Court errs in abating administrator’s wrongful death and survival actions since petitioner need not join all heirs and claims survive decedent’s death. Nancilee Adams v. The Superior Court of Los Angeles County, (No. B229437 California Courts of Appeal, Second Appellate District, Division Three, June 2, 2011).
In this case, the petitioner/plaintiff filed a petition with the appeals court seeking to vacate a trial court’s order abating the plaintiff’s wrongful death and survival causes of action because the
plaintiff, decedent’s representative did not join all known heirs under Code of Civil Procedure Sections 377.60 and 382. The appeals court held that the trial court erred in abating plaintiff’s
wrongful death cause of action and survival causes of action. In so holding, under Code of Civil
Procedure Section 377.60, the heirs of the decedent or a personal representative may bring a wrongful death action on behalf of the decedent’s heirs, but not both. The decedent’s personal representative of successor-in-interest may commence a survival action. A pending action does not abate by death if the cause of action survives. Here, the plaintiff’s role as administrator was the same as acting as trustee to recover damages for the benefit of the heirs. Her role was not inconsistent with her position as an administrator because she remained a fiduciary of the
heirs. As such, she did not need to join heirs as a party. Because abatement of the wrongful death action was improper, the trial court had no basis for abating the survival causes of action as well because the decedent’s causes of action survived and the plaintiff had the right to be substituted in place of the decedent in those actions. Thus, the court erred in abating the plaintiff’s claim.
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