Lineamientos de trabajo documento 01 - Amicus curiae National Center for Lesbian Rights (“NCLR”)

En la clase del jueves 13 de marzo, vamos a empezar a trabajar con el documento 01-Amicus Curiae Brief.pdf.

Abajo copio los lineamientos de trabajo, los puntos 1, 2 y 3 son para todas las alumnas y todos los alumnos de la materia. Durante la clase se designarán solo dos para trabajar en particular con el punto 4 correspondiente a la traducción y se indicarán las coordenadas del encargo de traducción.

1. Read the entire document, especially from page 12 to the end.

2. Explain the events as they happened from a procedural standpoint (event, complaint, judgment, appeal), including the relationship between the intervening parties and the wrongful death case.

3. Explain the following terms under California state law and provide a Spanish translation for them:

Plaintiff

Defendant

Appellant

Respondent on appeal

Amicus Curiae

Lesbian, gay, bisexual, and transgender (LGBT)

Service of process

Complaint

Wrongful death

Biological or adoptive father

Decedent

Standing to bring an action

Parentage

Probate

Child/children

Same-sex parents

4. Translate into Spanish the following paragraphs:

INTRODUCTION 

Appellant, A.G., alleged in his complaint for wrongful death below that Respondent, the Los Angeles County Sheriff’s Department, entered his father’s home, used a Taser on his father – who was mentally ill – because he would not stop singing in his bathroom, and that his father died as a result. (App. Appendix at pp. 9-11.) The Superior Court improperly dismissed A.G.’s wrongful death claim solely because A.G.’s father, Brian Pickett, was not A.G.’s biological or adoptive father, even though A.G. alleged facts that, if proven, would establish that Mr. Pickett was A.G.’s legal parent under well- settled California law. (See Order at p. 2; App. Appendix at p. 146.) Under the plain language of California’s statutes, any child who can establish that the decedent is their legal parent under the California Uniform Parentage Act (hereafter California UPA), as A.G. has alleged, has standing to bring an action for wrongful death under Code of Civil Procedure, Section 377.60. The Superior Court’s dismissal of A.G.’s claim is contrary to California statutes, severely undermines California’s public policy, and violates the U.S. and California Constitutions. 

The Superior Court’s finding that wrongful death claims can only be brought by children with biological or adoptive parents is contrary to the plain language of California’s parentage, probate, and wrongful death statutes. California allows any child to bring a wrongful death action after the death of a parent if the decedent’s parentage can be established under the California UPA. A.G. has alleged facts showing that Mr. Pickett is his legal parent under the California UPA and thus has standing. 

California’s wrongful death statute allows “[a] cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by. . . [t]he decedent’s surviving spouse, domestic partner, children, and issue of deceased children.” (Code of Civ. Proc., § 377.60, subd. (a), italics added.)1 Both parties recognize that whether a claimant has standing to bring a wrongful death action under Code of Civil Procedure Section 377.60 is determined by whether the claimant would inherit intestate under the Probate Code. (Resp. Br. at p. 8; Pet. Br. at pp. 26-27.) As another Division of this Court has explained, the term “children” in Code of Civil Procedure, Section 377.60 means a person who would inherit intestate as a child of the decedent under the Probate Code. (Cheyanna M. v. A.C. Nielsen Co. (1998) 66 Cal.App.4th 855, 863–864; see also Scott v. Thompson (2010) 184 Cal.App.4th 1506, 1514 [non-biological father who was a presumed parent under Fam. Code § 7611, subd. (a) had standing to bring a wrongful death claim because he was entitled to inherit intestate from the child under the Probate Code].) 

Respondent incorrectly asserts that A.G. would not inherit intestate from Mr. Pickett because only a decedent’s biological “issue” are entitled to inherit. (Respondent’s Brief at p. 13.) Respondent provides no citation or support for this proposition, nor does any exist. The plain language of the Probate Code provides that a child inherits intestate if parentage is established under the California UPA, which A.G. has alleged he can prove. Under the Probate Code, a person’s “issue” “means all his or her lineal descendants of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent.” (Prob. Code, § 50.) The Probate Code further provides that “a relationship of parent and child” exists between a person and their “natural parents” and that “[a] natural parent and child relationship is established where that relationship is presumed and not rebutted pursuant to the Uniform Parentage Act.” (Prob. Code, §§ 6450, 6453). 

The Superior Court’s ruling also effectively excludes children with same-sex parents, who nearly always have a non- biological parent,2 from the benefits of Code of Civil Procedure Section 377.60. As the U.S. Supreme Court has recognized, same-sex parents and their children have equal protection and due process rights to receive all the same state law benefits granted to different-sex parents and their children. (Obergefell v. Hodges (2015) 135 S.Ct. 2584, 2600 [holding that same-sex couples have a constitutional right to marry and noting harms suffered by children of same-sex parents because of unequal treatment]; see also U.S. v. Windsor (2013) 133 S. Ct. 2675, 2696 [holding that the federal law prohibiting recognition of marriages between same-sex spouses serves no “legitimate purpose,” but rather “instructs . . . all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others”].) California law recognizes circumstances in which same-sex parents, like similarly situated different-sex parents, are legal parents even if they do not have a biological or adoptive relationship to their children. That includes circumstances, where a biological parent’s same-sex partner holds a child out as her child and raises the child as her own, even though she is not biologically related to the child, and families with children conceived through assisted reproduction. (Elisa B., supra, 37 Cal.4th 108 [holding that the same provision relied on to establish the legal parentage of a non-biological father in In re Nicholas H., supra, 28 Cal.4th 56 must be applied equally to a non-biological mother]; Fam. Code § 7611 [listing methods of establishing that a person is a “natural parent” using gender neutral language]; Fam. Code § 7613, subd. (a) [person who consents in writing to conception of a child through assisted reproduction is a legal parent].) The result of the Superior Court’s ruling thus violates both the U.S. and California Constitutions. 

CONCLUSION 

For the foregoing reasons, amici respectfully request that this Court reverse the decision below and remand this case for a determination of Mr. Pickett’s parentage and allow A.G. to proceed with his wrongful death claim. 

Respectfully submitted February 5, 2018, 

/s/ Catherine P. Sakimura 

Catherine P. Sakimura, #246463 Shannon P. Minter, #168907 National Center for Lesbian Rights 

870 Market Street, Suite 370 San Francisco, CA 94102 415.365.1329 telephone 415.392.8442 fax csakimura@nclrights.org Attorneys for Amici Curiae