Case Name:   West v. Derr

Case No.:       1-11-CV-193710 (consolidated with 1-12-CV-218398

 

After full consideration of the evidence, the separate statements submitted and the authorities submitted by each party, the court makes the following rulings:

 

On February 1, 2010, defendant Kevin Derr (“Derr”) suffered a seizure while driving, and fatally struck bicyclist Joshua West (“Decedent”) at a high rate of speed.  (See third amended complaint, ¶ EX-2.)  West’s minor daughter, Brianna West, asserts that Frederick W. Schwertley, M.D. (“Schwertley”), Jerwin Wu, M.D. (“Wu”), Gary Adam Gechlik, M.D. (“Gechlik”), Richard Newell, M.D. (“Newell”) and Good Samaritan Hospital (“GSH”) failed to report to the DMV that Derr had been diagnosed with a disorder characterized by lapses of consciousness, and filed a third amended complaint against those defendants.  Derr’s mother, Vicki West (“Vicki”) separately filed a complaint for wrongful death.  The two actions were consolidated.

 

Derr moves for summary judgment as to Vicki West, asserting that she lacks standing to pursue her claim pursuant to Code of Civil Procedure section 377.60 as she is not an heir to Decedent and she was not financially dependent on West.  Remaining defendants Schwertley, Gechlik and Newell seek to join in Derr’s motion.

 

Requests for joinder

 

Schwertley, Gechlik and Newell’s requests for joinder are DENIED.  (See Barak v. The Quisenberry Law Firm (2006) 135 Cal.App.4^th 654, 661 (stating “[w]hen a party merely joins in a motion for summary judgment without presenting its own evidence, the party fails to establish the necessary factual foundation to support the motion”).)

 

Derr’s motion for summary judgment as to Vicki

 

Code of Civil Procedure section 377.60 states:

 

A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent’s personal representative on their behalf:

(a) The decedent’s surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession.

(b) Whether or not qualified under subdivision (a), if they were dependent on the decedent, the putative spouse, children of the putative spouse, stepchildren, or parents….

 

(Code Civ. Proc. § 377.60.)

 

Derr meets his initial burden to demonstrate that Vicki West was not financially dependent on Decedent.

 

Derr asserts that Vicki West was not “dependent on the decedent,” and thus is not a proper party pursuant to section 377.60.  The parties agree that the term “dependent parent” “means parents who, at the time of the child’s death, were actually dependent, to some extent, upon the decedent for the necessaries of life.”  (Perry v. Medina (1987) 192 Cal.App.3d 603, 609, quoting Hazelwood v. Hazelwood (1976) 57 Cal.App.3d 693, 697-698; see also Coats v. K-Mart Corp. (1989) 215 Cal.App.3d 961, 969 (stating that “[t]he dependency envisioned by this statute is financial dependency for ‘shelter, clothing, food and medical treatment’”), quoting Perry, supra, 192 Cal.App.3d at p.610.)  “Thus, a parent cannot claim they are dependent within the meaning of Code of Civil Procedure section 377 if they receive financial support from their children which merely makes available to them some of the niceties of life they might not otherwise be able to afford.”  (Perry, supra, 192 Cal.App.3d at p.610.)

 

In support of Derr’s assertion, Derr provides the transcript at a March 8, 2013 restitution hearing for People v. Derr (Super. Ct. Santa Clara County, 2013, Case No. C1067976), in which Vicki testified that: from January 2009 until February 2010—the time of Decedent’s death, she was living at a condo in Reno; she was on disability in January 2009, and then worked for a temporary agency from October 2009 to January 2009; she paid her rent from her disability funds, and then did not pay any rent until she got the temp job when she resumed paying rent; she would financially assist Decedent when she could by paying $300 or more to cover Decedent’s rent.  (See UMFs 1-6; see also Rudy decl., exh. A (transcript of restitution hearing).)  Here, Derr has met his initial burden to demonstrate that Vicki West was not financially dependent on Decedent.

 

In opposition, Vicki does not demonstrate the existence of a triable issue of material fact.

 

In opposition, Vicki does not dispute any of the above facts.  Instead, Vicki presents her own declaration, the declaration of her brother-in-law, as well as portions of the transcript from the restitution hearing.

 

Vicki’s declaration states that:

• In November 2008, Vicki moved in with Decedent to take care of Decedent and Decedent’s daughter, Brianna, after Decedent’s surgery, until February 2009 (West decl. in support of opposition to motion for summary judgment (“West decl.”), ¶ 3);
• Vicki moved to Reno in February 2009 in a condominium owned by her brother-in-law (West decl., ¶¶ 4-5) and lived there until January 31, 2010;
• “During this time[,] Joshua sent me money for food, rent, my car payment and gasoline for my car” (West decl., ¶ 6);
• Vicki believes that Decedent “also gave me money indirectly by giving money to my brother-in-law, Jon Hampton, to help pay for the rent on the condominium, and for the car payment” (West decl., ¶ 7);
• “We helped one another throughout our lives… [w]hen he needed money and I had a job, I tried to help him… [w]hen I was out of work, as I was during most of 2009 and then for a bit in 2010 before Joshua died, he helped me financially with rent, food, and gasoline” (West decl., ¶ 8); and,
• Before Decedent left her house after a visit on January 29-31, 2010, Decedent gave her approximately $200 for food and gas to help her drive to job interviews (West decl., ¶ 12).

 

The brother-in-law’s declaration states that:

• During the time that Vicki lived in the brother-in-law’s condominium, Decedent paid a part of her rent to him (Hampton decl. in support of opposition to motion for summary judgment (“Hampton decl.”), ¶¶ 3-4); and,
• Decedent helped pay for Vicki’s car payments between April to September 2009, and then Hampton made the remainder of the payments until the car was paid off (Hampton decl., ¶¶5-7.)

 

Here, Vicki has not provided any authority that suggests that car payments or gasoline are “necessaries of life.”  In fact, the opposition appears to concede that, for purposes of the term “dependent parent,” it is limited to shelter, clothing, food and medical treatment.  Accordingly, any money given related to car payments or gasoline is irrelevant.

 

Further, Vicki testifies that she paid for her rent through her disability, then lived rent-free when the disability funds stopped, and then began paying rent again once she had a job.  Vicki cannot attempt to create a triable issue of material fact by presenting a declaration to the contrary.  (See D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21; see also Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4^th 1510, 1521-1522 (stating that “the rule bars a party opposing summary judgment from filing a declaration that purports to impeach his or her own prior sworn testimony”); see also Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1503 (stating that “Where a plaintiff’s admissions in a deposition contradict statements in the plaintiff’s affidavits opposing the summary judgment… the credibility of the admissions are valued so highly that the controverting affidavits may be disregarded as irrelevant, inadmissible or evasive”).)  Moreover, as to the “indirect” payment of money to the brother-in-law, that does not suggest financial dependency on the part of Vicki; rather, such payment sounds more like a benefit to Hampton.

 

Vicki’s statement about a one-time $200 payment for “food and gas to help [her] drive to job interviews” does not demonstrate a necessary of life.  Although commendable, it demonstrates assistance to help out in a limited instance, rather than some sort of dependence.  Similarly, the statement that Decedent and Vicki helped each other does not demonstrate dependence by Vicki.

 

Thus, the lone remaining statement is that, during her time in Reno, Decedent “sent me money for food, rent, my car payment and gasoline for my car.”  As previously stated, the statements regarding rent, car payments and gasoline are either not credible or irrelevant.  Thus, the statement is really a generalized statement that “Decedent sent Vicki money for food.”  Without some other facts—amount of monies sent for food, how often those payments were sent, whether the payment of monies were during a time period while she was unable to pay for food, what the payments of monies were ultimately used for (staples or niceties of life Vicki might not otherwise be able to afford)—the statement does not demonstrate the existence of a triable issue of material fact.

 

Accordingly, Derr has met his initial burden to demonstrate that Vicki West was not financially dependent on Decedent within the meaning of Code of Civil Procedure section 377.60; and, in opposition, Vicki fails to demonstrate the existence of a triable issue of material fact.  The motion for summary judgment is GRANTED.  (See Code Civ. Proc. § 437c, subd. (p)(2).)

 

The Court will prepare the order.  After Derr has served notice of entry of the order granting the motion for summary judgment, Derr shall submit a proposed judgment consistent with this order.