Villacampa v. Russell

Opinion

BARRY-DEAL, J.

Appellant filed an action for wrongful death against respondents Thomas Russell and R. Flatland, Inc., for the death of her

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former husband. The trial court determined as a matter of law that under Code of Civil Procedure section 377, appellant has no standing to bring a wrongful death action, and therefore there is no triable issue of fact. Appellant appeals the trial court’s order granting summary judgment. We affirm.

Appellant and decedent were married in 1948 and had six children. Appellant has not been employed outside the home since 1968. In 1979 appellant filed a petition for dissolution of marriage, and an interlocutory judgment of dissolution was entered on February 20, 1980, which provided, inter alia, that decedent was ordered to pay appellant spousal support of $375 per month, to continue until decedent’s death or remarriage, and that appellant receive one-half of decedent’s pension fund. A final judgment of dissolution was entered on July 22, 1981.

On June 16, 1983, decedent was hit and killed by a truck driven by respondent Russell and owned by respondent R. Flatland, Inc. At the time of decedent’s death, appellant was receiving $430 per month as her share of the pension, in addition to spousal support.

In her appeal from summary judgment, appellant contends that Code of Civil Procedure section 377 does not preclude a wrongful death action by a former spouse, and if it is construed to deny a cause of action to former spouses, that section violates equal protection of the law as guaranteed by the Fourteenth Amendment to the United States Constitution. Appellant also claims that respondents failed to comply with procedural requirements applicable to a motion for summary judgment.

Discussion

Code of Civil Procedure section 377, subdivision (a), provides that a cause of action for wrongful death may be maintained by the decedent’s heirs or personal representatives on their behalf. Subdivision (b) of the statute defines heirs as (1) persons entitled to receive property of the decedent under the provisions of the Probate Code controlling intestate succession, and (2) if they were dependent on the decedent, the putative spouse, children of the putative spouse, stepchildren, and parents, and (3) minors if at the time of the decedent’s death they had resided for the previous 180 days in the decedent’s household and were dependent upon the decedent for one-half or more of their support.