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Davila v. Nickell10/26/2005
that Davila paid any expenses; he and Lopez had no bank account and Davila never filed a tax return. There was no evidence of Davila's past earnings, other than a few isolated check stubs. There were no cash receipts, no pay stubs, no W-2's. Plaintiffs' expert economist admitted that he had been unable to obtain any documentary evidence of Davila's previous wages.
On this record, it is reasonably probable that absent the exclusion of the basis for the expert opinion, the jury would have credited Yandell's expert opinion that Davila provided less than 50 percent support for the Davila children, and rejected the Davila children's contrary evidence. We thus remand for a limited retrial on the issue. On retrial, the jury is entitled to hear both sides of this issue. The amount of compensatory damages is not to be retried, only the issue whether the Davila children have standing to recover these damages.
B. Punitive Damages
On its own motion, this court requested the parties to brief the issue of the basis for the punitive damages awarded to the Davila parents and Davila children. Based on the parties' responses and supplemental responses, we conclude the parents were legally entitled to recover punitive damages but the children were not. As explained below, punitive damages are not permitted in a wrongful death cause of action, but are allowed in a survival action. The Davila parents specifically pled they were the successors in interest to Davila's estate so as to permit them to bring a survival action. The Davila children did not allege they were successors in interest to Davila's estate, nor did they allege or prove any other potential basis for recovery of these damages.
Plaintiffs initially argue defendants waived the issue of the propriety of punitive damages by failing to challenge the punitive damage award in the trial court or in their initial briefs to this court. However, this court has the discretion to consider the issue because it involves an issue of law on undisputed facts that may be raised for the first time on appeal. (See Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1341, fn. 6.) This is particularly true when reviewing a punitive damages award, which requires " xacting appellate review" to ensure the award is constitutionally appropriate and not the product of "'"a decisionmaker's caprice."'" (State Farm Mut. Auto. Ins. Co. v. Campbell (2003) 538 U.S. 408, 418; see Simon v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159, 1172; Adams v. Murakami (1991) 54 Cal.3d 105, 115, fn. 5.) The parties were given a reasonable opportunity to address the issue in written briefs and in oral argument.
In their supplemental briefs, the Davila plaintiffs conceded that punitive damages are not available on a wrongful death theory (Code Civ. Proc., § 377.61; Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 450; Rufo v. Simpson (2001) 86 Cal.App.4th 573, 616, fn. 14; Ford Motor Co. v. Superior Court (1981) 120 Cal.App.3d 748, 751), but argued they were entitled to the recovery on a survival action theory. (See Code Civ. Proc., §§ 377.11, 377.30.) We find the argument has merit with respect to the Davila parents, but not the Davila children.
Wrongful death actions and survival actions are distinct legal remedies, and punitive damages are permitted only on a survival action. A survival action is asserted by the beneficiaries on the decedent's behalf and allows recovery for personal injuries to the decedent before his or her death, as well as punitive damages. (Code Civ. Proc., § 377.34.) A proper plaintiff in a survival action is the "decedent's personal representative or, if none, by
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