Page 1
156 Cal.App.4th 211, 67 Cal.Rptr.3d 236, 07 Cal. Daily Op. Serv. 12,387, 2007 Daily Journal D.A.R. 15,957
(Cite as: 156 Cal.App.4th 211, 67 Cal.Rptr.3d 236)
Court of Appeal, Third District, California.
Jose Reynaldo ROMERO, Plaintiff and Appellant,
v.
PACIFIC GAS & ELECTRIC COMPANY et al.,
Defendants and Respondents.
No. C053700.
Oct. 18, 2007.
Background: Following utility's settlement of
wrongful death action brought by decedent's mother,
decedent's father filed wrongful death action against
utility. The Superior Court, Sacramento County, No.
04AS03669,Loren E. McMaster, J., sustained utility's
demurrer and dismissed action. Father appealed.
Holding: The Court of Appeal, Blease, Acting P.J.,
held that utility was not entitled to protection of one
action rule, even though father had been named as a
nominal defendant in mother's action, where father
was not served and was not a party to mother's action.
Reversed and remanded.
West Headnotes
[1] Parties 287 35
287 Parties
287II Defendants
287II(B) Joinder
287k35 k. Making Defendant Party
Refusing to Join as Plaintiff. Most Cited Cases
A person named as a nominal defendant and properly
joined in a wrongful death action is in reality, a
plaintiff in the case. West's Ann.Cal.C.C.P. § 382.
[2] Death 117 104(1)
117 Death
117III Actions for Causing Death
117III(I) Trial
117k104 Instructions
117k104(1) k. In General. Most Cited
Cases
A jury is properly instructed upon the issue of
damages suffered by a party joined as a nominal
defendant in a wrongful death action, even though
that “defendant” does not participate in the trial.
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
West's Ann.Cal.C.C.P. § 382.
[3] Compromise and Settlement 89 17(2)
89 Compromise and Settlement
89I In General
89k14 Operation and Effect
89k17 Conclusiveness
89k17(2) k. Persons Concluded. Most
Cited Cases
Tortfeasor was not entitled to protection of one action
rule upon settling wrongful death action brought by
decedent's mother, even though known heir,
decedent's father, had been named as a nominal
defendant, where decedent's father was not served
and was not a party to the action. West's
Ann.Cal.C.C.P. § 382.
See 6 Witkin, Summary of Cal. Law (10th ed. 2005)
Torts, § 1385 et seq.; Flahavan et al., Cal. Practice
Guide: Personal Injury (The Rutter Group 2007) ¶
3:301 et seq. (CAPI Ch. 3-G); Cal. Jur. 3d, Wrongful
Death, § 11; Cal. Civil Practice (Thomson/West
2003) Torts, § 23:6.
[4] Death 117 7
117 Death
117III Actions for Causing Death
117III(A) Right of Action and Defenses
117k7 k. Nature and Form of Remedy.
Most Cited Cases
Death 117 42
117 Death
117III Actions for Causing Death
117III(E) Parties
117k40 Plaintiffs
117k42 k. Joinder. Most Cited Cases
Death 117 43
117 Death
117III Actions for Causing Death
117III(E) Parties
117k43 k. Defendants. Most Cited Cases
Wrongful death statute authorizes only a single
action, in which all the decedent's heirs must join;
any heir who does not consent to be joined as a
plaintiff in the wrongful death action must be named
as a nominal defendant. West's Ann.Cal.C.C.P. §§

156 Cal.App.4th 211, 67 Cal.Rptr.3d 236, 07 Cal. Daily Op. Serv. 12,387, 2007 Daily Journal D.A.R. 15,957
(Cite as: 156 Cal.App.4th 211, 67 Cal.Rptr.3d 236)
377.60, 382.
[5] Judgment 228 690
228 Judgment
228XIV Conclusiveness of Adjudication
228XIV(B) Persons Concluded
228k690 k. Coheirs or Codistributees and
Codevisees or Colegatees. Most Cited Cases
Judgment 228 707
228 Judgment
228XIV Conclusiveness of Adjudication
228XIV(B) Persons Concluded
228k706 Persons Not Parties or Privies
228k707 k. In General. Most Cited
Cases
If an heir is not included in the original wrongful
death action, the heir may not subsequently bring an
independent action against the tortfeasor unless the
tortfeasor had knowledge of the existence of the heir
at the time of the settlement; this is the case even if
the plaintiff was aware of the existence of another
heir, and the wrongfully omitted heir's remedy is
against the plaintiff who brought the wrongful death
action. West's Ann.Cal.C.C.P. § 377.60.
[6] Compromise and Settlement 89 17(2)
89 Compromise and Settlement
89I In General
89k14 Operation and Effect
89k17 Conclusiveness
89k17(2) k. Persons Concluded. Most
Cited Cases
A tortfeasor waives the protection of the one action
rule by settling wrongful death claim with less than
all the known heirs if such heirs are not a party to the
action.
[7] Death 117 42
117 Death
117III Actions for Causing Death
117III(E) Parties
117k40 Plaintiffs
117k42 k. Joinder. Most Cited Cases
An heir named as a nominal defendant in a wrongful
death action but not served with a summons and
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 2
complaint is not properly joined in the action, and
accordingly is not a party to the action. West's
Ann.Cal.C.C.P. § 382.
[8] Compromise and Settlement 89 17(2)
89 Compromise and Settlement
89I In General
89k14 Operation and Effect
89k17 Conclusiveness
89k17(2) k. Persons Concluded. Most
Cited Cases
The naming of an heir as a nominal defendant is
notice of the existence of the heir sufficient to bring
the case within rule that a tortfeasor waives the
protection of the one action rule by settling wrongful
death claim with less than all the known heirs if such
heirs are not a party to the action. West's
Ann.Cal.C.C.P. § 382.
[9] Action 13 53(2)
13 Action
13III Joinder, Splitting, Consolidation, and
Severance
13k53 Splitting Causes of Action
13k53(2) k. Actions Ex Delicto. Most Cited
Cases
Fact that defendant tortfeasor was unaware that a
known heir joined as a nominal defendant in a
wrongful death action was not served is not a defense
to rule that a tortfeasor waives the protection of the
one action rule by settling wrongful death claim with
less than all the known heirs if such heirs are not a
party to the action; defendant has the burden and the
means of determining whether an heir has been
served. West's Ann.Cal.C.C.P. § 382.
[10] Action 13 53(2)
13 Action
13III Joinder, Splitting, Consolidation, and
Severance
13k53 Splitting Causes of Action
13k53(2) k. Actions Ex Delicto. Most Cited
Cases
A defendant is entitled to rely on allegations in a
wrongful death complaint that the plaintiffs are the
only heirs. West's Ann.Cal.C.C.P. § 377.60.

156 Cal.App.4th 211, 67 Cal.Rptr.3d 236, 07 Cal. Daily Op. Serv. 12,387, 2007 Daily Journal D.A.R. 15,957
(Cite as: 156 Cal.App.4th 211, 67 Cal.Rptr.3d 236)
[11] Action 13 53(2)
13 Action
13III Joinder, Splitting, Consolidation, and
Severance
13k53 Splitting Causes of Action
13k53(2) k. Actions Ex Delicto. Most Cited
Cases
Where a tortfeasor wishes to avail itself of the
protections of the one action rule in wrongful death
action, the burden is on the tortfeasor to ascertain
whether the heirs named as defendants have been
properly joined. West's Ann.Cal.C.C.P. §§ 377.60,
382.
**238 Kevin G. Farnworth, for Plaintiff and
Appellant.
Ryan & Fong, Marla R. Weston, for Defendant and
Respondent.
BLEASE, Acting P.J.
*214 The son of plaintiff Jose Romero and Linda
Brekelmans was killed in an accident involving
defendant Pacific Gas & Electric Company (PG &
E). Linda Brekelmans brought a wrongful death
action against PG & E, naming but not serving her
husband as a nominal defendant under Code of Civil
Procedure section 382.FN1 She settled the action with
PG & E without the participation of Romero and it
was dismissed.
FN1. References to an undesignated section
are to the Code of Civil Procedure.
Thereafter, Romero brought this action for wrongful
death against PG & E. This is an appeal from the
judgment of dismissal after the trial court sustained
PG & E's demurrer without leave to amend. The issue
is whether a tortfeasor waives the protection of the
one action rule when it enters into a settlement of a
wrongful death action that does not include an heir
who has been made a nominal defendant in the action
pursuant to section 382, but has not been served.
A tortfeasor waives the protection of the one action
rule by settling with less than all the known heirs if
such heirs are not a party to the action. (Valdez v.
Smith (1985) 166 Cal.App.3d 723, 726-727, 212
Cal.Rptr. 638.) An heir named as a nominal
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 3
defendant under section 382 but not served with a
summons and complaint is not properly joined in the
action, and accordingly is not a party to the action.
(Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th
801, 804, 62 Cal.Rptr.2d 78.)
*215 Nevertheless, PG & E argues that it is
protected by the one action rule because Romero was
ostensibly joined in the action, and PG & E had no
knowledge that Romero had not been served. It seeks
implied reliance on the bare inference that because
Romero was named as a nominal defendant under
section 382 that it could act as if he had elected not to
seek recompense for the wrongful death of his son.
We disagree.
[1][2] No such inference can be drawn from that
circumstance. A person named as a nominal
defendant and properly joined is “in reality, [a]
plaintiff [ ] in the case.” (Watkins v. Nutting (1941)
17 Cal.2d 490, 498, 110 P.2d 384.) “A jury is
properly instructed upon the issue of damages
suffered by a party joined as a defendant under
section 382 even though that ‘defendant’ does not
participate in the trial.” (Estate of Kuebler v.
Superior Court (1978) 81 Cal.App.3d 500, 504, 146
Cal.Rptr. 481, citation omitted.)
However, in this case Romero was not served and
was not a party to the action. It is not a defense to the
waiver rule that the defendant was unaware that a
known heir joined as a nominal defendant was not
served. The defendant has the burden and the means
of determining whether an heir has been served and
accordingly its failure to do so does not take the case
out of the rule of the Valdez case. Moreover, the
naming of an heir as a nominal defendant**239 is
notice of the existence of the heir sufficient to bring
the case within Valdez v. Smith, supra.
We shall reverse the judgment of dismissal.
FACTUAL AND PROCEDURAL BACKGROUND
Jose Romero's original complaint alleged that
plaintiff Romero was the father of Joseph
Brekelmans, who was killed when an open trench in
which he was playing collapsed.
PG & E demurred to Romero's original complaint on

156 Cal.App.4th 211, 67 Cal.Rptr.3d 236, 07 Cal. Daily Op. Serv. 12,387, 2007 Daily Journal D.A.R. 15,957
(Cite as: 156 Cal.App.4th 211, 67 Cal.Rptr.3d 236)
the ground that Joseph's mother had previously filed
a wrongful death action in which Romero was named
as a defendant; therefore, Romero's action for
wrongful death violated the one action rule.FN2 The
trial court sustained the demurrer with leave to
amend.
FN2. “Generally, there may be only a single
action for wrongful death, in which all heirs
must join. There cannot be a series of such
suits by individual heirs. [Citation.] This is
the so-called one action rule.” (Gonzales v.
Southern California Edison Co. (1999) 77
Cal.App.4th 485, 489, 91 Cal.Rptr.2d 530.)
Romero's first amended complaint added allegations
that Joseph Brekelmans' mother, Linda Brekelmans,
filed a lawsuit against several *216 defendants,
including PG & E, in which Romero was named as a
defendant, but never served. Linda Brekelmans
settled her action in its entirety and dismissed it with
prejudice.FN3 Romero did not participate in the
mother's action, and did not receive any proceeds
from the settlement of that action.FN4
FN3. The record contains the entry of
dismissal from Brekelmans' action, but does
not contain a judgment of dismissal from
that action.
FN4. On the same day Romero filed his
complaint in this action, he filed a cross-
complaint in the Brekelmans action.
However, by that time Brekelmans and PG
& E had already entered into a settlement
agreement and the action had been
dismissed. For that reason the trial court in
the Brekelmans action struck the cross-
complaint.
PG & E demurred to the first amended complaint,
arguing again that Romero's suit violated the one
action rule, and that the fact that Romero was never
properly served was immaterial, since PG & E “had
every reason to believe that he had been properly
joined in the lawsuit.” The trial court sustained the
demurrer without leave to amend, stating, “Plaintiff
has not cited any cases, and the court knows of none,
where a wrongful death defendant is liable to an
omitted heir when the heir is named in the wrongful
death action, and appears to have been properly
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 4
joined by the plaintiff, and defendant has no
knowledge to the contrary.”
DISCUSSION
I
The One Action Rule
[3][4] A cause of action for wrongful death is
authorized by section 377.60. As is relevant here, that
statute provides that a cause of action for wrongful
death may be asserted by the persons, “who would be
entitled to the property of the decedent by intestate
succession.” (§ 377.60, subd. (a).) The wrongful
death statute has been interpreted to authorize only a
single action, in which all the decedent's heirs must
join. (Gonzales v. Southern California Edison Co.,
supra, 77 Cal.App.4th at p. 489, 91 Cal.Rptr.2d 530.)
[5] Any heir who does not consent to be joined as a
plaintiff in the wrongful death action must be named
as a defendant**240 pursuant to section 382.FN5
(Salmon v. Rathjens (1907) 152 Cal. 290, 295, 92 P.
733.) If an heir is not included in the original
wrongful death action, the heir may not subsequently
bring an independent action against the tortfeasor
unless the tortfeasor had knowledge of the existence
of the heir at the time of the settlement. *217 (Valdez
v. Smith, supra, 166 Cal.App.3d at pp. 726-727, 212
Cal.Rptr. 638.) This is the case even if the plaintiff
was aware of the existence of another heir. (Id. at p.
726, 212 Cal.Rptr. 638.) The wrongfully omitted
heir's remedy is against the heir (plaintiff) who
brought the wrongful death action. (Smith v. Premier
Alliance Ins. Co. (1995) 41 Cal.App.4th 691, 697, 48
Cal.Rptr.2d 461 (Premier Alliance ); Ruttenberg v.
Ruttenberg, supra, 53 Cal.App.4th at p. 804, 62
Cal.Rptr.2d 78.)
FN5. Section 382 states in pertinent part: “If
the consent of any one who should have
been joined as plaintiff cannot be obtained,
he may be made a defendant, the reason
thereof being stated in the complaint....”
II
Exceptions to the One Action Rule

156 Cal.App.4th 211, 67 Cal.Rptr.3d 236, 07 Cal. Daily Op. Serv. 12,387, 2007 Daily Journal D.A.R. 15,957
(Cite as: 156 Cal.App.4th 211, 67 Cal.Rptr.3d 236)
A. Heir Not a Party to the Action
[6] There is an exception to the one action rule if the
tortfeasor voluntarily elects to settle the case with
less than all of the heirs, having knowledge of the
omitted heir's existence and status as an heir. (Valdez
v. Smith, supra, 166 Cal.App.3d at p. 731, 212
Cal.Rptr. 638.) The exception applies where the
omitted heir is not joined in the original action.
Valdez held that “when ... the defendant in a pending
action has actual knowledge of the existence, identity
and status of an omitted heir and fails to have said
omitted heir made a party to the action, a settlement
and dismissal with prejudice of the pending action
will not bar a subsequent action by the omitted heir
against the defendant.” ( 166 Cal.App.3d at p. 731,
212 Cal.Rptr. 638, italics added.)
In Valdez, the wrongful death action was brought by
the decedent's widow on behalf of herself and her
minor children. (Valdez v. Smith, supra, 166
Cal.App.3d at p. 725, 212 Cal.Rptr. 638.) The
complaint did not name the decedent's child by a
prior marriage as a plaintiff or defendant but the
tortfeasors were aware of the omitted child's
existence, identity and status as an heir. (Ibid.) The
original action was settled with the widow and
dismissed with prejudice. (Ibid.) The court held that
the tortfeasors waived their right to assert the one
action rule as a bar to the omitted child's action when
they settled the original action with knowledge of the
existence, identity, and status of the omitted heir, and
failed to have the omitted heir made a party to the
action. (Id. at p. 731, 212 Cal.Rptr. 638.)
The exception also applies if the tortfeasor is on
notice of the omitted heir's existence, whether or not
it has actual knowledge of the existence of such heirs.
(Gonzales v. Southern California Edison Co., supra,
77 Cal.App.4th at p. 491, 91 Cal.Rptr.2d 530.) In
Gonzales the decedent's daughter, through her mother
as guardian at litem, brought a wrongful death action
in which the decedent's parents were not named as
heirs, but of whose existence the tortfeasors were
aware because their names and relationship to the
decedent were provided in a *218 deposition. (Id. at
p. 487, 91 Cal.Rptr.2d 530.) The daughter's action
was settled. (Id. at p. 488, 91 Cal.Rptr.2d 530.)
Subsequently, the parents filed a complaint in a
separate action, and evidence was adduced that the
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 5
parents were dependent on the decedent for support,
**241 making them heirs for purposes of the
wrongful death statute. (Ibid.)
The court held that even though the deposition
testimony did not confer actual knowledge of the
parents' status as an heir, it put the tortfeasors on
notice and they should be held to both actual
knowledge or knowledge that reasonably could be
discovered through investigation. (Gonzales v.
Southern California Edison Co., supra, 77
Cal.App.4th at p. 491, 91 Cal.Rptr.2d 530.) The court
stated that knowledge of the heirs' existence and
status as heirs should be attributed to “wrongful death
defendants that learn of the existence and identity of
possible additional heirs who are not parties, yet
proceed to settle in short order with those who are
parties.” (Ibid.)
B. Heir Named as a Party
[7] The only distinction between this case and Valdez
v. Smith, supra, is that here the heir was named as a
defendant in the prior action pursuant to section 382.
However, merely naming a person as a nominal
defendant under section 382 is not the equivalent of
joining the person in the lawsuit. A party is not
properly joined unless served with a summons and
complaint. (Ruttenberg v. Ruttenberg, supra, 53
Cal.App.4th at p. 808, 62 Cal.Rptr.2d 78.)
Consequently, this case falls squarely under the
authority of Valdez v. Smith, supra, 166 Cal.App.3d
723, 212 Cal.Rptr. 638, and Gonzales v. Southern
California Edison Co., supra, 77 Cal.App.4th 485, 91
Cal.Rptr.2d 530, which hold that a defendant who is
aware of the existence of additional non-party heirs
may not settle the action, then invoke the one action
rule.
PG & E admits for purposes of this appeal that
Romero was not properly joined in the Brekelmans
action. It argues there should be no exception to the
one action rule because it “did not clearly have
knowledge that the heirs were not all joined.” FN6 It
seeks to place the onus on the mother to ensure that
the father was properly joined. In effect PG & E
argues that it does not waive the one action rule by
settling with less than all the known heirs as long as it
reasonably believes that all the heirs of whom it has
notice or knowledge are joined in the action. PG & E
misunderstands the law.

156 Cal.App.4th 211, 67 Cal.Rptr.3d 236, 07 Cal. Daily Op. Serv. 12,387, 2007 Daily Journal D.A.R. 15,957
(Cite as: 156 Cal.App.4th 211, 67 Cal.Rptr.3d 236)
FN6. PG & E's claim that the mother's
complaint “clearly represented” on its face
“that the litigating heirs had joined all heirs
and had determined that Romero did not
wish to participate,” is unfounded. The
complaint merely states that Romero “was
the natural father and is the only other
surviving heir-at-law of DECEDENT and is
named as a Defendant herein pursuant to
CCP section 377.60.”
[8] Waiver of the protection of the one action rule
turns on the defendant's knowledge of the existence
or possible existence of an heir. *219(Valdez v.
Smith, supra, 166 Cal.App.3d at p. 731, 212 Cal.Rptr.
638 [settlement of first action does not bar
subsequent action where defendant had “actual
knowledge of the existence, identity and status of an
omitted heir and fail[ed] to have said omitted heir
made a party to the action....]; Gonzales v. Southern
California Edison Co., supra, 77 Cal.App.4th at p.
491, 91 Cal.Rptr.2d 530 [defendants may not invoke
the one action rule where they “learn of the existence
and identity of possible additional heirs who are not
parties, yet proceed to settle in short order with those
who are parties”].) The naming of an heir as a
nominal defendant manifestly puts the defendant on
notice of the heir's existence regardless whether the
heir has been joined by service of process.
[9][10] PG & E takes the position that it could infer
Romero was properly joined **242 from the fact that
he was named a defendant pursuant to section 382.
We disagree. No inference of proper service
necessarily can be drawn from the mere fact that a
party is named as a defendant, and service could not
have been alleged in the complaint because it would
have occurred subsequent to the filing of the
complaint. A defendant is entitled to rely on
allegations in a wrongful death complaint that the
plaintiffs are the only heirs. (Salmon v. Rathjens,
supra, 152 Cal. at p. 295, 92 P. 733.) However, no
inference of proper service follows from the mere
naming of a defendant under section 382. Instead, the
burden is on the tortfeasor wishing to avail itself of
the one action rule to cause a known heir to be joined
in the action. (Valdez v. Smith, supra, 166
Cal.App.3d at p. 728, 212 Cal.Rptr. 638.
Moreover, PG & E may not assert reliance on the
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 6
Brekelmans complaint to draw an inference that
Romero did not wish to participate in the action when
the complaint did not strictly comply with section
382, which requires that “[i]f the consent of any one
who should have been joined as plaintiff cannot be
obtained, he may be made a defendant, [if] the reason
thereof [is] stated in the complaint....” Brekelmans'
complaint stated Romero, “was the natural father and
is the only other surviving heir-at-law of
DECEDENT and is named as a Defendant herein
pursuant to CCP section 377.60.” The allegation
failed to state the reason that Romero's consent could
not be obtained. (See Watkins v. Nutting, supra, 17
Cal.2d at p. 498, 110 P.2d 384 [holding a similar
allegation did not strictly comply with section 382].)
[11] More importantly, since PG & E was a party to
the action it would have been a simple matter for it to
determine whether Romero had been served with the
summons and complaint by reviewing the court's file.
As indicated in Valdez v. Smith, supra, the burden is
on the tortfeasor wishing to avail itself of the one
action rule to cause a known heir to be joined in the
action. ( 166 Cal.App.3d at p. 728, 212 Cal.Rptr. 638
[“Defendants could have made a timely objection and
had the action abated or at least could have made [the
heir] a party to the action.... [T]he failure of
defendants to do so *220 should not estop the
plaintiff from bringing his rightful claim for wrongful
death.”].) Where a tortfeasor wishes to avail itself of
the protections of the one action rule, the burden is on
the tortfeasor to ascertain whether the heirs named as
defendants have been properly joined.
In Premier Alliance, supra, 41 Cal.App.4th 691, 48
Cal.Rptr.2d 461, the court agreed with our
conclusion, albeit in dictum. The wife of a decedent
named the decedent's two children by a prior
marriage as nominal defendants in her wrongful
death action against the pilot of an airplane but
apparently did not serve them with the complaint.
(Id. at p. 695, 48 Cal.Rptr.2d 461.) The wife settled
with the pilot's insurance company, but no funds were
paid to the children. (Ibid.) The children then sued
the insurance company, not for wrongful death, but
for tortious interference with succession rights,
claiming the company failed to inform the children of
the settlement and failed to pay the children their
share of the settlement. (Ibid.) With regard to the
tortious interference claim the court held that the
insurance company owed the children no duty
 Page 7

156 Cal.App.4th 211, 67 Cal.Rptr.3d 236, 07 Cal. Daily Op. Serv. 12,387, 2007 Daily Journal D.A.R. 15,957
(Cite as: 156 Cal.App.4th 211, 67 Cal.Rptr.3d 236)

because it did not deprive them of any rights by

settling with the wife alone. We concur: SIMS and DAVIS, JJ.
Cal.App. 3 Dist.,2007.
However, the court distinguished the claim of Romero v. Pacific Gas & Elec. Co.
tortious interference from a wrongful death claim. It 156 Cal.App.4th 211, 67 Cal.Rptr.3d 236, 07 Cal.
noted the “[c]hildren were nominal defendants in the Daily Op. Serv. 12,387, 2007 Daily Journal D.A.R.
wrongful death action. Because they were therefore 15,957
known to [the insurance company] and [defendant
pilot] at the time of **243 settlement, the single- END OF DOCUMENT
action rule would not have been a bar to the
continued prosecution of their wrongful death action
against [the pilot].” (Premier Alliance, supra, 41
Cal.App.4th at pp. 699-700, 48 Cal.Rptr.2d 461.)

We do not have occasion to decide whether PG & E

would have waived the protection of the one action
rule had Romero been properly joined as a defendant
in the Brekelmans action. However, we are in
agreement with the reasoning set forth in Premier
Alliance, supra. There, the court explained that if a
tortfeasor settles the case with all of the heirs, the
court has authority to apportion the settlement based
on the proportion that the heir's personal damage
bears to the damage suffered by the others. ( 41
Cal.App.4th at p. 698, 48 Cal.Rptr.2d 461.) “In the
alternative, a wrongful death defendant may settle
with less than all of the known heirs. Just as a
judgment on behalf of some heirs will not preclude a
future action by a known but omitted heir, a wrongful
death settlement will not terminate the action if the
settlement includes less than all of the named heirs.
By settling with less than all of the known heirs, the
defendant waives the right to face only a single
wrongful death action and the nonsettling heirs may
continue to pursue the action against the defendant.
This remains true even if the nonsettling heirs are
nominally defendants in the case.” (Ibid.)

*221 We note that in this case the Brekelmans action

was dismissed following the settlement with PG & E,
as was Romero's cross complaint in that action,
thereby preventing Romero from securing his rights
in that action. (See fn. 4, supra.)

DISPOSITION

The judgment of dismissal following the order

sustaining the demurrer is reversed. The cause is
remanded for further proceedings consistent with this
opinion. Plaintiff shall recover his costs on appeal.
(Cal. Rules of Court, rule 8.276(a)(1).)

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.