Nieto v. City of Los Angeles

Opinion

Introduction

Plaintiff Irene Nieto appeals from an order of dismissal entered after the trial court sustained without leave to amend the demurrer of defendant City of Los Angeles to her complaint asserting causes of action for quasi-intentional interference with contractual relations, negligence and breach of warranty. Defendant based its demurrer on the ground that the complaint in reality stated a cause of action for wrongful death and plaintiff lacked standing, pursuant to Code of Civil Procedure section 377, to bring such an action.

Statement of Facts

On demurrer, all material facts properly pleaded and all reasonable inferences which can be drawn therefrom are deemed admitted. (Glaire v. La Lanne-Paris Health Spa, Inc. (1974) 12 Cal.3d 915 , 918 [ 117 Cal.Rptr. 541 , 528 P.2d 357 ]; Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695 , 713 [ 63 Cal.Rptr. 724 , 433 P.2d 732 ].)

Plaintiff’s complaint discloses the following express and reasonably inferred facts: On June 27, 1980, plaintiff gave birth to a daughter. The decedent, Kenneth Randolf Ramirez, publicly acknowledged that he was the natural father of this child and provided financial and emotional support to the child in that capacity. Sometime prior to October 16, 1980, plaintiff and decedent entered into an oral contract in which they promised to marry one another on October 20, 1980.

On October 16, 1980, the decedent was wrongfully and recklessly shot and killed by Los Angeles Police Officer Wendell Rhinehart while Officer Rhinehart was acting in the course and scope of his employment. As a result of Officer Rhinehart’s actions, the decedent was forced to breach his contract of marriage,

Contentions

Plaintiff concedes that her complaint is, in essence, one for wrongful death and further concedes that she is not among the specifically enumerated classes of persons upon whom Code of Civil procedure section 377 confers standing to sue. Nonetheless, plaintiff contends that she must be afforded standing to sue, in that a literal reading of section 377 denies her equal protection of the laws by invidiously discriminating against a class no less dependent on the decedent than those enumerated and restricting the exercise of her fundamental rights to privacy and freedom of association. For the reasons set forth below, we cannot agree.

Discussion

I

t is established that the right to privacy is fundamental in nature and encompasses “ ‘ “Our freedom to associate with the people we choose. ” ’ ” (City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123 , 130 [ 164 Cal.Rptr. 539 , 610 P.2d 436 , 12 A.L.R. 4th 219 ].) “Under the traditional two-tier test of equal protection, a discriminatory legislative classification that impairs fundamental rights will be subject to strict scrutiny by the courts . . . .” (Hawkins v. Superior Court (1978) 22 Cal.3d 584 , 592 [ 150 Cal.Rptr. 435 , 586 P.2d 916 ].) Plaintiff argues that Code of Civil Procedure section 377 serves to penalize her exercise of her right to freely associate with the person of her choice and hence requires the application of strict scrutiny. We disagree.

In support of her argument, plaintiff places reliance principally on two cases: City of Santa Barbara v. Adamson, supra, 27 Cal.3d 123 , 130, which held that an ordinance restricting the number of persons unrelated by blood, marriage or legal adoption who may live together “as a single housekeeping unit” penalized the exercise of the right to privacy guaranteed by article I, section 1 of the state Constitution, and Bay Area Women’s Coalition v. City and County of San Francisco (1978) 78 Cal.App.3d 961 [ 144 Cal.Rptr. 591 ], which held that an ordinance establishing a residency requirement to hold local office penalized the exercise of the fundamental right to travel. In our view, plaintiff’s reliance is misplaced.

In contrast to the tensions created by the ordinances at issue in Adamson and Bay Area Women’s Coalition, Code of Civil Procedure section 377 simply confers on certain classes of persons the right to sue for money damages resulting

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It is well established that equal protection of the laws requires only that persons similarly situated receive like treatment; it does not preclude the Legislature from drawing distinctions among different groups of individuals. (Estate of Ginochio (1974) 43 Cal.App.3d 412 [ 117 Cal.Rptr. 565 ].) Plaintiff argues that the legislative amendment of Code of Civil Procedure section 377 in 1975 and the decision in Marvin v. Marvin (1976) 18 Cal.3d 660 [ 134 Cal.Rptr. 815 , 557 P.2d 106 ] have destroyed any previous rationale for holding that married persons and unmarried persons living as “non-marital” or “meretricious” spouses are not similarly situated. Again, we disagree.

In 1975, the Legtislature amended section 377 to add subdivision (b), paragraphs (1) and (2). (Stats. 1975, ch. 334, § 1, p. 784.) Subdivision (b) and paragraph (2) thereof provide: “For the purposes of subdivision (a), ‘heirs’ means only the following:

“(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. As used in this paragraph, ‘putative spouse’ means the surviving spouse of a void or voidable marriage who is found by the court to have believed in good faith that the marriage to the decedent was valid . ” Dependent parents “who are not heirs” were first afforded standing in the 1968 amendment to section 377. (Stats. 1968, ch. 766, § 1, p. 1488.)

With one exception, the categories enumerated in subdivision (b), paragraph (2) of section 377 represent no startling departure in the law. It has long been established that putative spouses, defined as persons who in good faith enter into marriages which later prove to be void or voidable, take as heirs under Probate Code section 201 and hence have standing to sue under section 377.

The sole exception is the reference to stepchildren in paragraph (2) of section 377, subdivision (b). Steed v. Imperial Airlines, supra, 12 Cal.3d 115 held that the exclusion of stepchildren from section 377 did not violate equal protection guarantees, notwithstanding a child’s dependency on the stepparent for support. In so holding, the court noted that a stepchild was not entitled to succeed to the deceased stepparent’s estate, but at best was entitled to support on principles of contract or estoppel; accordingly, the court found the legislative classification of “heirs” to be reasonable. (Id., at p. 123.)

Section 2 of Statutes 1975, chapter 334, provides in pertinent part: “. . . It is the further intent of the Legislature that the amendment to section 377 . . . including dependent stepchildren within the class of persons who may maintain an action for wrongful death alter the rule enunciated in Steed v. Imperial Air Lines (1974), 12 Cal.3d 115 .” This is an unequivocal legislative declaration of intent: At least as to dependent stepchildren, the Legislature intended a contractual support obligation to have the same force and effect as natural heirship or statutory support obligations. From our review of the history of section 377, we conclude that the hallmark of the statute generally is not, as plaintiff argues, dependency; rather, it is the enforcement of obligations. Therefore, a classification which excludes some dependents is not necessarily unreasonable.

Moreover, we perceive nothing in Marvin v. Marvin, supra, 18 Cal.3d 660 which requires the conclusion that a classification which excludes plaintiff is unreasonable. Marvin simply established the right of unmarried cohabitants to incur implied or express contractual obligations of support so long as the consideration therefor was not solely sexual services. While Marvin held such obligations were enforceable in equity, it did not purport to broaden the definition of heirs any more than did Steed.

Unmarried cohabitants with enforceable contracts for support clearly differ as a class from spouses and putative spouses. Spouses receive special

Nor does the Legislature’s earlier inclusion of a contractual-obligation category, stepchildren, require the inclusion of unmarried cohabitants. Children are a particularly vulnerable class in their dependency; in no manner are they similarly situated with unmarried adults who choose to cohabit, whatever level of dependency such adults contract for. It is entirely reasonable for the Legislature to draw a distinction between dependent children and dependent unmarried cohabiting adults.

That the Legislature drew just such a distinction is manifest in the amendment to section 377 which followed the Marvin decision. In 1977, the Legislature added paragraph (3) to section 377, subdivision (b). (Stats. 1977, ch. 792, § 1, p. 2436.) Paragraph (3) affords standing to any dependent child who resided in the decedent’s household for the previous 180 days or depended on the decedent for more than one-half of his or her support. With this one act, the Legislature evinced a recognition that all dependent children are similarly situated and, by failing to respond to Marvin in the manner of Steed, an equal recognition of the distinction between such children and the adults affected by Marvin. In summary, we perceive no unwarranted classification and hence, no denial of equal protection of the laws.

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There remains the question of whether section 377, as presently worded, bears a rational relation to a legitimate state purpose. The question has been answered affirmatively in a series of recent cases of sound vitality. As noted in Vogel v. Pan American World Airways, Inc. (S.D.N.Y. 1978) 450 F.Supp. 224 , 226: “To begin with, the legislature could reasonably have concluded that the failure of meretricious spouses to adopt the responsibility of the marital vows and the legal obligation resulting from a formal marriage ceremony

The order is affirmed.

Hanson (Thaxton), J., and Dalsimer, J., concurred.

A petition for a rehearing was denied January 21, 1983.