(Los Angeles County Super. Ct. No. GC041760) APPEAL from a judgment of the Superior Court of Los Angeles County, Jan. A. Pluim, Judge. Reversed.
The opinion of the court was delivered by: Epstein, P. J.
CERTIFIED FOR PUBLICATION
Appellant Deborah Kincaid sued her former husband, respondent Jeffrey Kincaid, for the wrongful death of her daughter, his stepdaughter, Shannon Ellen Siebert (Shannon). Appellant alleged that Shannon committed suicide as a result of sexual abuse and torture by respondent for over 13 years. Respondent filed a motion for summary judgment, presenting evidence that the alleged acts did not occur and arguing that appellant did not offer admissible evidence creating a triable issue of material fact. The trial court sustained respondent's evidentiary objections to appellant's opposition and granted the summary judgment motion. We agree that respondent carried his initial burden of proof on summary judgment. Appellant also argues the trial court erred in ruling her evidence inadmissible. We agree in part, finding that the transcript of a recorded telephone conversation between appellant and respondent was admissible as a party admission. We find no error in any of the other evidentiary rulings. If properly admitted, evidence of the recorded conversation creates a triable issue of fact as to whether the alleged misconduct occurred. Thus, the court's order granting summary judgment is reversed.*fn1
FACTUAL AND PROCEDURAL SUMMARY
Appellant is the mother of Shannon, who was born in January 1980. Appellant married respondent in May 1991, when Shannon was 11 years old. Appellant alleges that shortly after their marriage, respondent began torturing, molesting and raping Shannon. The torture included, but was not limited to, suffocating her with a plastic bag over her head, choking her with his hands, intentionally burning her skin with lighted cigarettes, and forcibly binding her. In order to prevent Shannon from disclosing his actions, respondent threatened physical, financial, and emotional harm to her and appellant. Appellant alleges that Shannon was a happy and academically successful young girl, but as a result of respondent's actions, she developed severe emotional problems and suffered from substance abuse, including alcohol and opiate dependence. She was in various detoxification and rehabilitation centers and under the care of a number of psychiatric physicians and psychologists.
In September 2005, Shannon disclosed the abuse and torture to her therapist, Dr. Ronald Sharpshair, then to appellant. After being encouraged to do so, Shannon reported it to law enforcement in October 2005, which led to respondent's arrest. Shannon claimed that she kept articles of clothing and bedding with respondent's semen. She also claimed there was semen on the linoleum floor of her trailer home. The articles and the trailer were examined by the County of Ventura Sheriff's Forensic Sciences Laboratory but no semen was detected. The prosecution against respondent did not go forward due to insufficient evidence.
In the early morning of February 1, 2008, Shannon's body was found on the ground outside of appellant's apartment complex. The autopsy report concluded Shannon had committed suicide by jumping off the roof of the complex. The night before, Shannon had spoken to appellant about taking her own life. She struggled with depression, had suicidal ideations, and attempted to overdose approximately a year earlier.
In October 2008, appellant brought a wrongful death and a personal injury survivor cause of action against respondent and 20 Doe defendants. Respondent is the only defendant in this appeal. For the wrongful death action, appellant alleged that respondent's torture and sexual abuse of decedent "caused, resulted in, and were a substantial factor of, her death." Appellant sought economic, non-economic and punitive damages. He demurred to both causes of action. As to the wrongful death claim, respondent demurred on statute of limitations and causation grounds. The trial court sustained the demurrer with leave to amend as to the survivor action but overruled the demurrer to the wrongful death action.*fn2 Respondent then filed an answer to appellant's complaint, denying the allegations of sexual abuse and torture. The survivor action was subsequently dismissed and only the wrongful death action is subject to this appeal.
Respondent moved for summary judgment on the wrongful death claim, which was based on hearsay evidence that he had sexually abused and tortured Shannon. In support of his motion, respondent submitted evidence of negative DNA results and his own deposition denying the allegations. Respondent also argued that appellant has no admissible evidence that respondent committed the alleged tortuous acts. In connection with this argument, he asserted that any accusations made by Shannon starting in 2005 were untrustworthy because she had a motive to lie, harbored a bias against respondent, and had a dishonest character. To support this assertion, respondent submitted evidence of Shannon's disdain over respondent's parenting style, depositions of former acquaintances of decedent, and her criminal history.
Appellant's evidence in opposition to the motion included transcripts of a tape-recorded telephone conversation between herself and respondent, an alleged suicide note written by Shannon, Shannon's October 2005 statement to police, and records of her treatment by Dr. Sharpshair. Respondent filed evidentiary objections to all of these documents. The trial court sustained the objections and granted his motion for summary judgment, finding: "[Respondent] has offered evidence that he did not commit any of the acts of which he is accused. . . . [¶] [Respondent] has demonstrated that there are no witnesses with personal knowledge, no physical evidence and no corroborating direct evidence to support [appellant's] allegations. . . . [¶] All objections to evidence are sustained. [¶] [Appellant] lacks admissible evidence sufficient to demonstrate the existence of a triable material fact. Without evidence that [respondent] raped and tortured [decedent] for years, resulting in [decedent's] suicide, [appellant] will be unable to establish her wrongful death Cause of Action." The court entered summary judgment for respondent and this timely appeal followed.
Respondent argues that appellant's action for wrongful death is barred by the statute of limitations. We do not agree.
Code of Civil Procedure section 335.1 provides: "Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another." A cause of action for wrongful death is an entirely new and independent cause of action created in the heirs or personal representatives of the deceased, distinct from any action the deceased might have maintained if he or she had survived. (See Fitch v. Select Products Co. (2005) 36 Cal.4th 812, 819.) Accordingly, the statute of limitations on a wrongful death action begins to run at the time of death, and not at the time of injury which caused the death, for it is only on the date of death that the action is complete in all of its elements. (Norgart v. Upjohn Co. (1999) 21 Cal. 4th 383, 404.)
Respondent contends that appellant stands in the shoes of the decedent, and cannot proceed with a wrongful death action if the deceased would not have prevailed on a tort action for the underlying injury had she survived. He argues that because Shannon did not bring a timely tort action for the alleged abuse or torture, her action was barred by the statute of limitations, and therefore, appellant's wrongful death claim also is barred. Respondent cites Agronaut Ins. Co. v. Superior Court (1985) 164 Cal.App.3d 320 (Agronaut), in support of his argument. In that case, the deceased suffered a back injury. After a hearing on a worker's compensation claim, the Worker's Compensation Appeals Board (WCAB) ordered the compensation insurance carrier to provide lifetime medical care for the deceased. Years later, she experienced increased back pain and requested surgery, but the carrier did not immediately comply. (Id. at p 323.) She ultimately committed suicide. Her widower and children brought a wrongful death action against the carrier. The carrier demurred, arguing the matter should be decided under worker's compensation law. The demurrer was overruled and the appellate court overturned the denial, finding that had the deceased survived, she would have had to submit to the exclusive jurisdiction of the WCAB and could not have brought a tort action against the carrier. The Court of Appeal held that because the widower and children stood in the shoes of the deceased, their wrongful death action was barred for the same reason. (Id. at p. 324.)
However, in Horwich v. Superior Court (1999) 21 Cal.4th 272, 287, the Supreme Court held: "[N]o 'absolute' rule allows a wrongful death defendant to assert any defense that would have been available against the decedent. In the case of a statutory defense, the court must consider the language and intent of the enactment as well as the original and distinct nature of a wrongful death action." Respondent provides no authority that extends Agronaut, supra, 164 Cal.App.3d 320, to the statute of limitations. The case law states the statute of limitations for wrongful death actions and ...