Supreme Court of California Justia
Citation 48 Cal. 4th 788, 230 P.3d 342, 108 Cal. Rptr. 3d 806

Boeken v. Philip Morris

Filed 5/13/10

IN THE SUPREME COURT OF CALIFORNIA

JUDY BOEKEN,
Plaintiff and Appellant,
S162029
v.
Ct.App. 2/5 B198220
PHILIP MORRIS USA, INC.,
Los Angeles County
Defendant and Respondent.
Super. Ct. No. BC 353365

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

1


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
2
husband‟s consortium. Specifically, plaintiff alleged that she suffered “the loss of
love, affection, society, companionship, sexual relations, and support.”1
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

1
This court has defined the phrase “loss of consortium” as referring to “the
noneconomic aspects of the marriage relation, including conjugal society, comfort,
affection, and companionship.” (Deshotel v. Atchison, T. & S. F. Ry. Co. (1958)
50 Cal.2d 664, 665.)
3


support.”2 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

2
Plaintiff‟s wrongful death complaint also sought damages from Philip
Morris for unspecified funeral and burial expenses. In sustaining Philip Morris‟s
demurrer, the trial court did not explain its reasons for dismissing this aspect of
plaintiff‟s claim, but plaintiff did not raise this issue on appeal and therefore has
forfeited it. The same wrongful death complaint also included causes of action
brought by other plaintiffs and causes of action against other defendants, but the
status of those causes of action is not before us. The only question before us is the
viability of plaintiff‟s wrongful death claim against Philip Morris for noneconomic
damages resulting from loss of consortium.
4


relitigating the same injury — loss of consortium — a second time in her current
wrongful death action.3
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.

3
The dissenting opinion in the Court of Appeal is discussed on pages 18-19,
post.
5
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) 4 and 377.60 (the wrongful death statute).5 Originally, the

4
Code of Civil Procedure section 377.20 now provides: “(a) Except as
otherwise provided by statute, a cause of action for or against a person is not lost
by reason of the person‟s death, but survives subject to the applicable limitations
period.

“(b) This section applies even though a loss or damage occurs
simultaneously with or after the death of a person who would have been liable if

(footnote continued on next page)
6


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

(footnote continued from previous page)

the person‟s death had not preceded or occurred simultaneously with the loss or
damage.”
5
Code of Civil Procedure section 377.60 now provides in relevant part: “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. As used in this subdivision, „putative spouse‟ means the surviving
spouse of a void or voidable marriage who is found by the court to have believed
in good faith that the marriage to the decedent was valid.

“(c) A minor, whether or not qualified under subdivision (a) or (b), if, at the
time of the decedent‟s death, the minor resided for the previous 180 days in the
decedent‟s household and was dependent on the decedent for one-half or more of
the minor‟s support.”
7


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 of consortium
resulting from the wrongful injury of a spouse, overruling our earlier decisions in
West v. City of San Diego, supra, 54 Cal.2d 469, and Deshotel v. Atchison, T. & S.
F. Ry. Co., supra, 50 Cal.2d 664.
But the common law cause of action we recognized in Rodriguez, supra, 12
Cal.3d 382, was limited to cases involving wrongfully injured spouses; the rule
remained that a cause of action for wrongful death (and the right to recover loss of
consortium damages as part of that action) was purely a creature of statute. (See
Justus v. Atchison (1977) 19 Cal.3d 564, 575 (Justus).) This distinction is
significant because a common law action for loss of consortium is a civil action
sounding in tort, and therefore punitive damages are available. (See Civ. Code,
§ 3294; see also Buell-Wilson v. Ford Motor Co. (2006) 141 Cal.App.4th 525,
vacated on other grounds in Ford Motor Co. v. Buell-Wilson (2007) 550 U.S. 931.)
Punitive damages are not available, however, in a statutory wrongful death action.
(See Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 450;
Pease v. Beech Aircraft Corp. (1974) 38 Cal.App.3d 450, 460-462.)
Rodriguez, supra, 12 Cal.3d 382, involved a spouse who had nonfatal
injuries, and our opinion did not discuss the possibility that the injured spouse‟s life
expectancy might have been curtailed in any way by his injuries. Therefore, we did
not address in Rodriguez whether a plaintiff bringing a common law action for loss
8
of consortium can recover for lost companionship and affection after the injured
spouse‟s premature death, or whether the common law recovery is limited to
predeath damages (with postdeath damages recoverable only by way of a statutory
wrongful death cause of action). The answer to this question is central to this case,
for it determines whether the Court of Appeal correctly concluded that plaintiff is
now seeking a second adjudication over postdeath damages, or whether, as plaintiff
claims, she is seeking only a first adjudication concerning a category of damages
that was simply not available in her previous common law action.
With this background concerning the history and scope of the causes of
action at issue here, we turn to the specific res judicata question that defendant
raised in its demurrer to plaintiff‟s wrongful death complaint.
B
“As generally understood, „[t]he doctrine of res judicata gives certain
conclusive effect to a former judgment in subsequent litigation involving the same
controversy.‟ [Citation.] The doctrine „has a double aspect.‟ [Citation.] „In its
primary aspect,‟ commonly known as claim preclusion, it „operates as a bar to the
maintenance of a second suit between the same parties on the same cause of
action. [Citation.]‟ [Citation.] „In its secondary aspect,‟ commonly known as
collateral estoppel, „[t]he prior judgment . . . “operates” ‟ in „a second suit . . .
based on a different cause of action . . . “as an estoppel or conclusive adjudication
as to such issues in the second action as were actually litigated and determined in
the first action.” [Citation.]‟ [Citation.] „The prerequisite elements for applying
the doctrine to either an entire cause of action or one or more issues are the same:
(1) A claim or issue raised in the present action is identical to a claim or issue
litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment
on the merits; and (3) the party against whom the doctrine is being asserted was a
9
party or in privity with a party to the prior proceeding. [Citations.]‟ ” (People v.
Barragan (2004) 32 Cal.4th 236, 252-253.)
Here, we are concerned with the claim preclusion aspect of res judicata. To
determine whether two proceedings involve identical causes of action for purposes
of claim preclusion, California courts have “consistently applied the „primary
rights‟ theory.” (Slater v. Blackwood (1975) 15 Cal.3d 791, 795.) Under this
theory, “[a] cause of action . . . arises out of an antecedent primary right and
corresponding duty and the delict or breach of such primary right and duty by the
person on whom the duty rests. „Of these elements, the primary right and duty and
the delict or wrong combined constitute the cause of action in the legal sense of
the term . . . .‟ ” (McKee v. Dodd (1908) 152 Cal. 637, 641.)
“In California the phrase „cause of action‟ is often used indiscriminately . . .
to mean counts which state [according to different legal theories] the same cause
of action . . . .” (Eichler Homes of San Mateo, Inc. v. Superior Court (1961) 55
Cal.2d 845, 847.) But for purposes of applying the doctrine of res judicata, the
phrase “cause of action” has a more precise meaning: The cause of action is the
right to obtain redress for a harm suffered, regardless of the specific remedy
sought or the legal theory (common law or statutory) advanced. (See Bay Cities
Paving & Grading, Inc. v. Lawyers’ Mutual Ins. Co. (1993) 5 Cal.4th 854, 860.)
As we explained in Slater v. Blackwood, supra, 15 Cal.3d at page 795: “[T]he
„cause of action‟ is based upon the harm suffered, as opposed to the particular
theory asserted by the litigant. [Citation.] Even where there are multiple legal
theories upon which recovery might be predicated, one injury gives rise to only
one claim for relief. „Hence a judgment for the defendant is a bar to a subsequent
action by the plaintiff based on the same injury to the same right, even though he
presents a different legal ground for relief.‟ [Citations.]” Thus, under the primary
rights theory, the determinative factor is the harm suffered. When two actions
10
involving the same parties seek compensation for the same harm, they generally
involve the same primary right. (Agarwal v. Johnson (1979) 25 Cal.3d 932, 954.)
Here, the complaint in plaintiff‟s common law action for loss of consortium
alleged that Philip Morris‟s wrongful conduct “permanently deprived” her of her
husband‟s companionship and affection. The primary right was the right not to be
wrongfully deprived of spousal companionship and affection, and the
corresponding duty was the duty not to wrongfully deprive a person of spousal
companionship and affection. The breach was the conduct of defendant Philip
Morris that wrongfully induced plaintiff‟s husband to smoke defendant‟s
cigarettes. It does not matter what weakness, if any, in plaintiff‟s previous lawsuit
might have led her to dismiss it with prejudice. Once plaintiff did so, the primary
right and the breach of duty (together, the cause of action) had been adjudicated in
defendant‟s favor. Therefore, plaintiff could not later allege the same breach of
duty in a second lawsuit against defendant, based on a new legal theory (statutory
wrongful death).
The record before us does not indicate plaintiff‟s reason for dismissing her
first lawsuit. Whatever the reason may have been for dismissing that action, the
relevant point for our purposes is what plaintiff there alleged, because that
allegation indicates what primary right was adjudicated as a consequence of the
dismissal with prejudice. Plaintiff‟s allegation in the previous action was that
defendant Philip Morris‟s wrongful conduct had “permanently deprived” her of
her husband‟s companionship and affection. Whether or not that was factually
true, that was the cause of action that she brought and dismissed with prejudice,
and she cannot now litigate the same cause of action a second time.
Plaintiff contends that in her previous action for loss of consortium, she was
legally barred from recovering damages for postdeath loss of consortium, and
therefore her present wrongful death action does not involve the same primary right
11
as the previous action. She argues that a loss of consortium action is a common law
tort action permitting recovery for loss of companionship and affection during the
lifetime of a wrongfully injured spouse (see Rodriguez, supra, 12 Cal.3d 382),
whereas a wrongful death action is a statutorily created action permitting recovery
for (among other things) loss of companionship and affection after the death of a
wrongfully killed spouse. The latter action is a creature of statute, permitting a type
of recovery that — absent the statute — is unavailable because of the common law
rule barring recovery for injuries that are based on the death of a person. Therefore,
in plaintiff‟s view, a wrongful death action for loss of consortium involves a
primary right that is different from the primary right underlying a common law
action for loss of consortium. Plaintiff cites several cases that state, in contexts
other than the one presented here, that statutory wrongful death actions are distinct
from common law actions for loss of consortium. (See, e.g., Wilson v. John Crane,
Inc. (2000) 81 Cal.App.4th 847, 862; Dominguez v. City of Alhambra (1981) 118
Cal.App.3d 237, 243; Lantis v. Condon (1979) 95 Cal.App.3d 152, 158.) Plaintiff‟s
arguments do not persuade us.
The general rule is that a tort plaintiff may recover prospective damages, as
long as it is sufficiently certain that the detriment will occur. Section 3333 of the
Civil Code provides: “For the breach of an obligation not arising from contract,
the measure of damages . . . is the amount which will compensate for all the
detriment proximately caused thereby, whether it could have been anticipated or
not.” (Italics added.) The Civil Code expressly provides that this amount includes
compensation for prospective losses: “Damages may be awarded, in a judicial
proceeding, for detriment resulting after the commencement thereof, or certain to
result in the future.” (Civ. Code, § 3283, italics added; see also Bihun v. AT&T
Information Systems, Inc. (1993) 13 Cal.App.4th 976, 995 [discussing quantum of
evidence necessary to support an award of prospective damages].) Therefore, in a
12
common law action for loss of consortium, the plaintiff can recover not only for
the loss of companionship and affection through the time of the trial but also for
any future loss of companionship and affection that is sufficiently certain to occur.
In Rodriguez, we held that when a plaintiff‟s spouse is permanently disabled as a
result of a defendant‟s wrongdoing, future (posttrial) loss of companionship and
affection is sufficiently certain to permit an award of prospective damages. (See
Rodriguez, supra, 12 Cal.3d at pp. 405-406.) If instead the injured spouse will
soon die as a result of his or her injuries, the future (posttrial) loss of
companionship and affection is no less certain. In short, we see no reason to make
an exception here to the general rule permitting an award of prospective damages
in civil tort actions. Therefore, under long-standing principles of tort liability, the
recovery of prospective damages in a common law action for loss of consortium
includes damages for lost companionship and affection resulting from the
anticipated (and sufficiently certain) premature death of the injured spouse.
Of course, the plaintiff in a common law action for loss of consortium may
not recover for loss during a period in which the companionship and affection of
the injured spouse would have been lost anyway, irrespective of the defendant‟s
wrongdoing, and therefore the life expectancy of the plaintiff and the life
expectancy of the injured spouse, whichever is shorter, necessarily places an outer
limit on damages. (See Truhitte v. French Hospital (1982) 128 Cal.App.3d 332,
353.) In this context, however, when we speak of the life expectancy of the
injured spouse, we are referring to the life expectancy that the injured spouse
would have had if the injury had never occurred. In other words, in the case of a
sudden injury we are referring to the life expectancy that the injured spouse had
immediately before that injury, and in the case of a cumulative injury like the one
at issue here we are referring to the life expectancy that the injured spouse would
have had absent the harmful conditions to which the defendant wrongfully
13
exposed that spouse. If the life expectancy of the injured spouse was curtailed as a
result of the injury, then the resulting “lost years” are no less a deprivation of
companionship and affection to the plaintiff than a permanent disability would be,
and they are a proper component of prospective damages under Civil Code section
3283. We conclude therefore that a plaintiff in a common law action for loss of
consortium can recover prospective damages for the period after the injured
spouse‟s death, based on the life expectancy that the injured spouse would have
had if the injury had never occurred.
Here, plaintiff did in fact seek such damages. In her previous common law
action for loss of consortium, 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.” (Italics added.) Moreover,
plaintiff‟s complaint expressly asserted that she had been “permanently deprived”
of her husband‟s consortium. (Italics added.) Presumably this latter assertion was
based on the debilitating and incurable nature of her husband‟s illness and the
great likelihood that it would lead to premature death.
Our conclusion is in harmony with our holding in Fein v. Permanente
Medical Group (1985) 38 Cal.3d 137. That case involved a plaintiff who claimed
that the defendant hospital had failed to diagnose his heart condition and that as a
result he suffered a heart attack that sharply curtailed his life expectancy. (Id. at pp.
143-145.) The plaintiff, however, did not assert that the heart attack had any effect
on his earnings while he remained alive. (Id. at p. 145, fn. 1.) The jury found
liability and awarded an amount for lost earnings based on the reduction in the
plaintiff‟s life expectancy. (Id. at p. 145.) We upheld this award of damages for
“lost years” (id. at pp. 153-154), quoting the United States Supreme Court‟s
statement that “ „[u]nder the prevailing American rule, a tort victim suing for
14
damages for permanent injuries is permitted to base his recovery “on his prospective
earnings for the balance of his life expectancy at the time of his injury undiminished
by any shortening of that expectancy as a result of the injury.” ‟ ” (Fein, at p. 153,
quoting Sea-Land Services, Inc. v. Gaudet (1974) 414 U.S. 573, 594.)
The damages available in a common law action for loss of consortium are
subject to a similar rule. Thus, just as plaintiff‟s husband here sought (in his
personal injury action against defendant) damages for earnings he would have had
during the “lost years” after his anticipated premature death, so plaintiff sought (in
her common law action for loss of consortium) damages for future lost
companionship and affection during the years after her husband‟s anticipated
premature death.
This conclusion, plaintiff asserts, is contrary to our analysis of the wrongful
death statute in Justus, supra, 19 Cal.3d 564. We disagree.
In Justus, we made clear that under California law there has never been a
common law right to recover damages for the wrongful death of a spouse or other
close relative. We acknowledged that the common law may have evolved to the
point that some other jurisdictions were recognizing such a right. Nevertheless,
we reasoned that there was no such right recognized in California in 1862, when
California‟s wrongful death statute was first enacted, and the 1862 wrongful death
statute so completely preempted the field that no common law wrongful death
cause of action could evolve in California after the statute‟s enactment. Thus, in
California, the right to recover for lost companionship and affection resulting from
the wrongful death of a spouse is purely a creature of statute. (Justus, supra, 19
Cal.3d at pp. 572-575.) We said: “[W]e are persuaded that the Legislature intends
to occupy the field of recovery for wrongful death. For this reason the remedy
remains a creature of statute in California [citations] regardless of whether a cause
15
of action for wrongful death did or did not exist at common law. In our state that
question is now of academic interest only . . . .” (Id. at p. 575.)
Plaintiff here contends that this statement from Justus precludes the
conclusion that postdeath damages are recoverable in a common law action for
loss of consortium. Plaintiff asserts that one may not recover at common law
damages of a type (postdeath loss of consortium damages) made the subject of a
statutory scheme that occupies the field.
Justus, however, did not consider the specific issue now before us. Here,
we are not recognizing a postdeath common law right to recover for wrongful
death; rather, we are recognizing that, in a predeath common law action for loss of
consortium, future damages are recoverable, including damages that might result
from the impending premature death of the injured spouse. We stand by our
conclusion in Justus, supra, 19 Cal.3d at page 575, that the wrongful death law
occupies the field, leaving no room for parallel development of the common law.
We do not share plaintiff‟s view, however, that the wrongful death law precludes a
plaintiff in a common law loss of consortium action accruing before death from
recovering postdeath damages. Also, at issue in Justus was whether we should
recognize a common law right of action based on the wrongful death of a fetus.
Doing so would have required us to establish an entirely new category of wrongful
death recovery, and we declined to interfere so directly with the statutory scheme.
Here, by contrast, we are merely recognizing a common law right to recover a
component of damages that is already recoverable under the wrongful death
statute, and therefore our holding does not extend the substantive limits of the
wrongful death statute.
In arguing that postdeath damages are not recoverable in a common law
action for loss of consortium, plaintiff also relies on a comment in the Restatement
Second of Torts (Restatement). Again, we disagree.
16
The section of the Restatement addressing loss of consortium claims states
in its comment: “In case of death resulting to the impaired spouse, the deprived
spouse may recover under the rule stated in this Section only for harm to his or her
interests and expense incurred between the injury and death. For any loss
sustained as a result of the death of the impaired spouse, the other spouse must
recover, if at all, under a wrongful death statute.” (Rest.2d Torts, § 693, com. f,
p. 497, italics added.) As the Court of Appeal here pointed out, this comment
refers to situations in which the common law loss of consortium claim is brought
after the death of the injured spouse and joined with a statutory wrongful death
claim. For this reason, the introductory phrase of the comment is not “In case
death is likely to result to the impaired spouse . . . .” Instead, the comment refers
to the death as a completed fact.
When a common law loss of consortium claim is brought after the death of
the injured spouse and joined with a statutory wrongful death claim, it may be
appropriate to limit the common law claim to the lifetime of the injured spouse in
order to avoid a double recovery with respect to postdeath damages. But we do
not have that situation here. Rather, here plaintiff brought her common law loss of
consortium claim before her husband‟s death, in an action separate from the
current wrongful death action. To read the Restatement‟s comment as applicable
to a loss of consortium claim brought and resolved before the injured spouse‟s
death, as plaintiff urges, would be inconsistent with our long-standing statutory
rule that a tort plaintiff may recover all prospective damages that are sufficiently
certain. (Civ. Code, §§ 3283, 3333.) When a person has been wrongfully
deprived of spousal companionship and affection and the injured spouse is likely
to soon die from the injuries, ongoing detriment is sufficiently certain to satisfy
this statutory standard.
17
We also note that to adopt plaintiff‟s proposed rule — limiting common
law loss of consortium claims to the lifetime of the injured spouse — would often
lead, in the case of a life-curtailing injury, to multiple proceedings and the
possibility of a double recovery or an inadequate recovery. Assuming the plaintiff
brings a loss of consortium action before the death of the injured spouse, the jury
would be forced — under plaintiff‟s proposed rule — to speculate about how long
the injured spouse will live. If the jury guesses wrong, then the plaintiff will either
be over- or undercompensated depending on the injured spouse‟s actual life span.
If, after the injured spouse dies, the plaintiff brings a wrongful death action to
recover postdeath damages, the result is a second lawsuit concerning essentially
the same issue. The whole problem is largely avoided if the plaintiff in a common
law action for loss of consortium can recover damages for the period after the
death of the injured spouse, as our law permits.
In this case, the dissenting Court of Appeal justice asserted that a primary
right is in essence the right to be free of a particular injury, and in a wrongful
death case the injury in question is the death of the decedent. Applying this
reasoning, the dissent concluded that plaintiff could not possibly have litigated her
statutory wrongful death claims when, before the death of her husband, she
brought her common law action for loss of consortium. The dissent also asserted
that, in the common law action for loss of consortium, plaintiff was not able to
recover damages for the period after her husband‟s death.
According to the Court of Appeal dissent, plaintiff‟s present statutory
wrongful death action for loss of consortium is a cause of action distinct from her
previous common law action for loss of consortium (and therefore it is not barred
by the doctrine of res judicata), but because of the dismissal of the previous action
with prejudice, plaintiff is barred in her present action from pursuing damages for
predeath injury. The erroneous premise of this contention is that plaintiff‟s
18
previous common law action was limited in scope to predeath damages and that
she could recover postdeath damages only by way of her statutory wrongful death
action. We reject that premise for the reasons discussed. (See, ante, at pp. 11-18.)
In addition, we reject the assertion of the Court of Appeal dissent that the
primary right at issue in a wrongful death action is necessarily defined in terms of
the death of the decedent. The death of the decedent is certainly a prerequisite if
one relies on the wrongful death statute as one’s legal theory of recovery, but the
primary right at issue in a wrongful death case may or may not depend on the
decedent‟s death. Here, for example, the primary right is the right not to be
permanently and wrongfully deprived of spousal companionship and affection. The
violation of that right could be litigated on a common law theory (Rodriguez, supra,
12 Cal.3d 382) or on a statutory wrongful death theory (Code Civ. Proc., § 377.60),
but irrespective of the legal theory employed, there is only one cause of action.
We conclude that the primary right at issue in plaintiff‟s current wrongful
death action for loss of consortium is the same as the primary right at issue in her
previous common law action for loss of consortium, and therefore the res judicata
doctrine bars the wrongful death action insofar as it concerns loss of consortium.
Plaintiff‟s previous common law action sought compensation not only for the loss
of consortium injury that she had suffered and would continue to suffer as a result
of her husband‟s physical and emotional condition while he was still alive, but
also for the loss of consortium injury that she anticipated she would continue to
suffer as a result of her husband‟s premature death. Plaintiff‟s present wrongful
death action likewise seeks compensation for the loss of consortium injury that she
has suffered and will continue to suffer as a result of her husband‟s premature
death. With respect to postdeath loss of consortium, the two actions concern the
same plaintiff seeking the same damages from the same defendant for the same
harm, and to that extent they involve the same primary right. Plaintiff dismissed
19
her previous action with prejudice. Because such a dismissal is the equivalent of a
final judgment on the merits (see, ante, at p. 3), plaintiff may not now litigate the
same primary right a second time.6
III
The judgment of the Court of Appeal is affirmed.
KENNARD, J.
WE CONCUR:

BAXTER, J.
CHIN, J.
CORRIGAN, J.

6
Anticipating this conclusion, plaintiff argues alternatively that the state and
federal due process guarantees prevent us from applying our conclusion
retroactively. In other words, she contends that in 2001, when her common law
action for loss of consortium was dismissed, the law limited her recovery to
damages she would sustain during her injured husband‟s lifetime, and she argues
that, even if we now adopt a different rule, she should still be permitted to
prosecute her wrongful death action because that action was viable when it first
accrued in 2002. Plaintiff‟s argument lacks merit.

In reaching our decision, we have not changed the law. The rule that a tort
plaintiff may recover damages for all detriment that is certain, including future
detriment, is not a new rule of law that we are just now recognizing; rather, it is a
common law rule that was codified in California‟s Civil Code in 1872. (Civ.
Code, § 3283.) When plaintiff brought her common law loss of consortium action
in 2000, she expressly alleged that she had been “permanently deprived” of her
husband‟s consortium, and the law at that time entitled her to prospective
damages, including damages for detriment she would suffer after her husband‟s
death. Because plaintiff dismissed that action with prejudice, she may not now
seek redress for the same harm in her wrongful death action.
20





DISSENTING OPINION BY MORENO, J.

I disagree with the majority‟s analysis and conclusion. I conclude rather
that a statutory wrongful death action is different from a common law action for
loss of consortium and implicates a distinct primary right. As discussed below,
neither is plaintiff‟s claim disposed of by collateral estoppel or the rule against
double recovery. Nor is there any indication that plaintiff and defendant entered
into a settlement agreement that encompassed the wrongful death claim. I would
therefore conclude that defendant has failed to carry its burden of demonstrating
that plaintiff‟s wrongful death claim is barred.
As the majority explains, Boeken voluntarily dismissed with prejudice an
action for common law loss of consortium that was alleged to be “permanent.”
We must determine whether such a voluntary dismissal acted via res judicata to
bar plaintiff‟s subsequent wrongful death action.
As the majority recounts, to determine whether two proceedings involve
identical causes of action, such that the latter proceeding would be barred by the
claim preclusion aspect of res judicata, California courts have “consistently
applied the „primary rights‟ theory.” (Slater v. Blackwood (1975) 15 Cal.3d 791,
795.) Under this theory, “[a] cause of action . . . arises out of an antecedent
primary right and corresponding duty and the delict or breach of such primary
right and duty by the person on whom the duty rests. „Of these elements, the
primary right and duty and the delict or wrong combined constitute the cause of
1


action in the legal sense of the term . . . .‟ ” (McKee v. Dodd (1908) 152 Cal. 637,
641.) We consider causes of action distinct for res judicata purposes only when
they involve an invasion of different primary rights, wherein “the „cause of action‟
is based upon the harm suffered, as opposed to the particular theory asserted by
the litigant.” (Slater, supra, at p. 795.)
As has been recognized, “[N]o generally approved and adequately defined
system of classification of primary rights exists; indeed, primary rights are usually
defined in terms of such abstraction and elasticity as to be of little or no predictive
significance. The concept of „cause of action‟ may thus be enlarged or narrowed
in proportion to the breath of the particular court‟s concept of „primary rights‟.”
(7 Grossman & Van Alstyne, Cal. Practice: Pleading — Civil Actions (2d ed.
1981) § 761, p. 288.) Applying primary rights doctrine to wrongful death and loss
of consortium actions presents a particular challenge because of the overlapping
nature of these two actions. Notwithstanding these analytical difficulties, there are
compelling reasons to view a statutory wrongful death cause of action and a
common law loss of consortium action as different causes of action implicating
distinct primary rights.
As stated in Justus v. Atchison (1977) 19 Cal.3d 564, 571, “the cause of
action for wrongful death in this state is a pure creature of statute,” originating
with the passage of the first wrongful death statute in 1862. The court in Justus, in
rejecting a claim that a fetus is a person for purposes of the wrongful death statute,
made clear that the question, like all questions regarding the scope of wrongful
death law, was purely a matter of statutory construction. (Ibid.) In contrast, the
rule in Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, involves a
common law judge-made rule permitting a person to recover damages for loss of
consortium from the serious but nonfatal injury of his or her spouse. The Justus
court recognized that the judicial creation of a common law loss of consortium
2
action was permissible precisely because it was distinct from, and did not alter, a
statutorily authorized wrongful death cause of action. (Justus, supra, at p. 572.)
The distinction between the two causes of action is made apparent by an
examination of their elements. “The elements of the cause of action for wrongful
death are the tort (negligence or other wrongful act), the resulting death, and the
damages, consisting of the pecuniary loss suffered by the heirs. [Citations.]” (5
Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 938, p. 352.) Those pecuniary
losses may include “(1) the loss of the decedent‟s financial support, services,
training and advice, and (2) the pecuniary value of the decedent‟s society and
companionship.” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256,
1264.) The latter form of damages is also called loss of consortium. A wrongful
death plaintiff may also recover reasonable funeral expenses. (Francis v. Sauve
(1963) 222 Cal.App.2d 102, 124.)
In contrast, a common law loss of consortium action must allege nonfatal
tortious injury that is “sufficiently serious and disabling to raise the inference that
the conjugal relationship is more than superficially or temporarily impaired.”
(Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 932-933.) A
common law action for loss of consortium does not include an action for loss of
financial support, which is generally recovered in a tort action brought by the
injured spouse. (Rodriguez v. Bethlehem Steel Corp., supra, 12 Cal.3d at p. 406.)
Also, the loss of consortium action applies only to spouses (see Borer v. American
Airlines (1977) 19 Cal.3d 441, 453 [rejecting a child‟s action for loss of parental
3
consortium]), whereas a wrongful death action applies to both the spouse1 and
children of the decedent (Code Civ. Proc., § 377.60, subd. (a)).
The distinctness of these two causes of action can be seen clearly by
considering when they begin to accrue. Were the two actions really a single
action, then as soon as a person suffered a loss of consortium from the serious
injury of a spouse, the statute of limitations would begin on all loss of consortium
claims. (See Meighan v. Shone (1995) 34 Cal.App.4th 1025, 1034.) A wrongful
death claim filed outside the limitations period for bringing the common law loss
of consortium claim would be time-barred. (See Miller v. Lakeside Village
Condominium Assn. (1991) 1 Cal.App.4th 1611, 1616-1619 [personal injury cause
of action begins to accrue with the first indication of appreciable harm].) But in
fact it is indisputable that the statute of limitations for a wrongful death claim does
not begin to run until the death of the spouse or other relative at the earliest
(Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 404), regardless of the timing of
any predeath injuries. Nothing in the majority opinion alters that basic principle.
Were that not so, then the common law cause of action would alter the
requirements for bringing a statutory wrongful death cause of action and in effect
amend the wrongful death statute — something it may not do. (See Justus, supra,
19 Cal.3d at p. 572.) Thus, although res judicata precludes a party from raising in
subsequent litigation against the same party a “ „matter . . . within the scope of the
[previous] action, related to the subject matter and relevant to the issues, so that it
could have been raised . . . .‟ ” (Tensor Group v. City of Glendale (1993) 14
Cal.App.4th 154, 160), in the present case a wrongful death claim could not have

1
The wrongful death statute also applies to domestic partners. (Code Civ.
Proc., § 377.60, subd. (a).) For shorthand purposes, I will use the term “spouse” to
include “domestic partner.”
4


been raised at the time the loss of consortium claim was pleaded and then
dismissed, because the former claim had not yet accrued.
Moreover, as noted, funeral expenses are recoverable in wrongful death
actions. (Francis v. Sauve, supra, 222 Cal.App.2d at p. 124.) The majority
concludes that plaintiff forfeited her appeal of her claim for funeral expenses in
the present case. (Maj. opn., ante, at p. 4, fn. 2.) Be that as it may, the majority
does not contest that, but for this forfeiture, plaintiff was not barred from pursuing
a wrongful death action in which funeral expenses could be recovered. Moreover,
as noted, a loss of consortium action does not include damages for loss of
economic support and therefore does not bar a wrongful death claimant from
seeking such damages.2 So, the necessary implication of the majority opinion
appears to be that a wrongful death action consists of several separate primary
rights: the right to economic support, the right to consortium, the right to funeral
expenses, and only the loss of consortium “primary right” is foreclosed by a prior
common law loss of consortium action.
But there is no authority for parsing a wrongful death claim in this manner
into separate primary rights. Indeed, in a wrongful death suit in which the causes
of action “were denominated as: (1) negligence; (2) strict liability; (3) breach of
implied warranty; and (4) „wrongful death,‟ ” one Court of Appeal noted that
“[m]ore properly characterized . . . , the plaintiffs‟ suit consisted of but one true
cause of action,‟ that cause of action being for the injury they had suffered as a
result of the wrongful death of the decedent [citation], and the four „causes of

2
Loss of economic support damages would not be available in a wrongful
death action, however, if they have already been recovered in the injured spouse‟s
personal injury action, as in the present case, according to the rule against double
recovery discussed below.
5


action‟ were actually counts based on the same primary right of plaintiffs and the
same primary duty of defendants, each of which merely alleged additional
circumstances out of which the primary right and primary duty arose.” (Barrett v.
Superior Court (1990) 222 Cal.App.3d 1176, 1181-1182, italics added.) In other
words, wrongful death is most properly characterized as consisting of a single
primary right, created by statute and arising at the time of decedent‟s death, to be
free of various pecuniary losses that result from tortious conduct leading to a
spouse‟s or child‟s death. This statutorily created primary right is plainly distinct
from the common law cause of action for loss of consortium arising from a
nonfatal injury.
Contrary to the majority‟s principal argument, the distinctness of the
primary rights arising from a wrongful death and common law loss of consortium
causes of action is not altered by the fact that a plaintiff in a common law loss
of consortium action can recover damages for the spouse‟s reduced life
expectancy, in other words, for some of the damages that are recoverable in a
subsequent wrongful death action. As a leading exponent of primary rights theory,
John Norton Pomeroy, stated, “if the facts alleged in the pleading show that the
plaintiff is possessed of two or more distinct and separate primary rights, each of
which has been invaded . . . it follows . . . that the plaintiff has united two or more
causes of action, although the remedial rights arising from each, and the
corresponding reliefs, may be exactly of the same kind and nature.” (Pomeroy,
Code Remedies (5th rev. ed. 1929) Joinder of Causes of Action, § 350, p. 535,
italics added.) Moreover, courts have made clear, particularly in the context of
litigation involving both statutory and common law causes of action, that
“different primary rights may be violated by the same wrongful conduct.”
(Branson v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327, 342 [a
corporation‟s failure to indemnify may violate an employee‟s statutory right to
6
indemnity under Corp. Code, § 317 and a separate contractual right to indemnity];
see also Agarwal v. Johnson (1979) 25 Cal.3d 932, 954-955 [employer‟s racially
discriminatory conduct may violate distinct primary rights under federal Title VII
law and state law regarding slander and intentional infliction of emotional
distress]; Le Parc Community Assn. v. Workers’ Comp. Appeals Board (2003) 110
Cal.App.4th 1161, 1172 [uninsured employer‟s negligence may violate
employee‟s distinct primary rights under workers‟ compensation and tort law]; 1
Pomeroy, Equity Jurisprudence (5th ed. 1941) The Constituent Parts of Equity,
§ 91, p. 120 [“the same wrongful act or default may invade many different
rights”].)
In sum, a defendant‟s tortious conduct resulting in personal injury may give
rise to two distinct causes of action in that person‟s spouse: a common law loss of
consortium claim if the nonfatal injuries are sufficiently serious to result in that
loss, and a later-accruing wrongful death claim if the injuries result in the spouse‟s
death, with a spouse being able to claim various damages for pecuniary loss,
including a loss of consortium. This is not to say, however, that litigation of the
loss of consortium action may not limit the scope of a subsequent wrongful death
action. Inasmuch as that litigation recovers for loss of consortium resulting from a
shortened life span, i.e., the same loss of consortium damages as would be
recoverable in a wrongful death action, a plaintiff cannot again recover those same
damages in a wrongful death action, for such would be an improper double
recovery. (See Tavaglione v. Billings (1993) 4 Cal.4th 1150, 1158-1159.)
Nothing in the record here indicates that plaintiff would be double recovering for
loss of consortium damages.
Collateral estoppel also precludes a party from litigating in a second action
against the same party or its privity an issue that was “actually litigated” in a
former proceeding. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.) In
7
determining what issues were actually litigated and necessarily decided in the
previous action, a court may view the record as a whole of the previous action.
(See 7 Witkin, Cal. Procedure, Judgment, supra, §§ 417-418, pp. 1062-1064 and
cases cited therein.) For example, it may be determined in a trial on a loss of
consortium action that the defendant‟s acts alleged to seriously injure the spouse in
fact were not tortious, or were not causally related to the injury, and therefore a
plaintiff would be barred through collateral estoppel from bringing a wrongful
death action against the same defendant based on the same acts. On the other
hand, a judgment against a plaintiff in a common law loss of consortium action
may have been due to an inability to demonstrate that there was an injury
“sufficiently serious and disabling to raise the inference that the conjugal
relationship is more than superficially or temporarily impaired.” (Molien v. Kaiser
Foundation Hospitals, supra, 27 Cal.3d at pp. 932-933; see Park v. Standard
Chem Way Co. (1976) 60 Cal.App.3d 47, 50-51.). When it is clear from the
record that a spousal injury was insufficiently serious to give rise to a common law
loss of consortium action, the central issue in a wrongful death action — whether
defendant‟s tortious action caused the decedent‟s death — has not been litigated,
and therefore would not be barred by collateral estoppel.
Although there is some controversy in the matter, the dominant rule in
this state is that an issue that has been settled by a voluntary dismissal with
prejudice does not constitute an issue that has been “actually litigated” for
collateral estoppel purposes. (Rice v. Crow (2000) 81 Cal.App.4th 725, 736-737,
and cases cited therein; but see Alpha Mechanical Heating & Air Conditioning,
Inc. v. Travelers Casualty & Surety Co. of America (2005) 133 Cal.App.4th 1319,
1333-1334.) The California cases follow the rules set forth in the Restatement that
“in the case of a judgment entered by confession, consent, or default, none of the
issues is actually litigated” and therefore collateral estoppel does not apply in a
8
subsequent action. (Rest.2d Judgments, § 27, com. e, p. 257.) But this is not to
say that a common law loss of consortium action cannot be terminated in such a
way as to resolve all loss of consortium claims. “The judgment may be conclusive
. . . with respect to one or more issues, if the parties have entered an agreement
manifesting such an intention.” (Ibid., see also Rice, supra, 81 Cal.App.4th at p.
737, fn. 1.) Because there is no settlement in the record to accompany the
dismissal in the present case, we cannot divine the intentions of the parties.
Therefore, based on the voluntary dismissal alone, we cannot say that the
subsequent wrongful death action is barred.
In the present case, plaintiff, understandably unable to anticipate the rule
the majority announces today, apparently did not believe that her voluntary
dismissal of her loss of consortium claim would bar a wrongful death claim. After
today, those who seek to resolve a common law loss of consortium claim but do
not wish to preclude litigation of a wrongful death claim will not use a voluntary
dismissal with prejudice as a vehicle for doing so. Such is the sole practical effect
of the majority opinion other than the resolution of the present case. If, however,
the rule I propose were adopted, then those who dismiss their common law loss of
consortium claims would still be able to use voluntary dismissals with prejudice as
a means of doing so, and courts would look to accompanying settlement
agreements to determine precisely the extent to which the parties were also
relinquishing wrongful death claims.
MORENO, J.

WE CONCUR: GEORGE, C. J.

WERDEGAR, J.
9



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Boeken v. Philip Morris USA, Inc.
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 159 Cal.App.4th 1391
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S162029
Date Filed: May 13, 2010
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: David L. Minning

__________________________________________________________________________________

Attorneys for Appellant:

Law Offices of Michael J. Piuze, Michael J. Piuze; and Kenneth Chesebro for Plaintiff and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Horvitz & Levy, Lisa Perrochet, Adam M. Flake, John F. Querio; Shook, Hardy & Bacon, Lucy E. Mason
and Patrick J. Gregory for Defendant and Respondent.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Michael Piuze
Law Offices of Michael J. Piuze
11755 Wilshire Boulevard, Suite 1170
Los Angeles, CA 90025
(310) 312-1102

Lisa Perrochet
Horvitz & Levy
15760 Ventura Boulevard, 18th Floor
Encino, CA 91436-3000
(818) 995-0800


Petition for review after the Court of Appeal affirmed the judgment in a civil action. This case presents the following issue: Did the doctrine of res judicata bar plaintiff's claim for noneconomic damages in a wrongful death action after her husband died, because she had dismissed with prejudice a claim for loss of consortium while he was alive?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Thu, 05/13/201048 Cal. 4th 788, 230 P.3d 342, 108 Cal. Rptr. 3d 806S162029Review - Civil Appealsubmitted/opinion due

Parties
1Boeken, Judy (Plaintiff and Appellant)
Represented by Kenneth Chesebro
Attorney at Law
P.O. Box 381070
Cambridge, MA

2Boeken, Judy (Plaintiff and Appellant)
Represented by Michael Joseph Piuze
Law Offices of Michael J. Piuze
11755 Wilshire Boulevard, Suite 1170
Los Angeles, CA

3Phillip Morris USA, Inc. (Defendant and Respondent)
Represented by Patrick Joseph Gregory
Shook Hardy & Bacon, LLP
333 Bush Street, Suite 600
San Francisco, CA

4Phillip Morris USA, Inc. (Defendant and Respondent)
Represented by Lisa Perrochet
Horvitz & Levy, LLP
15760 Ventura Boulevard, Suite 1800
Encino, CA

5Phillip Morris USA, Inc. (Defendant and Respondent)
Represented by Adam McMeen Flake
Horvitz & Levy
15760 Ventura Boulevard, 18th Floor
Los Angeles, CA


Opinion Authors
OpinionJustice Joyce L. Kennard
DissentJustice Carlos R. Moreno

Dockets
Mar 25 2008Record requested
 
Mar 25 2008Petition for review filed
  Judy Boeken, aplt. Michael Piuze, counsel (8.25(b))
Mar 26 2008Received Court of Appeal record
 
Apr 15 2008Answer to petition for review filed
  Philip Morris USA, Inc., respondent by Adam M. Flake, counsel crc.8.25(b)
May 12 2008Reply to answer to petition filed
  Judy Boeken, appellant by Michael J. Piuze, counsel filed with permission
May 21 2008Petition for review granted (civil case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.
Jun 4 2008Certification of interested entities or persons filed
  Appellant Judy Boeken ~Attorney Michael Joseph Piuze
Jun 16 2008Request for extension of time filed
  Appellant is asking to July 21, 2008, to file the opening brief on the merits. by counsel, Geraldine Weiss, of the Law Offices of Michael J. Piuze.
Jun 17 2008Certification of interested entities or persons filed
  by Adam McMeen Flake for respondent.
Jun 18 2008Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including July 21, 2008.
Jul 22 2008Opening brief on the merits filed
  Judy Boeken, Appellant / CRC 8.25(b) by Michael J. Piuze, counsel
Aug 11 2008Request for extension of time filed
  Respondent, Philip Morris USA, is asking to Sept. 22, 2008, to file the answer brief on the merits. by counsel, Adam M. Flake.
Aug 12 2008Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including September 22, 2008.
Sep 23 2008Answer brief on the merits filed
  Phillip Morris USA Incorporated, respondent by Adam M. Flake, counsel crc.8.25(b)
Sep 23 2008Request for judicial notice filed (granted case)
  Phillip Morris USA Incorporated, respondent by Adam M. Flake, counsel crc.8.25(b)
Oct 15 2008Reply brief filed (case fully briefed)
  Appellant, Judy Boeken by counsel, Michael J. Piuze.
Feb 3 2010Case ordered on calendar
  to be argued Tuesday, March 2, 2010, at 9:00 a.m., in San Francisco
Feb 19 2010Supplemental brief filed
Defendant and Respondent: Phillip Morris USA, Inc.Attorney: Lisa Perrochet  
Mar 2 2010Cause argued and submitted
 
May 12 2010Notice of forthcoming opinion posted
  To be filed Thursday, May 13, 2010 at 10 a.m.

Briefs
Jul 22 2008Opening brief on the merits filed
 
Sep 23 2008Answer brief on the merits filed
 
Oct 15 2008Reply brief filed (case fully briefed)
 
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May 28, 2010
Annotated by smurphy1

Facts:

The plaintiff, Judy Boeken, is the widow of Richard Boeken. Mr. Boeken died from lung cancer in January 2002. Before his death, Mr. Boeken sued defendant, Phillip Morris USA, Inc., for wrongfully causing his cancer. In March 2006, Ms. Boeken received over $80 million in damages as a result of that suit.

In October 2000, while Mr. Boeken was still alive, Ms. Boeken filed a separate action against Philip Morris for loss of consortium, seeking compensation for the loss of her husband’s companionship and affection. Specifically, Ms. Boeken alleged she had suffered “the loss of love, affection, society, companionship, sexual relations, and support.” Approximately four months later, she dismissed the action with prejudice, barring any future claim on the same subject matter. Ms. Boeken did not indicate her reason for dismissal.

Mr. Boeken died one year after the dismissal. Ms. Boeken then filed the present wrongful death action, again seeking compensation for the loss of her husband’s companionship and affection. This time, Ms. Boeken alleged she had suffered “loss of love, companionship, comfort, affection, society, solace, and moral support.”

Procedural History:

Ms. Boeken filed the present wrongful death action against Philip Morris under Code of Civil Procedure section 377.60. Philip Morris demurred, arguing that Ms. Boeken’s action for wrongful death was barred by the doctrine of res judicata. The trial court sustained the demur without leave to amend, and Ms. Boeken appealed. A divided panel of the Court of Appeal affirmed.

Issue:

Was Ms. Boeken’s wrongful death action barred by the doctrine of res judicata because it involved the same primary right and breach of duty as her former loss of consortium action?

Holding:

Yes; the wrongful death action was barred because it involved the same primary right and breach of duty as the loss of consortium action.

Reasoning:

(1) The doctrine of res judicata bars plural suits between the same parties on the same cause of action; this is known as claim preclusion. To determine whether two causes of action are identical for the purpose of claim preclusion, California courts have consistently applied the primary rights theory. According to this theory, two causes of action are identical if they involve the same primary right and breach of duty.

Here, for the purpose of res judicata, the loss of consortium and wrongful death actions were identical because they involved the same primary right and breach of duty. In both instances, the primary right was Ms. Boeken’s right not to be wrongfully deprived of spousal companionship and affection, and the breach of duty was Phillip Morris’s conduct in wrongfully inducing Mr. Boeken to smoke their cigarettes. Because the loss or consortium and wrongful death claims were identical causes of action for the purpose of res judicata, the latter claim was barred; Ms. Boeken could not sue Phillip Morris twice for the same conduct under different legal theories.

(2) Ms. Boeken contended that the primary right in her loss of consortium and wrongful death actions was not the same. She alleged that the primary right in the loss of consortium action was the right not to be wrongfully deprived of spousal companionship and affection before Mr. Boeken’s death, while the primary right in the wrongful death action was the right not to be wrongfully deprived of spousal companionship and affection after Mr. Boeken’s death. Under long-standing principles of tort liability, however, an action for loss of consortium includes damages for the period after an anticipated premature death; therefore, the primary right in both actions was the same.

Ruling:

Affirmed the judgment of the Court of Appeal.

Dissent:

A common law loss of consortium action and a statutory wrongful death action do not involve the same primary right. Loss of consortium involves a right to be free of various pecuniary losses that result from tortious conduct leading to a spouse’s injury, while wrongful death involves a right to be free of various pecuniary losses that result from tortious conduct leading to a spouse’s or child’s death.

Tags:

Boeken, Philip Morris, lung cancer, loss of consortium, wrongful death, res judicata, primary rights theory

by Sean Murphy