Boeken v. Philip Morris 2/11/08 CA2/5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B198220

Case Date: 05/21/2008

Preview:Filed 2/11/08

CERTIFIED FOR PUBLICATION IN THE OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

JUDY BOEKEN, Plaintiff and Appellant, v. PHILIP MORRIS USA, INC., Defendant and Respondent.

B198220 (Los Angeles County Super. Ct. No. BC353365)

APPEAL from a judgment of the Superior Court of Los Angeles County, David L. Minning, Judge. Affirmed. Law Offices of Michael J. Piuze, Michael J. Piuze; and Kenneth Chesebro for Plaintiff and Appellant. Horvitz & Levy, Lisa Perrochet, Adam M. Flake; Shook, Hardy & Bacon, Lucy E. Mason and Patrick J. Gregory for Defendant and Respondent.

INTRODUCTION

In affirming the trial court's judgment of dismissal, we hold that the final adjudication on the merits of plaintiff's loss-of-consortium claim against defendant results in a res judicata bar of plaintiff's subsequent wrongful death action for loss-ofconsortium damages against defendant arising from the same injury to plaintiff's spouse that was the basis of the adjudicated loss-of-consortium claim.

BACKGROUND

In March 2000, Richard Boeken (Mr. Boeken), the husband of plaintiff and appellant Judy Boeken (plaintiff), brought an action against defendant and respondent Philip Morris USA, Inc. (Philip Morris) alleging that cigarettes manufactured by Philip Morris caused Mr. Boeken's terminal lung cancer. Mr. Boeken prevailed in his lawsuit and obtained a judgment against Philip Morris for $5.5 million in compensatory damages and $50 million in punitive damages. (See Boeken v. Philip Morris Inc. (2005) 127 Cal.App.4th 1640.) Philip Morris satisfied that judgment. In October 2000, while Mr. Boeken's lawsuit was pending, plaintiff brought a separate action against Philip Morris seeking damages for loss of consortium. Plaintiff alleged that Mr. Boeken, as a result of his illness, was "unable to perform the necessary duties as a spouse" involving "the care, maintenance and management of the family home" and that plaintiff suffered a "loss of love, affection, society, companionship, sexual relations, and support . . . ." Plaintiff further alleged that Mr. Boeken "will not be able to perform such work, services, and duties in the future," and thus she was "permanently deprived and will be deprived of the consortium of Plaintiff's spouse . . . ."

2

In February 2001, for reasons not indicated in the record, plaintiff voluntarily dismissed her loss-of-consortium claim with prejudice.
1

In January 2002, Mr. Boeken died of his cancer. In June 2006, plaintiff filed this wrongful death action against Philip Morris pursuant to Code of Civil Procedure section 377.60 --part of the California wrongful death statute. Plaintiff filed suit in her individual capacity; as trustee of the Richard and Judy Boeken Revocable Trust; and as the guardian ad litem of her minor son, Dylan Boeken. In her individual capacity, plaintiff sought to recover funeral expenses for Mr. Boeken and "[g]eneral damages for the loss of love, companionship, comfort, affection, society, solace, and moral support" that she suffered as the result of Mr. Boeken's death. This appeal concerns only the claim asserted by plaintiff in her individual capacity. Philip Morris demurred to plaintiff's complaint, arguing that because plaintiff's loss-of-consortium and wrongful death claims were both based on the same primary right, plaintiff's dismissal with prejudice of her loss-of-consortium claim resulted in the res judicata bar of her wrongful death claim. The trial court agreed, concluding that the loss-of-consortium and wrongful death actions sought essentially the same damages. The trial court reasoned that because plaintiff had the opportunity to litigate her right to such damages in her prior action, she was precluded from asserting a cause of action to recover those damages in this lawsuit. The trial court sustained the demurrer without leave to
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1

The complaint and voluntary dismissal in plaintiff's loss-of-consortium action were before the trial court on Philip Morris's request for judicial notice. (Evid. Code,

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