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Desplancke v. Wilson

3/24/1993

COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SEVEN.


No. B058537


1993.CA.45883 ; 14 Cal. App. 4th 631; 17 Cal. Rptr. 2d 586


Decided: March 24, 1993.


VESTA DESPLANCKE ET AL., PLAINTIFFS AND APPELLANTS,
v.
RON WILSON ET AL., DEFENDANTS AND RESPONDENTS.


Superior Court of Los Angeles County, Nos. SWC91399 and SWC91423, Douglas A. McKee, Judge.


Morris Shechter and Wanda Grasse for Plaintiffs and Appellants.


Pivo & Halbreich, Douglas A. Amo and David R. Flyer for Defendants and Respondents.


Opinion by Woods Fred, J., with Lillie, P. J., and Johnson, J., Concurring.


Woods


Under Code of Civil Procedure former section 377 may adult children maintain an action for the wrongful death of their parent if the parent's entire estate is community property bequeathed to the other parent, the surviving spouse? Our answer is yes. Accordingly we reverse the summary judgment awarded respondents. We also modify the trial court's order awarding costs.


Factual and Procedural Background


On April 21, 1986, George Desplancke (decedent) fell on a construction site stairway. He died five days later.


Two actions were filed: a wrongful death complaint by his wife (Vesta Desplancke) and four adult children against the general contractor (Ron Wilson, Norm Wilson and Ron Wilson Construction Company) and stairway subcontractor (Robert and Nancy Shallenberger and Anvil Iron, Inc.) and a personal injury complaint by Vesta Desplancke, as special administrator of the estate, against the same defendants. The actions were later consolidated.


The general contractor moved for summary judgment. The trial court granted the motion. Appellants initially sought review of that summary judgment but, in their opening brief, abandoned such review. Accordingly, that matter is not part of this appeal.


The subcontractor also moved for summary judgment but only against the four adult children of the decedent (not his wife). The trial court granted the motion. We review this order.


Discussion


I.


Section 377, as here applicable, provided: "When the death of a person is caused by the wrongful act ... of another, his or her heirs... may maintain an action for damages against the person causing the death. ..." (§ 377, subd. (a). Italics added.)


Subcontractor contends the decedent's children are not "heirs" and therefore may not maintain the instant action. Subcontractor relies upon


section 377, subdivision (b) which, as here applicable, provided: "For the purposes of subdivision (a), 'heirs' means only the following: (1) Those persons who would be entitled to succeed to the property of the decedent according to the provisions of Part 2 (commencing with Section 6400) of Division 6 of the Probate Code. (2) Whether or not qualified under paragraph (1), if they were dependent on the decedent, the putative spouse, children of the putative spouse, stepchildren, and parents. ..."


Subcontractor argues the adult children are not "persons who would be entitled to succeed to the property of the decedent" (because his property was entirely community property and was all bequeathed to his surviving spouse), were not "dependent on the decedent," are not "children of putative spouse," are not "stepchildren

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