Attorneys for Plaintiff
Filed
July 22, 1985
Frank S. Zolin, County Clerk

GRETHA HEXUM, Plaintiff

-vs-

20TH CENTURY FOX TELEVISION, ) CASE NO: WEC 095783
20TH CENTURY FOX FILM )
CORPORATION, GLEN LARSON ) COMPLAINT FOR DAMAGES
PRODUCTIONS, INC., GLEN LARSON )
Individually, SIDNEY HAYERS, )
1. Negligence (Wrongful Death)
THORKLEIF(sic) HEXUM, DOES 1 T0 100 )
2. Strict Liability in Tort
INCLUSIVE, )
3. Breach of Warranty
)
Defendants. )
_________________________________________)

FIRST CAUSE OF ACTION
(Negligence - Wrongful Death)
COMES NOW plaintiff, GRETHA HEXUM, and for a first cause of action
against the Defendants and each of them, alleges:

1. The sole surviving heirs of JON-ERIK HEXUM, deceased (hereinafter "decedent") and their relationship to decedent are: the plaintiff GRETHA HEXUM, mother of decedent, and Plaintiff's ex-husband, THORKLEIF HEXUM (sic), father of decedent.

2. Although defendant THORLEIF HEXUM is an heir of the decedent and entitled to bring this action he is named as defendant in this action pursuant to Section 382 of the Code of Civil Procedure because he is unwilling to be joined as plaintiff in this action. The whereabouts of said THORLEIF HEXUM are presently unknown to Plaintiff.

3. The true names and capacities, whether individual, associate, corporate or otherwise of Defendants Does 1 to 100 inclusive and each of them, are unknown to Plaintiff at this time who, therefore, sues said Defendants by such fictitious names. Plaintiff will amend this complaint to state their true names when same have been ascertained.

4. Plaintiff is informed and believes, and thereon alleges that each of the Defendants designated herein as a Doe is responsible in some manner for the events and the occurrences herein described and liable to Plaintiff for the damages as herein alleged.

5. Plaintiff is informed and believes and thereon alleges that at all times herein mentioned defendants 20TH CENTURY FOX TELEVISION, 20TH CENTURY FOX FILM CORPORATION, GLEN LARSON PRODUCTIONS, INC., and Does 1 to 10 inclusive and each of them, are corporations duly organized and existing under and by virtue of the laws of one of the States of the United States and authorized to and doing business in the County of Los Angeles, California.

6. At all times herein mentioned Defendants and each of them, were the agents, servants and employees and/or joint venturers of their co-defendants, and were, as such, acting within the course and scope and authority of said agency, employment and venture, and that each and every defendant, as aforesaid, when acting as a principal, was negligent in the selection and hiring of each and every other defendant as an agent, employee and/or joint venturer.

7. At all times herein mentioned defendants 2OTH CENTURY FOX TELEVISION, 20TH CENTURY FOX FILM CORPORATION, GLEN LARSON PRODUCTIONS, INC., GLEN LARSON, SIDNEY HAYERS and Does 1 to 20 inclusive and each of them, were engaged in the business of writing, producing, directing, distributing, retailing, renting, leasing and supplying television productions and films, scripts, props, special effects for the television and movie industries and for eventual distribution to the general public and specifically of that certain television production entitled "COVER UP", including the equipment, props, scripts direction, special effects, safety regulations, ammunition, blanks, casing, dummy rounds, bullets, gun powder, guns, pyrotechnics and other props utilized in the production of the aforementioned production "COVER UP".

8. That on or about October 12, 1984 decedent JON-ERIK HEXUM, was an actor working as an independent contractor in the aforementioned production "COVER UP".

9. That on or about October 12, 1984 said decedent was at the set of the aforementioned production "COVER UP" waiting for filming to commence. As part of the plot which was to be filmed on said date, decedent was to pretend to shoot another actor working with him in said production and for that purpose defendants 20TH CENTURY FOX TELEVISION, 20TH CENTURY FOX FILM CORPORATION, GLEN LARSON PRODUCTIONS, GLEN LARSON, SIDNEY HAYERS, and DOES 1 to 40 inclusive and each of them, had provided decedent with a certain .44 caliber 2 inch Magnaport revolver, serial number 720139 (hereinafter referred to as the "gun"), which gun was loaded with "blanks".

10. At all times herein mentioned defendants 20TH CENTURY FOX TELEVISION, 20TH CENTURY FOX FILM CORPORATION, GLEN LARSON PRODUCTIONS, GLEN LARSON, SIDNEY HAYERS, and DOES 1 to 40 inclusive and each of them, negligently and recklessly owned, controlled, entrusted, maintained, serviced, modified, repaired, altered, designed, used and so negligently and recklessly failed to advise, admonish, instruct and inform plaintiff's decedent of the danger of firing blank bullets at close range; and so negligently and recklessly failed to advise, admonish, instruct and inform decedent of the proper and safe manner in which to handle the gun, so as to proximately cause the damages to Plaintiff as herein alleged.

11. Defendants 20TH CENTURY FOX TELEVISION, 20TH CENTURY FOX FILM CORPORATION, GLEN LARSON PRODUCTIONS, GLEN LARSON, SIDNEY HAYERS, and DOES 1 to 40 inclusive and each of them, knew, or should have known of the inherently and imminently dangerous nature of the use of said gun, blanks and/or dummy rounds and appurtenances of said gun. Defendants 20TH CENTURY FOX TELEVISION, 20TH CENTURY FOX FILM CORPORATION, GLEN LARSON PRODUCTIONS, GLEN LARSON, SIDNEY HAYERS, and DOES 20 to 40 inclusive and each of them, were bound by a high standard of care and diligence in providing said gun, blanks and/or dummy rounds and appurtenances to said gun in a safe condition and said Defendants were bound by a high standard of care and diligence in planning, entrusting, supervising, controlling and otherwise participating in the making of the aforesaid television production and the scenes therein.

12. Defendants 20TH CENTURY FOX TELEVISION, 20TH CENTURY FOX FILM CORPORATION, GLEN LARSON PRODUCTIONS, GLEN LARSON, SIDNEY HAYERS, and DOES 1 to 40 inclusive and each of them, breached said duty of care and diligence by providing an unsafe and dangerous gun, blanks and/or dummy rounds and appurtenances thereto to decedent, and by failing to warn or otherwise notify decedent of the inherently, imminently and unreasonably dangerous nature and condition of said gun, blanks and/or dummy rounds and appurtenances thereto; by failing to participate sufficiently in the making of the aforesaid television production and the scenes therein, including but not limited to safely and reasonably planning, entrusting, supervising and controlling said production.

13. On or about October 12, 1984 Plaintiff's decedent was on the set of the aforementioned television production. As a direct and proximate result of the negligence of Defendants as hereinabove mentioned, said gun accidentally discharged when decedent held the gun at close range, inflicting fatal injuries to decedent from which injuries decedent died on or about October 18, 1984.

14. Prior to the death of decedent, decedent was a faithful and dutiful son to Plaintiff herein and Plaintiff was totally dependent on said decedent for her support and maintenance.

15. As a direct and proximate result of the negligence of Defendants 20TH CENTURY FOX TELEVISION, 20TH CENTURY FOX FILM CORPORATION, GLEN LARSON PRODUCTIONS, GLEN LARSON, SIDNEY HAYERS, and DOES 1 to 40 inclusive and each of them, as hereinabove alleged, and of the death of decedent, Plaintiff has sustained pecuniary loss resulting from the loss of the society, comfort, attention, services and support of the decedent in a sum to be determined according to proof at the time of trial.

16. As a further direct and proximate result of the negligence of defendants 20TH CENTURY FOX TELEVISION, 20TH CENTURY FOX FILM CORPORATION, GLEN LARSON PRODUCTIONS, GLEN LARSON, SIDNEY HAYERS, and DOES 1 to 40 inclusive and each of them, as hereinabove alleged, Plaintiff has incurred funeral and burial expenses in a sum presently unknown but according to proof at the time of trial.

SECOND CAUSE OF ACTION

(Strict Liability)
(Against Defendants Does 41 to 60 Inclusive)

17. Plaintiff GRETHA HEXUM incorporates herein by this reference paragraphs 1 through 9 inclusive of the first cause of action as though fully set forth at length.

18. At all times herein mentioned defendants Doe 41 through 60 inclusive, and each of them, were individuals and/or corporations duly organized and existing under and by virtue of the laws of the United States and authorized to do business and doing business in the County of Los Angeles, State of California.

19. At all time herein mentioned defendants Doe 41 through 60, inclusive and each of them, were engaged in the business of designing, manufacturing, assembling, inspecting, producing, distributing and selling guns, including the gun hereinafter referred to.

20. At all times herein mentioned defendants Doe 41 through 60, inclusive and each of them, were engaged in the business of designing, manufacturing, producing, inspecting, distributing and selling bullets, blanks, casings, dummy rounds, gun powder and other appurtenances to the gun hereinabove referred to.

21. At all times herein mentioned Doe 41 through 60 inclusive and each of them, knew that said gun and blanks, dummy rounds and other appurtenances thereto, would be used by actors, such as decedent, without inspection for defects.

22. At all times herein mentioned Defendants Does 41 through 60 inclusive and each of them, knew that the blanks and/or dummy rounds used by actors, such as decedent, were extremely dangerous and would cause severe injuries to the user when shot at close range and when used for the purpose for which said gun and blanks and/or dummy rounds were intended.

23. Defendants does 41 through 60 inclusive and each of them, knowing of the danger of using said gun and blanks and/or dummy rounds at lose range, placed them in the market, including but not limited to specifically movie and television sets, without warning the unknowing public, including decedent, of said danger.

24. By placing said gun and blanks and/or dummy rounds in the market, specifically in movie and television sets, Defendants Does 41 through 60 inclusive and each of them, without any warning whatsoever of said defect and danger, said defendants impliedly represented that said gun, blanks and/or dummy rounds and appurtenances thereto, were safe for the purpose for which they were intended, and further intended that the unknowing public such as decedent, should rely on their representations in using said products.

25. On or about October 12, 1984 Plaintiff's decedent was using the gun hereinabove mentioned in the manner and for the purposes for which it was intended. On or about October 12, 1984 said gun and blanks and/or dummy shots and appurtenances thereto, were defective and unsafe for its intended purposes in that said gun, blanks and/or dummy shots when fired at close range did cause fatal injuries to decedent, from which injuries decedent died on or about October 18, 1984.

26. As a direct and proximate result of the aforementioned defect, of the death of decedent caused by said defect, and of Defendant's failure to warn of said defect, Plaintiff has sustained pecuniary loss resulting from the loss of the society, comfort, attention, services and support of decedent in a sum to be determined according to proof at the time of trial.

27. That the acts and conduct of Defendants Doe 41 through 60 inclusive and each of them in failing to warn the unknowing public, including decedent, of the unsafe and dangerous condition of said products, were fraudulent and were done with conscious disregard of the consequences thereof and therefore Plaintiff is entitled to punitive and exemplary damages in the sum of One Million Dollars.

THIRD CAUSE OF ACTION

(Breach of Warranty)

28. Plaintiff incorporates herein by this reference paragraphs 1 through 9 of the first cause of action and paragraphs 18 thru 20, inclusive of the second cause of action as though fully set forth at length.

29. Defendants and each of them, impliedly and expressly warranted to decedent that the gun, blanks and/or dummy rounds and appurtenances thereof were fit for the purpose for which it was to be used and was free from design and manufacturing defects, specifically the extreme danger of firing blanks at close range.

30. Defendants and each of them, breached the above-described express and implied warranties in that said gun, blanks and/or dummy rounds and appurtenances thereto were defective, which defects proximately caused the fatal injuries and death of decedent.

31. As a direct and proximate result of the above-described breaches of warranties by Defendants and each of them, and of the death of decedent, Plaintiff has sustained pecuniary loss resulting from the loss of the society, comfort, attention, services and support of decedent in a sum to be determined according to proof at the time of trial.

32. As a further direct and proximate result of the above-described breaches of warranties by Defendants and each of them, and of the death of decedent, Plaintiff has incurred funeral and burial expenses in a sum presently unknown, but according to proof at the time of trial.

WHEREFORE, Plaintiff prays for judgment against the Defendants and each of them, as follows:

1. General damages according to proof at the time of trial.

2. Funeral and burial expenses according to proof.

3. Punitive and exemplary damages in the sum of One Million Dollars.

4. For costs of suit incurred herein and for such other and further relief as the court deems just and proper.

Dated: July 19, 1985
LAW OFFICES OF BELLI & SABIH
DAVID S. SABIH
HASKELL SHAPIRO
By: (Signature of Haskell Shapiro)
Attorneys for Plaintiff

Joel E. Boxer
Robert J. Rose
NUTTER, BIRD, MARELLA,
BOXER, WOLPERT & MATZ
340 North Camden Drive, Suite 300
Beverly Hills, CA 90212
(213) 273-9132 - 272-2460

Attorneys for Defendant
Twentieth Century Fox Television
Twentieth Century Fox-Film Corporation,
Glen Larson Productions, Inc. and Glen Larson

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES

GRETHA HEXUM, ) CASE NO: WEC 095783
) NOTICE OF MOTION AND MOTION OF
Plaintiff, ) DEFENDANTS TWENTIETH CENTURY
) FOX TELEVISION, TWENTIETH
-vs- ) CENTURY FOX FILM CORPORATION,
) GLEN LARSON PRODUCTIONS, INC.
20TH CENTURY FOX TELEVISION, ) AND GLEN LARSON TO STRIKE
20TH CENTURY FOX FILM ) PORTIONS OF THE
COMPLAINT; CORPORATION, GLEN LARSON ) MEMORANDUM OF POINTS AND
PRODUCTIONS, INC., GLEN LARSON ) AUTHORITIES THEREOF
Individually, SIDNEY HAYERS, )
THORKLEIF(sic) HEXUM, DOES 1 T0 100 ) [C.C.P. §§ 435-437]
INCLUSIVE, ) ) DATE: December 9, 1985
Defendants ) TIME: 9:00 a.m.
) DEPT: R
_________________________________________)

TO PLAINTIFF GRETHA HEXUM AND HER ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on Monday, December 9, 1985 at 9:00 a.m. or as soon thereafter as the matter can be heard, in Department R of the above entitled court, located at 1725 Main Street, Santa Monica, California 90401, defendants Twentieth Century Fox Television, Twentieth Century Fox Film Corporation, Glen Larson Productions, Inc. and Glen Larson (the "Fox" defendants) will move the Court pursuant to California Code of Civil Procedure §435 for an order striking in their entirety paragraphs 27 of the complaint and 3 of the prayer, as set forth below. This motion is based on the pleading, papers and records in this action and on the memorandum of points and authorities attached hereto.

MOTION
The Fox defendants hereby move the Court pursuant to California Code of Civil Procedure §435 for an order striking (1) the entire paragraph 27 of the complaint, which begins on page 9, line 23 and continues through page 10, line 1, and (2) the entire paragraph 3 of the prayer, which appears on page 11, lines 17 and 18, for the reason that punitive damages may not be recovered in a wrongful death action as a matter of law, and that such paragraphs are therefore not drawn in conformity with the laws of this state.

DATED: September 26, 1985.
Respectfully submitted,
Joel E. Boxer
Robert J. Rose
NUTTER, BIRD, MARELLA,
BOXER, WOLPERT & MATZ
A Professional Corporation

By: (Signature of Robert J. Rose)
Robert J. Rose
Attorneys for Defendants
Twentieth Century Fox Television,
Twentieth Century Fox-Film
Corporation, Glen Larson Productions,
Inc. and Glen Larson

MEMORANDUM OF POINTS AND AUTHORITIES

I

AS A LONGSTANDING MATTER OF LAW, PUNITIVE DAMAGES MAY NOT BE RECOVERED IN A WRONGFUL DEATH ACTION

This is a wrongful death action arising from the death of the late actor, Jon-Erik Hexum. The plaintiff is the mother of Mr. Hexum. On or about October 12, 1984, Mr. Hexum was on the set for the television production "COVER UP," when he discharged a .44 caliber 2-inch Magnaport revolver at close range, thereby self-inflicting fatal injuries. [Complaint, 1, 9, 13]. Plaintiff has now filed this suit for wrongful death in which she seeks, inter alia, one million dollars in punitive damages. Such damages are not recoverable, however, as a matter of law, and therefore all references to such damages must be stricken from the complaint.
In 1874 the California Legislature amended the wrongful death statute, California Code of Civil Procedure §377, to eliminate the right to recover punitive damages. During the intervening 111 years, California courts have consistently held that punitive damages may not be recovered in a wrongful death action. Tarasoff v. Regents of the University of California, 17 Cal.3d 425, 131 Cal.Rptr. 14 (1976); Lange v. Schoettler, 115 Cal. 388, 47 p. 139 (1896); Grimshaw v. Ford Motor Co., 119 Cal.App 3d 357, 174 Cal.Rptr. 348 (1981); Georgie Bay Mfg., Inc. v. Superior Court, 115 Cal.App.3d 217, 171 Cal.Rptr. 382 (1981); Cortez v. Macias, 110 Cal.App.3d 640, 167 Cal.Rptr. 905 (1980). There is no contrary California authority. ///

For a comprehensive historical review of California's wrongful death statute, see Grimshaw, supra, 119 Cal.App.3d at 325-36, 174 Cal.Rptr. at 393-99, wherein the Court of Appeals traced the development of the rule against punitive damages in wrongful death actions.
Within the past five years, the rule has survived attack on constitutional grounds in both state and federal courts. Ford Motor Co. v. Superior Court, 120 Cal.App.3d 753, 175 Cal.Rptr. 39 (1981); In re Paris Air Crash, 622 F.2d 1315 (9th Cir.), cert. denied, 449 U.S. 976 (1980).
Two years ago the state legislature again ratified this long-standing rule by amending the punitive damage statute, California Civil Code, §3294 to specifically authorized recovery of punitive damages in only those wrongful death cases "which resulted from a homicide for which the defendant has been convicted of a felony." Stats. 1983, ch. 408. The complaint does not allege that any of the defendants have been convicted of a felony as a result of Mr. Hexum's self-inflicted gunshot (nor could the plaintiff do so), nor does it allege that Mr. Hexum was the victim of a homicide. This amendment, part of the Crime Victim Restitution Program of 1983, was meant to expand "the ability of homicide victims to obtain punitive damages," (Stats. 1983 ch. 408), and is a clear recognition on the part of the legislature that punitive damages are not otherwise recoverable in wrongful death actions. ///

II

A MOTION TO STRIKE IS THE APPROPRIATE PROCEDURAL VEHICLE BY WHICH TO RAISE THIS ISSUE

Although demurrers have been used to attack improper requests for punitive damages, see Grimshaw v. Superior Court, supra; Searle & Co. v. Superior Court, 24 Cal.App.3d 890, 157 Cal.Rptr. 693 (1979) (demurrer to that portion of the prayer which sought punitive damages), the most recent Court of Appeals decision suggests that a motion to srike should be used to test the validity of a punitive damages claim. Gueves v. Superior Court, 157 Cal.App.3d 159, 166-168, 203 Cal.Rptr. 556, 560-562 (1984). As set forth in California Code of Civil Procedure §436(b), the Court may strike "any part of any pleading not drawn . . . in conformity with the laws of this state."

III

CONCLUSION

California law clearly establishes that plaintiff cannot, under any circumstances, recover punitive damages in this wrongful death action. Therefore, the punitive damages allegation and prayer should be stricken from the complaint, without leave to amend, since such an allegation and prayer is not in conformity with the laws of this state.

DATED: Septmber 26, 1985.

Respectfully submitted,

Joel E. Boxer
Robert J. Rose
NUTTER, BIRD, MARELLA,
BOXER, WOLPERT & MATZ
A Professional Corporation

By: (Signature of Robert J. Rose)
Robert J. Rose
Attorneys for Defendants
Twentieth Century Fox Television,
Twentieth Century Fox-Film
Corporation, Glen Larson Productions,
Inc. and Glen Larson

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