Boeken v. PHILIP MORRIS USA, INC.

MORENO, J., Dissenting.

I disagree with the majority’s analysis and conclusion. I conclude rather that a statutory wrongful death action is different from a common law action for loss of consortium and implicates a distinct primary right. As discussed below, neither is plaintiff’s claim disposed of by collateral estoppel or the rule against double recovery. Nor is there any indication that plaintiff and defendant entered into a settlement agreement that encompassed the wrongful death claim. I would therefore conclude that defendant has failed to carry its burden of demonstrating that plaintiff’s wrongful death claim is barred.

As the majority explains, Judy Boeken voluntarily dismissed with prejudice an action for common law loss of consortium that was alleged to be “permanent.” We must determine whether such a voluntary dismissal acted via res judicata to bar plaintiff’s subsequent wrongful death action.

As the majority recounts, to determine whether two proceedings involve identical causes of action, such that the latter proceeding would be barred by the claim preclusion aspect of res judicata, California courts have “consistently applied the ‘primary rights’ theory.” (Slater v. Blackwood (1975) 15 Cal.3d 791, 795 [ 126 Cal.Rptr. 225 , 543 P.2d 593 ].) Under this theory, “[a] cause of action . . . arises out of an antecedent primary right and corresponding duty and the delict or breach of such primary right and duty by the person on whom the duty rests. ‘Of these elements, the primary right and duty and the delict or wrong combined constitute the cause of action in the legal sense of the term____’” (McKee v. Dodd (1908) 152 Cal. 637, 641 [ 93 P. 854 ].) We consider causes of action distinct for res judicata purposes only when they involve an invasion of different primary rights, wherein “the ‘cause of *806 action’ is based upon the harm suffered, as opposed to the particular theory asserted by the litigant.” (Slater, supra, at p. 795 .)

As has been recognized, “[N]o generally approved and adequately defined system of classification of primary rights exists; indeed, primary rights are usually defined in terms of such abstraction and elasticity as to be of little or no predictive significance. The concept of ‘cause of action’ may thus be enlarged or narrowed in proportion to the breath of the particular court’s concept of ‘primary right’.” (6 Grossman & Van Alstyne, Cal. Practice: Pleading—Civil Actions (2d ed. 1981) § 761, p. 288.) Applying primary rights doctrine to wrongful death and loss of consortium actions presents a particular challenge because of the overlapping nature of these two actions. Notwithstanding these analytical difficulties, there are compelling reasons to view a statutory wrongful death cause of action and a common law loss of consortium action as different causes of action implicating distinct primary rights.

As stated in Justus v. Atchison (1977) 19 Cal.3d 564, 571 [ 139 Cal.Rptr. 97 , 565 P.2d 122 ], “the cause of action for wrongful death in this state is a pure creature of statute,” originating with the passage of the first wrongful death statute in 1862. The court in Justus , in rejecting a claim that a fetus is a person for purposes of the wrongful death statute, made clear that the question, like all questions regarding the scope of wrongful death law, was purely a matter of statutory construction, (ibid.) In contrast, the rule in Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382 [ 115 Cal.Rptr. 765 , 525 P.2d 669 ], involves a common law judge-made rule permitting a person to recover damages for loss of consortium from the serious but nonfatal injury of his or her spouse. The Justus court recognized that the judicial creation of a common law loss of consortium action was permissible precisely because it was distinct from, and did not alter, a statutorily authorized wrongful death cause of action. (Justus, supra, at p. 572 .)

The distinction between the two causes of action is made apparent by an examination of their elements. “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 (5th ed. 2008) Pleading, § 938, p. 352.) Those pecuniary losses 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.’ ” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1264 [ 45 Cal.Rptr.3d 222 ].) The latter form of damages is also called loss of consortium. A wrongful death plaintiff may also recover reasonable funeral expenses. (Francis v. Sauve (1963) 222 Cal.App.2d 102, 124 [ 34 Cal.Rptr. 754 ].)

*807 In contrast, a common law loss of consortium action must allege nonfatal tortious injury that is “sufficiently serious and disabling to raise the inference that the conjugal relationship is more than superficially or temporarily impaired.” (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 932-933 [ 167 Cal.Rptr. 831 , 616 P.2d 813 ].) A common law action for loss of consortium does not include an action for loss of financial support, which is generally recovered in a tort action brought by the injured spouse. (Rodriguez v. Bethlehem Steel Corp., supra, 12 Cal.3d at p. 406 .) Also, the loss of consortium action applies only to spouses (see Borer v. American Airlines, Inc. (1977) 19 Cal.3d 441, 453 [ 138 Cal.Rptr. 302 , 563 P.2d 858 ] [rejecting a child’s action for loss of parental consortium]), whereas a wrongful death action applies to both the spouse 1 and children of the decedent (Code Civ. Proc., § 377.60, subd. (a)).

The distinctness of these two causes of action can be seen clearly by considering when they begin to accrue. Were the two actions really a single action, then as soon as a person suffered a loss of consortium from the serious injury of a spouse, the statute of limitations would begin on all loss of consortium claims. (See Meighan v. Shone (1995) 34 Cal.App.4th 1025, 1034 [ 40 Cal.Rptr.2d 744 ].) A wrongful death claim filed outside the limitations period for bringing the common law loss of consortium claim would be time-barred. (See Miller v. Lakeside Village Condominium Assn. (1991) 1 Cal.App.4th 1611, 1616-1619 [ 2 Cal.Rptr.2d 796 ] [personal injury cause of action begins to accrue with the first indication of appreciable harm].) But in fact it is indisputable that the statute of limitations for a wrongful death claim does not begin to mn until the death of the spouse or other relative at the earliest (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 404 [ 87 Cal.Rptr.2d 453 , 981 P.2d 79 ]), regardless of the timing of any predeath injuries. Nothing in the majority opinion alters that basic principle. Were that not so, then the common law cause of action would alter the requirements for bringing a statutory wrongful death cause of action and in effect amend the wrongful death statute—something it may not do. (See Justus v. Atchison, supra, 19 Cal.3d at p. 572.) Thus, although res judicata precludes a party from raising in subsequent litigation against the same party a “ ‘matter . . . within the scope of the [previous] action, related to the subject matter and relevant to the issues, so that it could have been raised . . .’ ” (Tensor Group v. City of Glendale (1993) 14 Cal.App.4th 154, 160 [ 17 Cal.Rptr.2d 639 ]), in the present case a wrongful death claim could not have been raised at the time the loss of consortium claim was pleaded and then dismissed, because the former claim had not yet accrued.

*808 Moreover, as noted, funeral expenses are recoverable in wrongful death actions. (Francis v. Sauve, supra, 222 Cal.App.2d at p. 124 .) The majority concludes that plaintiff forfeited her appeal of her claim for funeral expenses in the present case. (Maj. opn., ante, at p. 793, fn. 2.) Be that as it may, the majority does not contest that, but for this forfeiture, plaintiff was not barred from pursuing a wrongful death action in which funeral expenses could be recovered. Moreover, as noted, a loss of consortium action does not include damages for loss of economic support and therefore does not bar a wrongful death claimant from seeking such damages. 2 So, the necessary implication of the majority opinion appears to be that a wrongful death action consists of several separate primary rights: the right to economic support, the right to consortium, and the right to funeral expenses, and only the loss of consortium “primary right” is foreclosed by a prior common law loss of consortium action.

But there is no authority for parsing a wrongful death claim in this manner into separate primary rights. Indeed, in a wrongful death suit in which the causes of action “were denominated as: (1) negligence; (2) strict liability; (3) breach of implied warranty; and (4) ‘wrongful death,’ ” one Court of Appeal noted that “[mjore properly characterized . . . , the plaintiffs’ suit consisted of but one true 'cause of action,’ that cause of action being for the injury they had suffered as a result of the wrongful death of the decedent [citation], and the four ‘causes of action’ were actually counts based on the same primary right of plaintiffs and the same primary duty of defendants, each of which merely alleged additional circumstances out of which the primary right and primary duty arose.” (Barrett v. Superior Court (1990) 222 Cal.App.3d 1176, 1181-1182 [ 272 Cal.Rptr. 304 ], italics added.) In other words, wrongful death is most properly rcharacterized as consisting of a single primary right, created by statute and arising at the time of decedent’s death, to be free of various pecuniary losses that result from tortious conduct leading to a spouse’s or child’s death. This statutorily created primary right is plainly distinct from the common law cause of action for loss of consortium arising from a nonfatal injury.

Contrary to the majority’s principal argument, the distinctness of the primary rights arising from a wrongful death and common law loss of consortium causes of action is not altered by the fact that a plaintiff in a common law loss of consortium action can recover damages for the spouse’s reduced life expectancy, in other words, for some of the damages that are recoverable in a subsequent wrongful death action. As a leading exponent of primary rights theory, John Norton Pomeroy, stated, “if the facts alleged in *809 the pleading show that the plaintiff is possessed of two or more distinct and separate primary rights, each of which has been invaded ... it follows . . . that the plaintiff has united two or more causes of action, although the remedial rights arising from each, and the corresponding reliefs, may be exactly of the same kind and nature.” (Pomeroy, Code Remedies: Remedies and Remedial Rights (5th rev. ed. 1929) Joinder of Causes of Action, § 350, p. 535, italics added.) Moreover, courts have made clear, particularly in the context of litigation involving both statutory and common law causes of action, that “different primary rights may be violated by the same wrongful conduct.” (Branson v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327, 342 [ 29 Cal.Rptr.2d 314 ] [a corporation’s failure to indemnify may violate an employee’s statutory right to indemnity under Corp. Code, § 317 and a separate contractual right to indemnity]; see also Agarwal v. Johnson (1979) 25 Cal.3d 932, 954-955 [ 160 Cal.Rptr. 141 , 603 P.2d 58 ] [employer’s racially discriminatory conduct may violate distinct primary rights under federal tit. VII law and state law regarding slander and intentional infliction of emotional distress]; Le Parc Community Assn. v. Workers’ Comp. Appeals Board (2003) 110 Cal.App.4th 1161, 1172 [ 2 Cal.Rptr.3d 408 ] [uninsured employer’s negligence may violate employee’s distinct primary rights under workers’ compensation and tort law]; 1 Pomeroy, A Treatise on Equity Jurisprudence (5th ed. 1941) The Constituent Parts of Equity, § 91, p. 120 [“the same wrongful act or default may invade many different rights”].)

In sum, a defendant’s tortious conduct resulting in personal injury may give rise to two distinct causes of action in that person’s spouse: a common law loss of consortium claim if the nonfatal injuries are sufficiently serious to result in that loss, and a later-accruing wrongful death claim if the injuries result in the spouse’s death, with a spouse being able to claim various damages for pecuniary loss, including a loss of consortium. This is not to say, however, that litigation of the loss of consortium action may not limit the scope of a subsequent wrongful death action. Inasmuch as that litigation recovers for loss of consortium resulting from a shortened lifespan, i.e., the same loss of consortium damages as would be recoverable in a wrongful death action, a plaintiff cannot again recover those same damages in a wrongful death action, for such would be an improper double recovery. (See Tavaglione v. Billings (1993) 4 Cal.4th 1150, 1158-1159 [ 17 Cal.Rptr.2d 608 , 847 P.2d 574 ].) Nothing in the record here indicates that plaintiff would be double recovering for loss of consortium damages.

Collateral estoppel also precludes a party from litigating in a second action against the same party or its privity an issue that was “actually litigated” in a former proceeding. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341 [ 272 Cal.Rptr. 767 , 795 P.2d 1223 ].) In determining what issues were actually litigated and necessarily decided in the previous action, a court may view the record as a whole of the previous action. (See 7 Witkin, Cal. Procedure, *810 supra, Judgment, §§ 417-418, pp. 1062-1064, and cases cited therein.) For example, it may be determined in a trial on a loss of consortium action that the defendant’s acts alleged to seriously injure the spouse in fact were not tortious, or were not causally related to the injury, and therefore a plaintiff would be barred through collateral estoppel from bringing a wrongful death action against the same defendant based on the same acts. On the other hand, a judgment against a plaintiff in a common law loss of consortium action may have been due to an inability to demonstrate that there was an injury “sufficiently serious and disabling to raise the inference that the conjugal relationship is more than superficially or temporarily impaired.” (Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d at pp. 932-933; see Park v. Standard Chem Way Co. (1976) 60 Cal.App.3d 47, 50-51 [ 131 Cal.Rptr. 338 ].) When it is clear from the record that a spousal injury was insufficiently serious to give rise to a common law loss of consortium action, the central issue in a wrongful death action—whether defendant’s tortious action caused the decedent’s death—has not been litigated, and therefore would not be barred by collateral estoppel.

Although there is some controversy in the matter, the dominant rule in this state is that an issue that has been settled by a voluntary dismissal with prejudice does not constitute an issue that has been “actually litigated” for collateral estoppel purposes. (Rice v. Crow (2000) 81 Cal.App.4th 725, 736-737 [ 97 Cal.Rptr.2d 110 ], and cases cited therein; but see Alpha Mechanical, Heating & Air Conditioning, Inc. v. Travelers Casualty & Surety Co. of America (2005) 133 Cal.App.4th 1319, 1333-1334 [ 35 Cal.Rptr.3d 496 ].) The California cases follow the rules set forth in the Restatement Second of Judgments that “[i]n the case of a judgment entered by confession, consent, or default, none of the issues is actually litigated” and therefore collateral estoppel does not apply in a subsequent action. (Rest.2d Judgments, § 27, com. e, p. 257.) But this is not to say that a common law loss of consortium action cannot be terminated in such a way as to resolve all loss of consortium claims. “The judgment may be conclusive . . . with respect to one or more issues, if the parties have entered an agreement manifesting such an intention.” (Ibid.; see also Rice, supra, 81 Cal.App.4th at p. 737, fn. 1 .) Because there is no settlement in the record to accompany the dismissal in the present case, we cannot divine the intentions of the parties. Therefore, based on the voluntary dismissal alone, we cannot say that the subsequent wrongful death action is barred.

In the present case, plaintiff, understandably unable to anticipate the rule the majority announces today, apparently did not believe that her voluntary dismissal of her loss of consortium claim would bar a wrongful death claim. After today, those who seek to resolve a common law loss of consortium claim but do not wish to preclude litigation of a wrongful death claim will not use a voluntary dismissal with prejudice as a vehicle for doing so. Such is *811 the sole practical effect of the majority opinion other than the resolution of the present case. If, however, the rule I propose were adopted, then those who dismiss their common law loss of consortium claims would still be able to use voluntary dismissals with prejudice as a means of doing so, and courts would look to accompanying settlement agreements to determine precisely the extent to which the parties were also relinquishing wrongful death claims.

George, C. J., and Werdegar, J., concurred.

The wrongful death statute also applies to domestic partners. (Code Civ. Proc., § 377.60, subd. (a).) For shorthand purposes, I will use the term “spouse” to include “domestic partner.”

Loss of economic support damages would not be available in a wrongful death action, however, if they have already been recovered in the injured spouse’s personal injury action, as in the present case, according to the rule against double recovery discussed below.