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Gonzales v. Southern California Edison Company12/9/1999
Plaintiffs, Miguel and Estefania Gonzales, appeal from summary judgment, in an action for the wrongful death of their son, granted to defendants Southern California Edison Company (Edison) and Mark and Cathy Louchheim (the Louchheims; collectively defendants) by reason of the one action rule. We reverse.
FACTS
Plaintiffs, residents of Mexico, are the parents of the late Andres Corona Gonzales (decedent). Decedent was electrocuted on September 20, 1996, while trimming trees at the Louchheims' property in Beverly Hills. On February 11, 1997, decedent's minor daughter brought a wrongful death action against defendants, through guardian ad litem Carmelina Rubalcava, her mother (hereafter the first action). On September 3, 1997, plaintiffs, together with decedent's brother, commenced the present wrongful death action against defendants (and others, who are not parties to the judgment). The complaint alleged that plaintiffs were dependent on decedent (see Code Civ. Proc., ยง 377.60, subd. (b)). It also referred to the pendency of the first action. Plaintiffs did not serve the original complaint on defendants.
On September 29, 1997, defendants deposed Carmelina Rubalcava in the first action. Counsel for both Edison and the Louchheims were present and questioned the witness. She testified that decedent's parents (i.e., plaintiffs) both were alive and living in Janamuato, Michoacan, and she provided their names. Rubalcava neither was asked nor testified regarding plaintiffs' dependence on decedent.
In November 1997, a little over a month following Rubalcava's deposition, defendants settled the first action. According to Edison's brief, the Louchheims paid $75,000, and Edison paid $1,500. The superior court approved the compromise and settlement, and the first action was dismissed.
In February 1998, plaintiffs filed a first amended complaint in this action. That pleading was served on Edison in February 1998, and on the Louchheims in March 1998. Plaintiffs subsequently filed a second amended complaint. Edison and the Louchheims separately demurred to it, contending in part that, the first action having been concluded, this case was barred under the rule that there may be only one action for wrongful death. The demurrers were overruled.
Edison renewed this contention by motion for summary judgment. In opposition, plaintiffs filed, among other things, a declaration by the decedent's brother, attesting that plaintiffs had been dependent on decedent. Decedent's brother declared that he had lived with decedent, decedent's daughter, and Rubalcava for several years preceding decedent's death. He explained that plaintiffs were field laborers who were required to support themselves and four minor children on less than $100 per month. Prior to his death, decedent, a day laborer, had regularly sent plaintiffs $300 to $500 per month. Attached to the declaration were two receipts for $500 postal money orders from decedent to plaintiff mother.
Plaintiffs contended that Edison had waived the one action rule by failing, after acquiring knowledge of plaintiffs, either to join them in the first action or to abate it. At the hearing, the trial court initially was disposed to deny the motion on this basis. However, the court then concluded that a different ruling was appropriate, because plaintiffs' counsel had been aware of the first action when he filed the present one, and could have joined plaintiffs in the first action. For this reason the court granted Edison's motion for summary judgment.
The court thereafter granted the Louchheims' motion for summary judgment, on essentially the same basis. Plaintiffs' motion for relief under sec
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