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Boeken v. Philip Morris USA

May 13, 2010

JUDY BOEKEN, PLAINTIFF AND APPELLANT,
v.
PHILIP MORRIS USA, INC., DEFENDANT AND RESPONDENT.



Ct.App. 2/5 B198220 Los Angeles County Super. Ct. No. BC 353365. David L. Minning.

The opinion of the court was delivered by: Kennard, J.

After plaintiff's husband, a cigarette smoker, was diagnosed with lung cancer, plaintiff filed a common law action for loss of consortium against defendant cigarette manufacturer, seeking compensation for the "permanent[]" loss of her husband's companionship and affection. That action was dismissed with prejudice. Then, after her husband's death from the lung cancer, plaintiff brought the current wrongful death action against defendant, again seeking compensation for the loss of her husband's companionship and affection.

The doctrine of res judicata prohibits a second suit between the same parties on the same cause of action. In this context, the term "cause of action" is defined in terms of a primary right and a breach of the corresponding duty; the primary right and the breach together constitute the cause of action. We conclude that plaintiff's wrongful death action involves the same primary right and breach as her former loss of consortium action, and that therefore the doctrine of res judicata bars plaintiff's wrongful death action. We affirm the judgment of the Court of Appeal.

I.

Judy Boeken, plaintiff in the wrongful death action before us, is the widow of Richard Boeken.

Richard began smoking cigarettes in 1957 and was diagnosed with lung cancer in 1999. In March 2000, Richard sued cigarette manufacturer Philip Morris USA, Inc., asserting that it had wrongfully caused his cancer. A jury awarded Richard $5,539,127 in compensatory damages and $3 billion in punitive damages. After Philip Morris filed a motion for a new trial, the trial court reduced the punitive damages to $100 million. Both parties appealed. In January 2002, while that appeal was pending, Richard died from his cancer. The Court of Appeal ultimately reduced the punitive damages award to $50 million, but it otherwise affirmed the trial court's judgment. (See Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1650, 1704.) In satisfaction of this judgment (with interest), plaintiff received over $80 million in March 2006.

In October 2000, while her husband was still alive, plaintiff filed a separate common law action against Philip Morris for loss of consortium, seeking compensation for the loss of her husband's companionship and affection. Plaintiff alleged that defendant's wrongful conduct had caused her husband's lung cancer and that as a result of the cancer he was "unable to perform the necessary duties as a spouse" and would "not be able to perform such work, services, and duties in the future." Plaintiff further asserted that she had been "permanently deprived" of her husband's consortium. Specifically, plaintiff alleged that she suffered "the loss of love, affection, society, companionship, sexual relations, and support."*fn1

About four months after filing that action, plaintiff dismissed it with prejudice. The record before us does not indicate the reason for the dismissal; for purposes of applying the doctrine of res judicata, however, a dismissal with prejudice is the equivalent of a final judgment on the merits, barring the entire cause of action. (See Alpha Mechanical, Heating & Air Conditioning, Inc. v. Travelers Casualty & Surety Co. of America (2005) 133 Cal.App.4th 1319, 1332; Torrey Pines Bank v. Superior Court (1989) 216 Cal.App.3d 813, 820-821; Roybal v. University Ford (1989) 207 Cal.App.3d 1080, 1086-1087; Palmquist v. Palmquist (1963) 212 Cal.App.2d 340, 343-344.) As the court explained in Roybal, supra, 207 Cal.App.3d at pages 1086-1087: "The statutory term 'with prejudice' clearly means the plaintiff's right of action is terminated and may not be revived.... [A] dismissal with prejudice... bars any future action on the same subject matter."

A year after dismissal of plaintiff's common law action for loss of consortium, her husband died from the effects of lung cancer. Plaintiff then filed the present wrongful death action under Code of Civil Procedure section 377.60, again seeking compensation from Philip Morris for the loss of her husband's companionship and affection. This time, plaintiff alleged that she had suffered "loss of love, companionship, comfort, affection, society, solace, and moral support."*fn2 Philip Morris demurred, arguing that plaintiff's action for wrongful death was barred by the doctrine of res judicata because plaintiff's previous loss of consortium action against Philip Morris had involved the same primary right. The trial court sustained the demurrer without leave to amend, and plaintiff appealed. A divided panel of the Court of Appeal affirmed.

The Court of Appeal's analysis focused on the relief that plaintiff sought in both actions. The court reasoned that the damages available to plaintiff in her common law action for loss of consortium (filed and dismissed with prejudice while her husband was still alive) included future loss of consortium based on the life expectancy her husband had before his smoking injury. In other words, the Court of Appeal concluded that plaintiff's previous loss of consortium action against defendant covered claims for lost companionship and affection between the time of her husband's actual death from lung cancer and the time when he would have died of natural causes if defendant's cigarettes had not wrongfully injured him. The court noted that this postdeath period is the same period covered in plaintiff's present wrongful death action, in which she seeks the same type of damages for the same type of injury as in the previous action. Accordingly, the Court of Appeal held that the dismissal with prejudice of plaintiff's previous loss of consortium action constituted a res judicata bar, precluding plaintiff from relitigating the same injury - loss of consortium - a second time in her current wrongful death action.*fn3

We granted plaintiff's petition for review.

II.

A.

At common law, a cause of action arising out of a personal tort terminated upon the death of either the injured party or the tortfeasor. (See, e.g., Munchiando v. Bach (1928) 203 Cal. 457, 458 [death of plaintiff]; Harker v. Clark (1881) 57 Cal. 245, 246 [death of defendant].)

In addition, at common law the family members of a person who had been wrongfully killed by a third party had no cause of action against the third party for loss of support or other damages: "That a civil action for the death of a person, per se, cannot be maintained by any one at common law is too well settled to admit of discussion at the present time. This rule is so well and firmly established that an investigation of its reason and philosophy would be idle and useless.... [¶] In Baker v. Bolton [(1808) 1 Camp. 493]..., Lord Ellenborough used these words: 'In a civil Court the death of a human being cannot be complained of as an injury.' " (Kramer v. Market Street Railroad Company (1864) 25 Cal. 434, 435.)

Finally, at common law (and also in California before 1974) the spouse of a person who had been wrongfully injured (but not killed) by a third party had no cause of action against the third party for loss of companionship, affection, or other noneconomic losses. (See West v. City of San Diego (1960) 54 Cal.2d 469 [husband suing for loss of wife's consortium after wife was injured]; Deshotel v. Atchison, T. & S. F. Ry. Co., supra, 50 Cal.2d 664 [wife suing for loss of husband's consortium after husband was injured].)

In 1851, as part of a general enactment governing civil proceedings, the California Legislature set aside the common law rule precluding the survival of causes of action after the death of a party. Section 16 of the act provided in relevant part: "An action shall not abate by the death, or other disability of a party.... In case of the death, or other disability of a party, the Court, on motion, may allow the action to be continued by or against his representative or successor in interest." (Stats. 1851, ch. 5, § 16, pp. 52-53.)

In 1862, the Legislature also set aside the common law rule barring recovery for the wrongful death of a spouse or close relative. The act provided in relevant part: "Whenever the death of a person shall be caused by wrongful act, neglect, or default..., then... the person who... would have been liable if death had not ensued, shall be liable to an action for damages" benefiting the deceased's widow and next of kin. (Stats. 1862, ch. 330, § 1, p. 447.) "[I]n every such action, the jury... may take into consideration the pecuniary injury resulting from such death to the wife and next of kin of such deceased person...." (Id., § 3, p. 448, italics added.)

California law continues to recognize those two statutory causes of action, in provisions that are now codified in Code of Civil Procedure sections 377.20 (the survival statute)*fn4 and 377.60 (the wrongful death statute).*fn5 Originally, the recovery in wrongful death actions was limited to "pecuniary injury" (Stats. 1862, ch. 330, § 3, p. 448), which some courts interpreted to mean that only economic losses were compensable (such as loss of financial support or household services). As early as 1911, however, we recognized the right of wrongful death plaintiffs to recover noneconomic damages, including damages for loss of society and comfort, so long as the damages were not based merely on grief or sorrow. (See Bond v. United Railroads of San Francisco (1911) 159 Cal. 270, 285-286.) In Krouse v. Graham (1977) 19 Cal.3d 59, 67-70, we confirmed that loss of consortium damages are recoverable in wrongful death actions.

Thus, California's wrongful death statute has long permitted a person whose spouse was wrongfully killed to sue for loss of consortium damages, but a person whose spouse was injured, but not killed, had no right of action for the same damages, because no statute had supplanted the common law rule barring recovery for the wrongful injury of a spouse. (See West v. City of San Diego, supra, 54 Cal.2d 469; Deshotel v. Atchison, T. & S. F. Ry. Co., supra, 50 Cal.2d 664.) This disparity remained even when the spouse's injuries were severely disabling and permanent, and the loss of consortium just as great as it would have been if the spouse had died. The inequity of this rule led this court to abrogate it in Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382 (Rodriguez). In that case, we recognized a new common law cause of action for loss ...


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