ADAMS v. PROJECT DEVELOPMENT CORPORATION

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Court of Appeal, Third District, California.

Arley ADAMS et al., Plaintiffs and Appellants, v. U. C. C. PROJECT DEVELOPMENT CORPORATION et al., Defendants and Respondents.

Civ. 14270.

Decided: June 04, 1975

Milton L. McGhee, Sacramento, for plaintiffs and appellants. Barrett, Newlan & Matheny, P. C., by David B. Johnson, Sacramento, for defendant and respondent U. C. C. Project. Fitzwilliam, Memering, Stumbos & DeMers by John D. Stumbos, Jr., Sacramento, for defendant and respondent Washington Fire Dist.

There two consolidated appeals arise out of the same superior court action, but involve two quite distinct issues. The first (Appeal 14270) is whether a minor plaintiff may recover for the wrongful death of his minor siblings. The second (Appeal 14271) is whether plaintiffs' cause of action against the Washington Fire District is barred by the doctrine of sovereign immunity, as set forth in section 850.4 of the Government Code.

The appeals are from judgments of dismissal entered June 18, 1973 and June 12, 1973 respectively, after demurrers were sustained to certain causes of action of the complaint without leave to amend.

The complaint was filed by plaintiff Arley Adams, Sr., and by Arley Adams, Jr. and Richard Winfrey, minors through their court appointed guardian, against several defendants including United Christian Centers of The Greater Sacramento Areas, Inc., and U. C. C. Project Development Corporation, which owned and operated an apartment house complex at 500 Sixth Street, Broderick, California. Regina Marie Adams was the putative spouse of plaintiff Arley Adams, Sr. and the mother of the two minor plaintiffs and of their minor siblings Daniel Eugene Adams and Diedre Eunice Adams. All these persons lived in apartment 36, an upstairs unit with a single entrance-exit.

On May 8, 1972, a fire broke out in apartment 36 (allegedly the television set caught fire; the manufacturer was also named as a defendant), resulting in the death of Regina and the two children, Daniel and Diedre. Plaintiffs alleged that these deaths were caused by the negligent design, plan and construction of the apartment complex, in that it ‘provided absolutely no escape or safety facilities or features for the occupants thereof in the event of fire or other such hazards.’

WRONGFUL DEATH

Plaintiffs pleaded multiple causes of action. The causes in question in Appeal 14270 are those in which the minor plaintiffs seek to recover damages for the ‘loss of the love and affection of’ their two minor siblings. The minor plaintiffs are alleged in the complaint to be ‘under fourteen’ years of age, while their deceased sibling Daniel is alleged to be two years old. Diedre was the same age as Daniel.1

Plaintiffs make two contentions:

1. That the California courts can and should create a common-law wrongful death action.

2. That to construe section 377 of the Code of Civil Procedure2 as prohibitive of the right of a minor to recover for the wrongful death of a brother or sister is violative of federal and state constitutional equal protection provisions.

Plaintiff for obvious reasons refused to amend the complaint to allege pecuniary loss by the minor plaintiffs arising out of the death of their two-year-old siblings. Section 377 by its terms does not limit recoverable damages to pecuniary losses alone. (The reference to Prob.Code, § 573 is not such a limitation.) Nevertheless, the use of the word heirs has been held to require damages to be limited to pecuniary damages. (Ginochio v. San Francisco (1924) 194 Cal. 159, 167, 228 P. 428; Estate of Riccomi (1921) 185 Cal. 458, 461, 197 P. 97; Burk v. Arcata & Mad River R. R. Co. (1899) 125 Cal. 364, 367, 57 P. 1065.) As stated in Riccomi, 185 Cal. at page 461, 197 P. at page 98, ‘the action ‘for damages' for the benefit of the ‘heirs' is one solely for the purpose of compensating them for the pecuniary loss suffered by them by reason of the death of the deceased.’ (Emphasis added.) (See also, Changaris v. Marvel (1964) 231 Cal.App.2d 308, 312, 41 Cal.Rptr. 774; 4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, § 790, pp. 3087–3089.)

Since this limitation is clearly established by the Supreme Court, the Courts of Appeal must follow it. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.) It applies to all wrongful death plaintiffs, both minors and adults, and hence presents no equal protection question.

Likewise, we are bound by established case law to reject plaintiffs' argument for a ‘common-law’ wrongful death action. (Steed v. Imperial Airlines (1974) 12 Cal.3d 115, 115 Cal.Rptr. 329, 524 P.2d 801; Clark v. Goodwin (1915) 170 Cal. 527, 150 P. 357; Bond v. United Railroads (1911) 159 Cal. 270, 113 P. 366; Kunakoff v. Woods (1958) 166 Cal.App.2d 59, 332 P.2d 773.) The judgment dismissing the causes of action of the minor plaintiffs for the ‘loss of the love and affection of’ their two minor siblings is affirmed.

GOVERNMENTAL IMMUNITY

In addition to the other defendants, plaintiffs also sued the Washington Fire District. The complaint alleged that the Washington Fire District was summoned and responded to the fire, and that its agents and employees, ‘so carelessly and negligently performed rescue efforts and in fact failed and/or refused to use ladders on the rear or opposite side of the building, that [the decedents were] caused to be overcome by smoke and/or fire and asphyxiated with carbon monoxide, resulting in [their] death[s].’

The trial court sustained the Washington Fire District's demurrer without leave to amend on the ground that the cause of action was barred by section 850.4 of the Government Code. Judgment dismissing it from the action was entered. Plaintiffs appeal from this judgment.

On our own motion we dismiss Appeal 14271 as premature. The judgment entered following the order sustaining demurrer is also premature, because it violates the single judgment rule. (Code Civ.Proc., § 577; Bank of America v. Superior Court (1942) 20 Cal.2d 697, 701–702, 128 P.2d 357; Lopes v. Capital Co. (1961) 192 Cal.App.2d 759, 762, 13 Cal.Rptr. 787.) The trial court's ruling may never be appealable by these plaintiffs. If plaintiffs recover an enforceable judgment against any of the other codefendants, they will have no standing to challenge the propriety of the ruling on demurrer. (See Zeppi v. Beach (1964) 229 Cal.App.2d 152, 40 Cal.Rptr. 183.) Otherwise, they may appeal when the case is finally disposed of by the trial court and a single judgment entered.3

We express no opinion on the merits of the trial court's ruling in Appeal 14271.

FOOTNOTES

1.  The complaint alleges Diedre to be a minor, without specifying her age. Respondent's brief agrees that Diedre and Daniel were twins, which is not controverted by plaintiffs. We thus accept it as true. (Atwood v. Hammond (1935) 4 Cal.2d 31, 36, 48 P.2d 20; H. Moffat Co. v. Rosasco (1953) 119 Cal.App.2d 432, 443, 444, 260 P.2d 126.)

2.  In pertinent part, section 377 reads as follows:‘When the death of a person not being a minor, or when the death of a minor person who leaves surviving him either a husband or wife or child or children or father or mother, is caused by the wrongful act or neglect of another, his heirs, and his dependent parents, if any, who are not heirs, or personal representatives on their behalf may maintain an action for damages against the person causing the death, . . .’

3.  This reasoning obviously does not apply to Appeal 14270. There the court's ruling deprived those particular plaintiffs of a cause of action, and thus in effect was a final judgment on that issue. The interest was separate and distinct, and properly reviewable on immediate appeal. (See 6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, §§ 42, 49.)

PARAS, Associate Justice.

FRIEDMAN, Acting P. J., and EVANS, J., concur.

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