Monday, October 22, 2018
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Child Has Standing to Sue for Wrongful Death Of Mother’s Boyfriend—Court of Appeal
By a MetNews Staff Writer
A child whose mother’s boyfriend died in an incident with the Los Angeles Sheriff’s Department has standing to sue the county for wrongful death, because the man—though not the boy’s biological father—raised him and held him out as his own, the Court of Appeal for this district has declared.
The opinion, by Acting Presiding Justice Laurie D. Zelon of Div. Seven, was filed on Oct. 1 and certified for publication on Thursday.
Los Angeles County Sheriff’s Deputy Ryan Rothrock and three other deputies responded to a call from Tamara Ford indicating that her son, Brian Pickett, was causing a disturbance and was possibly under the influence of drugs. The deputies restrained Pickett, who continued to threaten them; Rothrock fired his taser at the man; paramedics who arrived on the scene pronounced him dead.
(Rothrock and his fellow deputies were found to have used lawful force by the District Attorney’s Office’s Justice System Integrity Division in an October 2016 report.)
Ford, as guardian ad litem for the son of Pickett’s partner Tamai Gilbert, identified in court documents as “A.G.,” sued the county and Sheriff’s Department.
Los Angeles Superior Court Judge Ross M. Klein found that Gilbert’s son did not have standing and entered judgment against him.
Defendants’ Argument
The defendants argued that Code of Civil Procedure §377.60(c) governed the plaintiff’s standing.
That section grants standing in a wrongful death action to a minor not otherwise qualified under the statute “if, at the time of the decedent’s death, the minor resided for the previous 180 days in the decedent’s household and was dependent on the decedent for one-half or more of the minor’s support.”
A.G. failed to meet the criteria of the statute, the defendants asserted.
But that statute, Zelon said, is irrelevant. She wrote:
“Defendants’ arguments on appeal in part relate to issues not before this Court; A.G. has never claimed to have standing based on Code of Civil Procedure section 377.60, subdivision (c), or as an unadopted stepchild. He has instead asserted that his standing arises from Pickett’s status as his presumed parent, a status defendants assert cannot exist because Pickett is not A.G.’s biological parent.”
Presumed Parent
A presumed parent is defined in Family Code §7611, which sets forth:
“A person is presumed to be a natural parent of a child if…: [¶] (d) The presumed parent receives the child into his or her home and openly holds out the child as his or her natural child.”
The Probate Code provides that when a person dies intestate, as Pickett did, a presumed natural parent of a child has a parent-child relationship with that child if the presumption is not rebutted.
Zelon explained that “the legislature did not intend the fact of biology alone to rebut the presumption.”
Gilbert became romantically involved with Pickett when her son was only one year old. The boy had never had contact with his biological father.
Presumption Not Rebutted
The jurist continued:
“Defendants have not asserted, at the trial court or in this Court, that there are facts other than biology that would rebut the presumption in this case. Indeed, from the time A.G. was one, Pickett was the only father he knew; unrebutted testimony established that Pickett held A.G. out as his child. Defendants have failed to rebut the presumption.”
The case is A.G. v. County of Los Angeles, 2018 S.O.S. 5064.
Olu K. Orange of Orange Law Offices, and George W. Abele and Scott M. Klausner of Paul Hastings’ downtown office argued on behalf of the plaintiff. Douglas L. Day of Harold G. Becks & Associates in Los Angeles represented the defendants.
The National Center for Lesbian Rights, the ACLU and several other groups and individuals submitted a joint amicus brief supporting the plaintiff. The National Police Accountability Project submitted a separate amicus brief.
Copyright 2018, Metropolitan News Company