Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court for Los Angeles County, Nos. SC097533, SC0097939, YC058924 Linda K. Lefkowitz, Judge.
Law Offices of Ian Herzog, Ian Herzog, Thomas F. Yuhas and Evan D. Marshall for Plaintiffs and Appellants.
Agnew & Brusavich and Bruce M. Brusavich; Thon Beck Vanni Callahan & Powell and Daniel P. Powell for Plaintiffs and Respondents.
WILLHITE, J.
Daniel Vasquez was killed in a construction accident. This appeals involves the allocation of settlement proceeds in consolidated wrongful death actions brought by (or on behalf of) his surviving wife, Wendy Vasquez, and his five children, Vivian, Albert, Jessie, Irene, and Angelica. Vivian is Daniel’s and Wendy’s child, who was 18 months old at the time of Daniel’s death, and who was diagnosed as autistic four months later. Albert, Jessie, and Irene are Daniel’s children from a previous marriage, and were 12, 14, and almost 20 years old when Daniel died. Angelica is Daniel’s daughter from an earlier relationship; she was 22 years old when he died.
Because all of the parties share the same last name, we will refer to them by their first names. We mean no disrespect.
The trial court allocated the $2.3 million in settlement proceeds as follows: $1 million to Wendy; $300,000 each to Vivian, Albert, Jessie, and Irene; and $100,000 to Angelica. Wendy, individually and as guardian ad litem for Vivian, appeals from the allocation order and the denial of her posttrial motion challenging the allocation. She contends that the record does not support the trial court’s allocation of equal amounts to Vivian, Albert, Jessie, and Irene, and that the trial court erroneously relied upon post-mortem events and improper offsets in determining the amounts allocated to those children. We affirm the orders.
BACKGROUND
Three wrongful death lawsuits were brought against Daniel’s employers and the owners of the property Daniel was working on at the time of his death in July 2007: one by Wendy individually and as guardian ad litem of Vivian; another by Irene and the guardian ad litem of Jessie and Albert; and one by Angelica. The cases were related, and ultimately settled for all available insurance proceeds, a total of $2.3 million. The parties agreed to submit the matter for a bench trial on the allocation of the proceeds among Daniel’s heirs. A one-day trial was conducted in February 2010. What follows is a summary of the evidence presented at that trial.
A. Daniel’s Family
Angelica was born in November 1985. Her mother, Amanda Chacon, was not married to Daniel at the time. In January 1987, Chacon obtained a judgment declaring that Daniel was Angelica’s father, and awarding sole legal and physical custody to Chacon. Angelica lived with Chacon, and did not meet Daniel until she was seven years old.
Daniel married Monica de Luna shortly after Angelica was born. They had three children: Irene, born in August 1987; Jessie, born in April 1993; and Albert, born in June 1995. In 1995 or 1996, Angelica moved in with Daniel and his family. She lived there for two years, until Daniel and de Luna separated. Angelica then lived with several different relatives for various periods of time, including another period in which she lived with Daniel, Irene, Jessie, and Albert for a year.
Irene, Jessie, and Albert lived with Daniel after Daniel and de Luna separated. Eventually, Daniel met Wendy, and in late 2002 she moved in with him and the children. They shared a history of drug abuse, which they overcame; they relied on each other in staying clean and sober. They were married in February 2003, but later discovered that the papers for Daniel’s divorce from de Luna had not been finalized, so they married again in January 2004. Vivian was born in January 2006.
By all accounts, Daniel was a good father, and loved all of his children. Although Angelica did not live with him for most of her life, and his relationship with Angelica was strained at times, they maintained regular contact until about a year and a half before Daniel died. At that time, Angelica had “a falling out” with him, and they did not talk again before his death.
Angelica subsequently became pregnant, and did not have any place to live. She testified that she was sure that her father would have taken her in with him had he lived. At the time of trial, she was living with her nine month old baby on county assistance.
Daniel also had a good marriage and loving relationship with Wendy. When Wendy first came to live with Daniel, she got along well with Irene, Jessie, and Albert. But eventually some tensions arose, particularly between Irene and Wendy. Shortly before Daniel died, Irene told him that she wanted to move out of the house, but could not afford to pay for an apartment. Daniel, who had just helped Irene buy a new car, agreed to pay for an apartment for her if she found one that was within his budget. Although she found one, and Daniel talked to the apartment manager to let him know he would be covering the expenses, Daniel died before the lease was signed.
B. Events After Daniel’s Death
Daniel died on July 14, 2007. A few weeks after Daniel’s death, Wendy asked de Luna, who had a long history of drug abuse, to sign custody of Jessie and Albert over to her, but de Luna declined. In October 2007, Irene, Jessie, and Albert moved out of Wendy’s house, and moved in with de Luna. Unfortunately, de Luna was arrested twice while the children were living with her. After she was arrested the second time and was incarcerated in April 2009, Irene took on the responsibility of caring for her younger siblings; she is now their legal guardian.
Wendy tried to sell the house after Daniel died. She found a buyer, but two days before escrow closed, Chacon (Angelica’s mother) placed a lien on the property for back child support. Although the lien eventually was expunged, by that time the housing market had collapsed and Wendy owed more on the house than it was worth, and she owed her attorney $58,000 for the legal proceedings.
In the meantime, in November 2007, Vivian was diagnosed with mild to moderate autism. Much of the trial focused on Vivian’s condition and prognosis, the services she was receiving, and public funding for those services. The evidence indicated that Vivian has poor socialization skills, poor communication skills, sensory issues, difficulty with transitions, and aggressive behaviors, although several of the experts who evaluated her concluded that she could have a good developmental outcome with continued early intervention services. Wendy testified that Vivian is very wild and active, cannot be left alone, and will likely need her help the rest of her life. She also testified that, although Vivian receives various services (such as behavior services, occupational therapy, and speech pathology services) that are state-funded, the amount of services she receives has been significantly reduced. There was conflicting testimony presented about governmental funding for the types of services Vivian was receiving. One witness, who runs a government-funded private agency that provides intervention services for children with disabilities, testified that her agency had already experienced cutbacks in funding and were told to expect further cutbacks. However, another witness, a rehabilitation consultant called as an expert witness by Irene, Jessie, and Albert, testified that the primary services Vivian was receiving were mandated by statute, and must be provided to her as long as her need is documented.
Because Vivian needs constant supervision, Wendy has not been able to work, and her father (a retired dentist) has been supporting her financially.
C. The Trial Court’s Allocation
In a detailed written ruling, the trial court announced and explained its allocation of the settlement proceeds. In allocating a million dollars to Wendy, the court noted that “despite the normal issues attendant to a blended family, [Wendy and Daniel] appear from the testimony to have been reasonably happy together.” Addressing Wendy’s financial situation, the court observed that, since Daniel’s death, Wendy was being supported by her father and that the value of her home had dissipated, rendering it unmarketable. The court also noted that “[i]t appears that the bulk of Vivian’s financial needs related to her diagnosis of autism are provided by public funding, ” and that there was conflicting evidence as to how much that funding might be reduced in the future. The court found that Wendy’s belief that Vivian’s care precluded work outside the home was valid, and that “the toll on Wendy, as a single parent to this child, [was] objectively real.” It concluded: “The court finds the marriage was not in realistic danger of dissolution; that Wendy has been deprived of the financial support of her spouse, and not merely the love and comfort of any spouse in a successful marriage, but the additional emotional support required in rearing an autistic child. It is for these reasons the court finds the greater portion of the settlement allocation appropriate to the surviving spouse.”
With regard to Vivian’s allocation, the court began by remarking that “Vivian’s autism overwhelms any allocation analysis.” In allocating $300,000 to her -- the same sum allocated to Irene, Jessie, and Albert -- the court noted that the experts “responsible for Vivian’s continued progress stress the degree of parental responsibility for care of this child, ” and concluded “it is clear that there is a loss for her in the death of her father, who, given the degree of emotional support shown his wife and older children, could surely be expected to provide the love and care this child requires -- as does any child -- and the additional time requisite to improving her life skills.”
Explaining its allocation of an equal amount to Irene, Jessie, and Albert, the court observed that they were, in some respects, closest to Daniel, having lived with him under sole custody for several years before he married Wendy. The court found that “Irene clearly had the promise of continued financial support from her father, ” given his promise to pay for her apartment, and it noted that she “willingly [took] on the financial and emotional role of parent to her younger siblings” after their mother was incarcerated. Observing that the three children “have... been denied the comfort and love of a parent who for some time was their sole parent, a father who took seriously his financial and emotional ties to his children, ” the court concluded that they “have suffered both intangible and financial loss and are entitled to a share equal to their sister, Vivian.”
Finally, the court allocated $100,000 to Angelica, finding that although Daniel was not providing her any financial support to her at the time of his death and she had only sporadic contact with him, he provided periodic emotional support warranting a monetary allocation.
D. Posttrial Motion and Ruling
Wendy moved for a new trial, to vacate and enter a different judgment, and/or to amend the ruling, arguing that the court’s reliance on post-death events (e.g., de Luna’s incarceration and Irene’s assumption of responsibility for the care of her siblings) and the availability of public funding for Vivian’s services was improper. The court denied the motion. It explained that to the extent it considered post-death events, it did so only to determine for each heir what financial support reasonably could have been expected in the future, and “‘the monetary equivalent of loss of comfort, society and protection’” resulting from Daniel’s death. (Quoting Corder v. Corder (2007) 41 Cal.4th 644, 661 (Corder).) It also explained that its ruling, and its references to public funding, was not “an attempt to offset public assistance in predicting parental support” but was rather “an attempt to resolve the facts before the court within the parameters of the Corder decision’s mandate that the court look to that which was ‘reasonably to be expected in the future.’” The court concluded “that whether the children remained in the Vasquez home, with their natural mother, or even in the care of their sister, their father’s financial support, love and comfort would have been shared equally to the extent it would have been possible for that to occur.”
Wendy, individually and as guardian ad litem for Vivian, timely filed a notice of appeal from the allocation ruling and order denying her posttrial motion.
DISCUSSION
On appeal, Wendy contends (1) the record does not support the trial court’s conclusion that Vivian would have received financial support equivalent to that of Irene, Jessie, and Albert; and (2) the trial court misapplied the legal criteria for allocation of wrongful death damages. Both contentions fail because they are based upon a misunderstanding of the basis of court’s ruling.
We begin our analysis with an examination of “the rules governing the recovery available in wrongful death actions, ” as set forth by the Supreme Court in Corder. (Corder, supra, 41 Cal.4th at p. 661.) The court noted that, “[a]s 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.”’ [Citation.]” (Ibid.) It explained that wrongful death damages are “‘limited to the pecuniary loss suffered by the person or persons for whose benefit the right of action is given by reason of the death of the victim, ’” and that this loss can consist of the loss of both direct financial benefits and intangible benefits. (Ibid.) The loss of a direct financial benefit “‘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.’” (Ibid.) The court also observed that “‘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.’ [Citation.] The pecuniary value of the society, comfort, and protection that is lost through the wrongful death of a spouse, parent, or child may be considerable in cases where, for instance, the decedent had demonstrated a ‘kindly demeanor’ toward the statutory beneficiary and rendered assistance or ‘kindly offices’ to that person.” (Ibid.)
In arguing that the record does not support the trial court’s conclusion that Vivian would have received financial support equivalent to that of Irene, Jessie, and Albert, Wendy focuses solely on the direct financial benefit part of the pecuniary loss equation. She argues that Daniel would have provided more support to Vivian than to Irene, Jessie, and Albert because (1) Vivian was 10 years younger than her siblings; (2) he had a legal obligation to support her, even in adulthood, because she was disabled; and (3) she would have more needs than her siblings due to her autism. But Wendy ignores the substantial intangible loss the court found was suffered by Irene, Jessie, and Albert (in addition to their direct financial loss). The court found, supported by substantial evidence, that Daniel was the sole parent of those children for a considerable period of time, and that they were in some respects closest to Daniel. In losing him, they lost their only parent capable of caring for them. In light of these facts, we conclude that the trial court’s allocation of equal amounts to each of them and Vivian was supported by the record.
To the extent Wendy argues that the trial court failed to consider that, as Daniel’s wife, she was legally entitled the support from her spouse and that she suffered a pecuniary loss by losing a spouse able to share the burden of Vivian’s care, the record shows that the trial court did take those facts into consideration when it allocated $1 million to Wendy.
In arguing that the trial court misapplied the legal criteria for allocation of wrongful death damages, Wendy misunderstands the court’s references to the events that occurred to Irene, Jessie, and Albert after Daniel’s death, and to the public funding of services provided to Vivian. In its order allocating the settlement proceeds, the trial court noted that “the three children feel they were expelled from the home upon their father’s death, ” that they moved in with their biological mother after Daniel died, and that Irene took on the role of parent to her younger siblings after their biological mother was incarcerated. The court also noted that “[i]t appears that the bulk of Vivian’s financial needs related to her diagnosis of autism are provided by public funding, ” and that there was insufficient evidence for the court to determine the degree to which that funding might be reduced due to the current economic crisis. Pointing to those comments, Wendy argues that the court improperly relied upon post-death events and improperly considered public benefits when determining that those four children should receive equal allocations from the settlement proceeds.
Wendy is correct that, under California law, “pecuniary loss is to be determined by conditions existing at the time of the death of the deceased.” (Cervantes v. Maco Gas Co. (1960) 177 Cal.App.2d 246, 252; see also Cavallaro v. Michelin Tire Corp. (1979) 96 Cal.App.3d 95, 108 [“the California Supreme Court long ago deliberately established the rule that the damages resulting from a wrongful death are to be measured at the time of death and that the amount thereof is not affected by subsequent events”].) But as the trial court observed when it denied Wendy’s posttrial motion, the issue before it was not to determine damages, but to allocate a specific sum of damages to the various heirs based upon both the loss of direct financial benefits that each heir reasonably could have expected to receive had Daniel lived, and loss of comfort, society, and protection sustained by each heir as a result of his death. It was for this reason, the court explained, that it “looked to some extent to the future financial posture[s] of the respective Plaintiff/heirs and its equivalent as derived from loss of ‘comfort, society and protection.’” Viewed in this context, we conclude the trial court’s references to the experiences of Irene, Jessie, and Albert after Daniel’s death were meant to highlight the loss of comfort, society, and protection each of them suffered from the death of their primary caregiver; they are not, as Wendy asserts, evidence that the trial court improperly awarded damages for events that happened after Daniel’s death.
Similarly, the trial court’s references to public funding for services provided to Vivian do not show that the court improperly used that funding to partially compensate her for the loss of her father, as Wendy asserts. As the court explained in its ruling on the posttrial motion, its discussion regarding public funding was in response to assertions by Wendy that there would be significant cuts to the services offered to Vivian. The court noted that, in response to testimony proffered by Wendy, the remaining children proffered expert testimony indicating that significant cuts were not likely, and, in light of the conflicting testimony, the court declined to find there was a sufficient basis to conclude that cuts would be made, thereby increasing parental responsibility for those services. The court concluded that, to the extent Wendy asked it to consider public funding, it considered it only as relevant to the question of the degree to which that funding “would impact the burden of financial and emotional responsibility that would have fallen upon the decedent had he lived.”
We hold that the trial court’s consideration of public funding in this manner was appropriate. As Corder instructs, the court must consider the financial benefits an heir might reasonably expect to receive from the decedent in the future. (Corder, supra, 41 Cal.4th at p. 661.) The fact that some of the services Vivian will need over her life will be publicly funded certainly impacts the level of financial support she would expect from Daniel. Thus, the trial court properly took that into account when analyzing the pecuniary loss Vivian suffered and determining the appropriate allocation of the settlement proceeds.
DISPOSITION
The orders are affirmed. Respondents shall recover their costs on appeal.
We concur: EPSTEIN, P. J. SUZUKAWA, J.