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Wrongful Death And The Nominal Defendant

When someone is killed due to the wrongful conduct of another, this is typically called a wrongful death and gives rise to a particular cause of action of the same name.  In California, each of the heirs of the deceased have a right to bring a wrongful death lawsuit (called a ‘survival action’) against the person (or persons) who committed the wrongful acts.  (Code of Civ. Procedure, § 377.60.) If you are in the unfortunate position of having a loved one pass away Haffner Law can help.

WHAT IF ALL THE HEIRS DO NOT WANT TO FILE A LAWSUIT?

Even if other ‘heirs’ (generally speaking: spouses, brothers/sisters, children) do not want to file a lawsuit, you can still hold bad actors responsible for the death of a beloved family member.  As filing a lawsuit is a significant decision it is a good idea to talk it over with your family, but in the end, it is your decision whether to file a lawsuit over your loss of a loved one.  If any other known heirs do not want to participate in the lawsuit, then those heirs should become what is called a nominal defendant.  (See Watkins v. Nutting (1941) 17 Cal.2d 490, 498 [as long as the heirs are somehow made a party to the lawsuit, the defendant does not have grounds to object to the procedure in which the heirs were joined].)

WHAT IS A NOMINAL DEFENDANT?

Calling the heirs that do not want to participate in a wrongful death lawsuit “nominal defendants” is a bit of a misnomer.  Indeed, a nominal defendant is “in reality and in legal effect” a plaintiff.  (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 556, as modified on denial of reh’g (Apr. 24, 2008) [internal citations omitted]; see Watkins, supra, at p. 498.)

WHAT DOES BEING A NOMINAL DEFENDANT MEAN?

The procedural device for allowing a party to bring in a nominal defendant is Code of Civil Procedure section 382.  “The statute’s purpose is to protect the active parties to a lawsuit by effecting the involuntary joinder of a recalcitrant plaintiff.  This ensures that the party so joined will be bound by any resulting adjudication.”  (Ferraro, supra, at p. 536 [emphasis in original].)  As California’s wrongful death statute gives all heirs the right to bring the lawsuit, each of the known heirs should be made a part of the lawsuit so that all parties and the jury know of each heir’s existence and relationship to deceased family member.  (Watkins, supra, at p. 499.)  Generally speaking, a nominal defendant cannot subsequently sue the wrongdoer because of the ‘one action rule’ – a wrongful death cause of action must be brought in a single lawsuit.  (Romero v. Pacific Gas & Electric Co. (2007) 156 Cal.App.4th 211, 216; Smith v. Premier Alliance Ins. Co. (1995) 41 Cal.App.4th 691, 697 [a defendant cannot be subjected to another lawsuit by an omitted heir of whom the defendant had no knowledge].)  Thus, while there are exceptions (e.g., unknown heir, lack of proper service on nominal defendant), once all heirs are made nominal defendants the wrongful death lawsuit would be complete and precluded from being later asserted.

WHAT IF AN HEIR IS NOT MADE A NOMINAL DEFENDANT?

The crux of being able to appropriately make an heir a nominal defendant is whether that heir is known to either the plaintiff(s) or the defendant(s).  (See Smith, supra, at p. 697; Romero, supra, at pp. 217-219.)  Should a known heir (or heirs) be omitted from a lawsuit, the plaintiff(s) would be liable to the omitted heir(s) for any damages that resulted.  (Watkins, supra, at p. 499; Romero, supra, at p. 217.)  However, if the defendant(s) had knowledge of any heirs that were not made a part of the wrongful death lawsuit, then the defendant(s) would have waived the ‘one action rule’; meaning that those unnamed heirs may be able to bring a separate wrongful death lawsuit.  (Smith, supra, at p. 697; Romero, supra, at pp. 217-219.)  Further, even where the heirs are named as nominal defendants, the actual defendants have an obligation to ensure that those nominal defendants were properly made a part of the lawsuit; failing to do so may waive the ‘one action rule.’  (Romero, supra, at p. 219 [holding a separate wrongful death lawsuit was allowed as the defendant failed to ensure that the previously-named nominal defendant was properly served with process].)

(This is an attorney advertisement by Joshua Haffner)

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