Ruttenberg

Introduction

A wrongful death complaint named an heir of the decedent as a nominal defendant, but plaintiffs failed either to serve the complaint on that heir or involve her in the subsequent settlement. Even though the omitted heir had knowledge that the wrongful death action existed, plaintiffs’ failure to serve the complaint resulted in the failure to join the omitted heir in plaintiffs’ wrongful death suit. In these circumstances, the omitted heir has a right to bring an action against the wrongful death plaintiffs to recover damages for her omission from the underlying lawsuit and settlement. We reverse a judgment granting a motion for judgment on the pleadings, and remand for further proceedings in the omitted heir’s lawsuit.

Standard of Review

A defendant may move for judgment on the pleadings on the same basis as a general demurrer. (Ponderosa Homes, Inc. v. City of San Ramon (1994) 23 Cal.App.4th 1761, 1767 [ 29 Cal.Rptr.2d 26 ].) The standard of appellate review corresponds to that applied to a judgment following the sustaining of a demurrer. (Gami v. Mullikin Medical Center (1993) 18 Cal.App.4th 870, 876 [ 22 Cal.Rptr.2d 819 ].) Thus the motion is confined…