Gabehart v. Simonsen

California Court of Appeal Jan 15, 1986 No. B011937Published

Before: Lillie

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Holding. The court held that summary judgment was improper because conflicting evidence regarding the decedent's paternity created a triable issue of material fact as to whether the decedent's mother or the minor child was the proper heir entitled to bring a wrongful death action.

Issues

Whether a parent-child relationship for purposes of intestate succession can be established after a decedent's death based on a presumption of paternity.
Whether the trial court erred in granting summary judgment when conflicting evidence existed regarding the decedent's paternity.

Disposition. reversed

Quotations verified verbatim against the opinion

“There was a triable issue of material fact as to the existence of the parent and child relationship. The trial court erred in granting the motions and entering the summary judgments.”

“In passing upon a motion for summary judgment, the trial court’s function is not to find the true facts in the case, but to determine whether a triable issue of fact exists.”

Opinion

LILLIE, P. J.

Carole Gabehart appeals from summary judgment entered on her complaints for the wrongful death of her adult son.

Facts

Thirty-two year old Kenneth Rick Gabehart was seriously injured in a fall on the outside stairway of his rented apartment. He received medical treatment from Henry Bisaccia, M.D. and National Medical Group, Inc., but died from internal hemorrhaging two months after the fall. His mother, Carole Gabehart, brought an action for her son’s wrongful death against the apartment owners, Bent P. Simonsen and Professional Real Estate Management (No. SOC67834) alleging negligent maintenance of the stairway railing, and a separate wrongful death action against the doctor and medical group (No. SOC69262) alleging medical malpractice.

A wrongful death action based on the same facts was also filed against these defendants on behalf of 12-year-old Kenneth Christopher Gabehart by

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his mother, Diana Schmidt (No. SOC71438), in which it was alleged that Kenneth Christopher was the natural son of the decedent. All three actions were consolidated for trial.

Defendant property owners moved for summary judgment against decedent’s mother, Carole Gabehart, on the grounds that she had no standing to maintain an action for wrongful death under Code of Civil Procedure section 377, inasmuch as decedent left lawful issue, Kenneth Christopher, and Carole Gabehart was not a dependent parent of decedent. The motion was granted and judgment entered in favor of property owners and against Carole Gabehart. A similar summary judgment motion brought by the medical group was granted, and judgment entered. Carole Gabehart appeals from these judgments.

Discussion

Under Code of Civil Procedure section 377, subdivision (a), an action for wrongful death may be maintained by the decedent’s heirs, or by personal representatives on behalf of the heirs. Subdivision (b) defines the term “heirs” for purposes of subdivision (a) to mean, as here pertinent, (1) those persons who would be entitled to succeed to the property of the decedent according to the intestate succession provisions of the Probate Code,

Gabehart v. Simonsen

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LILLIE, P. J.

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