Romero

The son of plaintiff Jose Reynaldo Romero and Linda Brekelmans was killed in an accident involving defendant Pacific Gas and 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. She settled the action with PG&E without the participation of Romero and it was dismissed.

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 defendant under section 382 but not served with a summons and…