Personal Injury Lawyer Blog
It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.
(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice case and its proceedings.)
Monica Smith, although legally separated from decedent, was still his wife at his death, and is thus a necessary party to this litigation.
California Probate Code §78 states that the term “surviving spouse”:
“does not include any of the following: (a) a person whose marriage to the decedent has been dissolved, or annulled, unless, by virtue of a subsequent marriage, the person is married to the decedent at the time of death; (b) a person who obtains or consents to a final decree of judgment or of dissolution of marriage from the decedent, or a final decree or judgment of annulment of their marriage, which decree or judgment is not recognized as valid in this state, unless they (1) subsequently participate in a marriage ceremony purporting to marry each to the other, or (2) subsequently live together as husband and wife; (c) a person who, following a decree of judgment of dissolution or annulment of marriage obtained by the person, participates in a marriage ceremony with a third person; or (d) a person who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights.”
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
A legal separation does not bar a wrongful death action by the surviving spouse if the divorce is not final at the time of decedent’s death. Luis v. Cavin (1948) 88 Cal.App.2d 107.
It is clear that decedent was still married to Monica Smith when he died on June 23, 2009. (See Plaintiffs’ First Amended Complaint, paragraph 7, page 3, line 2; Request for Judicial Notice at Exhibit 1, Judgment, and Exhibit 2, Notice of Entry of Judgment.) At the time of decedent’s death, Monica Smith was decedent’s wife and heir, and thus, a necessary party to this action. While Robyn Lee, as an individual, does have standing to assert a wrongful death cause of action, the face of the First Amended Complaint is insufficient to establish that Robyn Lee is the personal representative of the decedent as statutory trustee for all the heirs.
Plaintiffs’ third cause of action fails to allege that Robyn Lee has standing to serve as trustee for all the heirs, and thus all omitted heirs must be joined. It also does not allege that Robyn Lee is the only heir so that omitted heirs need not be joined. Because the evidence for which the court may take judicial notice shows that Monica Smith is an heir, and that thus not all heirs have been named in the First Amended Complaint, and because there is no personal representative asserting the claim on behalf of all of the heirs, plaintiffs’ third cause of action fails to state a cause of action for wrongful death by decedent’s estate. Therefore, pursuant to C.C.P. §438(B)(ii), the court should grant defendant’s motion. (See Part 9 of 9.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.