Filed 4/27/15 R.S. v. PacificCare Health Ins. Co. CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


R.S.,                                                                B254235

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC498816)
         v.

PACIFICARE LIFE AND HEALTH
INSURANCE COMPANY,

         Defendant and Respondent.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Amy D.
Hogue, Judge. Reversed with directions.
         Kabateck Brown Kellner, Brian S. Kabateck, Richard L. Kellner and Joshua H.
Haffner for Plaintiff and Appellant.
         Cooley, Mazda K. Antia, Heather C. Meservy and Blake Zollar for Defendant and
Respondent.


                                          _______________________
                                    INTRODUCTION


       Plaintiff R.S.1 appeals from a judgment of dismissal following the trial court’s
order sustaining the demurrer of defendant PacifiCare Health and Life Insurance
Company (PacifiCare) to R.S.’s wrongful death and survivor claims on res judicata
grounds. This is the third in a series of lawsuits arising from PacifiCare’s alleged failure
to pay medical health benefits under insurance policies it issued to R.S. and his registered
domestic partner R.C. in 2004. On their applications R.S. and R.C. disclosed they were
HIV positive and R.C. had AIDS.2
       PacifiCare filed the first lawsuit in 2008 (R.S.-I) in a Missouri court seeking to
rescind the insurance policies on the basis of alleged fraud. R.S. and R.C. filed a
counterclaim for breach of contract, but dismissed it without prejudice before trial. The
court issued a judgment in favor of R.S. and R.C. and ordered PacifiCare to pay medical
benefits to R.S. and R.C.; the order was affirmed on appeal.
       In 2009 R.S. and R.C. brought a second action in Los Angeles County Superior
Court for breach of contract, breach of the covenant of good faith and fair dealing and
unfair business practices. The trial court sustained PacifiCare’s demurrer, finding that
R.S.’s and R.C.’s claims were barred as compulsory counterclaims that were required
under Missouri law to be asserted in R.S.-I. This district affirmed. (R.S. v. PacifiCare
Life & Health Ins. Co. (2011) 194 Cal.App.4th 192, 195 (R.S.-II).)
       After R.C.’s death in 2011, R.S. filed this action alleging claims for the wrongful
death of R.C. (Code Civ. Proc., § 377.60) and for damages as R.C.’s survivor (id.,
§ 377.30). The trial court sustained PacifiCare’s demurrer without leave to amend,


1      We refer to the plaintiff and his domestic partner as R.S. and R.C., respectively,
following the convention of our colleagues in Division Eight of this district in the prior
lawsuit filed by plaintiff, which we refer to as R.S.-II below.
2     HIV positive refers to Human Immunodeficiency Virus; AIDS is an acronym for
Acquired Immune Deficiency Syndrome.


                                              2
finding R.S.’s claims were barred by res judicata. We conclude the trial court was correct
as to R.S.’s survivor claim. However, we find that R.S.’s wrongful death claim asserts a
different “primary right” from the rights asserted in R.S.-I and R.S.-II based on alleged
loss of consortium following R.C.’s death, and the trial court erred in sustaining the
demurrer on that basis. We therefore reverse the judgment of dismissal.


                 FACTUAL AND PROCEDURAL BACKGROUND


A. PacifiCare’s Denial of Benefits3
       R.S. and R.C. were registered domestic partners in California. They were dual
residents of Los Angeles County, California and Jackson County, Missouri. In 2004 R.C.
obtained medical insurance under a policy with PacifiCare, which provided coverage for
treatment and medications in connection with his HIV and AIDS diagnosis disclosed to
PacifiCare. R.S. also obtained a policy with PacifiCare and made claims for treatment
for his infection with HIV.4 PacifiCare initially paid the claims made by R.C.
       In September 2007 PacifiCare stopped paying R.C.’s claims for medical treatment
and medications. However, PacifiCare continued to accept payments for policy
premiums. From September 2007 through June 2008, PacifiCare repeatedly assured R.C.
that his medical expenses would be reimbursed.
       In June 2008 R.C. was forced to stop taking his medications and medical treatment
because he was unable to pay for them. At that time, R.C.’s health was stable, and he
was doing well on his prescribed regimen of a drug cocktail and IVIG therapy. When


3     The facts in this section are taken from the first amended complaint in this action.
For purposes of reviewing the trial court’s order, we accept the allegations of the
complaint as true. (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.)
4      R.S. alleges in the complaints in R.S.-I and R.S.-II that PacifiCare did not pay his
medical expenses, but the complaint at issue in this appeal only alleges damages for
PacifiCare’s failure to pay R.C.’s medical expenses. Therefore we will address only
PacifiCare’s failure to pay medical expenses for R.C.


                                             3
PacifiCare stopped paying for his medications and medical treatment, R.C.’s health
declined rapidly, resulting in his death on January 10, 2011.


B. Litigation Concerning Insurance Benefits
       1. The Missouri Lawsuit (R.S.-I)
              a. Complaint
       On June 12, 2008 PacifiCare and Golden Rule Insurance Company (Golden Rule)
filed a declaratory relief action against R.S. and R.C. in a Missouri court (R.S.-I), seeking
to rescind and terminate the insurance policies issued to R.S. and R.C.5 PacifiCare and
Golden Rule alleged that R.S. and R.C. committed fraud by representing on their
insurance application to PacifiCare that they were residents of California while
representing on their insurance application to Golden Rule that they were residents of
Missouri.


              b. Counterclaim by R.S. and R.C.
       R.S. and R.C. filed a counterclaim under Missouri law for breach of contract.
They alleged that they were residents of Missouri, and that in 2004 they had purchased
policies from PacifiCare and Golden Rule. They started paying premiums to PacifiCare
and Golden Rule at that time. On or about September 1, 2007 PacifiCare and Golden
Rule stopped paying medical benefits, resulting in R.S. and R.C. “incurring medical
treatment expenses in the approximate amount of $339,265.00.” R.S. and R.C. also
alleged they had continued to pay premiums on the policies totaling approximately
$40,000, which PacifiCare and Golden Rule accepted. However, the insurance
companies refused to pay medical benefits under the policies. R.S. and R.C. sought to
recover their unpaid medical bills and premium payments they made for which they
received no benefits.


5      R.S.-I and R.S.-II involved policies issued by PacifiCare and Golden Rule. This
action only alleges claims against PacifiCare.


                                              4
              c. Preliminary Injunction
       On December 19, 2008 the Missouri trial court issued a preliminary injunction
requiring PacifiCare and Golden Rule to pay benefits to R.S. and R.C. for their medical
conditions.


              d. Dismissal of Counterclaim
       On June 3, 2009, on the eve of trial, R.S. and R.C. dismissed their counterclaim
without prejudice.


              e. Trial
       On June 16, 2009 the Missouri court conducted a bench trial. On February 2,
2010 the court entered judgment in favor of R.S. and R.C., finding that they did not
misrepresent material information on their insurance applications, that PacifiCare and
Golden Rule were required to pay benefits under their policies, and that R.S. and R.C.
were entitled to permanent injunctive relief requiring the insurance companies to pay
benefits under the policies. The court ordered PacifiCare and Golden Rule to provide
“ongoing medical care benefits to [R.S. and R.C.],” and that the benefits be retroactive to
the effective date of the insurance policies.


              f. Appeal
       PacifiCare and Golden Rule appealed. On June 19, 2012 the Missouri Court of
Appeals issued its decision in Golden Rule Ins. Co. v. R.S. (Mo. Ct. App. 2012) 368
S.W.3d 327, affirming the judgment as to PacifiCare and reversing as to Golden Rule.
As to PacifiCare, the appellate court found that “there was substantial evidence to support
the conclusion that [R.S. and R.C.] maintained dual residencies and therefore did not
misrepresent their residency in the PacifiCare application.” (Id. at p. 339.) The court
held “that PacifiCare was not entitled to terminate the insurance policies issued to R.S.
and R.C.[] based upon alleged material misrepresentations . . . .” (Ibid.)



                                                5
       2. Los Angeles Superior Court Action Filed June 4, 2009 (R.S.-II)
              a. Complaint
       The day after dismissing their counterclaim in R.S.-I, on June 4, 2009, R.S. and
R.C. filed suit against PacifiCare and Golden Rule in the Los Angeles Superior Court.
(R.S. v. PacifiCare (Super. Ct. L.A. County, 2010, No. BC415200).) The complaint
alleged causes of action for (1) breach of contract; (2) breach of the implied covenant of
good faith and fair dealing; and (3) unfair business practices.
       In R.S.-II, R.S. and R.C. similarly alleged that they had obtained policies from
PacifiCare and Golden Rule in 2004. In September 2007 PacifiCare and Golden Rule
stopped paying for medical treatment and medication for R.S. and R.C., but continued
accepting premiums. R.S. and R.C. alleged further that PacifiCare and Golden Rule filed
a declaratory relief action in Missouri. The Missouri trial court issued a preliminary
injunction requiring PacifiCare and Golden Rule to pay benefits to R.S. and R.C., but the
insurance companies had not paid full benefits since September 2007.
       R.S. and R.C. alleged that they “suffered significant damages as a result of
[PacifiCare’s and Golden Rule’s] wrongful conduct including, but not limited to,
economic damages, loss of policy benefits, emotional distress, pain and suffering, and
damage to [R.S.’s and R.C.’s] health and well-being, in an amount to be proven at trial.”
In their second cause of action for breach of implied covenant of good faith and fair
dealing, R.S. and R.C. also sought punitive damages.


              b. Demurrer Filed by PacifiCare and Golden Rule
       PacifiCare and Golden Rule demurred to the complaint on multiple grounds,
including that the Missouri judgment barred the complaint because R.S. and R.C. failed
to assert their claims in the Missouri action as required by Missouri’s compulsory
counterclaim law.
       On April 9, 2010 the trial court sustained the demurrer and dismissed the
complaint with prejudice. On June 9, 2010 the trial court entered judgment in favor of
PacifiCare and Golden Rule.

                                             6
                c. Decision by This District in R.S.-II
         R.S. and R.C. appealed. On April 12, 2011 Division Eight of this district filed its
decision in R.S.-II, affirming the trial court’s judgment.6 The court held that
“California’s application of the full faith and credit clause of the United States
Constitution (U.S. Const., art. IV, § 1) to a Missouri state court judgment [requires that]
we affirm the superior court’s judgment dismissing the complaint of appellants R.C. and
R.S. because the Missouri judgment barred their complaint.” (R.S.-II, supra, 194
Cal.App.4th at p. 195.)
         As we discuss further below, the court found that the claims brought by R.S. and
R.C. in R.S.-II and the claims brought by PacifiCare and Golden Rule in R.S.-I “arose
from one set of insurance policies and are ‘logically related’ [citation],” causing them to
fall within Missouri’s compulsory counterclaim law. (R.S.-II, supra, 194 Cal.App.4th at
p. 205.)


         3. Los Angeles Superior Court Action Filed January 9, 2013 (R.S.-III)
                a. Complaint
         R.S. filed this action against PacifiCare in Los Angeles Superior Court on
January 9, 2013. The first amended complaint filed on June 6, 2013 alleges one cause of
action for breach of the implied covenant of good faith and fair dealing. R.S. alleges a
claim that PacifiCare tortiously breached the implied covenant of good faith and fair
dealing in R.C.’s insurance policy by unreasonably denying medical benefits under the
policy, failing to conduct a fair investigation into alleged fraud, and unreasonably seeking
to rescind the policy. R.S. alleges that as a result of PacifiCare’s termination of R.C.’s
medical benefits, R.C. was unable to obtain adequate medical treatment, leading to his
death.


6      During the pendency of the appeal, on January 10, 2011, R.C. died; R.C.’s sister
continued the appeal as R.C.’s representative. (R.S.-II, supra, 194 Cal.App.4th at p. 195,
fn.1.)


                                               7
       As part of his first cause of action, R.S. asserts a claim for wrongful death of R.C.
as his registered domestic partner, in which he alleges “the loss of the love, support,
society and companionship” of R.C. (wrongful death claim).7 In addition, R.S. alleges a
claim on behalf of R.C.’s estate (Code Civ. Proc., § 377.30) for “economic damages”
(survivor claim). R.S. alleges as economic damages that R.C. incurred expenses for a
live-in caretaker, policy premiums for other medical insurance, cost of pain medications,
cost of medical care, and other out-of-pocket expenses. R.S. also seeks punitive
damages.


              b. PacifiCare’s Demurrer
       PacifiCare filed a demurrer on August 28, 2013 on the ground R.S.’s claims were
barred by the doctrine of res judicata based on R.S.-I and R.S.-II and because they were
compulsory counterclaims in R.S.-I. On October 21, 2013 the trial court issued its ruling
sustaining PacifiCare’s demurrer without leave to amend. The trial court found that
R.S.’s wrongful death and survivor claims were barred by res judicata.8
       The trial court first found as to R.S.’s wrongful death claim for loss of consortium
that R.S. could have asserted his claim in R.S.-II, but failed to do so. The court therefore
found that the claim was barred by res judicata, relying on the holding of our Supreme
Court in Boeken v. Phillip Morris USA, Inc. (2010) 48 Cal.4th 788, 798 (Boeken), which
we discuss below.




7     While the complaint does not cite a code section for R.S.’s wrongful death claim,
under California law wrongful death claims may be brought by a domestic partner
pursuant to Code of Civil Procedure section 377.60, subdivision (a).
8       PacifiCare also argued that R.S.’s claims were barred by the statute of limitations
and the doctrine of merger, and were procedurally defective. The trial court did not reach
these issues because it sustained the demurrer on the basis of res judicata. The court also
did not reach PacifiCare’s argument that R.S.’s claims were barred as compulsory
counterclaims under Missouri law.


                                              8
       With respect to R.S.’s survivor claim for damages, the court found that this claim
“arise[s] out of the denial of benefits, the same wrong that was at issue in [R.S.-I] and
again in [R.S.-II].” The court concluded that this claim was therefore also barred by res
judicata. The court cited to this district’s holding in R.S.-II that the claims asserted in
R.S.-I and R.S.-II were “logically related,” rejecting R.S.’s argument that he could avoid
the bar of res judicata by alleging damages incurred after the Missouri judgment was
entered.


              c. Dismissal and Notice of Appeal
       The order of dismissal and judgment was entered on May 13, 2014. R.S.’s notice
of appeal was filed prematurely on December 20, 2013 — after the order was filed
sustaining PacifiCare’s demurrer without leave to amend, but before final judgment was
entered.9


                                       DISCUSSION


       R.S. contends that while the three lawsuits involve the same “wrong,” i.e.,
PacifiCare’s denial of medical benefits to R.C., PacifiCare’s wrong in this action invaded
“primary rights” that are different from those alleged in R.S.-I and R.S.-II. With respect
to his wrongful death claim, R.S. argues that neither R.S.-I nor R.S.-II alleged damages
for loss of consortium, and thus this action concerns a different primary right. R.S.
argues as to his survivor claim that Code of Civil Procedure section 377.30 creates a
separate cause of action in favor of the heirs that only arises upon the death of the
decedent, and thus it too is not barred by res judicata.


9      R.S. has appealed directly from the order sustaining PacifiCare’s demurrer without
leave to amend before entry of the judgment of dismissal. The court’s order of dismissal
and judgment was signed and filed on May 13, 2014. We treat R.S.’s premature notice of
appeal, filed December 20, 2013, as filed immediately after entry of judgment. (Cal.
Rules of Court, rule 8.104(d)(2).)


                                               9
       We find the trial court correctly sustained the demurrer as to R.S.’s survivor claim,
but find R.S.’s argument persuasive as to his wrongful death claim.


A. Standard of Review
       “We independently review the superior court’s ruling on a demurrer and determine
de novo whether the complaint alleges facts sufficient to state a cause of action or
discloses a complete defense. [Citations.]” (Regents of University of California v.
Superior Court (2013) 220 Cal.App.4th 549, 558; accord, Rosolowski v. Guthy-Renker
LLC (2014) 230 Cal.App.4th 1403, 1410.) “We give the complaint a reasonable
interpretation, reading it as a whole and its parts in their context. [Citation.] Further, we
treat the demurrer as admitting all material facts properly pleaded, but do not assume the
truth of contentions, deductions or conclusions of law. [Citations.]” (City of Dinuba v.
County of Tulare, supra, 41 Cal.4th at p. 865.)
       “We will affirm the ruling if there is any ground on which the demurrer could
have been properly sustained. [Citation.]” (Intengan v. BAC Home Loans Servicing LP
(2013) 214 Cal.App.4th 1047, 1052; see Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th
962, 967.) However, if the complaint states a cause of action under “any possible legal
theory, the trial court’s order sustaining the demurrer must be reversed. [Citation.]”
(Chavez v. Indymac Mortgage Services (2013) 219 Cal.App.4th 1052, 1057; accord,
Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)


B. Application of Res Judicata Under California and Missouri Law
       PacifiCare argues that R.S.’s claims are barred by both the Missouri judgment in
R.S.-I and the California judgment in R.S.-II. We turn first to the question of which law
applies to application of res judicata.




                                             10
       1. The law of the state in which a judgment was entered determines whether
          res judicata applies.
       Whether an action filed in California is barred by a prior judgment under the res
judicata doctrine is determined by application of the law of the state in which the
judgment was entered.10 (Gagnon Co., Inc. v. Nevada Desert Inn (1955) 45 Cal.2d 448,
454 [applying Nevada law to determine whether Nevada dismissal with prejudice barred
California action]; In re Kimler (1951) 37 Cal.2d 568, 572 [“this court should not place
upon the [Missouri] judgment a construction which is out of harmony with the decisions
of the highest court of the state in which it was rendered,” finding that Kimler’s discharge
in habeas corpus in Missouri was not a res judicata bar to the California proceeding].)
       As our Supreme Court held in Gagnon Co., “‘The effect of a valid judgment as a
conclusive adjudication between the parties and persons in privity with them of facts
which were or might have been put in issue in the proceedings is determined by the law
of the state where the judgment was rendered.’” (Gagnon Co., Inc. v. Nevada Desert Inn,
supra, 45 Cal.2d at p. 454, citing Rest., Conflicts, § 450.)
       This district in R.S.-II similarly found that Missouri law applied to determine
whether the action was barred under Missouri’s compulsory counterclaim law. (R.S.-II,
supra, 194 Cal.App.4th at pp. 201-203.) In reaching this conclusion, the court held:
“The full faith and credit clause obligates California to enforce the Missouri judgment to
the same effect as if [PacifiCare and Golden Rule] sought the judgment’s enforcement in




10      The trial court and parties on appeal do not address whether Missouri or California
law applies to the determination of res judicata, instead citing only to California cases.
While both California and Missouri apply similar elements in addressing the res judicata
issue, as we discuss below, California focuses on the identity of the “primary rights”
involved in two actions; Missouri cases focus on whether two actions “arise out of the
same act or transaction,” and whether the “parties, subject matter and evidence” are the
same in the two actions. In addition, the central case on the applicability of res judicata
to wrongful death loss of consortium claims relied on by the trial court and the parties,
Boeken, applies California law.


                                             11
Missouri.” (Id. at p. 201.) The court proceeded to “[f]ram[e] the question before us as
the effect a Missouri court would give the Missouri judgment . . . .” (Id. at pp. 201-202.)
       In this case, if a Missouri court were to consider the res judicata effect of R.S.-I, it
would apply Missouri principles of res judicata. Accordingly, so do we. However, the
judgment entered in R.S.-II was entered in California; thus, California law applies to
determine whether R.S.’s claims in this action are barred by the judgment in R.S.-II.


       2. Res Judicata Under California Law
       Under California law, a cause of action is barred under principles of res judicata if
“‘“(1) [a] claim or issue raised in the present action is identical to a claim or issue
litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the
merits; and (3) the party against whom the doctrine is being asserted was a party or in
privity with a party to the prior proceeding. [Citations.]”’ [Citation.]” (Boeken, supra,
48 Cal.4th at p. 797.)
       Our Supreme Court in Boeken held further: “‘As generally understood, “[t]he
doctrine of res judicata gives certain conclusive effect to a former judgment in
subsequent litigation involving the same controversy.” [Citation.] The doctrine “has a
double aspect.” [Citation.] “In its primary aspect,” commonly known as claim
preclusion, it “operates as a bar to the maintenance of a second suit between the same
parties on the same cause of action. [Citation.]” [Citation.] “In its secondary aspect,”
commonly known as collateral estoppel, “[t]he prior judgment . . . ‘operates’” in “a
second suit . . . based on a different cause of action . . . ‘as an estoppel or conclusive
adjudication as to such issues in the second action as were actually litigated and
determined in the first action.’ [Citation.]” [Citation.]’” (Boeken, supra, 48 Cal.4th at
p. 797, italics omitted.)
       California law analyzes whether a cause of action is “identical” based on an
analysis of the “primary right” involved. The primary right theory “provides that a
‘cause of action’ is comprised of a ‘primary right’ of the plaintiff, a corresponding
‘primary duty’ of the defendant, and a wrongful act by the defendant constituting a

                                              12
breach of that duty. [Citation.] . . . [T]he violation of a single primary right gives rise to
but a single cause of action. [Citation.] . . . [¶] . . . [T]he primary right is simply the
plaintiff’s right to be free from the particular injury suffered. [Citation.]” (Crowley v.
Katleman (1994) 8 Ca1. 4th 666, 681; accord, Hindin v. Rust (2004) 118 Ca1.App.4th
1247, 1257.) Accordingly, “‘if a plaintiff alleges that the defendant’s single wrongful act
invaded two different primary rights, he has stated two causes of action, and this is so
even though the two invasions are pleaded in a single count of the complaint.’
[Citation.]” (Hindin, supra, at p. 1258.)
       Res judicata bars claims that were brought in a prior lawsuit as well as claims that
could have been raised in the former action. (Busick v. Workmen’s Comp. Appeals Bd.
(1972) 7 Cal.3d 967, 975 [“‘the prior judgment is res judicata on matters which were
raised or could have been raised, on matters litigated or litigable’”]; see also Villacres v.
ABM Industries Inc. (2010) 189 Cal.App.4th 562, 576.) This district held in Villacres:
“‘“If the matter was within the scope of the action, related to the subject-matter and
relevant to the issues, so that it could have been raised, the judgment is conclusive on it
despite the fact that it was not in fact expressly pleaded or otherwise urged. . . .”’”
(Villacres, supra, at p. 576.)


       3. Res Judicata Under Missouri Law
       “The Missouri Supreme Court has set forth a four prong test to be used when
determining whether collateral estoppel is appropriate. [Citation.] First, the issue
decided in the first action must be identical to the issue in the second action. [Citation.]
Second, the prior litigation must have resulted in a final judgment on the merits.
[Citation.] Third, the party to be estopped must have been a party or in privity with a
party to the prior adjudication. [Citation.] Finally, the party to the prior adjudication
must have had a full and fair opportunity to litigate the issue in the prior suit.11



11     Similarly under California law, for collateral estoppel to apply, there must have
been a full and fair opportunity to litigate the issue. (See Dailey v. City of San Diego

                                              13
[Citation.] There is no requirement that the prior and current litigation be identical
causes of actions. [Citation.]” (Smith v. Brown & Williamson Tobacco Corp. (Mo. Ct.
App. 2008) 275 S.W.3d 748, 782, fn. 100; Hollida v. Hollida (Mo. Ct. App. 2006) 190
S.W.3d 550, 554.) Missouri law also provides for “a rule against splitting a cause of
action, which is a form of res judicata. [Citation.] To determine if a cause of action is
single and cannot be split, the test is: “(1) whether the separate actions brought arise out
of the same act or transaction and (2) whether the parties, subject matter and evidence
necessary to sustain the claim are the same in both actions.’ [Citation.]” (Spath v. Norris
(Mo. Ct. App. 2009) 281 S.W.3d 346, 350.)
       Under Missouri law, “[t]he res judicata defense precludes not only those issues on
which the court in the former suit was required to pronounce judgment, but on all points
properly belonging to the subject matter of the litigation and which the parties, exercising
reasonable diligence, might have brought into the case at the time. [Citation.]” (Hollida
v. Hollida, supra, 190 S.W.3d at p. 555.)
       R.S. does not dispute that there was a final judgment in R.S.-I and R.S.-II. As to
privity, both R.S. and R.C. were parties in R.S.-I and R.S.-II.12 The central question

(2013) 223 Cal.App.4th 237, 256 [“‘[w]here collateral estoppel is applied “offensively”
to preclude a defendant from relitigating an issue the defendant previously litigated and
lost, the courts consider whether the party against whom the earlier decision is asserted
had a “full and fair” opportunity to litigate the issue’”].)
12     With respect to R.S.’s survivor claim, R.S. asserts the claim as a representative of
R.C. following R.C.’s death. Accordingly, privity is not an issue. As to R.S.’s wrongful
death claim, however, one case in this district has found a lack of privity between an heir
asserting a wrongful death claim and the decedent asserting a personal injury claim.
(Kaiser Foundation Hospitals v. Superior Court of Los Angeles County (1967) 254
Cal.App.2d 327, 332-333 [wrongful death claim by heir not barred because no privity
with decedent in first lawsuit for personal injuries]; cf. Secrest v. Pacific Electric Ry. Co.
(1943) 60 Cal.App.2d 746, 749-750 [wrongful death claim by heir barred by first lawsuit
for personal injuries by decedent].). The question is more complicated here, where R.S.
was a party to both R.S.-I and R.S.-II, but R.S. asserted claims in those actions based only
on PacifiCare’s denial of his own benefits. We need not reach the question whether the
privity element is met as to R.S.’s wrongful death claim because we find below that this
claim is not barred by res judicata on other bases.

                                             14
before us is therefore whether R.S.’s wrongful death and survivor claims raise “identical”
issues to those raised in R.S.-I and R.S.-II. (See Boeken, supra, 48 Cal.4th at p. 797;
Smith v. Brown & Williamson Tobacco Corp., supra, 275 S.W.3d at p. 782, fn. 100.)
       We discuss R.S.’s survivor and wrongful death claims in turn.


C. R.S.’s Survivor Claim Is “Identical” to the Claim Asserted by R.C. in R.S.-II, and
Therefore Is Barred by Res Judicata
       The complaint in R.S.-II alleged a cause of action seeking damages for
PacifiCare’s alleged breach of the covenant of good faith and fair dealing by its denial of
medical benefits to R.C. (R.S.-II, supra, 194 Cal.App.4th at p. 196.) In R.S.-II, this
district held that R.C.’s claim was barred as a compulsory counterclaim he was required
to assert in R.S.-I. (R.S.-II, supra, at p. 207.)
       R.S. appears to concede that all three actions concern the same wrongful act,
stating in his opening brief that “the present action arises out of PacifiCare’s wrongful act
that formed the basis of [R.S.-I and R.S.-II] — its wrongful failure to pay for [R.C.’s]
medical treatments.” Instead, R.S. argues that his survivor claim arises out of a different
“primary right.” More specifically, R.S. argues that he seeks economic damages that
“were incurred at least in part after judgment was entered in the Missouri trial court.”
We analyze R.S.’s survivor claim under California law because the question before us is
whether it is barred by the judgment in R.S.-II.13



13     R.S.’s survivor claim is also barred by the judgment in R.S.-I under Missouri law,
but given that his claim is identical to that asserted in R.S.-II, we analyze it with respect
to R.S.-II. We note that Missouri applies a similar standard with respect to when a claim
for damages arises. (See R.S.-II, supra, 194 Cal.App.4th at p. 203 [holding that under
Missouri law “[t]he fact, rather than the amount or degree, of damages triggers a legal
claim”]; Adamson v. Innovative Real Estate, Inc. (Mo. Ct. App. 2009) 284 S.W.3d 721,
731 [“[a] claim matures or accrues when the damage sustained is capable of
ascertainment”]; Beasley v. Mironuck (Mo. Ct. App.1994) 877 S.W.2d 653, 655-656
[trustees barred from collecting attorneys fees for failure to plead attorneys fee claim
where they consulted attorneys but full amount of fees not yet determined].)


                                               15
       A cause of action accrues when a person sustains damage that can be ascertained;
it is not necessary that the full amount of damages be determined for the claim to arise.
(See Boeken, supra, 48 Cal.4th at p. 799 [“[t]he general rule is that a tort plaintiff may
recover prospective damages, as long as it is sufficiently certain that the detriment will
occur”]; Garcia v. Duro Dyne Corp. (2007) 156 Cal.App.4th 92, 97 [upholding jury
verdict for future damages to plaintiff from mesothelioma, holding that “a plaintiff may
recover if the detriment is ‘reasonably certain’ to occur”].) There is no reason that R.C.’s
full amount of damages could not have been ascertained in R.S.-I or R.S.-II.
       Further, R.S.’s survivor claim is brought on behalf of R.C., and thus is identical to
the claim brought by R.C. found barred in R.S.-II. As the Fourth District held in San
Diego Gas & Electric Co. v. Superior Court (2007) 146 Cal.App.4th 1545: “A survivor
claim is also a statutory cause of action; however, unlike a wrongful death claim, the
survival statutes do not create a cause of action but merely prevent the abatement of the
decedent’s cause of action and provide for its enforcement by the decedent’s personal
representative or successor in interest. [Citation.]” (Id. at p. 1553; see also Grant v.
McAuliffe (1953) 41 Cal.2d 859, 864 [“[b]efore his death, the injured person himself has
a separate and distinct cause of action and, if it survives, the same cause of action can be
enforced by the personal representative of the deceased against the tortfeasor” and “[t]he
survival statutes do not create a new cause of action, as do the wrongful death statutes”].)
       R.S. cites to no authority to support his argument that a claim barred by res
judicata during R.C.’s lifetime can be revived upon his death by having the claim asserted
by R.C.’s heir, R.S. We find that R.S.’s survivor claim is therefore barred.


D. R.S.’s Wrongful Death Claim for Loss of Companionship Is Not Barred by the
Judgments in R.S.-I or R.S.-II
       PacifiCare argues that R.S.’s wrongful death claim is barred by the judgments in
R.S.-I and R.S.-II under the doctrine of res judicata, and on the basis that it should have
been asserted as a compulsory counterclaim under Missouri law in R.S.-I. We disagree.



                                             16
       1. R.S.’s wrongful death claim is not barred under California law on res judicata.
       PacifiCare argues that the trial court correctly found that while R.S. did not assert
claims for loss of consortium in R.S.-I or R.S.-II, he could have brought a claim for loss
of consortium in those actions, and therefore his wrongful death claim is barred by res
judicata, citing to Boeken, supra, 48 Cal.4th at page 804. R.S. argues in response that
Boeken is distinguishable because the wife in that case had filed a lawsuit for loss of
consortium prior to her husband’s death, but dismissed it with prejudice. R.S. contends
that he did not suffer from loss of companionship during R.C.’s lifetime, and therefore he
could not have asserted a claim for loss of consortium in R.S.-I or R.S.-II. We find R.S.’s
argument persuasive.
       Boeken arose out of a personal injury lawsuit filed by Richard Boeken (Richard)
against cigarette manufacturer Phillip Morris for causing his lung cancer resulting from
smoking cigarettes. A jury awarded Richard compensatory and punitive damages.
(Boeken, supra, 48 Cal.4th at p. 792.) While Richard was still alive, his wife filed a
separate common law action against Phillip Morris for loss of consortium, alleging “that
she had been ‘permanently deprived’ of her husband’s consortium.” (Ibid.) The wife
subsequently dismissed her action with prejudice. (Id. at p. 793.)
       A year later, Richard died from lung cancer. The wife then filed a wrongful death
action against Phillip Morris under Code of Civil Procedure section 377.60, seeking
compensation for the loss of Richard’s companionship and affection. (Boeken, supra, 48
Cal.4th at p. 793.) Phillip Morris demurred, arguing that the wife’s wrongful death action
was barred by res judicata based on her prior lawsuit for loss of consortium. (Ibid.)
       Our Supreme Court held that the primary right in the wife’s first action for loss of
consortium was the same primary right asserted in her wrongful death claim. (Boeken,
supra, 48 Cal.4th at p. 798.) The court held as to the common law action for loss of
consortium: “The primary right was the right not to be wrongfully deprived of spousal
companionship and affection, and the corresponding duty was the duty not to wrongfully
deprive a person of spousal companionship and affection. The breach was the conduct of
defendant Philip Morris that wrongfully induced plaintiff’s husband to smoke defendant’s

                                             17
cigarettes. . . . Once plaintiff [dismissed her lawsuit for loss of consortium with
prejudice], the primary right and the breach of duty (together, the cause of action) had
been adjudicated in defendant’s favor. Therefore, plaintiff could not later allege the same
breach of duty in a second lawsuit against defendant, based on a new legal theory
(statutory wrongful death).” (Ibid.) The court concluded “that the primary right at issue
in plaintiff’s current wrongful death action for loss of consortium is the same as the
primary right at issue in her previous common law action for loss of consortium, and
therefore the res judicata doctrine bars the wrongful death action insofar as it concerns
loss of consortium.” (Id. at p. 804.)
          Boeken is distinguishable from the instant case on the basis that the wife there
filed a lawsuit for loss of consortium prior to filing her lawsuit for wrongful death.
Notably, the court did not find that Richard’s prior personal injury lawsuit was a bar to
his wife’s common law claim for loss of consortium or her wrongful death action.14
Rather, central to the holding in Boeken was the fact that the primary right alleged in the
first case — loss of consortium — was the identical right alleged in the wrongful death
action.
          As in Boeken, had R.S. asserted a claim in R.S.-I or R.S.-II for loss of consortium,
the same claim in this action would be barred. However, it is undisputed that R.S. did not
allege loss of consortium in R.S.-I or R.S.-II. The trial court found that Boeken still
applied because R.S. could have asserted a claim for loss of consortium in R.S.-II,
causing him to be barred from bringing a later wrongful death claim for loss of
consortium.
          Applying the holding in Boeken to a situation where the plaintiff did not
previously file an action for loss of consortium is contrary to California law that “where a
recovery was had and a liability established against defendants in the personal injury


14      In Boeken, we note that the defendant never challenged the wife’s right to bring
her first lawsuit for loss of consortium, so the issue of whether it was barred by res
judicata was not addressed by the court.


                                               18
action, the additional action for wrongful death accrues under the provisions of [former]
section 377 (now § 377.60) of the Code of Civil Procedure.” (Secrest v. Pacific Electric
Ry. Co., supra, 60 Cal.App.2d at p. 751; accord, Blackwell v. American Film Co. (1922)
189 Cal. 689, 693-694 [widow could recover for her own damages in wrongful death
action resulting from the death of her husband in automobile accident even though
husband recovered damages in prior lawsuit during his lifetime for personal injuries];
Earley v. Pacific Electric Ry. Co. (1917) 176 Cal. 79, 81 [widow could maintain
wrongful death claim despite settlement by decedent during his lifetime with defendant
for his injuries, holding that “the loss to his heirs did not accrue until he died”].)
       As the Court of Appeal held in Brown v. Rahman (1991) 231 Cal.App.3d 1458:
“If the injured party prevailed, the heirs are not precluded from seeking their own
damages. Where the judgment was adverse to the decedent, however, the contemporary
view, and the one to which we subscribe, is that the heirs are collaterally estopped from
relitigating the issue.” (Id. at p. 1461.)
       Further, our Supreme Court has made clear that the wrongful death statute is
intended to create a new and separate cause of action in favor of the heirs. (See Ruiz v.
Podolsky (2010) 50 Cal.4th 838, 844; see also Quiroz v. Seventh Ave. Center (2006) 140
Cal.App.4th 1256, 1263 [statutorily created wrongful death cause of action “is a new
cause of action that arises on the death of the decedent and it is vested in the decedent’s
heirs”].) As the court held in Ruiz: “‘Unlike some jurisdictions wherein wrongful death
actions are derivative, Code of Civil Procedure section 377.60 “creates a new cause of
action in favor of the heirs as beneficiaries, based upon their own independent pecuniary
injury suffered by loss of a relative, and distinct from any the deceased might have
maintained had he survived. [Citations.]”’ [Citation.]” (Ruiz, supra, at p. 844.)
       By contrast, in Secrest v. Pacific Electric Ry. Co., supra, 60 Cal.App.2d 746, this
district held that the plaintiff’s wrongful death action arising from a car accident was
barred where the decedent brought a prior lawsuit for personal injuries from the accident
which resulted in a verdict for the defendants, because the final judgment in the personal
injury action for defendants “‘negatives the existence of conditions which would charge

                                               19
the defendant with responsibility for the death.’” (Id. at p. 750, italics omitted.) The
court distinguished the holdings in Blackwell and Earley on the basis that in those cases
there was not an adverse decision on the merits finding that the defendants were free
from negligence or the decedent contributed to his own injuries. (Id. at pp. 748-749; see
also Evans v. Celotex Corp. (1987) 194 Cal.App.3d 741, 745 [defense verdict in personal
injury case for worker’s asbestos exposure for lack of proof of causation barred later
wrongful death claim by heirs].)
       In this case, while the demurrer was sustained in R.S.-II, the ruling was based on
the judgment in R.S.-I, not a finding that PacifiCare did not owe a duty to R.C. Thus, like
Blackwell and Earley, and contrary to Secrest and Evans, there was a determination that
PacifiCare did owe a duty to provide insurance benefits to R.C.


       2. R.S.’s wrongful death claim is not barred under Missouri law on res judicata.
       Under Missouri law, a wrongful death action is likewise not barred even where the
decedent previously brought a lawsuit for personal injuries. (Smith v. Brown &
Williamson Tobacco Corp., supra, 275 S.W.3d at p. 782.) In Smith, the court reviewed
case law from around the country, and concluded: “we hold that, pursuant to the language
employed in [Missouri Revised Statutes] section 537.080 [(2000)] [for wrongful death],
the wrongful death action is not barred in this case, despite the fact that Ms. Smith
brought a personal injury action for the injuries eventually resulting in her death during
her lifetime.”15 (Ibid., fn. omitted.)


15
       The Missouri wrongful death statute (Mo. Rev. Stat., § 537.080, subd. (1))
provides: “Whenever the death of a person results from any act, conduct, occurrence,
transaction, or circumstance which, if death had not ensued, would have entitled such
person to recover damages in respect thereof, the person or party who . . . would have
been liable if death had not ensued shall be liable in an action for damages,
notwithstanding the death of the person injured . . . .” Section 537.080 lists factors to be
considered in determining damages for various types of costs, including funeral expenses,
consortium, companionship, and financial support.
       The California statute (Code Civ. Proc., § 377.61) states: “[D]amages may be
awarded that, under all the circumstances of the case, may be just . . . .” California courts

                                             20
       The court in Smith based its conclusion on the holding by the Missouri Supreme
Court “that the wrongful death statute creates a new cause of action and does not revive
an action belonging to the decedent.” (Smith v. Brown & Williamson Tobacco Corp.,
supra, 275 S.W.3d at p. 765, citing O’Grady v. Brown (Mo. 1983) 654 S.W.2d 904, 910;
see also Sennett v. National Healthcare Corp. (Mo. Ct. App. 2008) 272 S.W.3d 237, 244-
245 [wrongful death cause of action is “‘“a new and distinct cause of action created
purely by statute, which sprang into being and accrued to plaintiffs as the designated
beneficiaries at the moment, but not until the moment, that the death of the deceased
occurred”’”].)
       Notably, Missouri law provides for a more expansive wrongful death claim than
under California law. In Smith, the decedent had asserted claims for negligence and strict
liability against the defendants for their failure to warn her of the dangers from smoking
cigarettes. The court granted summary judgment in favor of the defendant, finding that
the decedent could not prove causation, i.e., that if she had been warned she would have
altered her smoking behavior. (Smith v. Brown & Williamson Tobacco Corp., supra, 275
S.W.3d at pp. 759-760.) Even though the decedent suffered an adverse decision in her
lawsuit, the court found that the heirs had a separate wrongful death claim for the
decedent’s injuries. (Id. at p. 782.)
       Under Missouri law as well as California law, the primary rights at issue in R.S.-I
and R.S.-II — the right of R.C. and R.S. not to be harmed by PacifiCare’s denial of their
medical benefits — are separate “primary rights” from R.S.’s right not to be permanently
deprived of R.C.’s “spousal companionship and affection.” (Boeken, supra, 48 Cal.4th at
p. 804; accord, Smith v. Brown & Williamson Tobacco Corp., supra, 275 S.W.3d at




have specified available damages. As the court held in Boeken v. Phillip Morris USA Inc.
(2013) 217 Cal.App.4th 992, “damages for wrongful death ‘are measured by the financial
benefits the heirs were receiving at the time of death, those reasonably to be expected in
the future, and the monetary equivalent of loss of comfort, society, and protection.
[Citation.]’ [Citation.]” (Id. at p. 997.)


                                            21
p. 782.) Accordingly, the judgments in R.S.-I and R.S.-II do not bar R.S.’s wrongful
death claim.


       3. R.S. was not required to assert his wrongful death claim in R.S.-I as a
          compulsory counterclaim under Missouri Law.16
       This district in R.S.-II held that the claims asserted by R.S. and R.C. were
precluded by the Missouri judgment under the full faith and credit clause of the United
States Constitution (U.S. Const., art. IV, § 1) and Code of Civil Procedure section 191317
as part of California’s duty to give effect to a sister-state judgment. (R.S.-II, supra, 194
Cal.App.4th at p. 195.) In reaching this holding, the court applied Missouri law on the
filing of compulsory counterclaims. Missouri Supreme Court Rules, rule 55.32(a)
provides: “A pleading shall state as a counterclaim any claim that at the time of serving
the pleading the pleader has against any opposing party, if it arises out of the transaction
or occurrence that is the subject matter of the opposing party’s claim and does not require
for its adjudication the presence of third parties of whom the court cannot acquire
jurisdiction.”18
       The Missouri courts have held that rule 55.32(a) “is simply the codification of the
principles of res judicata and collateral estoppel. Claims and issues which could have
been litigated in a prior adjudicated action are precluded in a later action between the

16    The trial court did not reach this issue because it found R.S.’s wrongful death
claim was barred by res judicata.
17        Code of Civil Procedure section 1913, subdivision (a), provides: “the effect of a
judicial record of a sister state is the same in this state as in the state where it was made,
except that it can only be enforced in this state by an action or special proceeding.”
18      “[Missouri Supreme Court Rules, [r]]ule 55.32(a) contains three exceptions to the
rule requiring the filing of mandatory counterclaims: (1) another action was pending;
(2) quasi in rem proceedings; and (3) actions to approve a settlement. Missouri law thus
differs from California [law] which, by statute (Code Civ. Proc., § 426.60), states that the
mandatory cross-complaint rule does not apply in a declaratory relief action.” (R.S.-II,
supra, 194 Cal.App.4th at p. 207, fn. 8.)


                                              22
same parties or those in privity with them.” (Joel Bianco Kawasaki Plus, Inc. v.
Meramec Valley Bank (Mo. Banc 2002) 81 S.W.3d 528, 523, bold omitted; accord,
Adamson v. Innovative Real Estate, Inc., supra, 284 S.W.3d at p. 728; see also R.S.-II,
supra, 194 Cal.App.4th at p. 203.) Further, “[t]he function of this rule is to serve as ‘a
means of bringing all logically related claims into a single litigation, through the penalty
of precluding the later assertion of omitted claims.’ [Citation.]” (Adamson, supra, at
p. 728, citing State ex rel. J.E. Dunn, Jr. & Associates, Inc. v. Schoenlaub (Mo. Banc
1984) 668 S.W.2d 72, 75.)
       As the court held in Adamson: “To determine if a cause of action is single and
cannot be split, the trial court should consider: (1) whether the separate actions brought
arise out of the same act or transaction; and (2) whether the parties, subject matter, and
evidence necessary to sustain the claim are the same in both actions. [Citation.] The
term ‘transaction’ has been held to be a term of broad and flexible meaning which is
intended to include all the facts and circumstances constituting the foundation of a claim
and should be applied so as to bring all logically related claims into a single litigation.”
(Adamson v. Innovative Real Estate, Inc., supra, 284 S.W.3d at pp. 728-729.)
       PacifiCare argues that R.S. was required to assert his wrongful death claim for loss
of consortium in R.S.-I because his claim for loss of consortium arose out of the same
“act or transaction” (denial of insurance benefits) and was “logically related” to the
claims asserted in R.S.-I. Further, PacifiCare argues that R.C. “was gravely ill and near
death” at the time of R.S.-I, and therefore the loss of consortium claim was capable of
ascertainment at that time.19 (See Adamson v. Innovative Real Estate, Inc., supra, 284
S.W.3d at p. 731.)



19      As the court held in R.S.-II, “[i]n Missouri, ‘a claim falls within the limits of the
compulsory counterclaim rule if it has “matured” at the time of the pleading and for this
purpose “matured” has the same meaning as the word “accrued” in statutes of limitations.
[Citation.] Therefore, a counterclaim has accrued and is fully matured when the damage
resulting therefrom is sustained and is capable of ascertainment. [Citations.]
“Ascertainment” refers to the fact of damage rather than to the precise amount.’

                                              23
       As we discuss above, however, under Missouri principles of res judicata, a
wrongful death claim is not barred by the prior personal injury claim for damages by the
decedent during his lifetime. Because Missouri’s compulsory counterclaim law is
premised on the principles of res judicata and collateral estoppel, then just as R.S.’s
wrongful death claims are not barred by res judicata, they cannot be barred for failure to
assert them in R.S.-I. This is consistent with Missouri law that a wrongful death cause of
action accrues at the time of death of the decedent. (See Sennett v. National Healthcare
Corp., supra, 272 S.W.3d at p. 245 [wrongful death claim found to accrue “not until the
moment[] that the death of the deceased occurred”].)20




[Citations.]” (R.S.-II, supra, 194 Cal.App.4th at p. 204, citing Beasley v. Mironuck,
supra, 877 S.W.2d at pp. 655-656.)
20      PacifiCare argues that R.S.’s wrongful death claim accrued at the time R.C.’s
injuries became “‘life threatening.’” However, R.S. has not alleged that he suffered from
loss of consortium prior to R.C.’s death. Therefore, it would in fact have been difficult to
ascertain the damage due to his loss of companionship at a time when, according to the
allegations of the complaint, he was not suffering loss of companionship.


                                             24
                                     DISPOSITION


       The judgment is reversed. The trial court is directed to vacate the order sustaining
PacifiCare’s demurrer and to enter a new order overruling the demurrer with respect to
R.S.’s wrongful death claim and sustaining the demurrer as to R.S.’s survivor claim. R.S.
is to recover his costs on appeal.



                                                 FEUER, J.*


We concur:



              PERLUSS, P. J.



              ZELON, J.




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

                                            25
