Opinion
No. B248694.
05-14-2015
DISPUTESUITE.COM, LLC, Plaintiff and Respondent, v. SCOREINC.COM et al, Defendants and Appellants.
[Modification of opinion (236 Cal.App.4th 127; ___ Cal.Rptr.3d ___ ), upon denial of rehearing.]
THE COURT.—IT IS ORDERED that the opinion filed herein on April 23, 2015, be modified as follows and the petition for rehearing is DENIED:
On page 1, in the case title [236 Cal.App.4th 127, advance report, case caption], the name "Jackie Stennett" is changed to "Jackie S."
On page 2, in the first paragraph, second sentence [236 Cal.App.4th 132, advance report, line 1] change the name Jackie Stennett to "Jackie S."
On page 5, in the first full paragraph, line 5 [236 Cal.App.4th 134, advance report, 6th par., line 6], delete the name "Stennett" and in its place insert "[S.]"
At the end of the last paragraph on page 23 [236 Cal.App.4th 148, 1st full par., line 16], after the citation ending with "Apfel, supra, 177 F.3d at p. 894.)" add as footnote 12 the following footnote:
On petition for rehearing, Jackie notes, inter alia, that we did not discuss the case of Arizmendi v. System Leasing Corp. (1971) 15 Cal.App.3d 730 . That is true, for at least one good reason. Arizmendi was not cited by any party to this appeal, nor by amici curiae. Under a former version of the wrongful death statute, Arizmendi held that a nonmarital child has standing to sue for the wrongful death of a parent, despite not qualifying as an heir under former law, because to hold otherwise would deny the child equal protection of the law under the Fourteenth Amendment to the United States Constitution. (Arizmendi, at p. 737.) The Arizmendi court relied on the decision of the United States Supreme Court in Levy v. Louisiana (1968) 391 U.S. 68 [20 L.Ed.2d 436, 88 S.Ct. 1509], which held that a Louisiana statute, as interpreted by its highest court, denied equal protection of the law to nonmarital children by denying them standing to bring an action for the wrongful death of their biological parents. In Lalli, supra, 439 U.S. at page 268, footnote 6, the high court distinguished Levy, stating: "The presence in this case of the State's interest in the orderly disposition of a decedent's property at death distinguishes it from others in which that justification for an illegitimacy-based classification was absent," citing, inter alia, the Levy decision. Thus, the question becomes whether the California statute governing standing to sue for wrongful death (Code Civ. Proc., § 377.60), interpreted by the courts as being governed by the intestacy laws, survives an equal protection challenge under the rationale of Levy and Arizmendi. (See, e.g., Cheyanna, supra, 66 Cal.App.4th at p. 865 ["standing to bring a wrongful death action remains linked to the intestacy laws"].) Lalli suggests the equal protection analyses of the wrongful death statute and the intestacy statute differs because the state's interest in maintaining disparate treatment of marital and nonmarital children differs under each statute.
In her petition for rehearing Jackie attempts to shoehorn the Arizmendi/Levy equal protection analysis into this case by asserting "this is a wrongful death case." But this is not a wrongful death case. This appeal was taken from competing petitions in the probate court for letters of administration and to determine heirship. Accordingly, our opinion deals only with the heirship question. Whether the wrongful death statute, as interpreted by the courts, survives an equal protection challenge by a nonmarital child has not been litigated in this case, either in the trial court or here, and we express no opinion on the issue. The equal protection issue under the wrongful death statute is more appropriately litigated in a suit for the wrongful death of Amine.
The petition for rehearing is DENIED.
The modification does not change the judgment.