Opinion
B227661
08-31-2011
ASHLEE CARLSON, Plaintiff and Appellant, v. KIA MARCEL, Defendant and Respondent.
Law Offices of Lloyd Kirschbaum and Lloyd Kirschbaum for Plaintiff and Appellant. Mark R. Weiner & Associates, Joseph J. Fern; Crandall, Wade & Lowe, Edmond D. Wade, Curtis L. Metzgar and Amy K. Hulick for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC 406088)
APPEAL from a Judgment of the Superior Court of Los Angeles County. Ralph W. Dau, Judge. Affirmed.
Law Offices of Lloyd Kirschbaum and Lloyd Kirschbaum for Plaintiff and Appellant.
Mark R. Weiner & Associates, Joseph J. Fern; Crandall, Wade & Lowe, Edmond D. Wade, Curtis L. Metzgar and Amy K. Hulick for Defendant and Respondent.
This case calls upon us to construe the term "children" for purposes of standing in wrongful death proceedings brought pursuant to Code of Civil Procedure section 377.60. Plaintiff Ashlee Carlson (Carlson) sought damages against defendant Kia Marcel (Marcel) for the wrongful death of Harry Clark Carlson (Harry Carlson), who was neither Carlson's adopted father nor her biological father, but who had raised Carlson as his daughter from the age of one year. The trial court granted summary judgment in favor of Marcel on the ground she was not Harry Carlson's "child" as set forth in the Probate Code's rules on intestate succession for purposes of the wrongful death statute.
All statutory references herein are to the Code of Civil Procedure unless otherwise indicated.
Code of Civil Procedure section 377.60, subdivision (a) limits standing in wrongful death actions to "[t]he decedent's surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse, or domestic partner, who would be entitled to the property of the decedent by intestate succession."
Carlson argues that pursuant to Family Code section 7611, subdivision (d), Harry Carlson was her presumed father because he held her out as his own child, and therefore she was his "natural child" under Probate Code sections 6450 and 6453, and therefore she has standing under Code of Civil Procedure section 377.60. We conclude that the intestate succession rules of Probate Code section 6454 regarding unadopted stepchildren apply here, and under that statute, Carlson lacks standing. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On April 27, 2008, Marcel was driving her car when she struck Harry Carlson, who was riding his bicycle on La Cienega Boulevard in Los Angeles. Harry Carlson died from the resulting injuries. On January 22, 2009, Carlson filed an action for wrongful death, alleging that she incurred the decedent's funeral expenses and had been deprived of his services, comfort, care, guidance, and emotional and financial support.
Although Harry Carlson was neither her adoptive father nor her natural father, Carlson, who was 25 years old on the date of Harry Carlson's death and 26 years old when she filed this action, alleged she was the decedent's daughter and lawful heir. She alleged Harry Carlson took her into his home after she was one year old and held her out as his daughter until his death. Harry Carlson and plaintiff's mother never married.
Carlson admitted that that she was not Harry Carlson's biological child: "My dad's been there since day one. But I always felt bad because, you know . . . he's been there since day one. That's the only father I have ever known. But like he wasn't my dad and he wasn't my sperm donor, like the one my mom was with. But to him he was my dad because he never looked at it that way. No matter what, I was his daughter. Never once did he tell people this is my stepdaughter, this is my girlfriend's daughter, never. To anybody I was always his daughter from day one . . . ."
Moreover, Carlson acknowledged Harry Carlson had never adopted her "in a legal sense." Carlson admitted that "even in school they told me if I wanted to go through [the adoption] process and everything and they asked [Harry Carlson]. He always left it to my discretion, like if I wanted to I could."
On June 4, 2010, Marcel filed a motion for summary judgment. She contended that Carlson was not Harry Carlson's "child" and thus had no standing to bring the instant action under Code of Civil Procedure section 377.60 because she was neither Harry Carlson's natural or adopted child under Probate Code section 6450, nor could she show Harry Carlson was her presumed father under Probate Code section 6453, subdivision (a), which permitted the use of the rebuttable presumption of Family Code section 7611, subdivision (d) that a child is presumed to be the natural child of a man if he openly holds the child out as his own because such presumption did not apply in the context of determining standing under the wrongful death statute.
Although Marcel did not assert Carlson's lack of standing as an affirmative defense, because it is a jurisdictional issue, a party may raise lack of standing at any time in the proceeding, including at trial or on appeal. (Buckland v. Threshold Enterprises, Ltd. (2007) 155 Cal.App.4th 798, 813.)
Probate Code section 6450 provides: "Subject to the provisions of this chapter, a relationship of parent and child exists for the purpose of determining intestate succession by, through, or from a person in the following circumstances: [¶] (a) The relationship of parent and child exists between a person and the person's natural parents, regardless of the marital status of the natural parents. [¶] (b) The relationship of parent and child exists between an adopted person and the person's adopting parent or parents."
Pursuant to Probate Code section 6453, subdivision (a), a natural parent and child relationship could be established pursuant to the Uniform Parentage Act (UPA) (Fam. Code, § 7600 et seq.).
Family Code section 7611 provides: "A man is presumed to be the natural father of a child if . . . : [¶] . . . (d) He receives the child into his home and openly holds out the child as his natural child."
Carlson opposed, arguing a child who was not a natural or adopted child could nonetheless establish someone was their "natural parent" for purposes of intestate succession under Probate Code section 6453 by applying the presumption of Family Code section 7611; in this case, she established that Harry Carlson was her presumed father based on the undisputed evidence that he held her out as his child. She also argued that public policy favored finding paternity under circumstances such as her own. In support, Carlson submitted correspondence, school records, rental applications, and greeting cards to establish that Harry Carlson held her out as his daughter.
In reply, Marcel argued the UPA did not apply where, as here, no factual issues existed as to her "natural parent." Furthermore, Marcel argued that even if the court were to apply a presumption of paternity, that presumption was rebutted under Family Code section 7612 by Carlson's admission that she was not the decedent's biological or adopted child.
The trial court granted summary judgment, finding that Carlson did not have standing because she did not fall into the categories of persons who may bring a wrongful death action under section 377.60 because she admitted that she was not Harry Carlson's biological or adopted child. The court also ruled that Carlson submitted no authority showing the UPA provisions regarding presumptions of paternity applied to the wrongful death statute, and that even if the presumptions did apply, Carlson's own admissions that Harry Carlson was not her biological or adopted father would rebut any presumption.
DISCUSSION
Carlson argues that the UPA applies to determine her standing to bring a wrongful death action as Harry Carlson's "child," relying on Cheyanna M. v. A.C. Nielsen Co. (1998) 66 Cal.App.4th 855 and Estate of Chambers (2009) 175 Cal.App.4th 891. Applying the presumed father presumption of the UPA, she contends she has established she is the "natural child" of Harry Carlson under the Probate Code for purposes of intestate succession, and therefore is within the category of persons who can bring an action for wrongful death under Code of Civil Procedure section 377.60. We conclude that Probate Code section 6454 governs persons such as Carlson, who are unadopted stepchildren: we find Carlson does not have standing to bring this wrongful death action under Code of Civil Procedure section 377.60, and affirm the ruling of the trial court's granting Marcel's motion on that basis.
I. STANDARD OF REVIEW
A. Summary Judgment
In a motion for summary judgment, the moving party "bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) "Once the [movant] has met that burden, the burden shifts to the [other party] to show that a triable issue of one or more material facts exists as to that cause of action." (§ 437c, subd. (p)(1); Aguilar, at p. 850.) A triable issue of material fact exists where "the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar, at p. 850.)
Where summary judgment has been granted, we review the trial court's decision de novo, "considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports." (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) In doing so we view the evidence in the light most favorable to Carlson, the party opposing summary judgment. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843; Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 139.) We accept as true the facts shown by the evidence offered in opposition to summary judgment, and the reasonable inferences that can be drawn from them. To defeat summary judgment, the plaintiff cannot rely on the complaint's allegations and must show specific facts. (Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1385-1386.)
B. Principles of Statutory Construction
We review issues of statutory interpretation de novo on appeal. (Alesi v. Board of Retirement (2000) 84 Cal.App.4th 597, 601.) Our primary goal in interpreting a statute is to determine legislative intent, and such intent should be determined from the language of the statute, if possible. (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) Words are to be given their usual and ordinary meaning, and we must accord significance to every word, phrase and sentence; a construction rendering some words surplusage is to be avoided. In addition, the words of the statute must be construed in context with reference to the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387.) Where the language is clear and unambiguous, there is no need to look further. "If there is no ambiguity in the language of the statute, 'then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs.'" (Lennane v. Franchise Tax Bd. (1994) 9 Cal.4th 263, 268.)
Further, "'[i]n testing a proposed interpretation we must also consult the text of associated and related statutes, attempting to identify the role of each in the larger system of laws.' . . . '"[E]very statute should be construed with reference to all other statutes of similar subject so that each part of the law as a whole may be harmonized and given effect." [Citation.] ". . . Accordingly, statutes which are in pari materia should be read together and harmonized if possible."' [Citation.]" (People v. Mgebrov (2008) 166 Cal.App.4th 579, 587.)
II. CARLSON LACKS STANDING UNDER CODE OF CIVIL PROCEDURE SECTION 377.60
Section 377.60 provides that a wrongful death action may be brought by "(a) The decedent's surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession." The purpose of a wrongful death claim is to compensate the statutorily specified persons for the loss of companionship and for other losses suffered as result of the decedent's death. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263.) The wrongful death statute "limits the right of recovery to a class of persons who, because of their relation to the deceased, are presumed to be injured by his [or her] death [citation] and bars claims by persons who are not in the chain of intestate succession. [Citations.]" (Nelson v. County of Los Angeles (2003) 113 Cal.App.4th 783, 789, fn. 6.) A wrongful death action is a creation of the Legislature, and "'exists only so far and in favor of such person as the legislative power may declare.'" (Justus v. Atchison (1977) 19 Cal.3d 564, 575.)
In 1992, the legislature repealed former section 377 and reenacted it as section 377.60. In so doing, the legislature replaced the word "heir" with the word "children." (Stats. 1992, ch. 178, §§ 19-20.)
As a result, "the right to bring an action for the wrongful death of a human being is limited to the persons described in [section 377.60]." (Steed v. Imperial Airlines (1974) 12 Cal.3d 115, 119 (Steed).) Section 377.60 does not define children, however, and therefore under section 377.60, subdivision (a), whether a plaintiff has legal standing to bring a wrongful death action is determined by the intestate succession rules set forth in the Probate Code. (Steed, at pp. 119-120; see also Cheyanna M. v. A.C. Nielsen Co., supra, 66 Cal.App.4th at p. 863; Scott v. Thompson (2010) 184 Cal.App.4th 1506, 1511.) In Steed, the court construed a prior version of the wrongful death providing that "heirs," rather than "children," had standing to bring a wrongful death action. Steed concluded that because a claim for wrongful death was a statutory rather than a common law claim, the use of the word "heir" meant that only those persons who would have been eligible to inherit under the laws of intestate secession had standing. (Steed, at pp. 119-120.)
Section 377, the predecessor to section 377.60, was enacted in 1872, and provided that "(a) When the death of a person is caused by the wrongful act or neglect of another, his or her heirs or personal representatives on their behalf may maintain an action for damages against the person causing the death . . . . [¶] (b) for purposes of subdivision (a), 'heirs' means only the following: [¶] (1) Those persons who would be entitled to succeed to the property of the decedent according to [section 6400 et seq.] of the Probate Code." (Former § 377, as amended by Stats. 1983, ch. 842, § 12.)
Chapter 2 of part 2 of division 6 of the Probate Code defines the parent-child relationship for purposes of intestate succession. (Prob. Code, §§ 6450-6455; Estate of Ford (2004) 32 Cal.4th 160, 165.) Pursuant to Probate Code section 6450, for purposes of intestate succession, a parent-child relationship exists in two situations: (1) between a person and his or her natural parents regardless of the parents' marital status, and (2) between an adopted person and his or her adoptive parents. (Prob. Code, § 6450, subds. (a), (b); In re Estate of Chambers, supra, 175 Cal.App.4th 891, 894-895.) Probate Code section 6453 describes how either parent or child may show whether someone is a natural parent for purposes of intestate succession, and permits a party to rely on the UPA's presumptions regarding paternity. (Prob. Code, § 6453, subds. (a), (b).)
In Cheyanna M. v. A.C. Nielsen Co., supra, 66 Cal.App.4th 855, the plaintiff minor child sought damages for the death of her biological father who had died before she was born. The deceased father's parents argued she did not have standing under Probate Code, section 6453, subdivision (b)(2), because the father was unable to openly hold her out as his child because he died before her birth. (Cheyanna M., at p. 859.) The plaintiff argued that because section 377.60 did not define "children," it should be determined in accordance with the Uniform Act on Blood Tests to Determine Paternity (Fam. Code, §§ 7550-7558) (Uniform Act on Paternity) rather than under the Probate Code sections relating to intestate succession. (Cheyanna M., at p. 863.) The plaintiff argued that the change in the statute's language from "heirs" to "children" indicated a legislative intent to permit paternity to be determined in connection with the Uniform Act on Paternity where it was impossible for the father to hold the child out as his own pursuant to Probate Code section 6453, subdivision (b)(3).
Probate Code section 6453, subdivision (b) provides: "A natural parent and child relationship may be established pursuant to any other provisions of the [UPA if] any of the following conditions exist: [¶] . . . [¶] (3) It was impossible for the father to hold out the child as his own and paternity is established by clear and convincing evidence."
Faced with two different statutory schemes to aid in determining the definition of "children," Cheyanna M. reviewed the legislative history of the statute and concluded that the 1992 revisions were meant to codify the holding of Fiske v. Wilkie (1945) 67 Cal.App.2d 440, 444, that the children of a decedent could maintain a wrongful death action even if the decedent's entire estate passed to a spouse by virtue of the community property laws. (Cheyanna M. v. A.C. Nielsen Co., supra, 66 Cal.App.4th at p. 865.) Cheyanna M. held Probate Code section 6543, subdivision (b)(3) applied to children whose father died before they were born, and concluded that if the plaintiff could provide proof that the decedent was her biological father, she would have standing under the wrongful death statute. (Cheyanna M., at p. 877.)
Although logically a person such as Carlson could show a man was her natural father for purposes of intestate succession by relying on Probate Code section 6543, subdivision (b)(2) and applying the presumption of Family Code section 7611, subdivision (d), here, however, there are specific statutory provisions in the Probate Code section 6454 governing unadopted stepchildren such as Carlson. Where, as here, there is a specific statute governing the situation, we will apply that statute rather than a more general statute. (See Rose v. State of California (1942) 19 Cal.2d 713, 724 ["A specific [statutory] provision relating to a particular subject will govern in respect to that subject, as against a general provision, although the latter, standing alone, would be broad enough to include the subject to which the more particular provision relates"].) As a result, we apply Probate Code section 6454, which sets forth the requirements for an unadopted child to take from a decedent's estate through intestate succession.
Probate Code section 6454 provides that a stepchild or foster child may take by intestate succession only where the parent-child relationship began during the child's minority and continued throughout the child and parent's lifetimes, and the parent would have adopted the stepchild but for a legal barrier. (Estate of Furia (2002) 103 Cal.App.4th 1, 4.) In Estate of Joseph (1998) 17 Cal.4th 203, the Supreme Court held that the legal barriers to adoption of foster child by foster parent must have begun during foster child's minority and continued throughout joint lifetimes of foster child and foster parent, and it is not enough that such barriers existed when adoption was contemplated or attempted. (Id. at p. 212.)
Probate Code section 6454 provides: "For the purpose of determining intestate succession by a person or the person's issue from or through a foster parent or stepparent, the relationship of parent and child exists between that person and the person's foster parent or stepparent if both of the following requirements are satisfied: [¶] (a) The relationship began during the person's minority and continued throughout the joint lifetimes of the person and the person's foster parent or stepparent. [¶] (b) It is established by clear and convincing evidence that the foster parent or stepparent would have adopted the person but for a legal barrier."
Here, we see no reason to apply the presumption of Family Code section 7611, subdivision (d), which does not govern intestate succession, to the question of whether Carlson would be entitled to inherit from Harry Carlson's estate. Where, as here, the statutory provisions of the Probate Code govern the issue, we need look no further. Although Carlson could establish the parent-child relationship existing for Harry Carlson's lifetime, plaintiff did not show any legal impediment to adoption existing through Harry Carlson's lifetime. For example, she presented no evidence that her biological father refused to consent to adoption while she was a minor, or that if she were to be adopted as an adult, the adoption was in the best interests of the parties and in the public interest. (See, e.g., Fam. Code, §§ 8604-8605 [consent of birth parents to minor adoption]; id., § 9321, subd. (b)(4) [adoption of adult must be in best interest of adoptee, adoptive parent, and public].) Such situations would constitute a legal, rather than factual, impediment to adoption. (Estate of Cleveland (1993) 17 Cal.App.4th 1700, 1708, fn. 10.) Therefore, because Carlson cannot establish she would be entitled to take from Harry Carlson's estate through intestate succession, she does not qualify as a "child" for purposes of the wrongful death statute.
Nor could Carlson establish under principles of equitable adoption that she would be entitled to inherit from Harry Carlson. (See Prob. Code, § 6455.) Equitable adoption permits "a person who was accepted and treated as a natural or adopted child, and as to whom adoption was promised or contemplated but never performed, to share in the inheritance of the foster parents' [estate]." (Estate of Ford, supra, 32 Cal.4th at p. 165.) The claimant must show a statement or act by the decedent unequivocally evidencing an intent to adopt, as well as actions consistent with such intent, such as forming a close and enduring familial relationship. "Absent proof of an intent to adopt we must follow the statutory law of intestate succession." (Id. at pp. 170-171.) Here, Carlson's admission that Harry Carlson left the issue of adoption to Carlson's discretion does not establish an "unequivocal intent" to adopt; rather, it indicates the parties may have considered the matter at one time.
DISPOSITION
The judgment is affirmed. Respondent is to recover costs on appeal.
NOT TO BE PUBLISHED.
JOHNSON, J. We concur:
ROTHSCHILD, Acting P. J.
CHANEY, J.