Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 449879
NEEDHAM, J.
Bonny Schellinger (Bonny) appeals from an order distributing the settlement proceeds of a wrongful death and survival action equally between Bonny and her sister, Denice Schellinger (Denice). Bonny contends the court erred because she had a much closer and more dependent relationship with the deceased. We will reverse the order.
Because they have the same last name, we will refer to appellant, respondent, and decedent by their first names for clarity, without disrespect.
I. FACTS AND PROCEDURAL HISTORY
In 2005, Thomas Schellinger (Thomas) died as the result of asbestos-related causes. He was survived by his older daughter Denice, his younger daughter Bonny, and his wife (Bonny’s mother), who died a little more than a month after Thomas.
In February 2006, Denice in her capacity as a statutory wrongful death heir, and Bonny in her capacity as a statutory wrongful death heir and successor-in-interest to Thomas’s estate, filed a wrongful death and survival action against several defendants.
In March 2006, the attorneys for Bonny and Denice sent them a letter seeking their proposals for the allocation of anticipated proceeds from the litigation. Among other things, the letter stated: “The Thomas Schellinger children would receive all proceeds related to the wrongful death action to be distributed between them. These damages would include the present value of future contributions that Mr. Schellinger would have made to his family during his life expectancy. They may also include the value of loss of personal services, advice or training which she [sic] may have given to his family, and compensation for the loss of his love, companionship, comfort, and society.” The letter further advised that the settlement proceeds could be divided by the parties’ agreement and encouraged them to seek the advice of independent legal counsel. In addition, the letter stated: “Once you have authorized us to distribute these proceeds to you in a certain manner, such distribution will apply to all future settlements received by us until such time as your case is concluded or until we are notified in writing that you wish to change the manner of distribution.”
In May 2006, Bonny and Denice agreed in writing to share equally in all proceeds from the litigation. The notarized Memorandum of Understanding Re Distribution of Survival and Wrongful Death Settlements asserted: “This election shall remain in effect until Brayton, Purcell LLP [their attorneys] is notified in writing by any heir that they desire to change the manner of distribution.”
Certain defendants in the litigation settled and, between May 2006 and February 2008, $39,467 in net settlement proceeds were distributed to Bonny and Denice in equal shares pursuant to their written agreement.
In February 2008, however, Bonny informed the attorneys that she no longer agreed to equal distribution and wanted to change the distribution agreement. The attorneys placed a hold on the distribution of any future net proceeds until the parties could reach another agreement.
As of August 2008, Bonny and Denice were unable to agree on the allocation of the proceeds. Bonny proposed that she receive 90 percent, while Denice proposed that the funds continue to be divided equally. In the meantime, $132,921.17 in additional funds were recovered from settling defendants for distribution.
In April 2009, the attorneys for Bonny and Denice filed a motion for apportionment. Specifically, the attorneys sought an order “determining the respective rights of the decedent’s heirs to the settlement funds in this survival and wrongful death action” as well as an order regarding the distribution of those funds. In connection with the motion, declarations were submitted to the court from Bonny, Denice, Thomas’s sister (Dorothy Nagatoshi), Thomas’s friend (Douglas Ayers), and Thomas’s father (Edward Schellinger).
Bonny’s Declaration
According to Bonny’s declaration, Thomas had delivered her at birth because the doctor was late to the hospital. Thomas and Bonny’s mother raised Bonny from that point until Thomas died, 12 days before Bonny’s 18th birthday.
Among other things, Thomas helped Bonny with her homework and class projects, made her breakfast and lunch, and throughout high school enclosed a note with her lunch that read, “I love you, Boo – Love, Dad.” They spent significant time together on fishing, hunting and hiking trips, and he taught her how to plant and maintain a garden, handle a gun safely, and hunt. He supported her efforts as a gymnast for eight years, took her to swim lessons, and attended her baseball and soccer games. He helped Bonny to play musical instruments and paid for her music lessons. He also taught her how to drive and maintain a car, and he purchased her first car for her 16th birthday.
In early 2005, a physician informed Thomas, along with Bonny’s mother and Bonny, that Thomas was going to die very soon. The remaining days of Thomas’s life were heartbreaking for Bonny, particularly since he died three weeks before her high school graduation. Thomas had cried with joy when he was able to see Bonny attend her high school prom before his death.
On the night before Thomas died, Bonny held his hand and comforted him. He had given her love and affection her entire life.
Since the death of Thomas and Bonny’s mother, Bonny has had a difficult time. Thomas was going to pay for Bonny to attend college in Hawaii, but after he died she informed the school that she could not attend. She dropped out of Northern Idaho College after attending just three weeks in September 2005 because she had difficulty dealing with the loss of her parents. When she walked into grocery stores and gas stations in town, she was still recognized as Thomas’s little girl. She worked at a department store after her parents died, but she could not bear to see the loving parents and their happy children do their shopping because Thomas and Bonny’s mother used to take Bonny there.
Bonny has also had significant financial problems since her parents passed away. She had to deal with creditors who called repeatedly for her mother and father for more than two years after they died. Thomas’s car was repossessed, and Bonny was unable to keep the family home in which she had lived her entire life. She owes $20,000 in school loans, her car needs repair, and hospital bills from a broken ankle have piled up. Bonny believes that if Thomas were alive he would have taken care of her financially and emotionally.
In Bonny’s view, until just before Thomas died, Denice made it clear that she did not want any relationship with him. Thomas had asked Denice if he could attend her high school graduation, and when she refused, Bonny saw Thomas cry for the first time. In 2004, Thomas, his wife, and Bonny had dinner with Denice and her daughter. After dinner, Bonny went home with Denice and brought up the subject of “our dad.” Denice told Bonny not to call Thomas “our dad” because Thomas was not Denice’s “dad” – an uncle had filled the father figure role for her – and she told Bonny not to mention “our dad” again. Thomas extended an open invitation to Denice to travel to Idaho at his expense to spend time with him, but she never visited until Bonny told her of his failing health.
Bonny originally agreed to share equally in the settlement proceeds because she was “desperate for a family connection” after her parents died and wanted to establish a relationship with Denice. However, Bonny changed her mind about the allocation after Denice treated her badly during the time of the distributions between May 2006 and February 2008.
Denice’s Declaration
Denice averred that she loved Thomas, and she believed that Thomas loved Denice and Bonny equally. Further, Denice opined, Thomas’s death caused her as much loss of comfort, society and protection as it caused Bonny.
Denice spells Bonny’s name “Bonnie” in her declaration.
Denice explained that, not long after Denice was born, Denice’s mother and Thomas divorced, and Thomas moved from California to Idaho. Thomas visited Denice “[e]very now and then,” having lunch and spending “quality time.” When Denice was around seven years old, Thomas taught her how to fish and later sent her a fishing pole for her birthday. When she was about eight years old, she spent a week with Thomas in Idaho. As she grew older, it “became more difficult” for Denice and Thomas to see each other. Once Thomas had another child (Bonny), he only wrote to Denice and sent her birthday cards.
In 2003, Denice learned that Thomas was going to be in California and arranged for him to meet her daughter Chloe. Denice thought it was “special” to see Chloe and Thomas together.
In 2004, Denice learned that Thomas had cancer and did not have long to live. She telephoned him and asked about coming to visit; Thomas said he was “okay” and would let Denice know when to come.
In April 2005, Thomas’s wife advised Denice that Thomas’s health had worsened and she should visit him. Denice immediately flew to Idaho to make sure Thomas knew she had no hard feelings towards him and was there to support him, his wife, and Bonny. Thomas and Denice discussed their relationship over the years and how much they loved each other, and they decided to “let any hard feelings be water under the bridge.” Denice left Idaho feeling very good about their relationship.
About two weeks before his death, Thomas signed a will in the presence of a notary public and two witnesses, leaving his entire estate to his wife, or to Bonny if his wife predeceased him. Denice was to receive nothing unless Bonny predeceased him as well.
A few weeks later, Denice learned that Thomas had been placed in a care facility and did not have long to live. Denice flew to Idaho to be with Thomas in his final days. One night Thomas hugged Denice and told her, “you take such good care of me.” When it was time for Denice to leave, Thomas asked her to stay, and she did. When Thomas took his last breath, Denice was holding his hand.
Denice denied Bonny’s assertion that Denice had treated Bonny and Thomas badly, and noted Bonny made these claims after Bonny had changed her mind about splitting the settlement proceeds equally.
Other Declarations
According to a declaration by Douglas Ayers, Thomas’s best friend: “Tom loved all of his daughters. We spoke prior to his death and he wanted all of his girls taken care of.”
Thomas’s sister, Dorothy Nagatoshi, asserted that in “many conversations” one week in May 2005, “[Thomas] was very adamant about his children sharing equally in any proceeds that would result from this lawsuit as he loved his daughters equally.” She asserted that similar conversations occurred in the following week before Thomas’s death. She also observed: “It was not my brother’s nature to favor one child over the another.”
Thomas’s father, Edward Schellinger, submitted a declaration recalling a conversation he purportedly had with Thomas about the proceeds of the wrongful death action. According to this declaration, it was Thomas’s desire that if the lawsuit were won, “the proceeds were to be divided 50/50 between his two daughters,” Denice and Bonny, because Thomas “wanted to make sure his daughters were provided for.”
None of these third-party declarations specifically addressed the financial or emotional support Thomas would have provided Bonny and Denice if he had lived.
The court determined that the settlement proceeds should be distributed equally between Bonny and Denice. The court explained: “I do think this is a fair allocation and I would allocate as [a] wrongful death heir to both.” A written order was entered, and this appeal followed.
II. DISCUSSION
The litigation arising out of Thomas’s death, the settlement proceeds of which the parties seek to have allocated and distributed, joined two causes of action: a wrongful death claim on behalf of Thomas’s heirs for damages they personally suffered on account of the death (Code Civ. Proc., § 377.60 et seq.); and a personal injury action that survives to Thomas’s estate for the purpose of recovering damages that would have been awardable personally to Thomas had he lived (§ 377.20 et seq.).
All further statutory references are to the Code of Civil Procedure.
The recoverable damages for these two causes of action are different. A plaintiff in a wrongful death action is generally entitled to recover damages for his own pecuniary loss, including both the loss of decedent’s financial support and the pecuniary value of the loss of decedent’s society and companionship. (Corder v. Corder (2007) 41 Cal.4th 644, 661 (Corder) [“As a general matter, damages for wrongful death ‘ “are measured by the financial benefits the heirs were receiving at the time of death, those reasonably to be expected in the future, and the monetary equivalent of loss of comfort, society and protection” ’ ”]; Nelson v. County of Los Angeles (2003) 113 Cal.App.4th 783, 793.) By contrast, a plaintiff in a survival action is entitled to recover damages for the loss the decedent sustained while alive (e.g. medical expenses and lost earnings) but not damages for the decedent’s pain or suffering. (§ 377.34.)
In the trial court, the attorneys for Bonny and Denice asserted that, where a wrongful death cause of action and a survival cause of action are joined in one lawsuit, both wrongful death heirs and the estate representative may claim the entire amount of any settlement funds recovered. We need not express our opinion on this issue or discuss it further, because Bonny and Denice do not argue otherwise on appeal, attempt to support or challenge the trial court’s ruling on that ground, or point to evidence of recoverable damages on the survival cause of action.
When claims of heirs are encompassed in a lump sum settlement, a court has the authority to apportion the settlement based on the relative damages of the competing heirs. (Corder, supra, 41 Cal.4th at pp. 654-655; Smith v. Premier Alliance Ins. Co. (1995) 41 Cal.App.4th 691, 698; Watkins v. Nutting (1941) 17 Cal.2d 490, 498; § 377.61.)
In ruling that an equal allocation was fair, the trial court in this case implicitly found, as a factual matter, that Bonny’s and Denice’s respective personal damage as a result of Thomas’s death were equal. We review this factual determination for substantial evidence, considering the parties’ respective financial loss, their respective loss of society, comfort and protection, and their other arguments.
A. Financial Loss
Wrongful death damages include amounts to which the beneficiary either is legally entitled or reasonably would have expected if the decedent had lived. As explained by our Supreme Court in Corder: “This pecuniary loss may be a loss arising from a deprivation of something to which the statutory beneficiary would have been legally entitled if the person had lived, or it may be a pecuniary loss arising from the deprivation of something which, from all the circumstances of the particular case, it could reasonably be expected such beneficiary would have received from the deceased had his life not been taken – even though the obligation resting on the deceased to bestow such benefit may have been but a moral obligation. [Citations.] Thus,... there might be a reasonable expectation that if the life of a deceased had not been taken the statutory beneficiaries, or some of them, would have continued to receive from the one who was killed financial assistance, or services having a financial value.” (Corder, supra, 41 Cal.4th at p. 661.)
In the matter before us, Bonny was still a minor when Thomas died and was therefore legally entitled to his financial support. However, she turned 18 two weeks after his death, and she does not demonstrate that Thomas would have had a legal obligation under Idaho law to support her financially after she turned 18. Nor does she establish what amounts he would have been legally obligated to pay if he had survived.
The evidence does suggest, however, that Bonny had a reasonable expectation of Thomas’s financial support, even if he had no legal obligation to provide it. Until his death, Thomas had provided a home for Bonny, supported her financially, and paid for her first car as well as her musical instruments, lessons, and gymnastics training. It is also undisputed that he intended to pay for Bonny’s college, which would have extended beyond the time she reached the age of majority. Bonny asserts in her declaration: “If my dad was alive I know that he would have taken care of me financially and emotionally.” The evidence supports the conclusion that this was a reasonable expectation.
By contrast, Denice was 30 years old when Thomas died and not legally entitled to his financial support. There is no evidence that Thomas was supporting Denice financially at the time of his death or any time previously. There is also no evidence that Denice reasonably expected Thomas to provide financial support if he had lived.
As Denice points out, Bonny does not place a dollar value on the financial support she reasonably expected to receive from Thomas. It is true that an estimate of the particular amount she expected might further support Bonny’s position. In the matter before us, however, we conclude that a specification of the quantity of support is unnecessary, because Denice presented no evidence that Thomas would have provided any financial support to Denice or that she reasonably expected him to do so. In other words, the parties’ declarations pertaining to future financial support indicate that Bonny would have received something, while Denice would have received nothing; this evidence does not support the trial court’s conclusion that Bonny and Denice should divide the settlement proceeds equally.
Of course, evidence of a particular monetary amount of financial support the parties expected might be useful to the trial court in determining the appropriate allocation of settlement proceeds on remand.
B. Society, Comfort and Protection
In addition to financial loss, there is “ ‘that less tangible and not so immediate, but nevertheless real, pecuniary benefit which often may reasonably be expected from a continuance of the “society, comfort and protection” of the deceased.’ ” (Corder, supra, 41 Cal.4th at p. 661.) However, “recovery is not available in wrongful death actions for the grief or sorrow attendant upon the death of a loved one.” (Corder, supra, 41 Cal.4th at pp. 661-662.)
Factors relevant in assessing a claimed loss of society, comfort and protection may include the closeness of the family unit at issue, the warmth of feeling between the family members, and the character of the deceased as kind or loving. (Corder, supra, 41 Cal.4th at p. 662.) Thus, evidence of the nature of the personal relationship between the deceased and the beneficiary of wrongful death litigation is relevant to compensation for loss of society, comfort and protection. (Corder, supra, 41 Cal.4th at p. 663; see Powers v. Sutherland Auto Stage Co. (1923) 190 Cal. 487, 491 [“In view of the fact that the [wife] and deceased had been living apart, nothing could have been awarded to [her] for the loss of the society, comfort, and protection of the deceased”].) By the same token, evidence of the relative closeness of competing heirs to the deceased is germane in allocating the litigation proceeds between them.
Bonny’s relationship with Thomas was much closer than Denice’s relationship with Thomas. While Bonny was dependent upon Thomas, Denice had virtually no relationship with him, barred him from her high school graduation, and did not consider him her “dad” because she had been raised by an uncle. While Thomas was involved in Bonny’s day-to-day life, he had no involvement in Denice’s life after Bonny was born except to write to her. While Bonny lived with Thomas her whole life before he passed away, Denice saw Thomas just once in his last 18 years, until he was on his deathbed.
Denice’s closer relationship with Thomas in the 18 years preceding his death may not in itself entitle Bonny to a larger proportion of the litigation settlement proceeds. But from this evidence it can be inferred that Bonny and Thomas would have also enjoyed the closer relationship had he not died, and thus his death caused Bonny a greater loss of society, comfort and protection than that suffered by Denice.
By contrast, there is no substantial evidence that Denice’s future relationship with Thomas, had he not died – or the comfort, society, and protection she would have received from him – would have been as significant as Bonny’s. Denice asserts that she visited Thomas in April 2005 after learning he was ill, and they talked about their relationship, how much they loved each other, and letting go of hard feelings. She then went home to California a “few weeks” before returning in May. Notwithstanding this reconciliation, Thomas signed a will on May 2, 2005, leaving everything to his wife or, if his wife predeceased him, everything to Bonny, while leaving nothing to Denice. The mended relationship between Thomas and Denice, therefore, does not provide substantial evidence that Thomas would have provided the same financial support to Denice, or even the same comfort, society, and protection, as he would have provided to Bonny.
In Thomas’s last days, Denice spent time with Thomas and was with him when he died. Again, however, there is no indication that their relationship was of the same depth and quality as Thomas’s relationship with Bonny, or that it would have led Thomas to provide the same level of society, comfort and protection to both daughters. Even if he loved them equally (a proposition we need not doubt), there is no substantial evidence that he would have provided them with equal society, comfort and protection under the circumstances: Bonny was a teenager, dependent upon Thomas, and lived with him at the time; Denice was 30, independent, and lived two states away.
Substantial evidence does not support the conclusion that Bonny and Denice suffered an equal loss of society, comfort and protection as a result of Thomas’s death.
C. The Prior Distribution Agreement
Denice points out that Bonny originally agreed to share the proceeds of the wrongful death action equally. The court did not conclude, and Denice does not assert, that the prior agreement remains binding on the parties, or that Bonny is precluded from changing her mind about the allocation. Indeed, the parties do not dispute that the agreement could be terminated if Bonny or Denice later had a change of heart.
Nonetheless, Denice argues that when Bonny agreed to share the proceeds equally with Denice, she had not claimed that Denice had treated her and Thomas badly, and only asserted such a claim after she decided she wanted a larger proportion of the settlement proceeds. From this, Denice suggests, Bonny’s claim of mistreatment is not credible. Bonny counters that she initially agreed to share the proceeds equally because she wanted to have a family relationship with Denice, notwithstanding the differences in their relationships with Thomas.
The dispute over Bonny’s reasons for no longer agreeing to an equal distribution is immaterial. The proper allocation of the settlement proceeds does not turn on whether Bonny or Denice was the “better” daughter or whether one daughter was unkind to the other after Thomas died. The salient point, established by the other evidence submitted by the parties, is that Thomas had a close relationship with Bonny and virtually no relationship with Denice until a few days before his death. For reasons discussed ante, including Bonny’s and Denice’s circumstances and their relative dependency on Thomas for financial and emotional support, this evidence precludes the conclusion that a 5050 allocation of litigation proceeds would be appropriate.
D. Evidence of Thomas’s Intent
The decedent’s state of mind towards the beneficiaries of the wrongful death action has a bearing on the compensation for loss of society, comfort and protection, and is therefore ordinarily admissible in such an action. (Corder, supra, 41 Cal.4th at p. 663.) In other words, such evidence can be relevant in evaluating the extent to which the decedent would have provided society, comfort and protection to the beneficiaries if he had not died.
Denice argues that the settlement proceeds should be divided equally because Thomas wanted it that way, based on the declarations of Thomas’s friend, sister and father. However, the declarations do not provide evidence sufficient to support this conclusion. (See Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.)
Ayers’ declaration stated that Thomas told him he wanted “all of his girls taken care of.” However, it cannot be inferred from this statement that Thomas intended Bonny and Denice to receive an equal allocation of settlement proceeds (or equal financial and emotional support), rather than an allocation according to their respective need. Based on the evidence in the record, supporting Bonny and Denice financially and emotionally according to their need was the way Thomas had “taken care of” his daughters all along. Because of Bonny’s greater financial and emotional dependence on Thomas, Ayers’ declaration does not support a 50-50 split.
Ayers also asserts that it is his “opinion” that Thomas wanted Bonny and Denice to share equally in the litigation proceeds. This unsupported statement of opinion would not be of “solid value” (Roddenberry, supra, 44 Cal.App.4th at p. 651), even if there were a foundation for its admissibility. It also lacks substantive value for the reasons discussed in the text regarding the Nagatoshi and Edward Schellinger declarations.
The declarations of Nagatoshi and Edward Schellinger purport to recount conversations in which Thomas said he wanted the proceeds of the wrongful death lawsuit to be split equally between Bonny and Denice. These declarations create more questions than they answer, however. The wrongful death lawsuit was not filed until months after Thomas died, so it is unclear why he would be discussing the allocation of proceeds from litigation that did not exist. While we might assume that a lawsuit was being contemplated while he was still alive, there is no direct evidence in the declarations to that effect. Similarly, Thomas’s wife was alive at the time of these purported conversations, and in fact he had made her the primary beneficiary of his will. Although there is no evidence Thomas knew his wife would die shortly after him, his purported conversations about divvying up the lawsuit’s proceeds oddly omit any mention as to the portion his wife would receive. Furthermore, the declarations’ accounts of Thomas’s desire to provide equally for Bonny and Denice are inconsistent with his notarized will, which he executed within days of his conversations with Nagatoshi and Edward Schellinger.
Moreover, we question the relevance of the declarations. The issue is not how the decedent wanted wrongful death proceeds to be divided, but what the decedent would have done with his financial and emotional resources if he had lived. (Corder, supra, 41 Cal.4th at p. 661.)
In the final analysis, substantial evidence does not support the trial court’s implicit finding that Bonny and Denice suffered an equal loss of financial benefits and society, comfort and protection as a result of Thomas’s death. Indeed, the trial court did not make any finding as to how each child was damaged or to what degree. The order allocating the litigation settlement proceeds equally between Bonny and Denice must be vacated.
For purposes of remand, we emphasize that we hold only that the evidence was insufficient to support an equal allocation. Although Denice argues that the record does not support Bonny’s position that she is entitled to 90 percent of the settlement proceeds, that is not the question before us, and we do not imply that the evidence did or did not support a 90-10 allocation. The question in this appeal is solely whether substantial evidence supported the trial court’s ruling that Bonny and Denice are each entitled to 50 percent of the settlement proceeds. The trial court was not required then, and will not be required upon remand, to choose between Bonny’s claim to 90 percent and Denice’s argument for a 50-50 split as the court’s only options; rather, the trial court must determine what allocation is proper, whether it is one advocated by a particular party or not. The court’s determination of a proper allocation must be based on the credible evidence of the loss of financial benefits, and the pecuniary value of the loss of society, comfort and protection, suffered by Bonny and Denice respectively.
III. DISPOSITION
The order is vacated. The matter is remanded to the trial court to determine anew the respective rights of the decedent’s heirs to the settlement funds and to order distribution of the funds accordingly. Respondent shall pay appellant’s costs on appeal.
We concur: JONES, P. J., BRUINIERS, J.