Filed 10/1/18; Modified and Certified for Pub. 10/18/18 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                              DIVISION SEVEN


A.G., a Minor, etc.,                               B282023

       Plaintiff and Appellant,                    (Los Angeles County
                                                   Super. Ct. No. TC028173
       v.                                          Consolidated w/TC028210)

COUNTY OF LOS ANGELES et al.,

       Defendants and Respondents.


     APPEAL from a judgment of the Superior Court of
Los Angeles County, Ross M. Klein, Judge. Reversed and
remanded.
     Orange Law Offices and Olu K. Orange, for Plaintiff and
Appellant.
     Harold G. Becks & Associates and Douglas L. Day, for
Defendants and Respondents.



                        __________________________
       After an incident with sheriff’s deputies, Brian Pickett died,
leaving his partner, two biological children, and his partner’s
child, A.G., whom Brian had raised and held out as his own child.
In the subsequent wrongful death action, the trial court held that
A.G. lacked standing to sue, and entered judgment against him.
With apologies to Sigmund Freud, biology is not destiny. We
reverse.

          FACTUAL AND PROCEDURAL HISTORY

      In a consolidated Fourth Amended Complaint against the
County of Los Angeles and the Los Angeles County Sheriff’s
Department, Tamai Gilbert, as guardian ad litem for her children
Brian and Micah Pickett, and Tamara Ford, as guardian ad litem
for her grandson A.G., sued defendants for assault, battery,
negligence, wrongful death, and violation of civil rights. They
alleged that on January 6, 2015, the decedent, Brian Pickett,1
had an encounter with members of the Sheriff’s Department,
which led to his death. Tamai Gilbert was Pickett’s partner, and
the mother of his biological sons, Brian and Micah, as well as the
mother of A.G. A.G. sued as Pickett’s surviving child.
      Defendants moved for summary judgment and summary
adjudication on December 1, 2016, asserting, as relevant to this
appeal, that A.G. was not a surviving child of Pickett, and had no
standing to sue. Citing Tamai’s deposition testimony that Pickett
was not A.G.’s biological father, defendants argued that A.G. had
no standing under Code of Civil Procedure section 377.60,
governing wrongful death actions.

1    Brian Pickett and his son share a first and last name.
Decedent, the father, will be referred to as Pickett.




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       Opposing the motion, A.G. argued that Pickett, having
accepted A.G. into his home and held him out as his natural son,
was A.G.’s presumed father pursuant to Family Code section
7611, subdivision (d). This argument was supported by Tamara
Ford’s declaration that Pickett held A.G. out, and treated him as,
his son. In addition, Tamai testified in her deposition that
Pickett had agreed, from the time he had met Tamai, when A.G.
was one year old, to be his father; A.G.’s father was not involved
in A.G.’s life at any time prior to Pickett’s death. Accordingly,
A.G. argued he had standing to sue. In reply, defendants argued
that the Family Code had no application to the determination of
standing. Instead, they argued that the relevant statute was
Code of Civil Procedure section 377.60 subdivision (c), which
required the minor to have resided in the decedent’s household
for 180 days prior to the death.
       The trial court heard the matter on February 15, 2017, and
granted summary judgment against A.G. The trial court
concluded that the presumption of parentage established in
Family Code section 7611 has no application to standing. The
trial court subsequently denied A.G.’s motion for a new trial and
entered judgment. A.G. appealed.

                         DISCUSSION
       A. We Review The Grant Of Summary Judgment De Novo
       “A motion for summary judgment is properly granted only
when ‘all the papers submitted show that there is no triable issue
as to any material fact and that the moving party is entitled to a
judgment as a matter of law.’ [Citation.] We review a grant of
summary judgment de novo and decide independently whether
the facts not subject to triable dispute warrant judgment for the
moving party as a matter of law. [Citation.]” (Chavez v. Glock,



                                3
Inc. (2012) 207 Cal.App.4th 1283, 1301.) “It is well established
that, as the party moving for summary judgment, Respondents
had the ‘initial burden of production to make a prima facie
showing of the nonexistence of any triable issue of material fact.’
(Aguilar, supra, 25 Cal.4th at p. 850.) ‘A prima facie showing is
one that is sufficient to support the position of the party in
question.’ (Id. at p. 851.) To satisfy its initial burden, a
defendant must ‘present evidence and not simply point out that
the plaintiff does not possess, and cannot reasonably obtain,
needed evidence.’ (Id. at p. 854, fn. omitted.) The defendant may
satisfy this requirement in one of two ways: First, it may
‘present evidence that conclusively negates an element of the
plaintiff’s cause of action.’ (Id. at p. 855.) In the alternative,
defendant ‘may … present evidence that the plaintiff does not
possess, and cannot reasonably obtain, needed evidence—as
through admissions by the plaintiff following extensive discovery
to the effect that he has discovered nothing.”’ (Ibid.)
(Hypertouch, Inc. v. ValueClick, Inc. (2011) 192 Cal.App.4th 805,
838.)
       In this case, the trial court ruled, as a matter of law, that
the presumption of parentage was irrelevant to the
determination of A.G.’s standing to sue for wrongful death.
Because the defendants failed to meet their burden on summary
judgment, we reverse.

      B. Defendants’ Arguments On Appeal
      On appeal, defendants make several arguments. First,
they assert that because A.G. is not the biological child of Pickett,
he does not meet the requirements under Code of Civil Procedure
section 377.60, subdivision (a) as a child of the decedent. This
argument was the basis for their motion. They then argue that,



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as an unadopted stepchild, A.G. also lacks standing under
Probate Code section 6450. Next, they return to the argument
asserted in the trial court that A.G. fails to meet the
requirements of Code of Civil Procedure section 377.60,
subdivision (d). Finally, defendants argue that cases relied on by
A.G. at the trial court, Cheyanna M. v. A.C. Neilson Co. (1998) 66
Cal.App.4th 855 (Cheyanna M.), and Scott v. Thompson (2010)
184 Cal.App.4th 1506 (Scott), do not apply to this case.
       Defendants’ arguments on appeal in part relate to issues
not before this Court; A.G. has never claimed to have standing
based on Code of Civil Procedure section 377.60, subdivision (c),
or as an unadopted stepchild. He has instead asserted that his
standing arises from Pickett’s status as his presumed parent, a
status defendants assert cannot exist because Pickett is not
A.G.’s biological parent.
       C. Defendant’s Relevant Arguments Fail As A Matter of
          Law On The Record Before This Court
       1. The Statutory Scheme Recognizes Presumed Parentage
          for Standing
       The right to sue for wrongful death is determined by
statute in California. Code of Civil Procedure section 377.60,
subdivision (a) permits, among others, the children of a decedent,
or their personal representative, to sue. Probate Code section
6450, which applies in situations like the one presented to this
court, where the decedent dies intestate, provides that the
relationship of parent and child exists “between a person and the
person’s natural parents.” In turn, the Probate Code establishes
that “[a] natural parent and child relationship is established
where that relationship is presumed and not rebutted pursuant
to the Uniform Parentage Act (UPA), (Part 3 (commencing with
§ 7600) of Division 12 of the Family Code.” (Prob. Code, § 6453,




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subd. (a).) Thus, the statute “contains the rules for determining
who is a ‘natural parent.’” (Estate of Burden (2007) 146
Cal.App.4th 1021, 1026.
      The Family Code provides, in section 7601, that a “natural
parent” is “a nonadoptive parent established under this part,
whether biologically related to the child or not.” Section 7611
defines a presumed parent. As relevant here, a presumed parent
is one who “receives the child into his or her home and openly
holds out the child as his or her natural child.” (Fam. Code,
§ 7611, subd. (d).)
      2. A Non-Biological Parent Can Be A Presumed Parent
       The presumption of parentage is rebuttable. In 2002, the
Supreme Court confronted the question whether the admission
by a presumed father that he was not the biological father of the
child necessarily rebutted the presumption. (In re Nicholas H.
(2002) 28 Cal.4th 56.) In that case, in a dependency proceeding,
the presumed father had taken the child into his home, and held
him out as his child; the biological father was not involved in the
child’s life. The juvenile court found that the biological facts did
not rebut the presumption, and placed the child with the
presumed father. The Court of Appeal reversed, but the Supreme
Court disagreed. Because the presumption is rebuttable in an
“appropriate action,” the Court concluded the legislature did not
intend the fact of biology alone to rebut the presumption. (Id. at
p. 70.)
       Subsequently, in Elisa B. v. Superior Court (2005)
37 Cal.4th 108, the Supreme Court revisited the issue in the case
of two same sex parents, only one of whom was biologically
related to the children at issue. The Court noted that
Nicholas H. had recognized that the “social relationship [of a man




                                 6
who has lived with a child and treated him as his child] is much
more important, to the child at least, than a biological
relationship of actual paternity. . . .”’ (Elisa, supra, 37 Cal.4th at
p. 121, quoting In re Nicholas H.) The Court also relied on In re
Jesusa V. (2004) 32 Cal.4th 588, 604), quoting its reasoning that
“the statute did not contemplate a reflexive rule that biological
paternity would rebut the section 7611 presumption in all cases,
without concern for whether rebuttal was ‘appropriate’ in the
particular circumstances.” (Ibid.) The Court concluded “a
natural parent within the meaning of the UPA could be a person
with no biological connection to the child.” (Elisa, supra,
37 Cal.4th at p. 126.)
       Defendants have not asserted, at the trial court or in this
Court, that there are facts other than biology that would rebut
the presumption in this case. Indeed, from the time A.G. was
one, Pickett was the only father he knew; unrebutted testimony
established that Pickett held A.G. out as his child. Defendants
have failed to rebut the presumption.
       3. Defendants Fail To Distinguish Relevant Authority
       A.G. relies on two cases in support of his argument, which
defendants reject. Both cases, however, support A.G.’s standing.
In Cheyanna M., supra, 66 Cal.App.4th 855, Cheyanna brought a
wrongful death claim for the death of her biological father who
had died before Cheyanna was born, without having ever held
her out as his child. The decedent’s parents challenged her right
to sue for wrongful death, asserting that she lacked standing
because she was not an heir under the laws of intestate
succession. Cheyanna argued that, because decedent died before
she was born, it was impossible for him to hold her out as his
child, and she could establish paternity by clear and convincing




                                  7
evidence of paternity (Prob. Code, § 6453, subd. (b)(3)), using
blood tests. (Cheyanna M., at pp. 859-860.) The trial court
rejected her argument, and Cheyanna appealed.
       On appeal, the Court reversed the grant of summary
judgment, finding that the laws of intestate succession are to be
used to determine standing to assert wrongful death claims, and
that there were triable issues of fact with respect to the
application of those laws. The Court interpreted Code of Civil
Procedure section 377.60, subdivision (a), to determine who were
defined as children for purposes of that section, and held that the
laws of intestate succession must apply. (Cheyanna M., at
pp. 864-865.) The Court explained: “David did not have a
spouse. Consequently, under the laws of intestate succession, his
entire estate would pass to his “issue,” if any. (Prob. Code,
§ 6402, subd. (a).) If David has no “issue,” the entire estate goes
to his parents. (Id., § 6402 subd. (b).) The “issue” of a person is
defined as “all [of] 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, italics added.) “Child” means “any
individual entitled to take as a child under this code by intestate
succession from the parent whose relationship is involved.”
(Id., § 26.) “Parent” is defined as “any individual entitled to take
as a parent under this code by intestate succession from the child
whose relationship is involved.” (Id., § 54.)
       “[A] relationship of parent and child exists between a
person and the person's natural parents, regardless of the marital
status of the natural parents.” (Prob. Code, § 6450, subd. (a),
italics added.) “Natural parent” is defined by Probate Code
section 6453. For purposes of the present case, a biological father




                                 8
is a “natural parent” if “[p]aternity is established by clear and
convincing evidence that the father has openly held out the child
as his own.” (Prob. Code, § 6453, subd. (b)(2).) However, if “[i]t
was impossible for the father to hold the child out as his own,”
the biological father is a “natural parent” if “paternity is
established by clear and convincing evidence.” (Id., § 6453
subd. (b)(3).)
       Thus, if David could have held Cheyanna out as his “child,”
and there is clear and convincing evidence that he did so,
Cheyanna would be an heir under the intestacy laws. If it was
impossible for David to hold Cheyanna out as his “child,” she
would be an heir if there is clear and convincing evidence of
David’s paternity.” (Cheyanna M., at pp. 866-867.)
       The Court was confronted with the issue of whether it was
possible for an unborn child to be held out as a person’s child, an
issue not presented here. Instead, this case falls within the
alternative method of determining who is a natural parent.
Because defendants do not argue, or present evidence, that
Pickett did not hold A.G. out as his own, the issue of biological
paternity is irrelevant. In no event, however, does Cheyanna M.
stand for the proposition that defendants assert, that only a
biological child can be the issue of the decedent.
       In Scott, supra, which defendants also seek to distinguish,
the court confronted the competing wrongful death claims of a
half sibling, and the presumed father of the decedent. Scott, the
sibling, asserted that because blood testing demonstrated that
Thompson, the presumed parent, was not a biological parent, he
had no standing to sue. The court rejected that argument,
finding that the interplay between the Probate Code and the
Family Code meant that an unrebutted presumption of presumed




                                 9
parent status provided standing: “In sum, because the wrongful
death statute incorporates the Probate Code’s intestacy chain of
succession to determine proper plaintiffs, and the intestacy
statutes in turn incorporate the UPA to determine presumed
fatherhood, and Scott has no standing under the UPA to deny or
rebut that Thompson is Michael’s presumed father, her action for
a declaratory judgment rejecting Thompson’s paternity fails as a
matter of law.” (Scott, supra, 184 Cal.App.4th at p. 1514.)2
      Defendants’ arguments fail. This record does not rebut the
presumption that Pickett was A.G.’s natural parent. Accordingly,
defendants failed to meet their burden on summary judgment.
                          DISPOSITION
      The judgment is reversed, and the matter remanded for
further proceedings. Appellant is to recover his costs on appeal.


                                     ZELON, Acting P. J.
We concur:


      SEGAL, J.                      FEUER, J.



2     In Scott, the court rejected the complaining party’s claim of
standing to attempt to rebut the presumption. That issue is not
presented here, where defendants made no attempt to rebut the
presumption. Instead, defendants’ argument appears to be that
because the attempt in Scott was to establish that the claimant
was a presumed parent, while A.G. attempts to establish that he
had a presumed parent, Scott is irrelevant. The Scott court’s
analysis demonstrates that this attempted distinction is without
merit.




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Filed 10/18/18

                      CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                      SECOND APPELLATE DISTRICT

                            DIVISION SEVEN


A.G., a Minor, etc.,                    No. B282023

       Plaintiff and Appellant,         (Los Angeles County
                                        Super. Ct. No. TC028173
                 v.                     Consolidated w/TC028210)

COUNTY OF LOS ANGELES et al.,           ORDER MODIFYING
                                        OPINION AND ORDER
       Defendants and Respondents.      FOR PUBLICATION


THE COURT:
       The opinion filed on October 1, 2018 was not certified for
publication. Because it appears the opinion meets the standards
for publication specified in California Rules of Court, rule
8.1105(c), the request by appellant and certain non-parties
pursuant to California Rules of Court, rule 8.1120(a) for
publication is granted.
      IT IS HEREBY CERTIFIED that the opinion meets the
standards for publication specified in California Rules of Court,
rule 8.1105(c); and
      ORDERED that the words “Not to be Published in the
Official Reports” appearing on page 1 of said opinion be deleted
and the opinion herein be published in the Official Reports.
      Additionally, on page 1, the second paragraph is modified
as follows:

      1. Orange Law Offices and Olu K. Orange; Paul Hastings,
         George W. Abele and Scott M. Klausner, for Plaintiff
         and Appellant.

      There is no change in the judgment.


____________________________________________________________
ZELON, Acting P. J.,         SEGAL, J.,           FEUER, J.




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