Opinion
For Opinion on Hearing, see 15 Cal. Rptr. 329, 524 P.2d 801.
For Opinion on Rehearing see, 117 Cal.Rptr. 812.
Opinions on pages 323-350 omitted. [*]
REHEARINGS GRANTED
[110 Cal.Rptr. 218][515 P.2d 18] Pain, Moody & Pippin and David H. R. Pain, San Diego, for plaintiff and appellant.
Robert E. Cartwright, San Francisco, Edward I. Pollock, Los Angeles, Marvin E. Lewis, San Francisco, William H. Lally, Sacramento, Joseph W. Cotchett, San Mateo, Herbert Hafif, Claremont, David Daar, Los Angeles, and Leonard Sacks, Pico Rivera, as amici curiae on behalf of plaintiff and appellant.
Carl A. Becker, Dryden, Harrington & Swartz and Peter Abrahams, Los Angeles, for defendant and respondent Garrett Corp.
No appearance for other defendants and respondents.
BURKE, Justice.
We are called upon to determine whether a stepchild, treated in all respects as the natural child of her deceased stepfather, may maintain an action for the wrongful death of the step-parent under Code of Civil Procedure section 377 which limits the right of action to 'heirs' or 'personal representatives.' It is our conclusion [110 Cal.Rptr. 219] [515 P.2d 19] that under the stipulated facts in this case, section 377 must be interpreted as allowing the stepchild's action in order to comply with the demands of the equal protection clause of the Fourteenth Amendment to the United States Constitution.
At the time the cause of action at issue herein arose, Code of Civil Procedure section 377 provided in part: 'When the death of a person not being a minor, or when the death of a minor person who leaves surviving him either a husband or wife or child or children or father or mother, is caused by the wrongful act or neglect of another, his heirs . . . or personal representatives . . . may maintain an action for damages against the person causing the death, or in case of the death of such wrongdoer, against the personal representative of such wrongdoer, whether the wrongdoer dies before or after the death of the person injured. If any other person is responsible for any such wrongful act or neglect, the action may also be maintained against such other person or in case of his death, his personal representatives. In every action under this section, such damages may be given as under all the circumstances of the case, may be just, but shall not include damages recoverable under Section 573 of the Probate Code. The respective rights of the heirs in any award shall be determined by the court. . . .'
"The 'heirs' of a person are those whom the law appoints to succeed to his estate . . . in case he dies without disposing of it by will.' (Hochstein v. Berghauser, 123 Cal. 681, 687, 56 p. 547 . . .).' (Kunakoff v. Woods (1958) 166 Cal.App.2d 59, 62, 332 P.2d 773, 775.)
This action was brought by Martha Steed as guardian ad litem for her daughter Elizabeth against Imperial Airlines, Volpar, Inc., Visco Flying Co., and Garrett Air Research for the wrongful death of Elizabeth's stepfather, Ronald Steed. Defendant Garrett's motion for summary judgment was granted by the trial court on the ground that Elizabeth is not an 'heir' of her stepfather and thus has no right of action under Code of Civil Procedure section 377. The action was dismissed pursuant to Code of Civil Procedure section 437c. Plaintiff appeals.
For the purpose of the motion for summary judgment, the parties have agreed upon the following facts: On April 8, 1959, Elizabeth was born to Martha out of wedlock. On April 25, 1962, Martha married the decedent, Ronald Steed, who is not Elizabeth's natural father. Prior to their marriage, Ronald orally agreed to assume the full obligation of father and parent to Elizabeth. From the date of their marriage until Ronald's untimely death on January 8, 1968, Ronald held Elizabeth out to all the world as his daughter, accepted her into his home, acquiesced in and encouraged the use of his surname by her, provided her with full support, and at all times represented to her that he was in fact her father. These representations lead Elizabeth into believing that Ronald was in fact her father. Ronald Elizabeth in the same manner as he did his natural daughter Debborah who was born on February 11, 1963. He claimed Elizabeth as a dependent on his tax returns and made no demands on her natural father for contributions to her support. However, at no time did Ronald institute formal adoption proceedings.
According to plaintiffs, Debborah recovered $75,000 for the death of her father.
A 1968 change to section 377 is consistent with a legislative intent to strictly construe the word 'heirs.' (Stats.1968, ch. 766, p. 1488, § 1). The amended statute gives a cause of action for wrongful death to 'dependent parents' of the decedent, as well as to heirs, thus belatedly curing the injustice complained of in Evans 32 years earlier. But dependent parents are the only persons in addition to heirs who have been accorded the benefits of the amended section 377. Certainly, it would appear, had the Legislature intended to further expand the class it would have done so. Had the Legislature intended to extend the class of individuals who may bring such actions to include persons such as plaintiff, it would have been a simple matter of drafting to insert the words 'dependent stepchildren' as well as 'dependent parents.'
It is well settled in California that the right to bring an action for the wrongful death of a human being is limited to the persons described in Code of Civil Procedure section 377. (Fuentes v. Tucker, 31 Cal.2d 1, 9-10, 187 P.2d 752; Bond v. United Railroads, 159 Cal. 270, 276, 113 P. 366; Salmon v. Rathjens, 152 Cal. 290, 294, 92 P. 733.) The use of the word 'heirs' in section 377 has been interpreted as limiting this class of persons to those who would have inherited the decedent's estate had he died intestate. (Kunakoff v. Woods, 166 Cal.App.2d 59, 62, 332 P.2d 773.) The statutes of succession provide for inheritance by 'issue' (Prob.Code, §§ 221, 222), by adopting children from their adoptive parents (Prob.Code, § 257), and by illegitimate children from their mother and from their father if acknowledged by him (Prob.Code, § 255). There is, however, no provision for inheritance by dependent stepchildren. (Estate of Lima, 225 Cal.App.2d 396, 398.) Thus, if the word 'heirs' in section 377 were construed in accordance with the statutes of succession as defendant suggests, Elizabeth, whose pecuniary loss is evidently as great as that of her half-sister (the decedent's natural child), would be excluded from the class of persons entitled to maintain an action for the decedent's death.
Equal protection principles require that the distinctions drawn by a statute granting an economic benefit to one class while denying it to another must at least bear some rational relationship to a conceivable legitimate state purpose. (Weber [110 Cal.Rptr. 220] [515 P.2d 20] v. Aetna Casualty & Surety Co., 406 U.S. 164, 172-173, 92 S.Ct. 1400, 31 L.Ed.2d 768; Serrano v. Priest, 5 Cal.3d 584, 597, 96 Cal.Rptr. 601, 487 P.2d 1241; In re Antazo, 3 Cal.3d 100, 110-111, 89 Cal.Rptr. 255, 473 P.2d 999; Westbrook v. Mihaly, 2 Cal.3d 765, 784, 87 Cal.Rptr. 839, 471 P.2d 487.) In addition, a statute which is valid on its face may have a discriminatory effect in its application thereby denying equal protection of the law. (Yick Wo v. Hopkins, 118 U.S. 356, 373, 6 S.Ct. 1064, 30 L.Ed. 220; Brock v. Superior Court, 12 Cal.2d 605, 610, 86 P.2d 805.)
The purpose of section 377 is to compensate the enumerated class of persons 'for the pecuniary loss suffered by them by reason of the loss of their relatives by death.' (Kunakoff v. Woods, supra, 166 Cal.App.2d 59, 62, 332 P.2d 773, 775; Estate of Bright v. Western Air Lines, 104 Cal.App.2d 827, 829, 232 P.2d 523.) Thus, 'the word 'heirs' in the statute is intended to limit the right of recovery to a class of persons who, because of their relation to the deceased, are supposed to be injured by her death.' (Redfield v. Oakland C. S. Ry. Co., 110 Cal. 277, 290, 42 P. 822, 826.) Since such a limitation narrows liability in a rational way, as well as eliminating difficult proof problems which might otherwise arise, section 377 on its face meets the demands of the equal protection clause. However, even though the classification drawn by the word 'heirs' has a rational basis in general, the statute cannot have the effect (see, e. g., Yick Wo v. Hopkins, supra, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220) of excluding persons, such as Elizabeth, who suffer an injury from decedent's death that is both emotionally and economically indistinguishable from that suffered by a natural child. We can find no rational basis for such a distinction which is based solely upon the technical definition of the word 'heirs.'
In Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. Ct. 1509, 20 L.Ed.2d 438, the United States Supreme Court held invalid under the equal protection clause a Louisiana statute which had been interpreted as barring an action by illegitimate children for the wrongful death of their mother. The court pointed out (at p. 72, 88 S.Ct. at p. 1511): 'Legitimacy or illegitimacy of birth has no relation to the nature of the wrong allegedly inflicted on the mother. These children, though illegitimate, were dependent on her; she cared for them and nurtured them; they were indeed hers in the biological and in the spiritual sense; in herdeath they suffered wrong in the sense that any dependent would.' (Italics added.) In a footnote attached to the above quoted statement, the court noted that 'Under Louisiana law both parents are under a duty to support their illegitimate children.'
Later, in Weber v. Aetna Casualty & Surety Co., supra, 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768, the Supreme Court held that Louisiana's denial of equal recovery rights to unacknowledged illegitimate children under the state's workmen's compensation laws was also a denial of equal protection. The court again recognized that the dependency of the child is the same regardless of the circumstances of its birth, stating (pp. 169-170, 92 S.Ct. p. 1403): 'Here, as in Levy, there is impermissible discrimination. An unacknowledged illegitimate child may suffer as much from the loss of a parent as a child born within wedlock or an illegitimate later acknowledged. So far as this record shows, the dependency and natural affinity of the unacknowledged illegitimate child for her father were as great as those of the four legitimate children whom Louisiana law has allowed to recover. [Fn. omitted.] The legitimate children and the illegitimate child all lived in the home of the deceased and were equally dependent upon him for maintenance and support. . . .' (Italics added.)
A similar result was reached in Arizmendi v. System Leasing Corp., 15 Cal.App.3d 730, 90 Cal.Rptr. 411, in which the Court of Appeal held that a distinction under the California statutes, preventing an [110 Cal.Rptr. 221] [515 P.2d 21] unacknowledged illegitimate child from bringing an action under Code of Civil Procedure section 377 for the wrongful death of his father, constituted a denial of equal protection. (See Probate Code, § 255, supra.) The court stated in Arizmendi (p. 736, 93 Cal.Rptr. p. 414) that, 'The law of this state recognizes and creates an obligation on the part of the natural father of a minor child, whether the child is legitimate or illegitimate, to provide the necessities of life for such child. [Citation.] The illegitimate minor child, therefore, is entitled as a matter of law to look for, and receive support from its natural father at least for the necessities of life. The deprivation of this right by the tortious act of a third person resulting in the death of the natural father is just as real and as devastating to an illegitimate minor child as it is to a legitimate minor child. . . .'
In the instant case, although Elizabeth is not the natural child of the decedent, she was no less dependent upon him than were the children in Levy, Weber and Arizmendi, supra, dependent upon their respective parents. Elizabeth relied upon decedent for her support and was cared for and nurtured by him. Indeed under the facts as stated above, Elizabeth was the child of the decedent in every sense but biological, and was even led to believe that she was decedent's biological child. In addition, under the rule stated in Clevenger v. Clevenger, 189 Cal.App.2d 658, 670-675, 11 Cal.Rptr. 707, the relationship between Elizabeth and the decedent was such that the decedent would have been estopped, had he lived, from denying a continuing obligation to support her.
In Clevenger, the court held that under a limited set of circumstances a child's stepfather would not be allowed to assert that he was not the child's father to avoid paying child support. The court stated (p. 671, 11 Cal.Rptr. p. 714) that, 'If the facts should show . . . that the husband represented to the boy that he was his father, that the husband intended that his representation be accepted and acted upon by the child, that the child relied upon the representation and treated the husband as his father and gave his love and affection to him, that the child was ignorant of the true facts, we would have the foundation of the elements of estoppel.' The facts in Clevenger indicated that the stepfather had publicly acknowledged and treated the child as his own. The court held that by publicly acknowledging and treating the child as his own, and by so representing this fact to the child for such a period as to make it impractical for the child to locate and seek support from its natural father, the stepfather would be estopped from denying a continuing obligation to support the child as if it were his own.
We note with approval the limitations placed upon this doctrine of estoppel by the court in Clevenger where it states (pp. 674-675, 11 Cal.Rptr. p. 716): 'We have been careful, however, to restrict the indicated liability of the putative father to the case in which he represents to the child expressly or by implication that he is the child's natural father and the child believes him to be the natural father. We do not suggest that the husband who supports his wife's child by another man necessarily incurs liability for the support of that child. Here, if the facts so show, we predicate an estoppel upon the child's acceptance of the representation of the putative father that he is the natural father. The analogous situation in which the putative husband may be charged with a putative marriage rests upon the reputed wife's 'belief in the existence of a valid marriage.' (Vallera v. Vallera (1943), 21 Cal.2d 681, 684, 134 P.2d 761, 762 . . .)
The majority further rely on three decisions generally holding that concepts of equal protection require a state to accord equal death benefits or rights to the natural children of a deceased parent, whether the children were born in or out of wedlock. (Weber v. Aetna Casualty & Surety Co. (1972) 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768; Levy v. Louisiana (1968) 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 438; Arizmendi v. System Leasing Corp. (1971) 3 Cal.App.3d 730, 93 Cal.Rptr. 411.) This is a reflection of a growing enlightened policy designed to eliminate discriminations based on illegitimacy. Although I readily subscribe to the philosophies of those decisions they are not applicable for the reason that they deal with natural as distinguished from stepchildren. It does not follow that because equal protection prohibits discrimination within the class of the natural children of a decedent the Legislature cannot draw a rational classification which excludes stepchildren and other persons who are not lineal descendants of that decedent.
The stipulated facts in this case likewise would have established an estoppel against decedent, preventing him from avoiding an obligation to support Elizabeth. The relationship of father and child continued for a period of six years while decedent represented to Elizabeth that he [110 Cal.Rptr. 222] [515 P.2d 22] was her natural father. Elizabeth relied upon these representations and held a continuing belief that decedent was in fact her natural father. Inasmuch as this reliance foreclosed her from seeking support from her natural father, it was detrimental to her. (Cf. Clevenger v. Clevenger, supra, 189 Cal.App.2d 650, 671, 11 Cal.Rptr. 707.) Thus, at the time of his death, the decedent owed to Elizabeth an obligation to support her just as if she was his natural child. This right to support was terminated by the allegedly tortious acts of the defendants.
As pointed out by the dissent (post at p. 25 the court in Clevenger (pp. 664-665, 11 Cal.Rptr. p. 710) stated, 'if the facts would establish an express agreement for the maintenance of the child or an estoppel as to the child as we explain it, the husband would be liable for the child's support.' (Italics added.)
The injury suffered by Elizabeth was, therefore, identical in every respect to the injury suffered by her half-sister who is allowed to recover under section 377. Under these circumstances, it would be wholly inequitable to deny recovery to Elizabeth. Furthermore, prior to decedent's death, Elizabeth's physical and economic dependency upon him, as well as her economic expectations, were indistinguishable from those of the children involved in Levy, Weber, and Arizmendi, supra, whose rights were held to be protected by the equal protection clause. Thus, we find no rational reason for drawing a distinction between dependent stepchildren in Elizabeth's position and other dependent children, at least for the purpose of bringing an action for wrongful death. As in Levy, Weber, and Arizmendi, supra, to deny the child's right to recover for her loss would be an impermissible discrimination under the equal protection clause.
It has long been the rule that if 'the terms of a statute are by fair and reasonable interpretation capable of a meaning consistent with the requirements of the Constitution, the statute will be given that meaning, rather than another in conflict with the Constitution.' (County of Los Angeles v. Legg, 5 Cal.2d 349, 353, 55 P.2d 206, 207; San Francisco Unified School Dist. v. Johnson, 3 Cal.3d 937, 984, 92 Cal.Rptr. 309, 479 P.2d 669.) By interpreting section 377 to allow recovery by stepchildren such as Elizabeth, we can save the statute's constitutional validity while carrying out the statute's purpose of limiting the class of persons entitled to recover for the wrongful death of a human being. We hold, therefore, that the word 'heirs' as used in Code of Civil Procedure section 377 includes within its meaning a dependent stepchild such as Elizabeth under the circumstances of this case.
We do not hold, as asserted by the dissent, that the word 'heirs' in section 377 is to be replaced by a class of persons supposedly injured by the decedent's death or that dependency is the relationship that gives rise to the action for wrongful death. Nor is such a holding a part of the reasoning that leads to the conclusions reached herein. We conclude merely that where two half-sisters suffer an identical injury because of their relationship to the deceased, there is no rational distinction that could be drawn allowing recovery by one by not by the other. Thus, to deny recovery to Elizabeth, but not to her half-sister, solely upon a technical, albeit correct, legal definition of the word 'heirs' contravenes the mandate of the Equal Protection Clause.
[110 Cal.Rptr. 223][515 P.2d 23] The judgment of the trial court dismissing Elizabeth's wrongful death action is reversed and the cause remanded to the trial court with orders to deny defendant's motion for summary judgment and take such further proceedings as are necessary for the resolution of the action.
TOBRINER, MOSK and KAUS, JJ., concur.
Assigned by the Chairman of the Judicial Council.
WRIGHT, Chief Justice (dissenting).
I dissent from both the result and reasoning of the majority views.
The majority concede the well-settled rule in California 'that the right to bring an action for the wrongful death of a human being is limited to the persons described in Code of Civil Procedure section 377.' (Ante, p. 19.) That section describes 'heirs or personal representatives' as the only persons who may maintain an action for damages for the wrongful death of a decedent. The majority, in order to reach the result that a minor child neither related to nor adopted by the decedent may also bring such an action, propose to modify the statute in two significant respects: (1) They would first replace the class of persons limited to 'heirs' with a class limited to those who are 'injured' by reason of the decedent's death, thus markedly altering the legislative limitation; and (2) they would then impose on the decedent, had he survived, a heretofore nonexistent responsibility for the support of a stepchild similar to that of a natural or adopted child. This would have the effect of bringing such stepchild within the class of those injured by the death of the stepparent and, pursuant to the modification, accord to the stepchild a right of action for the decedent's wrongful death.
It is the first of the two-step modification to which I take particular exception. If that first step could be taken and the fact of 'injury' as defined by the majority is indeed the relationship which gives rise to a wrongful death action, I would not argue against a rationale which required a tortfeasor who caused the death of a putative father to bear some liability to a child who, in a proper case, was entitled to support on principles of contract or estoppel. Whether a father's obligation of support arises out of the relationship of father and natural child or is dependent upon some other principle of law, the wrongful death of the father, putative or otherwise, would be damaging economically and emotionally to the child. To deny such a putative child the right of recovery while affording it to a natural child might well be an unwarranted classification and a denial of the equal protection of the laws. But this is not our case as the fact of 'injury' cannot be substituted for an heirship relationship.
The majority, in reliance on irrefutable authority, concede, as they must, that 'if the word 'heirs' in section 377 were construed in accordance with the statutes of succession' the plaintiff could not maintain an action. Ignoring the clear and unambiguous language of section 377 and the unchallenged meaning of the word 'heirs,' the majority hold that the plaintiff must be included within section 377 as she suffered an 'injury' arising out of an obligation of support comparable to that which a decedent might have owed to an individual who, upon the former's death, became a natural heir. Nowhere, however, does the statute mention injury or injury based on support or dependency.
As sole support of their rationale the majority unjustifiably, I submit, rely on a [110 Cal.Rptr. 224] [515 P.2d 24] quotation in Redfield v. Oakland C. S. Ry. Co. (1897) 110 Cal. 277, 290, 42 P. 822, 826, as follows: '[T]he word 'heirs' in the statute is intended to limit the right of recovery to a class of persons who, because of their relation to the deceased, are supposed to be injured by her death.' (Ante, p. 20.) No reasonable reading of Redfield supports an argument that the word heirs is intended to include anyone who, because of a particular relationship to the deceased, merely suffers some injury by reason of decedent's death. The question in that case was whether natural children were required to be in a position to actually inherit from their deceased mother in order that they might qualify as heirs within the meaning of section 377. In holding that it was not necessary for such children to be entitled to receive any share of the decedent's estate, this court noted, inter alia, that a recovery in a wrongful death action was not a recovery of a portion of the estate or for the injuries inflicted on the decedent, but rather for injuries actually suffered by the heirs of the decedent by reason of the latter's death. It was in this context that the court spoke of those who were 'supposed to be injured' by the decedent's death. It is particularly significant that in so speaking the court referred only to heirs who were supposed to be injured. The majority now would eliminate the statutory requirement recognized in Redfield that a wrongful death action can be maintained only by a person who, in addition to having suffered some injury, must also be an heir.
Other than personal representatives, who can assert only representative rights (see Slaughter v. Goldberg, Bowen & Co. (1951) 26 Cal.App. 318, 147 P. 90), the statute provides a right of action only for 'heirs.' The heirs' right of action is not predicated on a dependency relationship--an heir who is not a dependent is equally authorized with one who is a dependent to bring a wrongful death action although the amount of the recoveries may be different. (See Syah v. Johnson (1966) 247 Cal.App.2d 534, 55 Cal.Rptr. 741.) Likewise, one who is a dependent but not an heir is not entitled to maintain an action. (Evans v. Shanklin (1936) 16 Cal.App.2d 358, 60 P.2d 554.) As the class of persons with whom section 377 deals is thus heirs, it avails plaintiff nothing if she is able to establish that concepts of equal protection require that she be included as one who has suffered an injury because she was a dependent of decedent during his lifetime. No claim is or reasonably court be made that equal protection concepts require that she is entitled to be included as an heir.
The majority are persuaded to their conclusions by distilling from section 377 a legislative purpose to compensate those in a position of dependency for the injury or pecuniary losses they would suffer by reason of the death of the individual who had furnished support. The ascertainment of a legislative purpose is often a critical factor in the construction to be accorded a statute when it is to be applied in particular circumstances. But when by clear language the Legislature has foreclosed the need for construction we are bound by its language. The word 'heirs' does not require construction but, apparently recognizing that it does not, the majority seek to substitute for such legislatively declared class of persons an indefinite and, depending upon the circumstances of each case, a varying class consisting of persons who, because of some dependency status are injured by decedent's death. The majority would then define that class by looking for a legislative purpose which would mandate the inclusion of plaintiff on equal protection grounds. Until now, however, our courts have not declared a legislative purpose which would mandate such an inclusion; in fact, they have held directly to the contrary.
In a case indistinguishable in principle, an elderly and indigent mother, entitled pursuant to statutory law to support from her adult son, sought to recover in a wrongful death action from those responsible for the son's death. (Evans v. Shanklin, supra, 16 Cal.App.2d 358, 60 P.2d 554.) [110 Cal.Rptr. 225] [515 P.2d 25] The plaintiff, however, was not an heir of the decedent as upon his death he also left surviving him two adult sons and an estranged wife whom he had not supported 'for a long time.' Plaintiff there contended, as the majority would now hold, 'that the intent of the legislature, as expressed in [Code of Civil Procedure section 377], was to provide a right of action to each member of the family who was receiving or could have a right to expect to receive comfort, support and protection from the deceased.' (Id., at pp. 360-361, 60 P.2d at p. 555.) The court examined and reviewed the law for an expression of legislative intent in support of the plaintiff's contention. Relying on this court's expressions of views in Redfield v. Oakland C. S. Ry. Co., supra, 110 Cal. 277, 42 P. 822 and other cases (Estate of Riccomi (1921) 185 Cal. 458, 460, 197 P. 97; Ruiz v. Santa Barbara Gas etc. Co. (1912) 164 Cal. 188, 191-192, 128 P. 330), the court in Evans held that 'heirs' meant only 'heirs,' 1 stating: 'though we might feel that considerations of social security and social justice should dictate that a mother situated as was the plaintiff mother here, living with and dependent upon her son for support and maintenance, remembering the son's separation from the latter's wife, coupled with his legal obligation during his lifetime under the provisions of section 206 of the Civil Code to maintain his mother, should have a right to bring an action for damages occasioned by the wrongful death of her son; nevertheless, the decision of the legislature as to how far it will extend the right is conclusive . . .. The remedy . . . must come from the legislature.' (16 Cal.App.2d at pp. 362-363, 60 P.2d at p. 556, italics added.)
Despite the strong appeal to the Legislature, both by the court and by the unusual equities appearing in Evans, the Legislature failed to respond in any manner which would warrant a broader interpretation of 'heirs' by the time the cause of action herein arose. In the exercise of a judicial function, we should not assume the prerogative of making changes in a statute when the Legislature, by strong implication, has elected not to do so. 2
The majority attempt to bring the minor within the rationale of Clevenger v. Clevenger (1961) 189 Cal.App.2d 658, 11 Cal.Rptr. 707. That case is not in point. It involved claims for support asserted in divorce proceedings in behalf of an illegitimate child of the wife against her husband. It was urged that because he recognized and supported the child as his own from the time of birth he was estopped from avoiding liability for providing continuing support for the child. The court held that the record did not establish an estoppel but noted wherein an obligation for support based on such a concept might lie. It stated: '[I]f the facts would establish an express agreement for the maintenance of the child or an estoppel as to the child . . . the husband would be liable for the child's support.' (Id., at pp. 664-665, 11 Cal.Rptr. at p. 710.)
Whatever the impact of Clevenger the issue there was the right of support [110 Cal.Rptr. 226] [515 P.2d 26] against a putative father. Although that right might give rise to an appropriate claim against the estate of such a father upon his death, as in the case of particular property settlement agreements providing for support of a former wife continuing after the death of her spouse, it would not confer upon the child or such a former wife the status of an heir as that status is determined only by law. (Kunakoff v. Woods, supra, 166 Cal.App.2d 59, 62, 332 P.2d 773.) 3
In the instant case the equities favoring relief for the minor are much less compelling than they were in Evans v. Shanklin, supra, 16 Cal.App.2d 358, 60 P.2d 554. In that case the plaintiff was a 67-year-old widow without any means of self support. As previously stated, the law imposed a right of support from her son, the decedent. She was thus a dependent of the decedent who had provided her only means of support. Here the minor child is a dependent of her mother who survives and, we may presume, has been compensated for the wrongful death of the decedent, her husband. There was no established legal relationship between the decedent and the minor which required that the decedent support her. Whether she should be given a cause of action for his wrongful death is a matter of legislative judgment.
Although I commend the majority for their concern I must reject as untenable any rationale which substitutes our own for a legislative judgment when it infringes no constitutional limitation. No constitutional issues are presented by legislation which provides that actions for wrongful death be limited to heirs or personal representatives. In my opinion, the minor, like any number of other persons who, in appropriate cases, may suffer injury and economic and other personal loss by the death of a particular individual, is without legal recourse absent specific statutory authorization.
I would affirm the judgment of dismissal.
McCOMB, and SULLIVAN, JJ., concur.
[*] See 12 Cal.3d 115 for subsequent opinion in case that appeared on pages 323 to 336.
'We emphasize a second limitation on the husband's liability: the representation must be of such long continuance that it frustrates the realistic opportunity of discovering the natural father and truly establishes the paternal relationship of the putative father and the child. We not discuss here a relationship of some passing days; this relationship continued over the span of a decade.'
Contrary to the inference drawn by the dissent in quoting the above sentence, the court held that the pleadings failed to establish an estoppel, not because of the absence of an express agreement to support the child (which was posited as an alternative to estoppel as a ground for liability), but because the plaintiff-child, not having originally relied upon an estoppel theory, did not plead the child's acceptance of representations by the putative father that he was in fact by child's natural father. (Clevenger v. Clevenger, supra, 189 Cal.App.2d 658, 673-675, 11 Cal.Rptr. 707.)
The stipulated facts in this case, in addition to establishing the requisite reliance, also state that the decedent had orally agreed to assume the full obligation of father and parent to Elizabeth. (Ante, p. 19.) Thus, there is absolutely no basis for the statement by the dissent that the record fails to support the existence of Elizabeth's right to support.
The dissenting opinion ignores the equal protection principle upon which this opinion is based. Instead, the dissent assumes that since the classification was intended by the Legislature it is proper. This, we submit, wholly disregards the contemporary function of the Equal Protection Clause as limitation upon the types of permissible legislative classifications.