Kwang Hoon Kim v. Song Yi

A trial date was set. Prior to trial, the Yi parties moved in limine to have the matter heard by the court without a jury, contending that there was no right to a jury trial. The Kim parties opposed the motion, as did Kum Soon Park. The trial court granted the Yi parties’ motion, held a court trial, and awarded $721,296 to the Yi parties, $45,023 to Kum Soon Park, and $263,680 to the Kim parties.^[1] In its statement of decision, the trial court explained each award with reference to the evidence concerning the relationship, economic and otherwise, between each decedent and his heirs. (See Krouse v. Graham (1977) 19 Cal.3d 59 , 72 [ 137 Cal.Rptr. 863 , 562 P.2d 1022 ]; Allen v. Toledo (1980) 109 Cal.App.3d 415 , 423 [ 167 Cal.Rptr. 270 ].) The trial court then reduced the Kim parties’ award by 20 percent, based on Andy Kim’s comparative negligence.

Kum Soon Park and the Kim parties have appealed, contending that they were entitled to a jury trial. We hold that there is no right to a jury in these circumstances.

The right to sue for wrongful death damages is a creature of statute, and exists only so far and in favor of such persons as the Legislature has provided. (Justus v. Atchison (1977) 19 Cal.3d 564 , 575 [ 139 Cal.Rptr. 97 , 565 P.2d 122 ], disapproved on another ground in Ochoa v. Superior Court (1985) 39 Cal.3d 159 , 171 [ 216 Cal.Rptr. 661 , 703 P.2d 1 ].) The legislative provisions are found in Code of Civil Procedure^[2] section 377.60 et seq. In section 377.61, the Legislature has provided that in wrongful death actions, “damages may be awarded that, under all the circumstances of the case, may be just .... The court shall determine the respective rights in an award of the persons entitled to assert the cause of action.” (Italics added.)^[3]

Of course, neither Smith, Estate of Kuebler nor Watkins was presented with the issue before us here. Instead, each case considered issues arising from the rule that there can be but one joint indivisible action for wrongful death. (Smith v. Premier Alliance Ins. Co., supra, 41 Cal.App.4th at p. 696.) The quoted statements are, as appellants assert, dicta.

Canavin v. Pacific Southwest Airlines, supra, 148 Cal.App.3d 512 , the case the trial court relied on, is more on point. In that case, the wrongful death plaintiffs were the decedent’s wife and children. The action was tried to a jury, which returned an unapportioned judgment against the tortfeasor. On appeal, the plaintiffs unsuccessfully contended that the court denied them their right to a jury trial when it failed to have the jury decide the amount of compensation each heir was due.

Canavin found that the judicial apportionment provision (then in section 377) did not improperly infringe on the heirs’ right to jury trial.* **^[4] The court wrote that “[t]he 1949 statutory amendment to provide for judicial apportionment appears based upon legislative acknowledgment of the respective heirs’ competing interests in the lump-sum award. The amendment reflects a belief it was more desirable not to add to the jury’s burden the task of apportioning the damages (see [Killion,] Wrongful Death Actions [In California, Some Needed Amendments (1937) 25 Cal. L.Rev. 170 ], at p. 184), and the practical consideration the trial judge had already heard the evidence of the pecuniary loss as to each heir and thus was the most desirable party to apportion the damages. (Ibid.; see also, Changaris v. Marvel [(1964)] 231 Cal.App.2d 308 , 313 [ 41 Cal.Rptr. 774 ].)” (Canavin v. Pacific Southwest Airlines, supra, 148 Cal.App.3d at p. 533.) The court concluded that the “legislative delegation of

Canavin supported its conclusion with an analysis of the effect of judicial apportionment on the heirs of a single decedent. The court noted the legislative intent that a wrongful death action would be a means for providing for the decedent’s family, and reasoned that apportionment by the court did not unconstitutionally deprive an heir of a right to a jury because the lump-sum award reflected the fact that the family unit suffered as a whole and that the award would ensure the continuation of the family as a whole. (Canavin v. Pacific Southwest Airlines, supra, 148 Cal.App.3d at pp. 533-534.)

That consideration does not apply here, where more than one family is concerned, and that is the reason appellants advance for distinguishing Canavin.^[5] But even if Canavin is distinguishable on that ground, we are left with section 377.61, which provides that the court must apportion the award.

Appellants seek to avoid section 377.61 by arguing that it is an “intrafamily” statute which only applies when the competing claims are between the heirs of a single decedent. The problem with the argument is that the statute contains no such limit, and appellants cite nothing in, or outside, the statute which would allow us to import such a limit. We are bound by the statute. As Canavin observed, “Because the cause of action for wrongful death is wholly statutory in origin, we are accordingly bound unless there exists a constitutional basis for departing from the clear expression of legislative intent.” (Canavin v. Pacific Southwest Airlines, supra, 148 Cal.App.3d at p. 531.)

Appellants do raise a constitutional argument. They point out that in apportioning damages the trial court decided issues of fact, and contend that they have a constitutional right to a jury trial on issues of fact. In legal support, they cite Grafton Partners v. Superior Court (2005) 36 Cal.4th 944 [ 32 Cal.Rptr.3d 5 , 116 P.3d 479 ] and De Castro v. Rowe (1963) 223 Cal.App.2d 547 [ 36 Cal.Rptr. 53 ]. Those cases decide issues relating to waivers of jury trial. They include language on the importance of the right to a jury trial, but tell us nothing about the issue before us here. They certainly do not establish that every issue of fact must be decided by a jury, and that is not the law.