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Delzer v. Berryhill

United States Court of Appeals, Ninth Circuit

March 21, 2018

Stephanie Delzer, on her own and on behalf of her minor children C.O.D.1 and C.O.D.2; C.O.D.1; C.O.D.2, Plaintiffs-Appellants,
v.
Nancy A. Berryhill, Commissioner of Social Security, in her official capacity, and her employees, agents and successors in office, Defendant-Appellee.

          D.C. No. 8:12-cv-00094-GW-MRW

          Before: Consuelo M. Callahan, Carlos T. Bea, and Paul J. Kelly, Jr. [*] Circuit Judges.

         SUMMARY[**]

         Certified Question to California Supreme Court

         The panel certified the following questions of state law to the California Supreme Court:

California Probate Code § 249.5 provides that, for probate purposes, "a child of the decedent conceived and born after the death of the decedent shall be deemed to have been born in the lifetime of the decedent if the child or his or her representative proves by clear and convincing evidence that, " inter alia, "[t]he decedent, in writing, specifies that his or her genetic material shall be used for the posthumous conception of a child of the decedent." Cal. Prob. Code § 249.5(a). Does a writing that specifies that some genetic material of the decedent shall be so used satisfy § 249.5(a), regardless whether the genetic material specified in the putative writing includes the genetic material actually used to conceive the claimant child? Or must the genetic material identified in the putative writing include the genetic material actually used to conceive the claimant child?

          ORDER

         We respectfully ask the California Supreme Court to answer the certified question set forth below. The answer to this question will determine the outcome of this appeal, and there is no controlling precedent in the decisions of the California Supreme Court. Although we are mindful that our certification request adds to the substantial caseload of the California Supreme Court, this case raises an important question of California law which has important implications for Social Security claims, such as the one at issue here, as well as intestacy claims in California. Californians need to know how to make effective their wishes as to these supremely sensitive and important decisions. For these reasons, "considerations of comity and federalism suggest that the court of last resort in California, rather than our court, should have the opportunity to answer the question[] in the first instance." Mendoza v. Nordstrom, Inc., 778 F.3d 834, 836 (9th Cir. 2015), certified question answered, 2 Cal. 5th 1074 (Cal. 2017).

         Question Certified

         Pursuant to Rule 8.548 of the California Rules of Court, we respectfully request that the Supreme Court of California answer the following question:

California Probate Code § 249.5 provides that, for probate purposes, "a child of the decedent conceived and born after the death of the decedent shall be deemed to have been born in the lifetime of the decedent if the child or his or her representative proves by clear and convincing evidence that, " inter alia, "[t]he decedent, in writing, specifies that his or her genetic material shall be used for the posthumous conception of a child of the decedent." Cal. Prob. Code § 249.5(a). Does a writing that specifies that some genetic material of the decedent shall be so used satisfy § 249.5(a), regardless whether the genetic material specified in the putative writing includes the genetic material actually used to conceive the claimant child? Or must the genetic material identified in the putative writing include the genetic material actually used to conceive the claimant child?

         In response to this question, the California Supreme Court shall not be bound by the manner in which the question has been phrased by this court. Nor shall our formulation of the question restrict the California Supreme Court's consideration of the issues involved. Cal. R. Ct. 8.548(f)(5). We agree to follow the decision of the California Supreme Court. Cal. R. Ct. 8.548(b)(2).

         Administrative Information

         We provide the following information in accordance with California Rule of Court 8.548(b)(1). The caption for this case is:

STEPHANIE DELZER, on her own and on behalf of her minor children C.O.D.1 and C.O.D.2; C.O.D.1; C.O.D.2, Plaintiffs-Appellants,
v.
NANCY A. BERRYHILL, Commissioner of Social Security, in her official capacity, and her employees, agents and successors ...

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