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Lozano v. Scalier12/17/1996
DOSSEE, J.
This appeal raises a single legal issue: whether, in order to bring a wrongful death action, the father of a child born out of wedlock must have acknowledged the child (1) after the child's birth (2) in a written and witnessed document. We conclude the statutes impose no such requirements, and we affirm the judgment in favor of the father.
FACTUAL AND PROCEDURAL HISTORY
On October 3, 1994, 10-month-old Raymond Anthony Lozano was killed instantly in an automobile accident. The car in which he was riding was being driven by his mother, defendant Angela Scalier. The liability of defendant for the death of young Raymond is not disputed.
Nor is it disputed that plaintiff Efren Lozano is the natural father of Raymond. Plaintiff and defendant never married. However, defendant and Raymond stayed with plaintiff 50-60 percent of the time during Raymond's life. Plaintiff purchased a number of items for Raymond--e.g., crib, stroller, car seat, bedding, diapers, toys, formula and bottles. Plaintiff repeatedly told family members and others that he was Raymond's father. Plaintiff was named as the father on Raymond's birth certificate. Five months before Raymond's birth, plaintiff signed as "Father" a medical form, "Financial Policy for Maternity Care," witnessed by defendant's mother.
Plaintiff filed a wrongful death action against defendant. Defendant admitted liability of $100,000 (the amount of her insurance coverage). However, she asserted that plaintiff had no standing to sue as he had never acknowledged Raymond as his child in writing during Raymond's lifetime.
That issue was placed before the trial court in defendant's "motion for judgment." Defendant did not dispute the facts but claimed that Raymond never legally resided with plaintiff and that plaintiff never contributed to Raymond's support.
The trial court found " ased upon the uncontroverted evidence submitted" that plaintiff acknowledged Raymond as his child and contributed to Raymond's support and care. Accordingly, the court concluded plaintiff was entitled to maintain the action for wrongful death and denied defendant's motion for judgment. Thereupon, by stipulation, judgment was entered in favor of plaintiff in the amount of $100,000. Defendant appeals.
Discussion
At the outset, we reject defendant's argument that the controlling statute here is section 376 of the Code of Civil Procedure. That statute applies upon injury to a child, not death. The present action was unquestionably a wrongful death action brought under section 377.60 of the Code of Civil Procedure.
Under the wrongful death statute (Code Civ. Proc., § 377.60), when, as here, the decedent leaves no spouse or child, an action may be brought by "the persons who would be entitled to the property of the decedent by intestate succession." The Probate Code, in turn, provides that for the purpose of determining intestate succession, a relationship between a child and his natural parents exists regardless of the parents' marital status. (Prob. Code, § 6450.) That is, the distinction between legitimate and illegitimate children has been eliminated. However, Probate Code section 6452 further provides that if a child is born out of wedlock, a parent may not inherit from that child on the basis of the parent-child relationship unless both of the following requirements are met: (1) the parent acknowledged the child; and (2) the parent contributed to the support or care of the child.
Prior to 1975, the father of an illegitimate child could inherit from the child only if the child was legitimated (by marriage of the parents or by adoption). (Former
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