SULLIVAN v. DELTA AIR LINES INC

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Court of Appeal, First District, Division 5, California.

Alene M. SULLIVAN, as Special Administrator, Etc., Plaintiff and Respondent, v. DELTA AIR LINES, INC., Defendant and Appellant.

No. A066778.

Decided: March 25, 1996

Ralph C. Petersen, San Francisco, for plaintiff and respondent. Gilmore F. Diekmann, Jr., Patricia H. Cullison, Bronson, Bronson & McKinnon, San Francisco, J. Michael Garner, Atlanta, GA, for defendant and appellant.

Delta Air Lines, Inc., appeals from a judgment awarding emotional distress damages to Joseph A. Sullivan and from an order granting a partial new trial.   We hold the judgment and new trial order must be reversed because Sullivan's death during the pendency of the appeal makes emotional distress damages nonrecoverable.

Sullivan sued Delta on multiple legal theories arising from his termination of employment.   The case went to a jury on seven causes of action:  invasion of privacy (second cause of action), employment termination in violation of Labor Code section 1025 (fourth cause of action), failure to comply with employer obligations under Labor Code section 1025 (fifth cause of action), unlawful discrimination because of Sullivan's illness with HIV (sixth cause of action), unlawful termination because of his illness (seventh cause of action), creation of an abusive work environment (eighth cause of action) and retaliatory termination (ninth cause of action).   On the second, fourth and fifth causes of action the jury awarded $275,000 for emotional distress.   The jury deadlocked on the sixth cause of action and rendered defense verdicts on the seventh, eighth and ninth causes of action.   The court granted a new trial on the sixth cause of action.

Delta filed a timely appeal from the judgment and new trial order.   Its briefs assert multiple substantive and procedural challenges.   During the pendency of the appeal, Sullivan died and was substituted by his mother as special administrator of his estate.   At our request, counsel submitted supplemental briefs addressing the question whether the judgment and new trial order should be reversed, with directions to the trial court to dismiss the action, on the ground that upon Sullivan's death emotional distress damages are no longer recoverable.

Sullivan's death during the pendency of the appeal invokes Code of Civil Procedure section 377.34, which states:  “In an action or proceeding by a decedent's personal representative or successor in interest on the decedent's cause of action, the damages recoverable are limited to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement.”  (Italics added.)   This statute applies to the continuation of an action or proceeding commenced by a decedent.   (Code Civ. Proc., § 377.35.)

 The plain language of section 377.34 precludes any recovery of emotional distress damages (which are for pain and suffering) when the plaintiff dies while an appeal is pending.  Section 377.34 applies to “an action.”   An appeal is a continuation of an action.  (9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 1, p. 33.)   An appealed action “is deemed to be pending from the time of its commencement until its final determination upon appeal․”  (Code Civ.Proc., § 1049.)   Because the present appellate proceeding is a pending action continued by a decedent's personal representative, section 377.34 applies here, and emotional distress damages would not be recoverable even if the judgment and new trial order were affirmed.

Section 377.34 was enacted in 1992, replacing former Probate Code section 573 subdivision (c) (as amended by Stats.1991, ch. 1055, § 16), which abated damages for pain, suffering or disfigurement “[w]here a person having a cause of action dies before judgment ․”  (Italics added.)   Former section 573, subdivision (c), replaced similar provisions in former Civil Code section 956, which was enacted in 1949 (Stats.1949, ch. 1380, § 2, p. 2400).1

Section 377.34 is intended to restate former Probate Code section 573, subdivision (c), “without substantive change.”  (Cal.Law Revision Com. com., West's Ann.Code Civ.Proc., § 377.34 (1996 pocket supp.) p. 40.)   There is some ambiguity in the case law, however, as to just what in the former law is substantively unchanged—i.e., whether former section 573 required reversal where a successful plaintiff died while an appeal was pending.   In Love v. Wolf (1967) 249 Cal.App.2d 822, 839–840, the court said that “before judgment” meant before final judgment, and there was no final judgment where the trial judge properly granted a new trial.   But the court also offered the following dictum:  “We find nothing in the statute which would require a reversal of a judgment merely because the successful plaintiff died while that judgment was on appeal.”  (Id. at p. 840, 58 Cal.Rptr. 42.)2  This dictum implied that death during appeal, absent a new trial order, did not alone abate damages for pain, suffering and disfigurement.   This was inconsistent, however, with the “final judgment” rationale in Love, because the pendency of an appeal deprives a judgment of finality just as much as a new trial order.   This dictum was also inconsistent with the rationale of the abatement rule, which, as Love itself recognized, is that “the heirs of a deceased injured person should not receive compensation for that person's pain, suffering and loss of life expectancy.”  (Ibid.;  see 3 Cal. Law Revision Com. Rep. (Oct. 1960) p. F–22 [hereafter Law Revision Com. Rep.].) 3

 We believe the ambiguity in Love regarding former Probate Code section 573 is resolved by reference to Code of Civil Procedure section 577, which since 1872 has defined “judgment” as “the final determination of the rights of the parties in an action or proceeding.”   There is no such final determination while an appeal is pending.  “A judgment by a trial court from which an appeal has been perfected is not a final determination of the action.”  (Davis v. Fidelity & Deposit Co. (1949) 93 Cal.App.2d 13, 16, 208 P.2d 414.)   Thus, a death during the pendency of an appeal is a death “before judgment” under former section 573, subdivision (c), abating damages for pain, suffering or disfigurement.   We believe this is the rule reinstated in section 377.34 “without substantive change.”  (Cal.Law Revision Com. com., West's Ann.Code Civ.Proc., § 377.34 (1996 pocket supp.) p. 40.)

 Any ambiguity in former Probate Code section 573 is now inconsequential, however, having been eliminated by the plain language of the successor statute, Code of Civil Procedure section 377.34.   The phrase “before judgment” is replaced by “[i]n an action or proceeding,” which indisputably encompasses pending appeals.4

Sullivan's counsel cites Williamson v. Plant Insulation Co. (1994) 23 Cal.App.4th 1406, 28 Cal.Rptr.2d 751 and Code of Civil Procedure section 669, but neither is helpful.   In Williamson, which held that the plaintiff's death during trial abated noneconomic damages under former Probate Code section 573, the court said in a dictum, “The plaintiff who receives a large award for pain and suffering and dies the day after judgment is entered passes that award on to his or her estate․”  (23 Cal.App.4th at p. 1417, fn. 3, 28 Cal.Rptr.2d 751.)   This dictum did not address the effect of an appeal in such an instance, which would deprive the judgment of finality.  Code of Civil Procedure section 669 merely provides for rendition of judgment upon the death of a party after trial but before judgment.   That statute does not prescribe the damages that are recoverable pursuant to the judgment.  Section 377.34 does so.

We conclude that, as applied here, Code of Civil Procedure section 377.34 precludes any recovery of the emotional distress damages the jury awarded on the second, fourth and fifth causes of action.

 The statute likewise precludes any recovery in a new trial on the sixth cause of action.   In a ruling at the close of trial, the judge eliminated all claims for lost wages and benefits (because of Sullivan's admitted cocaine use and Delta's “no tolerance drug policy”), which Sullivan sought in the sixth cause of action among others.   Sullivan did not challenge this ruling by appealing from the judgment, and thus may not now urge that the ruling was erroneous.  (Building Industry Assn. v. City of Oceanside (1994) 27 Cal.App.4th 744, 758, fn. 9, 33 Cal.Rptr.2d 137;  California State Employees' Assn. v. State Personnel Bd. (1986) 178 Cal.App.3d 372, 382, fn. 7, 223 Cal.Rptr. 826.)   If the judge properly eliminated all claims for lost wages and benefits, and emotional distress damages are no longer recoverable, then punitive damages are likewise nonrecoverable for want of compensatory damages.  (Cheung v. Daley (1995) 35 Cal.App.4th 1673, 42 Cal.Rptr.2d 164.)   Sullivan sought no other damages on the sixth cause of action.   This means that no damages would be recoverable upon retrial.

Thus, Sullivan's death during the pendency of this appeal compels us to reverse the judgment and new trial order with directions to the trial court to dismiss the action, because no damages would be recoverable upon affirmance.

 Sullivan's counsel and amicus curiae raise the troubling point that the rule we announce here will encourage losing defendants to take an appeal in every case where the plaintiff is terminally ill, even if there is no substantive basis for reversal, hoping that the plaintiff will die while the appeal is pending and such death will eliminate any recovery for pain and suffering—which amicus curiae calls “a gruesome and repugnant incentive for appeal.”   We add to this the concern that this rule may make it difficult for terminally ill plaintiffs to secure legal representation at the outset, due to potential counsel's fear that much or all of a recovery may evaporate bore a judgment's finality on appeal.   There is, of course, a countervailing policy consideration that favors the result here:  the notion that “the heirs of a deceased injured person should not receive compensation for that person's pain, suffering and loss of life expectancy.”  (Love v. Wolf, supra, 249 Cal.App.2d at p. 840, 58 Cal.Rptr. 42.)

These policy considerations, however, are properly addressed to the Legislature.   We believe that, for better or worse, the Legislature has spoken in a clear voice in section 377.34 and has made emotional distress damages nonrecoverable where a plaintiff dies during the pendency of an appeal.   If that is bad policy, it should be changed by the Legislature.   We are powerless to do so.

The judgment and the new trial order are reversed, with directions to the trial court to dismiss the action.   The parties shall bear their own costs on appeal.

FOOTNOTES

1.   Sullivan's counsel and amicus curiae rely on several pre–1949 California Supreme Court decisions, ignoring the fact that those decisions were superseded by the 1949 legislation.

2.   This was a dictum because the judgment in that case evidently included survivable economic damages.  (See Love v. Wolf, supra, 249 Cal.App.2d at p. 828, 58 Cal.Rptr. 42 [evidence was similar to evidence in prior trial];  Love v. Wolf (1964) 226 Cal.App.2d 378, 384, 38 Cal.Rptr. 183 [continuing medical treatment evidence at prior trial].)Another court later commented summarily that a co-plaintiff's death after judgment “does not affect the judgment” (Gutierrez v. Alvarado (1972) 24 Cal.App.3d 327, 329 fn. 1, 101 Cal.Rptr. 1), without even mentioning former section 573 or considering its impact.

3.   The author of a law review article from which former Civil Code section 956 was drawn verbatim in 1949 (see Law Revision Com. Rep., supra, p. F–16) argued:  “It does not seem reasonable that an estate should be enhanced by the value placed by a jury upon the pain and suffering experienced by a dead man.   The deceased bore the pain and suffering and he is the only one who should be compensated.   He can't take it with him.”  (Livingston, Survival of Tort Actions:  A Proposal for California Legislation (1949) 37 Cal.L.Rev. 63, 73–74.)   Before the 1961 transfer of the provisions of the predecessor statute to section 573 (see Love v. Wolf, supra, 249 Cal.App.2d at p. 839, 58 Cal.Rptr. 42), the author of a Law Revision Commission study similarly argued that damages for a deceased's pain, suffering and disfigurement should not be recoverable because they are strictly personal to the deceased and do not lessen the value of the estate.  (Law Revision Com. Rep., supra, p. F–22.)

4.   Because, in enacting section 377.34, the Legislature altered the provisions of former Probate Code section 573 construed in the Love dictum, there is no presumption that the Legislature acquiesced in that dictum.  (See Fontana Unified School Dist. v. Burman (1988) 45 Cal.3d 208, 219, 246 Cal.Rptr. 733, 753 P.2d 689.)

KING, Associate Justice.

PETERSON, P.J., and HANING, J., concur.