The court stated that knowledge of the heirs’ existence and status as heirs should be attributed to “wrongful death defendants that learn of the existence and identity of possible additional heirs who are not parties, yet proceed to settle in short order with those who are parties.” (Ibid.)
The only distinction between this case and Valdez v. Smith, supra, is that here the heir was named as a defendant in the prior action pursuant to section 382. However, merely naming a person as a nominal defendant under section 382 is not the equivalent of joining the person in the lawsuit. A party is not properly joined unless served with a summons and complaint. (Ruttenberg v. Ruttenberg, supra, 53 Cal.App.4th at p. 808.) Consequently, this case falls squarely under the authority of Valdez v. Smith, supra, 166 Cal.App.3d 723 and Gonzales v. Southern California Edison Co., supra, 77 Cal.App.4th 485, which hold that a defendant who is aware of the existence of additional non-party heirs may not settle the action, then invoke the one action rule.
The court pointed out that waiver of the protection of the one action rule turns on the defendant’s knowledge of the existence or possible existence of an heir. (Valdez v. Smith, supra, 166 Cal.App.3d at p. 731 [settlement of first action does not bar subsequent action where defendant had “actual knowledge of the existence, identity and status of an omitted heir and fail[ed] to have said omitted heir made a party to the action. . . .]; Gonzales v. Southern California Edison Co., supra, 77 Cal.App.4th at p. 491 [defendants may not invoke the one action rule where they “learn of the existence and identity of possible additional heirs who are not parties, yet proceed to settle in short order with those who are parties.”].) The naming of an heir as a nominal defendant manifestly puts the defendant on notice of the heir’s existence regardless whether the heir has been joined by service of process.
PG & E took the position that it could infer Romero was properly joined from the fact that he was named a defendant pursuant to section 382. “We disagree. . . . [T]he burden is on the tortfeasor wishing to avail itself of the one action rule to cause a known heir to be joined in the action.”
More importantly, since PG & E was a party to the action it would have been a simple matter for it to determine whether Romero had been served with the summons and complaint by reviewing the court’s file. As indicated in Valdez v. Smith, supra, the burden is on the tortfeasor wishing to avail itself of the one action rule to cause a known heir to be joined in the action. (166 Cal.App.3d at p. 728 [“Defendants could have made a timely objection and had the action abated or at least could have made [the heir] a party to the action. . . . [T]he failure of defendants to do so should not estop the plaintiff from bringing his rightful claim for wrongful death.”].) Where a tortfeasor wishes to avail itself of the protections of the one action rule, the burden is on the tortfeasor to ascertain whether the heirs named as defendants have been properly joined.
----Andrea Lynn Rice
OF
ANDREA LYNN RICE
A Professional Corporation
12100 Wilshire Boulevard
Suite 780
Los Angeles, California 90025
Telephone (310) 207-3717
Facsimile (310) 207-6785
Appellate Attorney
LIABILITY UPDATE
February 29, 2008
In Romero v. Pacific Gas & Electric Company 2007 Daily Journal D.A.R 15957, the Third Appellate District of the California Court of Appeal held that a tortfeasor waives the protection of the “one action rule” when it enters into a settlement of a wrongful death action that does not include an heir who has been made a nominal defendant in the action pursuant to section 382 but has not been served.
The son of plaintiff Jose Romero and Linda Brekelmans was killed in an accident involving defendant Pacific Gas & Electric Company (PG & E). Linda Brekelmans brought a wrongful death action against PG & E, naming but not serving her husband as a nominal defendant under Code of Civil Procedure section 382. She settled the action with PG & E without the participation of Romero and it was dismissed. Romero then brought this action for wrongful death against PG & E. Romero appealed from the judgment of dismissal after the trial court sustained PG &E’s demurrer without leave to amend. The Court of Appeal reversed.
A cause of action for wrongful death is authorized by Code of Civil Procedure section 377.60. That statute has been interpreted to authorize only a single action, in which all the decedent’s heirs must join. Any heir who does not consent to be joined as a plaintiff in the wrongful death action must be named as a defendant pursuant to Code of Civil Procedure section 382. (Salmon v. Rathjens (1907) 152 Cal. 290, 295.) If an heir is not included in the original wrongful death action, the heir may not subsequently bring an independent action against the tortfeasor unless the tortfeasor had knowledge of the existence of the heir at the time of the settlement. (Valdez v. Smith (1985) 166 Cal.App.3d 723, 726-727.)
The court observed that a tortfeasor waives the protection of the one action rule by settling with less than all the known heirs if such heirs are not a party to the action. (Valdez v. Smith, supra, 166 Cal.App.3d 723 at p. 731.) An heir named as a nominal defendant under section 382 but not served with a summons and complaint is not properly joined in the action, and accordingly is not a party to the action. (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 804.) “Nevertheless, PG & E argued that it was protected by the one action rule because Romero was ostensibly joined in the action, and PG & E had no knowledge that Romero had not been served. It seeks implied reliance on the bare inference that because Romero was named as a nominal defendant under section 382 that it could act as if he had elected not to seek recompense for the wrongful death of his son. We disagree. . . . A person named as a nominal defendant and properly joined is ‘in reality, [a] plaintiff [ ] in the case.’ (Watkins v. Nutting (1941) 17 Cal.2d 490, 498, 110 P.2d 384.) . . .”
The court noted that, in this case, Romero was not served and was not a party to the action. “It is not a defense to the waiver rule that the defendant was unaware that a known heir joined as a nominal defendant was not served. The defendant has the burden and the means of determining whether an heir has been served and accordingly its failure to do so does not take the case out of the rule of the Valdez case. Moreover, the naming of an heir as a nominal defendant is notice of the existence of the heir sufficient to bring the case within Valdez v. Smith, supra.”
The court pointed out that the one action rule does not apply if the tortfeasor voluntarily elects to settle the case with less than all of the heirs, having knowledge of the omitted heir’s existence and status as an heir. (Valdez v. Smith, supra, 166 Cal.App.3d at p. 731.) Valdez held that “when . . . the defendant in a pending action has actual knowledge of the existence, identity and status of an omitted heir and fails to have said omitted heir made a party to the action, a settlement and dismissal with prejudice of the pending action will not bar a subsequent action by the omitted heir against the defendant.”
The exception to the one action rule also applies if the tortfeasor is on notice of the omitted heir’s existence, whether or not it has actual knowledge of the existence of such heirs. (Gonzales v. Southern California Edison Co. (1999) 77 Cal.App.4th 485, 491.) The court in Gonzales held that even though the deposition testimony did not confer actual knowledge of the parents’ status as an heir, it put the tortfeasors on notice and they should be held to both actual knowledge or knowledge that reasonably could be discovered through investigation. The court stated that knowledge of the heirs’ existence and status as heirs should be attributed to “wrongful death defendants that learn of the existence and identity of possible additional heirs who are not parties, yet proceed to settle in short order with those who are parties.” (Ibid.)
The only distinction between this case and Valdez v. Smith, supra, is that here the heir was named as a defendant in the prior action pursuant to section 382. However, merely naming a person as a nominal defendant under section 382 is not the equivalent of joining the person in the lawsuit. A party is not properly joined unless served with a summons and complaint. (Ruttenberg v. Ruttenberg, supra, 53 Cal.App.4th at p. 808.) Consequently, this case falls squarely under the authority of Valdez v. Smith, supra, 166 Cal.App.3d 723 and Gonzales v. Southern California Edison Co., supra, 77 Cal.App.4th 485, which hold that a defendant who is aware of the existence of additional non-party heirs may not settle the action, then invoke the one action rule.
The court pointed out that waiver of the protection of the one action rule turns on the defendant’s knowledge of the existence or possible existence of an heir. (Valdez v. Smith, supra, 166 Cal.App.3d at p. 731 [settlement of first action does not bar subsequent action where defendant had “actual knowledge of the existence, identity and status of an omitted heir and fail[ed] to have said omitted heir made a party to the action. . . .]; Gonzales v. Southern California Edison Co., supra, 77 Cal.App.4th at p. 491 [defendants may not invoke the one action rule where they “learn of the existence and identity of possible additional heirs who are not parties, yet proceed to settle in short order with those who are parties.”].) The naming of an heir as a nominal defendant manifestly puts the defendant on notice of the heir’s existence regardless whether the heir has been joined by service of process.
PG & E took the position that it could infer Romero was properly joined from the fact that he was named a defendant pursuant to section 382. “We disagree. . . . [T]he burden is on the tortfeasor wishing to avail itself of the one action rule to cause a known heir to be joined in the action.”
More importantly, since PG & E was a party to the action it would have been a simple matter for it to determine whether Romero had been served with the summons and complaint by reviewing the court’s file. As indicated in Valdez v. Smith, supra, the burden is on the tortfeasor wishing to avail itself of the one action rule to cause a known heir to be joined in the action. (166 Cal.App.3d at p. 728 [“Defendants could have made a timely objection and had the action abated or at least could have made [the heir] a party to the action. . . . [T]he failure of defendants to do so should not estop the plaintiff from bringing his rightful claim for wrongful death.”].) Where a tortfeasor wishes to avail itself of the protections of the one action rule, the burden is on the tortfeasor to ascertain whether the heirs named as defendants have been properly joined.
----Andrea Lynn Rice
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