Filed 4/14/15 Reinemann v. County of Los Angeles CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

EREKAH REINEMANN et al.,

Plaintiffs and Appellants,

v.

COUNTY OF LOS ANGELES,

Defendant and Respondent. B255760

(Los Angeles County Super. Ct. No. BC490830)

APPEAL from an order of the Superior Court of Lo s Angeles County. Elia Weinbach, Judge. Affirmed.

Law Offices of Garrotto & Garrotto and Greg W. Garrotto and for Plaintiffs and Appellants.

Collins Collins Muir + Stewart, Melinda W. Ebelhar, Tomas A. Guterres, and

Christie Bodnar Swiss for Defendant and Respondent.

________________ ______________2 Plaintiffs and appellants Erekah Reinem ann and Donald Hillman III challenge a trial court order dismissing their lawsuit ag ainst the County of Los Angeles (County). Plaintiffs, who are minors, brought this ac tion for damages following the death of their infant sister, Diamond Hillman (Diamond), fro m Shaken Baby Syndrome at the hands of her presumptive father, Do nald Hillman, Jr. (father). Because plaintiffs lack standing to purs ue their claim for wrongful death, we

affirm.

FACTUAL 1 AND PROCEDURAL BACKGROUND Factual Background According to the second amended co mplaint (SAC), Diamond was a dependent under the jurisdiction of the Los Angeles County Dependency Court and was under the supervision of the Los Angeles County Depa rtment of Children and Family Services (DCFS). Prior to Diamond’s birth, plaintiffs had been detained by DCFS and declared dependents of the superior court as a result of sustained allegations of emotional and physical neglect and abuse. After her bi rth, Diamond’s parents (father and Felicia Fitzhugh-Hillman (mother), who is the mother of all three ch ildren) and DCFS agreed to a voluntary family maintenance agreement, wh ich allowed her to remain in her parents’ home, despite the fact that fath er had a criminal record that included violent acts and the fact that there was a history of domestic violence.

On or about October 3, 2009, 2 mother told father that she wanted to end their marriage, that she had had an affair, and that Diamond was not his biological daughter. She then left, leaving Diamond in father’s care. On October 4, 2009, Diamond was admitted to the hospital with severe bleeding in the brain, consistent with being shaken.

1 “Because this matter comes to us on de murrer, we take the facts from [plaintiffs’ operative] complaint, the allega tions of which are deemed true for the limited purpose of determining whether the plaintiff has stated a viable cause of action. [Citation.]” ( Stevenson v. Superior Court (1997) 16 Cal.4th 880, 885.)

2 This date appears in the first amen ded complaint but was omitted from the SAC.3 She died on November 22, 2009 . Father was arrested and charged with murder; he was eventually convicted of willf ul child endangerment (Pen. Code, § 273a) and abuse (Pen. Code, § 273d). Procedural Background

SAC Plaintiffs filed suit against the Co unty on August 23, 2012. The County’s demurrers to both the origin al complaint and first amende d complaint were sustained with leave to amend on the groun ds that plaintiffs lacked sta nding. Plaintiffs filed their SAC, the operative pleading, on June 18, 2013. The SAC alle ges three causes of action: Two claims for wrongful deat h based on negligence/breach of mandatory duties; and one claim for wrongful deat h based on negligence/s pecial relationship. In an effort to comp ly with prior trial court instru ctions, plaintiffs attempted to allege standing based upon the fact that mo ther was “barred from” and/or “disqualified” from maintaining a wrongful de ath action (1) pursuant to Probate Code sections 250, 253, and 258; and (2) because sh e “willfully caused or perm itted” Diamond’s death. Specifically, the SAC alleges that mother “is barred from, disqualified and cannot maintain an action for wrongful death as an heir of law of [Diamond] pursuant to Probate Code Sections 250, 253 and 258. The acts that bar her from being an heir at law and proper plaintiff in a wrongful death action on the basis of [Diamond’s] death include but are not limited to the following . [Mother] willfully caused or permitted [Diamond] to be placed in a situation where [Diamond’s] person or hea lth would be endangered by leaving [her] in the care of [fa ther] after having told him th at she wanted to end their marriage, that she had had an affair, and that [father] was not [Diamond’s] father. These statements were reckless and made specifical ly to anger and incite [father] and with knowledge of the fact that [fa ther] had a criminal history th at included violent domestic acts. Said actions of [mothe r] were deliberate, unreasonabl e and were intentionally in disregard of the safety and welfare of [Dia mond] and were a legal cause and contributed to the nonaccidentally inflicted trauma that resulted in [Diamond’s] death.”4 Demurrer The County again demurred, arguing that plaintiffs lack ed standing; pursuant to Probate Code section 6402.5, subdivision (b), mother has excl usive priority on a wrongful death claim over plai ntiffs, Diamond’s siblings. While the trial court had granted plaintiffs leave to amend to allege that mother would no t have standing under Code of Civil Procedure section 377.60, subdi vision (b), they did not sufficiently allege that mother intentionally and feloniously killed Diamond. In other words, according to the County, they did not esta blish that mother was disqualified from pursuing a wrongful death cause of action; because mother was not disqualified, plaintiffs—as siblings— lacked standing. The County also challenged plaintiffs’ reliance upon Probate C ode sections 250, 253, and 258. Because this case has nothing to do with intestate succession, Probate Code section 250 does not apply. As for Probate Code se ctions 253 and 258, 3 because plaintiffs did not establish that mother “fel oniously and intentionally kill[ed]” Diamond, these two statutes did not apply as well. Finally, the County asserted that even if plaintiffs could establish standing, the SAC failed to state a claim because they failed to sufficiently allege a statutory cause of action. (Gov. Code, § 815, subd. (a).) Opposition to Demurrer Plaintiffs opposed the County’s demurrer. They argued that because this case was only at the pleading stage, they were not requ ired to submit any evidence in support of their allegation that mother intentionally and feloniously killed Diamond. Their allegations were sufficient to establish that mother feloniously killed Diamond by inciting father and then leaving the infant in his care. And, according to plaintiffs, these

3 Probate Code section 258 provides: “A person who feloniously and intentionally kills the decedent is not entitled to bring an action fo r wrongful death of the decedent or to benefit from the action brought by the decede nt’s personal representative. The persons who may bring an action for wrongful death of the decedent and to benefit from the action are determined as if the k iller had predeceased the decedent.”5 allegations, if proven, would establish that mother violated Penal Code section 273a, subdivision (a), 4 which would put Probate Co de section 258 at play. Moreover, plaintiffs adequately allege d that the County breached its mandatory duties based upon its special relationship with Diamond. Trial Court Order; Dismissal; Appeal After entertaining oral argument, the tria l court sustained the County’s demurrer to

the SAC without leave to amend. It found that plaintiffs did “not alle ge[] facts to support their legal conclusion that . . . mother ‘fel oniously and intentionally’ killed [Diamond] such that [she] is disqualified from standing to sue.” Moreover, it rejected plaintiffs’ reliance upon Penal Code section 273a, subdivi sion (a), reasoning that while mother may have violated that statute, Probate Code sect ion 258 required that the killing not only be felonious, but also intentional, and plaintiffs pled no facts to support a finding that mother

intended to kill Diamond when she le ft her with her angry father. The matter was dismissed, and pl aintiffs’ timely appeal ensued.

DISCUSSION I. Standard of review “Our Supreme Court has set forth the sta ndard of review for ruling on a demurrer dismissal as follows: ‘On appeal from a judg ment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. The reviewing court gives the complaint a reasonable interp retation, and treats the demurrer as admitting all material facts properly pleaded. [Citations .] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be

4 Penal Code section 273a, subdivision (a), provides: “Any person who, under circumstances or conditions likel y to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts th ereon unjustifiable physic al pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in th e state prison for two, four, or six years.”6 affirmed “if any one of the several grounds of demurrer is well taken. [Citations.]” [Citation.] However, it is error for a trial c ourt to sustain a demurrer when the plaintiff has stated a cause of action under any possibl e legal theory. [Citation.] And it is an

abuse of discretion to sustain a demurrer with out leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by th e defendant can be cured by amendment. [Citation. ]’ [Citations.]” ( Payne v. National Collection Systems, Inc. (2001) 91 Cal.App.4t h 1037, 1043–1044.)

II. The demurrer was rightly sustained “In California, wrongful death actions ar e statutory in origin and exist ‘“only so far and in favor of such person as the legi slative power may declare.”’ [Citation.]” ( Ceja v. Rudolph & Sletten, Inc. (2013) 56 Cal.4th 1113, 1118.) “The right to bring an action for wrongful death is wholly statutory in or igin and is limited to persons described in Code of Civil Procedure Section 377 [now 377.60].” ( Lewis v. Regional Center of the East Bay (1985) 174 Cal.App.3d 3 50, 352–353.) The Court of Appeal does not have the authority to extend the right to maintain a wr ongful death action to others, regardless of how compelling the allegations in their favor may be. ( Id . at p. 355.) California’s wrongful death statute, Code of Civil Procedure section 377.60 provides, in relevant part: “A cause of ac tion for the death of a person caused by the wrongful act or neglect of another may be as serted by any of the fo llowing persons or by the decedent’s personal repres entative 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 su rviving spouse or domestic partner, who would be en titled to the property of the decede nt by intestate succession.” Because Diamond had no spouse, domestic partner, or children, we turn to the Probate Code to determine the right of intestate succession.

Probate Code sections 6401 and 6402 establish the intestate succession scheme. First, property goes to the d ecedent’s spouse or domestic partner an d to the decedent’s issue. If there is no surviving issue, the inte state estate passes “to the decedent’s parent or parents equally.” (Prob. Code, § 6402, subd. (b).) Only if a decedent leaves no7 surviving parent would the intestate estate pa ss to the decedent’s siblings. (Prob. Code, § 6402, subd. (c).) Here, Diamond has a surviving parent—h er mother. Thus, Diamond’s siblings (plaintiffs here) have no standing to sue for her wrongful death. ( Mayo v. White (1986) 178 Cal.App.3d 1083, 1088.) In urging us to reverse, plaintiffs ar gue that mother lost her right to sue for Diamond’s wrongful death, pursuant to Pr obate Code section 258. The problem for plaintiffs is that mother did not “intentio nally and feloniously” kill Diamond. While mother may have acted recklessly or willful ly in creating a situation that led to Diamond’s death, that is not enough under the current statutory scheme.

Plaintiffs’ claim under title 42 United Stat es Code sections 19 83 and 1988 cannot proceed as well. (See Ward v. San Jose (9th Cir. 1992) 967 F.2d 280, 284 [rejecting a cognizable liberty intere st for siblings and holding that “[n]either the legislative history nor Supreme Court precedent supports an inte rest for siblings consonant with that recognized for parents and children”].) The facts in this case are tragic, and our opinion should not be construed as condoning mother’s conduct or what led to Diamond’s death. But our hands are tied by this case’s procedural posture and the current statutory scheme . We leave this issue to the Legislature to modify the current stat utes to expand the available remedies.8 DISPOSITION

The order of dismissal is affirmed. The County is entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________ _________________, J. ASHMANN-GERST

We concur:

________________ _______________, P. J. BOREN

___________________ ____________, J. CHAVEZ