Judge Laura A. Seigle, Case 20STCV38250 2022-10-10 Tentative Ruling

Judge: Laura A. Seigle, Case: 20STCV38250, Date: 2022-10-10 Tentative Ruling

Case Number: 20STCV38250 Hearing Date: October 10, 2022 Dept: 15

[TENTATIVE] ORDER RE DAMAGES

Plaintiffs Linda Phipps, Raymond Phipps, Sarah Phipps, and Steven Phipps filed this case alleging negligence and strict liability claims based on the wrongful death of William V. Phipps pursuant to Code of Civil Procedure section 377.60. (Complaint at p. 1.) Linda Phipps is William Phipps surviving spouse. (Ibid.) Raymond, Sarah, and Steven Phipps are heirs of William Phipps. (Ibid.)

Defendant Copeland Corporation, LLC seeks to limit the damages Plaintiffs can obtain at trial due to Linda Phipps and William Phipps’ earlier personal injury lawsuit, Case No. 18STCV02021. In 2018, before William Phipps died, Linda Phipps and William Phipps filed the complaint in Case No. 18STCV02021 alleging Defendant’s asbestos-containing product injured William Phipps. In that first case, Linda Phipps alleged a cause of action for loss of consortium. (Fountain Decl., Ex. A at p. 36.) The case went to trial, resulting in a jury verdict and a damages award in favor of Linda Phipps and William Phipps. Thereafter, William Phipps died and Plaintiffs filed this wrongful death case. The type of damages Plaintiffs can obtain in this case will determine the scope of jury instructions and the verdict form.

A. Linda Phipps’ Damages Claims

In Boeken v. Philip Morris USA (2010) 48 Cal.4th 788, the California Supreme Court addressed the preclusive effect of an earlier loss of consortium action on a later wrongful death claim by the surviving spouse. The court explained, “The doctrine of res judicata prohibits a second suit between the same parties on the same cause of action” or “primary right and a breach of the corresponding duty.” (Id. at p. 791.) The following elements determine whether an earlier case is preclusive: “ ‘ “(1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. [Citations.]” ’ [Citation.]” (Id. at p. 797.)

The Boeken court concluded the claim in the earlier loss of consortium action was the same as the claim in the later wrongful death action. The court noted that in the loss of consortium action, the wife alleged the defendant’s “wrongful conduct ‘permanently deprived’ her of her husband’s companionship and affection,” and “that allegation indicate[d] what primary right was adjudicated” in the first action. (Id. at pp. 798-799.) The wife “could not later allege the same breach of duty in a second lawsuit against defendant, based on a new legal theory (statutory wrongful death).” (Id. at p. 798.)

The plaintiff in Boeken argued that the cause of action in the first case sought only damages for pre-death loss of consortium, while the second action sought damages for post-death loss of consortium. (Id. at p. 799.) However, the court concluded the wife in the first action had sought damages for the period after the injured spouse’s death because in the first action she had alleged her husband was “ ‘unable to perform the necessary duties as a spouse’ and would ‘not be able to perform such work, services, and duties in the future.’ (Italics added.) Moreover, plaintiff’s complaint expressly asserted that she had been ‘permanently deprived’ of her husband’s consortium. (Italics added.)” (Id. at p. 800.) These allegations showed the wife “sought (in her common law action for loss of consortium) damages for future lost companionship and affection during the years after her husband’s anticipated premature death.” (Id. at p. 801.) In sum, “the two actions concern[ed] the same plaintiff seeking the same damages from the same defendant for the same harm, and to that extent they involve[d] the same primary right.” (Id. at p. 804.) Because the prior action had been finally resolved, the wife could not litigate the same primary right a second time in the wrongful death case. (Ibid.)

The decision in Boeken controls here. The same plaintiff (Linda Phipps) is seeking damages from the same defendant (Copeland). The first case is final, and the judgment has been paid. (Fountain Decl., Ex. G.) And Linda Phipps asserts a breach of the same primary right in this wrongful death case as she asserted in her early loss of consortium case.

Specifically, in the first personal injury case, Linda Phipps alleged that as a result of Defendant’s conduct, she “has been permanently deprived and will be deprived of the consortium of her spouse, including the performance of duties, all to her damage.” (Fountain Decl., Ex. A at pp. 36-37.) She alleged that William Phipps “has been unable to perform the necessary duties as a spouse . . . and he will be unable to perform such work, service and duties in the future.” (Id. at p. 36.) She alleged she “has suffered, and for a long period of time will continue to suffer, loss of consortium, including, but not limited [to], loss of services, marital relations, society, comfort, companionship, love and affection of said spouse.” (Id. at p. 37.) This language is almost identical to the language in the wife’s loss of consortium claim in Boeken, which the court there determined sought damages for future lost companionship and affection after her husband’s anticipated death. (Boeken, supra, 48 Cal.4th at p. 801.)

In the wrongful death complaint in this case, Linda Phipps also seeks damages for loss of William Phipps’ love, companionship, comfort, affection, solace, moral support and/or society. (Fountain Decl., Ex. H at p. 10.) These are the same damages she sought in the earlier case. Nothing in the evidence presented showed that in the first case Linda Phipps sought only damages up to the time of the anticipated death of William Phipps. Rather, the complaint in the first case sought damages into the future and based on being permanently deprived of the loss of her spouse.

Plaintiffs argue that the damages in the first case could not have included post-death damages because there was no jury instruction on Linda Phipps’ life expectancy. But CACI 3029, which was given in the first case, instructs the jury that it may award future damages and does not limit the future damages to those suffered up to the date of the injured party’s (husband’s) anticipated death. (Fountain Decl., Ex. E at p. 52.) In addition, while CACI 3921 (the jury instruction for wrongful death damages) limits economic damages to financial support the decedent would have contributed “during either the life expectancy that [the decedent] had before [his] death or the life expectancy of [the plaintiff], whichever is shorter,” it does not limit noneconomic damages (such as sought here) in that way. And, the court in Boeken did not hold that in a personal injury case, there must be an instruction on the surviving spouse’s life expectancy in order for the judgment in the earlier case to preclude a later wrongful death case.

Further, in closing argument in the first trial, Linda Phipps did not limit her request for damages to the period before her husband’s anticipated death. Rather, her attorney spoke of Linda Phipps losing her husband, stating “It’s going to be hard for her,” and “she’s obviously going to be here with her grandchildren afterwards.” (Fountain Decl., Ex. D at pp. 139-140.) The attorney then asked for a specific amount of damages for her. That language referred to the future after William Phipps died.

In any event, even if Linda Phipps did not seek post-death damages in the first case, she could have, as Plaintiffs acknowledge. (Plaintiff’s Brief at p. 4. [“Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788 permits an award of prospective damages, thus allowing Loss of Consortium damages and Wrongful Death damages to be resolved in a Personal Injury matter”].) The purpose of the doctrine of res judicata is to “promote[] judicial economy.” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 897.) It “ ‘ “precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief.” ’ [Citation.]” (Ibid.) Thus, “[r]es judicata not only precludes the relitigation of issues that were actually litigated, but also precludes the litigation of issues that could have been litigated in the prior proceeding.” (Bullock v. Philip Morris USA, Inc. (2011) 138 Cal.App.4th 543, 557.) Because Linda Phipps could have sought post-death damages in the first action, she cannot seek it in this action.

Plaintiffs argue that the decision in Boeken is inapplicable here because in Boeken the plaintiff voluntarily dismissed the first case. However, a voluntary dismissal is “the equivalent of a final judgment on the merits.” (Boeken, supra, 48 Cal.4th at p. 804.) The difference in the path to a final judgment on the merits does not affect the application of the doctrine of res judicata.

In sum, res judicata bars Linda Phipps’ claim for loss of consortium damages in this case, leaving only the funeral expenses as her potential damages.

B. Raymond Phipps’, Sarah Phipps’, and Steven Phipps’ Damages Claims

Defendant also contends the damages claims of Raymond Phipps, Sarah Phipps, and Steven Phipps are also barred by the final judgment in the personal injury case because “wrongful death claims are jointly and indivisibly held by all immediate family members.” (Defendant’s Brief at p. 1.)

“Although each heir has a ‘personal and separate’ claim, the wrongful death statutes ordinarily require joint litigation of the heirs’ claims in order to prevent a series of suits against the tortfeasor.” (LAOSD Asbestos Cases (2018) 28 Cal.App.5th 862, 872.) “ ‘[A]lthough recovery [under the wrongful death statute] is in the form of a “lump sum,” the amount is determined in accordance with the various heirs’ separate interests in the deceased’s life and the loss suffered by each by reason of the death, . . .’ and thus ‘each heir should be regarded as having a personal and separate cause of action.’ [Citation.]” (Canavin v. Pacific Southwest Airlines (1983) 148 Cal.App.3d 512, 530.) “Historical case precedent establishes that, in computing the damages, the court or jury must consider the pecuniary damage suffered by each heir and return an aggregate verdict for one sum.” (Ibid.) “[A] wrongful death action compensates an heir for his or her own independent pecuniary loss,” and therefore “it is one for ‘personal injury to the heir.’ [Citation.]” (San Diego Gas & Electric Co. v. Superior Court (2007) 146 Cal.App.4th 1545, 1551.) The injury is “the particular loss of the decedent to each individual claimant,” and “each wrongful death claimant must show the nature of his or her loss as a result of the decedent’s death.” (Id. at pp. 1551, 1552.)

Defendant did not show that Raymond Phipps, Sarah Phipps, and Steven Phipps were parties in the earlier personal injury case or that their individual claims were adjudicated to a final judgment in the first case. The complaint in the personal injury case did not allege injury to Raymond Phipps, Sarah Phipps, and Steven Phipps and did not seek damages for them. Defendant did not point to allegations or evidence in the first case of the loss to each of Raymond Phipps, Sarah Phipps, and Steven Phipps as a result of William Phipps’ death. The jury was not instructed that they should consider the loss suffered by each of these heirs, and there is no evidence that the jury calculated their award by considering the damage suffered by each of these heirs.

Because there is insufficient evidence that Raymond Phipps’, Sarah Phipps’, and Steven Phipps’ claims were litigated in the first case, their claims for damages in this case are not barred by the judgment in the personal injury case.

The moving party is to give notice.