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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)

West's Ann.Cal.C.C.P. § 382.


Court of Appeal, Third District, California.
Jose Reynaldo ROMERO, Plaintiff and Appellant, [3] Compromise and Settlement 89 17(2)
v.
PACIFIC GAS & ELECTRIC COMPANY et al.,
Defendants and Respondents. 89 Compromise and Settlement
No. C053700. 89I In General
89k14 Operation and Effect
89k17 Conclusiveness
Oct. 18, 2007. 89k17(2) k. Persons Concluded. Most
Cited Cases
Background: Following utility's settlement of Tortfeasor was not entitled to protection of one action
wrongful death action brought by decedent's mother, rule upon settling wrongful death action brought by
decedent's father filed wrongful death action against decedent's mother, even though known heir,
utility. The Superior Court, Sacramento County, No. decedent's father, had been named as a nominal
04AS03669,Loren E. McMaster, J., sustained utility's defendant, where decedent's father was not served
demurrer and dismissed action. Father appealed. and was not a party to the action. West's
Ann.Cal.C.C.P. § 382.
Holding: The Court of Appeal, Blease, Acting P.J., See 6 Witkin, Summary of Cal. Law (10th ed. 2005)
held that utility was not entitled to protection of one Torts, § 1385 et seq.; Flahavan et al., Cal. Practice
action rule, even though father had been named as a Guide: Personal Injury (The Rutter Group 2007) ¶
nominal defendant in mother's action, where father 3:301 et seq. (CAPI Ch. 3-G); Cal. Jur. 3d, Wrongful
was not served and was not a party to mother's action. Death, § 11; Cal. Civil Practice (Thomson/West
2003) Torts, § 23:6.
Reversed and remanded. [4] Death 117 7

West Headnotes 117 Death


117III Actions for Causing Death
[1] Parties 287 35 117III(A) Right of Action and Defenses
117k7 k. Nature and Form of Remedy.
287 Parties Most Cited Cases
287II Defendants
287II(B) Joinder Death 117 42
287k35 k. Making Defendant Party
Refusing to Join as Plaintiff. Most Cited Cases 117 Death
A person named as a nominal defendant and properly 117III Actions for Causing Death
joined in a wrongful death action is in reality, a 117III(E) Parties
plaintiff in the case. West's Ann.Cal.C.C.P. § 382. 117k40 Plaintiffs
117k42 k. Joinder. Most Cited Cases
[2] Death 117 104(1)
Death 117 43
117 Death
117III Actions for Causing Death 117 Death
117III(I) Trial 117III Actions for Causing Death
117k104 Instructions 117III(E) Parties
117k104(1) k. In General. Most Cited 117k43 k. Defendants. Most Cited Cases
Cases Wrongful death statute authorizes only a single
A jury is properly instructed upon the issue of action, in which all the decedent's heirs must join;
damages suffered by a party joined as a nominal any heir who does not consent to be joined as a
defendant in a wrongful death action, even though plaintiff in the wrongful death action must be named
that “defendant” does not participate in the trial. as a nominal defendant. West's Ann.Cal.C.C.P. §§

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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. complaint is not properly joined in the action, and


accordingly is not a party to the action. West's
[5] Judgment 228 690 Ann.Cal.C.C.P. § 382.

228 Judgment [8] Compromise and Settlement 89 17(2)


228XIV Conclusiveness of Adjudication
228XIV(B) Persons Concluded 89 Compromise and Settlement
228k690 k. Coheirs or Codistributees and 89I In General
Codevisees or Colegatees. Most Cited Cases 89k14 Operation and Effect
89k17 Conclusiveness
Judgment 228 707 89k17(2) k. Persons Concluded. Most
Cited Cases
The naming of an heir as a nominal defendant is
228 Judgment
notice of the existence of the heir sufficient to bring
228XIV Conclusiveness of Adjudication
the case within rule that a tortfeasor waives the
228XIV(B) Persons Concluded
protection of the one action rule by settling wrongful
228k706 Persons Not Parties or Privies
death claim with less than all the known heirs if such
228k707 k. In General. Most Cited
heirs are not a party to the action. West's
Cases
Ann.Cal.C.C.P. § 382.
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 [9] Action 13 53(2)
tortfeasor had knowledge of the existence of the heir
at the time of the settlement; this is the case even if 13 Action
the plaintiff was aware of the existence of another 13III Joinder, Splitting, Consolidation, and
heir, and the wrongfully omitted heir's remedy is Severance
against the plaintiff who brought the wrongful death 13k53 Splitting Causes of Action
action. West's Ann.Cal.C.C.P. § 377.60. 13k53(2) k. Actions Ex Delicto. Most Cited
Cases
[6] Compromise and Settlement 89 17(2) 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
89 Compromise and Settlement
to rule that a tortfeasor waives the protection of the
89I In General
one action rule by settling wrongful death claim with
89k14 Operation and Effect
less than all the known heirs if such heirs are not a
89k17 Conclusiveness
party to the action; defendant has the burden and the
89k17(2) k. Persons Concluded. Most
means of determining whether an heir has been
Cited Cases
served. West's Ann.Cal.C.C.P. § 382.
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 [10] Action 13 53(2)
action.
13 Action
[7] Death 117 42 13III Joinder, Splitting, Consolidation, and
Severance
13k53 Splitting Causes of Action
117 Death
13k53(2) k. Actions Ex Delicto. Most Cited
117III Actions for Causing Death
Cases
117III(E) Parties
A defendant is entitled to rely on allegations in a
117k40 Plaintiffs
wrongful death complaint that the plaintiffs are the
117k42 k. Joinder. Most Cited Cases
only heirs. West's Ann.Cal.C.C.P. § 377.60.
An heir named as a nominal defendant in a wrongful
death action but not served with a summons and

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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) defendant under section 382 but not served with a
summons and complaint is not properly joined in the
13 Action action, and accordingly is not a party to the action.
13III Joinder, Splitting, Consolidation, and (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th
Severance 801, 804, 62 Cal.Rptr.2d 78.)
13k53 Splitting Causes of Action
13k53(2) k. Actions Ex Delicto. Most Cited *215 Nevertheless, PG & E argues that it is
Cases protected by the one action rule because Romero was
Where a tortfeasor wishes to avail itself of the ostensibly joined in the action, and PG & E had no
protections of the one action rule in wrongful death knowledge that Romero had not been served. It seeks
action, the burden is on the tortfeasor to ascertain implied reliance on the bare inference that because
whether the heirs named as defendants have been Romero was named as a nominal defendant under
properly joined. West's Ann.Cal.C.C.P. §§ 377.60, section 382 that it could act as if he had elected not to
382. seek recompense for the wrongful death of his son.
**238 Kevin G. Farnworth, for Plaintiff and We disagree.
Appellant.
[1][2] No such inference can be drawn from that
Ryan & Fong, Marla R. Weston, for Defendant and circumstance. A person named as a nominal
Respondent. defendant and properly joined is “in reality, [a]
plaintiff [ ] in the case.” (Watkins v. Nutting (1941)
BLEASE, Acting P.J. 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
*214 The son of plaintiff Jose Romero and Linda
section 382 even though that ‘defendant’ does not
Brekelmans was killed in an accident involving
participate in the trial.” (Estate of Kuebler v.
defendant Pacific Gas & Electric Company (PG &
Superior Court (1978) 81 Cal.App.3d 500, 504, 146
E). Linda Brekelmans brought a wrongful death
Cal.Rptr. 481, citation omitted.)
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 However, in this case Romero was not served and
PG & E without the participation of Romero and it was not a party to the action. It is not a defense to the
was dismissed. 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
FN1. References to an undesignated section
of determining whether an heir has been served and
are to the Code of Civil Procedure.
accordingly its failure to do so does not take the case
out of the rule of the Valdez case. Moreover, the
Thereafter, Romero brought this action for wrongful naming of an heir as a nominal defendant**239 is
death against PG & E. This is an appeal from the notice of the existence of the heir sufficient to bring
judgment of dismissal after the trial court sustained the case within Valdez v. Smith, supra.
PG & E's demurrer without leave to amend. The issue
is whether a tortfeasor waives the protection of the
We shall reverse the judgment of dismissal.
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 FACTUAL AND PROCEDURAL BACKGROUND
pursuant to section 382, but has not been served.
Jose Romero's original complaint alleged that
A tortfeasor waives the protection of the one action plaintiff Romero was the father of Joseph
rule by settling with less than all the known heirs if Brekelmans, who was killed when an open trench in
such heirs are not a party to the action. (Valdez v. which he was playing collapsed.
Smith (1985) 166 Cal.App.3d 723, 726-727, 212
Cal.Rptr. 638.) An heir named as a nominal PG & E demurred to Romero's original complaint on

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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 joined by the plaintiff, and defendant has no
a wrongful death action in which Romero was named knowledge to the contrary.”
as a defendant; therefore, Romero's action for
wrongful death violated the one action rule.FN2 The DISCUSSION
trial court sustained the demurrer with leave to
amend. I

FN2. “Generally, there may be only a single The One Action Rule
action for wrongful death, in which all heirs
must join. There cannot be a series of such
suits by individual heirs. [Citation.] This is [3][4] A cause of action for wrongful death is
the so-called one action rule.” (Gonzales v. authorized by section 377.60. As is relevant here, that
Southern California Edison Co. (1999) 77 statute provides that a cause of action for wrongful
Cal.App.4th 485, 489, 91 Cal.Rptr.2d 530.) 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
Romero's first amended complaint added allegations death statute has been interpreted to authorize only a
that Joseph Brekelmans' mother, Linda Brekelmans, single action, in which all the decedent's heirs must
filed a lawsuit against several *216 defendants, join. (Gonzales v. Southern California Edison Co.,
including PG & E, in which Romero was named as a supra, 77 Cal.App.4th at p. 489, 91 Cal.Rptr.2d 530.)
defendant, but never served. Linda Brekelmans
settled her action in its entirety and dismissed it with
prejudice.FN3 Romero did not participate in the [5] Any heir who does not consent to be joined as a
mother's action, and did not receive any proceeds plaintiff in the wrongful death action must be named
from the settlement of that action.FN4 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
FN3. The record contains the entry of wrongful death action, the heir may not subsequently
dismissal from Brekelmans' action, but does bring an independent action against the tortfeasor
not contain a judgment of dismissal from unless the tortfeasor had knowledge of the existence
that action. of the heir at the time of the settlement. *217 (Valdez
v. Smith, supra, 166 Cal.App.3d at pp. 726-727, 212
FN4. On the same day Romero filed his Cal.Rptr. 638.) This is the case even if the plaintiff
complaint in this action, he filed a cross- was aware of the existence of another heir. (Id. at p.
complaint in the Brekelmans action. 726, 212 Cal.Rptr. 638.) The wrongfully omitted
However, by that time Brekelmans and PG heir's remedy is against the heir (plaintiff) who
& E had already entered into a settlement brought the wrongful death action. (Smith v. Premier
agreement and the action had been Alliance Ins. Co. (1995) 41 Cal.App.4th 691, 697, 48
dismissed. For that reason the trial court in Cal.Rptr.2d 461 (Premier Alliance ); Ruttenberg v.
the Brekelmans action struck the cross- Ruttenberg, supra, 53 Cal.App.4th at p. 804, 62
complaint. Cal.Rptr.2d 78.)

PG & E demurred to the first amended complaint, FN5. Section 382 states in pertinent part: “If
arguing again that Romero's suit violated the one the consent of any one who should have
action rule, and that the fact that Romero was never been joined as plaintiff cannot be obtained,
properly served was immaterial, since PG & E “had he may be made a defendant, the reason
every reason to believe that he had been properly thereof being stated in the complaint....”
joined in the lawsuit.” The trial court sustained the
demurrer without leave to amend, stating, “Plaintiff II
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 Exceptions to the One Action Rule
death action, and appears to have been properly

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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 parents were dependent on the decedent for support,
**241 making them heirs for purposes of the
[6] There is an exception to the one action rule if the wrongful death statute. (Ibid.)
tortfeasor voluntarily elects to settle the case with
less than all of the heirs, having knowledge of the The court held that even though the deposition
omitted heir's existence and status as an heir. (Valdez testimony did not confer actual knowledge of the
v. Smith, supra, 166 Cal.App.3d at p. 731, 212 parents' status as an heir, it put the tortfeasors on
Cal.Rptr. 638.) The exception applies where the notice and they should be held to both actual
omitted heir is not joined in the original action. knowledge or knowledge that reasonably could be
discovered through investigation. (Gonzales v.
Valdez held that “when ... the defendant in a pending Southern California Edison Co., supra, 77
action has actual knowledge of the existence, identity Cal.App.4th at p. 491, 91 Cal.Rptr.2d 530.) The court
and status of an omitted heir and fails to have said stated that knowledge of the heirs' existence and
omitted heir made a party to the action, a settlement status as heirs should be attributed to “wrongful death
and dismissal with prejudice of the pending action defendants that learn of the existence and identity of
will not bar a subsequent action by the omitted heir possible additional heirs who are not parties, yet
against the defendant.” ( 166 Cal.App.3d at p. 731, proceed to settle in short order with those who are
212 Cal.Rptr. 638, italics added.) parties.” (Ibid.)

In Valdez, the wrongful death action was brought by B. Heir Named as a Party
the decedent's widow on behalf of herself and her
minor children. (Valdez v. Smith, supra, 166 [7] The only distinction between this case and Valdez
Cal.App.3d at p. 725, 212 Cal.Rptr. 638.) The v. Smith, supra, is that here the heir was named as a
complaint did not name the decedent's child by a defendant in the prior action pursuant to section 382.
prior marriage as a plaintiff or defendant but the However, merely naming a person as a nominal
tortfeasors were aware of the omitted child's defendant under section 382 is not the equivalent of
existence, identity and status as an heir. (Ibid.) The joining the person in the lawsuit. A party is not
original action was settled with the widow and properly joined unless served with a summons and
dismissed with prejudice. (Ibid.) The court held that complaint. (Ruttenberg v. Ruttenberg, supra, 53
the tortfeasors waived their right to assert the one Cal.App.4th at p. 808, 62 Cal.Rptr.2d 78.)
action rule as a bar to the omitted child's action when Consequently, this case falls squarely under the
they settled the original action with knowledge of the authority of Valdez v. Smith, supra, 166 Cal.App.3d
existence, identity, and status of the omitted heir, and 723, 212 Cal.Rptr. 638, and Gonzales v. Southern
failed to have the omitted heir made a party to the California Edison Co., supra, 77 Cal.App.4th 485, 91
action. (Id. at p. 731, 212 Cal.Rptr. 638.) Cal.Rptr.2d 530, which hold that a defendant who is
aware of the existence of additional non-party heirs
The exception also applies if the tortfeasor is on may not settle the action, then invoke the one action
notice of the omitted heir's existence, whether or not rule.
it has actual knowledge of the existence of such heirs.
(Gonzales v. Southern California Edison Co., supra, PG & E admits for purposes of this appeal that
77 Cal.App.4th at p. 491, 91 Cal.Rptr.2d 530.) In Romero was not properly joined in the Brekelmans
Gonzales the decedent's daughter, through her mother action. It argues there should be no exception to the
as guardian at litem, brought a wrongful death action one action rule because it “did not clearly have
in which the decedent's parents were not named as knowledge that the heirs were not all joined.” FN6 It
heirs, but of whose existence the tortfeasors were seeks to place the onus on the mother to ensure that
aware because their names and relationship to the the father was properly joined. In effect PG & E
decedent were provided in a *218 deposition. (Id. at argues that it does not waive the one action rule by
p. 487, 91 Cal.Rptr.2d 530.) The daughter's action settling with less than all the known heirs as long as it
was settled. (Id. at p. 488, 91 Cal.Rptr.2d 530.) reasonably believes that all the heirs of whom it has
Subsequently, the parents filed a complaint in a notice or knowledge are joined in the action. PG & E
separate action, and evidence was adduced that the misunderstands the law.

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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)

Brekelmans complaint to draw an inference that


FN6. PG & E's claim that the mother's Romero did not wish to participate in the action when
complaint “clearly represented” on its face the complaint did not strictly comply with section
“that the litigating heirs had joined all heirs 382, which requires that “[i]f the consent of any one
and had determined that Romero did not who should have been joined as plaintiff cannot be
wish to participate,” is unfounded. The obtained, he may be made a defendant, [if] the reason
complaint merely states that Romero “was thereof [is] stated in the complaint....” Brekelmans'
the natural father and is the only other complaint stated Romero, “was the natural father and
surviving heir-at-law of DECEDENT and is is the only other surviving heir-at-law of
named as a Defendant herein pursuant to DECEDENT and is named as a Defendant herein
CCP section 377.60.” pursuant to CCP section 377.60.” The allegation
failed to state the reason that Romero's consent could
[8] Waiver of the protection of the one action rule not be obtained. (See Watkins v. Nutting, supra, 17
turns on the defendant's knowledge of the existence Cal.2d at p. 498, 110 P.2d 384 [holding a similar
or possible existence of an heir. *219(Valdez v. allegation did not strictly comply with section 382].)
Smith, supra, 166 Cal.App.3d at p. 731, 212 Cal.Rptr.
638 [settlement of first action does not bar [11] More importantly, since PG & E was a party to
subsequent action where defendant had “actual the action it would have been a simple matter for it to
knowledge of the existence, identity and status of an determine whether Romero had been served with the
omitted heir and fail[ed] to have said omitted heir summons and complaint by reviewing the court's file.
made a party to the action....]; Gonzales v. Southern As indicated in Valdez v. Smith, supra, the burden is
California Edison Co., supra, 77 Cal.App.4th at p. on the tortfeasor wishing to avail itself of the one
491, 91 Cal.Rptr.2d 530 [defendants may not invoke action rule to cause a known heir to be joined in the
the one action rule where they “learn of the existence action. ( 166 Cal.App.3d at p. 728, 212 Cal.Rptr. 638
and identity of possible additional heirs who are not [“Defendants could have made a timely objection and
parties, yet proceed to settle in short order with those had the action abated or at least could have made [the
who are parties”].) The naming of an heir as a heir] a party to the action.... [T]he failure of
nominal defendant manifestly puts the defendant on defendants to do so *220 should not estop the
notice of the heir's existence regardless whether the plaintiff from bringing his rightful claim for wrongful
heir has been joined by service of process. death.”].) Where a tortfeasor wishes to avail itself of
the protections of the one action rule, the burden is on
[9][10] PG & E takes the position that it could infer the tortfeasor to ascertain whether the heirs named as
Romero was properly joined **242 from the fact that defendants have been properly joined.
he was named a defendant pursuant to section 382.
We disagree. No inference of proper service In Premier Alliance, supra, 41 Cal.App.4th 691, 48
necessarily can be drawn from the mere fact that a Cal.Rptr.2d 461, the court agreed with our
party is named as a defendant, and service could not conclusion, albeit in dictum. The wife of a decedent
have been alleged in the complaint because it would named the decedent's two children by a prior
have occurred subsequent to the filing of the marriage as nominal defendants in her wrongful
complaint. A defendant is entitled to rely on death action against the pilot of an airplane but
allegations in a wrongful death complaint that the apparently did not serve them with the complaint.
plaintiffs are the only heirs. (Salmon v. Rathjens, (Id. at p. 695, 48 Cal.Rptr.2d 461.) The wife settled
supra, 152 Cal. at p. 295, 92 P. 733.) However, no with the pilot's insurance company, but no funds were
inference of proper service follows from the mere paid to the children. (Ibid.) The children then sued
naming of a defendant under section 382. Instead, the the insurance company, not for wrongful death, but
burden is on the tortfeasor wishing to avail itself of for tortious interference with succession rights,
the one action rule to cause a known heir to be joined claiming the company failed to inform the children of
in the action. (Valdez v. Smith, supra, 166 the settlement and failed to pay the children their
Cal.App.3d at p. 728, 212 Cal.Rptr. 638. share of the settlement. (Ibid.) With regard to the
tortious interference claim the court held that the
Moreover, PG & E may not assert reliance on the insurance company owed the children no duty

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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).)

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