Johnsen v. Johnsen
Filed 5/15/06 Johnsen v. Johnsen CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
GLORIA JOHNSEN, Plaintiff and Respondent, v. BRIAN JOHNSEN, Defendant and Appellant. | D045970 (Super. Ct. No. GIC817922) |
APPEAL from a judgment of the Superior Court of San Diego County, Joan M. Lewis, Judge. Affirmed.
Brian Johnsen appeals from a judgment that he was not entitled to participate in any recovery in his stepmother's action for his father's wrongful death. For the reasons we explain below, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On September 16, 2003, Gloria Johnsen filed a wrongful death lawsuit alleging that her husband, Bruce Johnsen, was struck and killed by a vehicle driven by Marc Pescadera on September 17, 2002. Gloria also named as nominal defendants Bruce's two adult sons from a former marriage, Brian and Kevin Johnsen.[1] The joinder of Kevin and Brian was apparently based on case law creating a mandatory duty to join all known heirs in a wrongful death action. (See Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801 (Ruttenberg).)[2] At all relevant times, Brian has been an inmate on death row at San Quentin Prison as the result of a murder conviction.[3]
Brian was personally served with the summons and complaint on November 20, 2003. After retaining legal counsel for the purpose of negotiating a settlement, Brian withdrew from a proposed settlement and attempted to file an answer to the complaint through a motion for leave to file a late answer, in which he stated that he had been served with " court papers" but could not respond because he was placed on 90 days' forced property control by the prison.
Brian also submitted a " motion for dismissal as named defendant for failure to provide proper legal service of complaint." [4] Brian argued that Gloria " failed to fill in the 'notice to person served' section on the bottom section of [the] summons." Specifically, Brian was referring to the portion at the bottom of the summons containing boxes to be checked indicating if the person is being served (1) " as an individual defendant," (2) as a person sued under a specified fictitious name, or (3) on behalf of another defendant, such as a business entity, conservatee or minor. Brian argued that because service was improper, the court did not have personal jurisdiction over him.
At a hearing on March 30, 2004, Gloria was ordered to re‑ serve Brian with the summons and complaint, and with a statement of damages. Brian was again personally served on April 8, 2004. The summons served on that date had the box checked indicating that Brian was served as an individual defendant.
Brian's answer was filed on September 2, 2004. After Brian filed a " request for hearing date on the attached motions" and a " request for new hearing," which attached among other things his earlier motion to dismiss for improper service of summons, the trial court held a hearing on September 24, 2004, with Brian appearing by telephone. The trial court denied Brian's motion to dismiss for improper service of summons, construing it as a motion to quash service of summons.
Brian next filed a document titled " notice to court of plaintiff's failure to properly join Brian and Kevin [] in wrongful death action, and dismissal motion." In that filing, Brian argued that Gloria failed to join all heirs in her wrongful death action. Brian argued that he and Kevin were " both named by [Gloria] as nominal defendants in the herein action, and thus, were never properly joined in said action." The trial court denied Brian's motion.
A bench trial commenced on November 15, 2004, to determine the respective rights of Gloria and Brian to share in the recovery for Bruce's wrongful death.[5] Brian appeared by video conference. After one day of proceedings, the trial was adjourned until December 20, 2004. In the interim, Brian retained an attorney who represented him during the remainder of the trial and who filed a request for judicial notice on Brian's behalf, requesting that the trial court take judicial notice of portions of the Family Code of the Philippines. The request attached a purported copy of portions of that code from an Internet Web site (< http://www.weddingsatwork.com> ) which, as printed, was partially cut off at the right margin. The record contains no indication of the trial court's ruling on Brian's request to take judicial notice. However, the trial court minutes indicate that the court twice discussed the request for judicial notice with Brian's attorney.
Following the trial, the court entered judgment, ruling that " Brian [] is entitled to no damages, economic or non-economic as the result of the wrongful death of Bruce," and " Gloria . . . is entitled to the entire amount of damages recovered in respect of the wrongful death of Bruce [], subject to any agreement she may have with [Kevin]." The judgment recited the finding, among others, that Brian " was not a credible witness," and that Brian and Bruce " did not have a relationship prior to Bruce['s] death."
Brian appeals from the judgment, arguing that the trial court erred (1) by denying his motion to quash service of summons, (2) by denying his motion to dismiss based on Gloria's failure to properly join him in the lawsuit as a plaintiff, and (3) by purportedly denying his request for judicial notice of the Family Code of the Philippines.[6]
DISCUSSION
A
The Trial Court Properly Denied Brian's Motion to Quash Service of Summons
We first address Brian's claim that the trial court erred in denying his motion to quash service of summons. In the trial court, Brian argued that the summons was defective because it was not completely filled out by checking the appropriate box to indicate that Brian was served as an individual defendant. Brian's position on appeal is less precise. He argues " [t]here is no proof of service of complaint and summons on file or issued to the defendant in this case," and " [t]he plaintiff's attempts to mail the complaint and summons, or whatever means of delivery was used, was not in compliance with the code sections for service . . . ." (Capitalization omitted.)
Based on our review of the record, we conclude that there is no merit to Brian's argument that he was not properly served. The record shows that Brian was personally served twice. Proofs from both of those services are in the record. If Brian intends on appeal to reiterate his argument that the summons was not completely filled out because the box indicating that he was served as an individual defendant was not checked, that argument fails because that box was checked on the second summons served on Brian.
Further, by making a general appearance in this action, Brian waived his right to argue that summons was not properly served. Code of Civil Procedure section 410.50, subdivision (b), states that " [a] general appearance by a party is equivalent to personal service of summons on such party." " [A] party who seeks relief on any basis other than a motion to quash for lack of personal jurisdiction will be deemed to have made a general appearance and waived all objections to defects in service, process, or personal jurisdiction." (Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 52.) Here, Brian made a general appearance before a ruling on his motion to quash service of summons, by, among other things, filing a motion for leave to file a late answer (in which he admitted he had been served) and then filing an answer. (See id. at p. 53 [" if a defendant seeks any affirmative relief on the merits, the application may be deemed a general appearance" ]; Code Civ. Proc., § 1014 [" A defendant appears in an action when the defendant answers" ].)
The Trial Court Did Not Err in Denying Brian's Motion to Dismiss on the
Ground of Failure to Join Him as a Plaintiff
We next turn to Brian's contention that the trial court erred in denying his motion to dismiss, which was premised on the argument that Gloria had failed to join him in the action. On appeal Brian argues that " when [Gloria] attempted to join [Brian and Kevin] as nominal defendants, [Gloria] failed to properly join said defendants . . . and thus, statutory requirements for proper legal joinder were never met." As we explain, we reject Brian's argument because he was properly joined in the action and because improper joinder does not, in any event, provide a basis for dismissal.
In a cause of action for wrongful death, a plaintiff has a mandatory duty to join all known heirs. (See Ruttenberg, supra, 53 Cal.App.4th at p. 807.) This is because " wrongful death actions are considered to be 'joint, single and indivisible,' " meaning that (1) " 'all heirs should join or be joined in the action and that a single verdict should be rendered for all recoverable damages' " ; (2) " 'only one action for wrongful death may be brought whether, in fact, it is instituted by all or only one of the heirs' " ; and (3) " 'there cannot be a series of suits by heirs against the tortfeasor for their individual damages.' " (Ibid.)
The failure to join all known heirs is not a jurisdictional defect. Because " [t]he wrongful death statute is 'a procedural statute establishing compulsory joinder and not a statute creating a joint cause of action[,]' strict compliance with the statutory procedure is not jurisdictional in the sense that a failure to comply with statutory requirements requires reversal of a judgment. [¶] . . . The superior court has jurisdiction to try a wrongful death action even absent joinder of one or more heirs of the decedent." (Ruttenberg, supra, 53 Cal.App.4th at pp. 807-808, citations omitted.) Although " [p]laintiffs may bring a wrongful death action without joining all known heirs, and the court may try that action, . . . in such a case plaintiffs proceed at their peril" because " the wrongfully omitted heir may bring an action against the heir who brought the wrongful death action, in order to recover damages for the omission." (Id. at pp. 809, 810.)
As an initial matter, we reject Brian's attempt to have the action dismissed based on improper joinder because, as we have discussed, the joinder requirement is not jurisdictional. Instead, it merely creates a possible liability of the plaintiff to the omitted heirs. (Ruttenberg, supra, 53 Cal.App.4th at pp. 807-810.)
More importantly, there is no factual basis for Brian's assertion that he was not properly joined in the action. Brian was named in Gloria's complaint and was served as a nominal defendant. Being named as a nominal defendant gave him the status of a plaintiff in the action. " If an heir refuses to participate in the suit as a plaintiff, he or she may be named as a defendant so that all heirs are before the court in the same action. An heir named as a defendant in a wrongful [death] action is, in reality, a plaintiff." (Ruttenberg, supra, 53 Cal.App.4th at p. 808, italics added.)[7] Brian took advantage of this status by fully litigating his claim to a share of the wrongful death recovery, including his participation in a trial on that issue. Thus, because Brian was joined in the case and was fully able to participate in the litigation, Brian has no claim against Gloria for any alleged failure to join him. (Watkins v. Nutting (1941) 17 Cal.2d 490, 498 [" it was sufficient that the heirs were made parties to the action, in some capacity, so that their rights might be determined in it" ].)
C
Brian Fails to Support His Argument That the Trial Court Erred by Refusing to
Take Judicial Notice of the Family Code of the Philippines
Brian's final contention is that the trial court erred by denying his request to take judicial notice of the Family Code of the Philippines. Brian apparently made the request in connection with his attempt to establish that Gloria was not legally married to Bruce because of Gloria's prior marriage or marriages in the Philippines, where Brian claims divorce is not legal, and that Gloria was thus not entitled to recover in a wrongful death action.[8]
We reject this argument because Brian has not provided us with a record sufficient to review the issue. The record contains no indication of how the trial court ruled on the request for judicial notice.[9] " Where no reporter's transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters." (Estate of Fain (1999) 75 Cal.App.4th 973, 992.) " Where the party fails to furnish an adequate record of the challenged proceedings, his claim on appeal must be resolved against him." (Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28, 46.) This rule exists because " ' " [a] judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown." ' " (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) Here, because the record contains no information about the trial court's ruling on Brian's request for judicial notice, we presume the ruling to be correct, and we reject Brian's argument to the contrary.
We further reject Brian's challenge to the trial court's ruling on the request to take judicial notice, because any error by the trial court in failing to take judicial notice would not be prejudicial to Brian. Brian relied on the Family Code of the Philippines in an attempt to show that Gloria was not married to Bruce and thus could not recover for wrongful death. However, Gloria's ability to recover had no bearing on the trial court's finding that Brian was not entitled to share in any recovery. The trial court ruled against Brian based on the finding that Brian had no relationship with his father. Accordingly, because the request to take judicial notice of the Family Code of the Philippines was relevant only to Brian's attempt to discredit Gloria, but not to establish his own basis to recover, the outcome of the trial as to Brian would not change even if we concluded that the court should have taken judicial notice. (See Code Civ. Proc., § 475 [no judgment shall be reversed by reason of any error unless the error was prejudicial and a different result would have been probable without such error].)
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
BENKE, J.
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[1] For purposes of clarity, we refer to members of the Johnsen family by their first names and intend no disrespect.
[2] The complaint alleged as to Brian: " Defendant Brian [] is an adult son of decedent who was not residing with decedent prior to the death of decedent. Said defendant has not consented to be joined as a plaintiff in this action. On information and belief, [Gloria] alleges that said defendant claims damages against the remaining defendants herein (except Kevin []) for pecuniary loss resulting from the loss of society, comfort, attention, services, and support of decedent . . . ."
[3] Kevin has entered into settlement with Gloria.
[4] The date that the motion for dismissal was submitted is unclear from the record. The only copy in the record is an unfiled copy dated February 13, 2004, which is attached as an exhibit to another document.
[5] According to Gloria, Pescadera tendered the limit of his insurance policy shortly after the accident, and funds from underinsured motorist insurance coverage were also available. The wrongful death lawsuit also sought to recover from the City of San Diego for dangerous condition of public property.
[6] At the May 12, 2006 oral argument of this appeal, Brian for the first time challenged Gloria's October 25, 2005 motion to augment the record. Brian's challenge is untimely. We granted the motion to augment the record as unopposed on November 16, 2005.
[7] Code of Civil Procedure section 382 provides in pertinent part: " If the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint."
[8] The record contains no evidence concerning any past marriages by Gloria, but based on statements in Brian's appellate brief, we surmise that he attempted at trial to develop such evidence.
[9] Although Brian designated portions of the reporter's transcript, the superior court denied Brian's request for a waiver of fees and costs associated with preparation of a reporter's transcript under California Rules of Court, rule 4(c), indicating that Brian should instead apply directly to the Court Reporters Board of California, if eligible, to receive payment or reimbursement of the reporter's fee. The record contains no indication that Brian took steps to do so. On April 15, 2005, we issued an order indicating that Brian was in default for failure to timely deposit costs for preparing the portions of the reporter's transcript that he had designated. On May 6, 2005, we ordered that the appeal would proceed based on the clerk's transcript only.
