Low, Ball & Lynch’s
WEEKLY LAW RESUME
March
24, 2005 Issue
By: Mark Hazelwood
Wrongful Death - Statute Extending
Right To Sue To
Domestic Partners Applied
Retroactively
Bouley v.
Court of Appeal, Second District
(March 15, 2026)
In 2000, the California Legislature recognized the domestic partnerships of
same-sex couples and certain male-female couples (Cal. Family Code section
297). Since that time, the Legislature has acted to expand the rights and
responsibilities of domestic partners. This case addresses the rights of
a domestic partner to sue for wrongful death.
A cause of action for wrongful death is governed by Cal. Code of Civil
Procedure section 377.60. In this case, Plaintiff Karl Bouley’s
domestic partner, Andrew Howard, died in May 2001. As of May
2001, section 377.60 specified that a wrongful death action could be brought by
the decedent’s surviving spouse, children and issue of deceased children.
In January 2002, section 377.60 was amended to include domestic
partners, as defined in Family Code section 297. It was after that
operative date that Mr. Bouley filed suit for medical malpractice against
The Second Appellate District, in reviewing the case, analyzed whether the
Legislature intended for the amendments to apply retroactively, and whether a
retroactive application was Constitutional. In doing so, the Court
felt that the Legislature’s intent was unmistakable. Subdivision (d) of
section 377.60 sets forth that the section applies to any cause of action
arising on or after January 1, 1993. Further, the 2005 amendments
(subdivision (f)(2)), explicitly apply to a death “occurring prior to January
1, 2002.” Thus, the Court felt that under the plain language of the
statute, Mr. Bouley could pursue a claim for wrongful death.
Defendants argued that the 2005 amendments to section 377.60 were not
intended to revive a cause of action that had been fully and finally
adjudicated. Indeed, the trial court had dismissed the action before January 1,
2005. The Court of Appeal rejected this argument. A judgement of
the trial court is not final until the appellate court disposes of the
case. This had not yet occurred.
The Court of Appeal then went on to address whether retroactive application
was Constitutional. Retroactive application may be unconstitutional if it
deprives a person of a property right without due process of law, or if it
impairs the obligation of a contract. Defendants contended that
retroactive application deprived them of due process. In essence, they
argued that if they knew this additional class of persons could bring a
wrongful death action, this would have affected their purchase of
insurance. The Appellate Court rejected this additional argument.
The Court was not convinced that an individual or a hospital would rely
on section 377.60 during events which may later become the basis for a
wrongful death suit for medical malpractice. Damages for wrongful death
are highly unpredictable. The Court failed to see how a doctor or
hospital could determine the proper medical malpractice policy limits based on
a prediction of an anticipated number of potential decedents.
Not only did the Court of Appeal rule that there was no Due Process
violation, the Court concluded that there was a strong State interest in
promoting families, and individual rights and responsibilities through the
extension of rights to domestic partners. The Court, therefore, reversed
the trial court ruling and reinstated Mr. Bouley’s wrongful death action.
Comment
This decision by the Court of Appeal further clarifies the rights of
domestic partners in
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