## Facts

- Richard Boeken began smoking in 1957 and was diagnosed with lung cancer in 1999.
- In 2000, Richard sued Philip Morris USA, Inc. for personal injuries; a substantial judgment was ultimately satisfied.
- In October 2000, while Richard was alive, his wife Judy Boeken filed a separate common-law loss of consortium action seeking damages for the “permanent” loss of her husband’s companionship and affection; that action was dismissed with prejudice.
- Richard died of lung cancer in January 2002 while his personal-injury case was on appeal.
- After his death, Judy filed a statutory wrongful death action seeking damages for loss of love, companionship, affection, and support due to Richard’s death.
- Philip Morris demurred, asserting the wrongful death action was barred by res judicata based on the earlier dismissed loss-of-consortium action.

## Issues

1. Whether res judicata bars a statutory wrongful death action for loss of companionship and affection when the plaintiff previously filed and dismissed with prejudice a common-law loss of consortium action against the same defendant based on the same alleged tortious conduct.
2. Whether the wrongful death claim involves the same “primary right” as the earlier consortium claim under California’s primary right theory.
3. Whether a loss-of-consortium plaintiff could have recovered reasonably certain future losses, including loss attributable to an anticipated premature death, in the earlier action.
4. Whether applying res judicata in these circumstances violates due process.

## Decision

- The Supreme Court of California affirmed the judgment sustaining the demurrer without leave to amend.
- The court held res judicata barred Judy Boeken’s wrongful death action because it involved the same primary right and breach as her earlier loss-of-consortium action.
- The court concluded the earlier dismissal with prejudice operated as a final judgment on the merits for res judicata purposes.
- The court rejected the argument that post-death loss of companionship was categorically unavailable in a consortium action, and rejected the due process challenge.

## Legal Principles

- Under California’s primary right theory, a “cause of action” is defined by the plaintiff’s primary right and the defendant’s corresponding duty; a single primary right gives rise to a single cause of action even if different theories or forms of relief are asserted.
- Res judicata bars a second suit between the same parties on the same cause of action after a final judgment on the merits.
- A dismissal with prejudice generally constitutes a final judgment on the merits for res judicata purposes.
- Loss-of-consortium damages may include reasonably certain future losses, including loss of companionship and affection attributable to a likely premature death caused by the defendant’s tortious conduct.
- For claim-preclusion analysis, the focus is the harm suffered, not the statutory label; a plaintiff may not split a single deprivation of spousal companionship and affection into separate actions.

## Conclusion

The court held that because both the dismissed loss-of-consortium action and the later wrongful death action sought recovery for the same deprivation of spousal companionship and affection caused by the same alleged wrongdoing, the later wrongful death claim was barred by res judicata.


Boeken v. Philip Morris USA, Inc., 48 Cal. 4th 788 (Cal. 2010)