Thursday, September 16, 2004
C.A. Upholds Limitations on Right to Sue for Wrongful Death
Court Rejects Argument That Statute Allowing Suits by Domestic Partners Is ‘Reverse Discrimination’
By DAVID WATSON, Staff Writer
A law allowing surviving members of same-sex domestic partnerships to sue for wrongful death does not violate the equal protection rights of partners of opposite sexes, this district’s Court of Appeal ruled yesterday.
Justice Earl Johnson, writing for Div. Seven, said that since they could marry if they chose to, unmarried cohabitants of opposite genders are not in the same situation as same-sex couples. That difference provides a rational basis for the distinction made under Code of Civil Procedure Sec. 377.60, which was amended effective in 2002 to allow domestic partners—along with spouses, children and some others—to maintain a cause of action for wrongful death, Johnson reasoned.
The justice said Los Angeles Superior Court Judge Karl Jaeger, since retired, properly ruled that Jack Holguin lacked standing to sue Jose Flores after Tamara Booth was killed in a traffic collision with a big rig truck driven by Flores. Holguin alleged that he and Booth had lived together for three years before her death in an “intimate and committed relationship of mutual caring.”
The domestic partnerships the Legislature permitted Californians to register beginning in 2000 are defined in those terms, but are limited to those of the same sex, or to couples one of whom is eligible for social security benefits based on age. In order to register, domestic partners must be jointly responsible for living expenses and meet several other qualifications.
Johnson noted that because the requirement of a caring relationship and the other qualifications are contained in separate subsections of Family Code Sec. 297, it “could be argued” that only the first qualification is definitional—that any two persons living together in such a relationship are by definition domestic partners.
“On further analysis, however,” Johnson wrote, “we conclude that in order to be a domestic partner entitled to sue for wrongful death an individual must meet the criteria of subdivisions (a) and (b).”
He noted that Family Code Sec. 299.5(a) provides that registering a domestic partnership entitles the partners only to those legal benefits “expressly provided to domestic partners in this division and any provision of law specifically referring to domestic partners.” That language, he suggested, “made—plain” the Legislature’s intent to limit the right to sue for wrongful death, along with other benefits, to those who meet all the requirements for registration and actually do register.
Turning to Holguin’s constitutional claim, Johnson declared:
“It is well settled under California law recovery for wrongful death is a legislatively created right and in creating such a right the Legislature is not required to extend it to every conceivable class of persons who might suffer injury from the death of another—.Thus California courts have found the equal protection clause does not stand in the Legislature’s way if it wants to deny a cause of action for wrongful death to the parent of a stillborn fetus, to a non-adopted stepchild, to a spouse whose marriage to the decedent has been dissolved, or to an adopted child for the wrongful death of her natural mother.”
The justice rejected Holguin’s contention that the statute was based on a gender or age classification and thus should be upheld only if necessary to further a compelling, or at least substantial, state interest.
“Such a heightened level of scrutiny is not required in the present case because the wrongful death statute does not discriminate against Holguin on the basis of his gender or age but on the basis of his marital status—unmarried with the right to wed,” Johnson explained.
“Holguin and Booth always had the right to marry. Holguin’s argument boils down to the claim the state discriminated against him on the basis of his gender, heterosexual orientation and age by giving him the legal option to marry which it denied to others on the basis of their gender and age. No case we know of has held the plaintiff was denied equal protection because he was a member of a class granted more advantages than the comparison class. We decline to adopt this new definition of ‘reverse discrimination.’”
Though some purportedly rational justifications for limiting wrongful death recovery to married couples, such as promoting and protecting the institution of marriage, “may be questioned,” the justice conceded, he said others were sufficient to survive rational basis scrutiny.
“The Legislature rationally could have concluded the survivors of same sex couples and couples with an aged member eligible for Social Security benefits are deserving of solicitude because they are as likely to suffer economic loss from the death of their partners as are spouses but, because of other statutory schemes, they are legally or practically prevented from marrying,” Johnson said. “Couples such as Holguin and Booth are not entitled to the same solicitude because the law did not prevent them from marrying.”
Upland attorneys Nicholas Rowley, Brian Brandt, and Daniel W. Rinaldelli represented Holguin on appeal. Kevin D. Smith and Jung Soo Chon of the downtown firm of Wood, Smith, Henning & Berman represented Flores.
The case is Holguin v. Flores, B168774.
Copyright 2004, Metropolitan News Company