Opinion
Review Granted Feb. 20, 1986.
Opinions on pages 344-437 omitted. [*]
[220 Cal.Rptr. 616]Friedman, Collard, Poswall & Virga and Allan J. Owen, Sacramento, for plaintiff and appellant.
Fisher & Hurst, Stephen C. Kenney, Roland R. Stevens, and Mark T. Hansen, San Francisco, for defendants and respondents Co. of Sacramento, etc.
Lillick, McHose & Charles, Stephen C. Johnson and William L. Robinson, San Francisco, for defendant and respondent Big Valley Aviation, Inc.
Kern & Wooley and Richard R. Roland, Los Angeles, for defendant and respondent Hughes Helicopter, Inc.
CARR, Associate Justice.
In this appeal by Jinella Lewis, the sole question presented is whether an unmarried cohabitant can state a cause of action for loss of consortium when the other cohabitant is injured by a third party.
This issue, together with the related issue of whether an unmarried cohabitant may maintain an action for negligent infliction of emotional distress, is currently pending before the California Supreme Court in Elden v. Sheldon (hg. granted 4/25/85, L.A. 32063).
FACTUAL AND PROCEDURAL BACKGROUND
On September 13, 1982, Theron Lewis was injured in a helicopter crash. He and plaintiff had been living together for approximately three years and considered themselves engaged. They were married approximately two weeks after the accident, on September 30, 1982.
Portions of depositions submitted with defendants' motion for summary judgment indicate Jinella and Theron lived together in Arizona for an undisclosed period of time before moving to Sacramento.
There appeared to be a lack of agreement between Jinella and Theron as to the time such engagement took place. In his deposition, Theron stated they had been engaged for approximately one year. Although the entire deposition transcript is not contained in the record on appeal, it appears Jinella believed she and Theron became engaged in 1978 or 1979.
Theron filed a complaint against defendants for the injuries he received. Jinella joined him in the complaint alleging that "at all times herein mentioned" Theron and Jinella were husband and wife. She then alleged a cause of action for loss of consortium of Theron. Upon learning Jinella and Theron were not married until after the accident, defendant Avco Corporation filed a motion for summary judgment contending, inter alia, that an unmarried cohabitant cannot state a cause of action for loss of consortium. The remaining defendants joined Avco's motion.
Plaintiff, citing Butcher v. Superior Court (1983) 139 Cal.App.3d 58, 188 Cal.Rptr. 503, urged that partners in a "stable and significant relationship" may assert a cause of action for loss of consortium. The trial court granted defendants' motions for summary judgment as to Jinella Lewis and this appeal followed.
DISCUSSION
The purpose of a motion for summary judgment is to determine if there are any triable issues of material fact and whether the moving party is entitled to judgment as a matter of law. (Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 874, 191 Cal.Rptr. 619, 663 P.2d 177.) Because summary judgment is a drastic procedure all doubts should be resolved in favor of the party opposing the motion. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 183, 203 Cal.Rptr. 626, 681 P.2d 893.) However, where, as here, the facts are not in dispute, summary judgment is properly granted when dispositive issues of law are determined in favor of the moving party. (Allis-Chalmers Corp. v. City of Oxnard (1981) 126 Cal.App.3d 814, 818, 179 Cal.Rptr. [220 Cal.Rptr. 617] 159.) The issue before us, as stated, is whether an unmarried cohabitant may maintain a cause of action for loss of consortium.
In Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669, the California Supreme Court first recognized a cause of action for loss of consortium, holding that each spouse in a marital relationship has the right to sue for loss of consortium caused by a negligent or intentional injury to the other spouse by a third party. The court rejected as outdated earlier arguments denying such a cause of action, noting the damages to the partner of an injured spouse are real and direct, causing emotional and mental anguish. (P. 400, 115 Cal.Rptr. 765, 525 P.2d 669.) The court noted consortium included not only the loss of support or services, but also " 'love, companionship, affection, society, sexual relations, solace and more.' " (Pp. 404-405, 115 Cal.Rptr. 765, 525 P.2d 669.) With Rodriguez, California joined the majority of states in recognizing a cause of action for loss of consortium. (Pp. 389-393, 115 Cal.Rptr. 765, 525 P.2d 669; see generally Prosser, Torts (5th ed. 1984) § 125, pp. 931-939.)
Attempts to expand this cause of action to other relationships have been unsuccessful. In Borer v. American Airlines, Inc. (1977) 19 Cal.3d 441, 138 Cal.Rptr. 302, 563 P.2d 858, the court held that Rodriguez [supra] ... does not compel the conclusion that foreseeable injury to a legally recognized relationship necessarily postulates a cause of action; instead it clearly warns that social policy must at some point intervene to delimit liability." (P. 446, 138 Cal.Rptr. 302, 563 P.2d 858.) In Borer and a companion case, Baxter v. Superior Court (1977) 19 Cal.3d 461, 138 Cal.Rptr. 315, 563 P.2d 871, the court refused to extend a cause of action for loss of consortium to the parent-child relationship.
After Borer, courts have been confronted with the issue of whether individuals in "quasi-marital relationships" at the time of injury, i.e., living together or perhaps engaged to be married, may assert a cause of action for loss of consortium. In the first such case, Tong v. Jocson (1977) 76 Cal.App.3d 603, 142 Cal.Rptr. 726, the court affirmed an order of judgment granting summary judgment to the defendant on a cause of action for loss of consortium when the accident occurred three months after the couple began living together but one month before they were married. Citing to both Rodriguez, supra, and Borer, supra, the court stated a cause of action for loss of consortium must be " 'narrowly circumscribed' ", and lines must be drawn on the basis of social policy to limit liability. (P. 605, 142 Cal.Rptr. 726.) Because the couple was not married at the time of the accident, the court held a cause of action for loss of consortium could not be maintained.
In Etienne v. DKM Enterprises, Inc. (1982) 136 Cal.App.3d 487, 186 Cal.Rptr. 321, this court briefly addressed the same issue. In Etienne, the parties attempted to prove they had a valid common-law marriage under the laws of Texas, thereby enabling one of the partners to assert a cause of action for loss of consortium. Before analyzing whether the parties met the Texas common-law marriage requirements, we noted, "Under the circumstances of this case, and as tacitly assumed by the parties, lawful marriage ... is an essential element of [a] cause of action ... for loss of consortium (Tong v. Jocson (1977) 76 Cal.App.3d 603, 605 [142 Cal.Rptr. 726] )." (136 Cal.App.3d at p. 489, 186 Cal.Rptr. 321.) Plaintiff contends we are not bound by our decision in Etienne because Etienne did not fully analyze whether marriage was in fact a requirement for a loss of consortium cause of action. After analysis and further reflection we remain committed to the view that a legal valid marriage is a prerequisite to a cause of action for loss of consortium.
With three exceptions, courts throughout the United States have refused to extend a cause of action for loss of consortium to [220 Cal.Rptr. 618] unmarried cohabitants or engaged couples. Reasons for this viewpoint have most commonly been expressed in terms of public and social policy: liability must be somehow limited and marriage, an institution favored by society, provides a clear touchstone for such a purpose. (E.g., Tremblay v. Carter (Fla.App.1980) 390 So.2d 816, 818; Sostock v. Reiss (1980) 92 Ill.App.3d 200, 47 Ill.Dec. 781, 785, 415 N.E.2d 1094, 1098; Laws v. Griep (Iowa 1983) 332 N.W.2d 339, 341; Haas v. Lewis (1982) 8 Ohio App.3d 136, 456 N.E.2d 512; Sawyer v. Bailey (Me.Sup.Ct.1980) 413 A.2d 165, 168; Gillespie-Linton v. Miles (1984) 58 Md.App. 484, 473 A.2d 947, 953.)
Two of the three cases holding otherwise are of dubious precedential value. In Sutherland v. Auch Inter-Borough Transit Co. (E.D.Pa.1973) 366 F.Supp. 127, the federal court permitted a cause of action for loss of consortium when the accident preceded the parties' marriage by one month. The court reached its decision based on a belief that Pennsylvania state courts would permit such an action. (P. 134.) No subsequent Pennsylvania cases have done so (Curry v. Caterpiller Tractor Co. (E.D.Pa.1984) 577 F.Supp. 991, 993-994), and Sutherland has been severely criticized for its failure to follow earlier state court decisions. (Sostock v. Reiss, supra, 92 Ill.App.3d 200 at pp. 202-204, 47 Ill.Dec. at pp. 782-783, 415 N.E.2d at pp. 1095-1096; Sawyer v. Bailey, supra, 413 A.2d at p. 167.)
In Bulloch v. United States (D.N.J.1980) 487 F.Supp. 1078, the federal court predicted New Jersey state courts would permit a cause of action for loss of consortium for an unmarried couple. They were wrong. In two later cases, New Jersey courts declined to follow Bulloch and found marriage to be an essential element of a claim of loss of consortium. (Leonardis v. Morton Chemical Co. (1982) 184 N.J.Super. 10, 445 A.2d 45, 49; Childers v. Shannon (1982) 183 N.J.Super. 591, 444 A.2d 1141, 1142.)
The case of Butcher v. Superior Court (1983) 139 Cal.App.3d 58, 188 Cal.Rptr. 503, permitting an unmarried cohibitant to assert a cause of action for loss of consortium, sits in "splendid isolation." (Ledger v. Tippitt (1985) 164 Cal.App.3d 625, 635-636, 210 Cal.Rptr. 814.) In Butcher, Paul Forte was injured when he was struck by an automobile. His partner, Cindy Forte, sued for loss of consortium. At the time of the accident Paul and Cindy had lived together for 11 1/2 years, had two children, filed joint tax returns, and maintained joint bank accounts. Cindy used Paul's name and considered their relationship to be a "common-law marriage."
In permitting Cindy to maintain her cause of action, The Butcher court acknowledged the lack of precedent for its decision but cited Rodriguez, supra, and observed that the courts have the obligation and opportunity to change and expand the common law when new conditions and needs render the application of the old rules unjust or inequitable. (139 Cal.App.3d at pp. 62-63, 65, 188 Cal.Rptr. 503.) The court noted Rodriguez rejected arguments that the noninjured spouse suffers too indirect an injury, that damages are too speculative and that a danger of double recovery exists and held these arguments should likewise be rejected in the case of unmarried cohabitants. (Pp. 67-68, 188 Cal.Rptr. 503.) The court found it was reasonably foreseeable that an unmarried injured person might be cohabiting, given the dramatic increase in the numbers of unmarried cohabiting couples since 1960. [220 Cal.Rptr. 619] (P. 68, 188 Cal.Rptr. 503.) The relationship of a cohabiting couple was sufficiently similar to a married couple that the cause of action could be extended in this situation without the fear of liability for every other type of relationship. (P. 69, 188 Cal.Rptr. 503.) Finally, the court reasoned that permitting this cause of action would not be in derogation of the legislative policy favoring marriage as loss of consortium is a judicially created cause of action and the legislative policies reflected in the worker's compensation and wrongful death statutes, which limit benefits to legal heirs, are wholly statutory. The definitions in those statutes are not applicable to a cause of action for loss of consortium, which the Legislature has not defined. (Pp. 69-70, 188 Cal.Rptr. 503.)
The court stated, "The incidence of cohabitation without marriage in the United States increased by 800 percent between 1960 and 1970." (P. 68, 188 Cal.Rptr. 503.) We take judicial notice of census bureau figures (Evid.Code, § 452) which indicate there were 523,000 cohabiting couples in 1970, 1.6 million in 1980 and nearly 2 million in 1984. However, the nature of these relationships is not known as these figures include not only "quasi-marriages" but also nonromantic cohabiting arrangements, such as invalids with live-in nurses.
Recognizing cohabitation arrangements range from " 'one-night stand[s]' to and including relationships which have endured as long as or longer than most marriages," (p. 70, 188 Cal.Rptr. 503) the Butcher court devised the following test: "One standard which may be used to evaluate the cohabitation relationship is that the relationship must be both stable and significant. If the plaintiff can show that the relationship meets both of these criteria, then he or she will have demonstrated the parallel to the marital relationship which will enable the court to find the elements of consortium and the damage to the relational interest."
"Evidence of the stability and significance of the relationship could be demonstrated by the duration of the relationship; whether the parties have a mutual contract; the degree of economic cooperation and entanglement; exclusivity of sexual relations; whether there is a 'family' relationship with children. While the particular items of evidence will vary from case to case, and some of these suggested criteria may be absent, and other different ones present, the plaintiff will bear the burden of demonstrating both that the relationship is stable and that it has those characteristics of significance which one may expect to find in what is essentially a de facto marriage." (P. 70, 188 Cal.Rptr. 503.)
It is this standard which plaintiff urges this court to adopt. No court subsequent to Butcher has adopted the Butcher guidelines. We, too, decline to endorse Butcher 's approach.
Two California cases have avoided confronting this issue by holding Butcher was not controlling because plaintiffs had failed to establish the existence of a stable and significant relationship. (Grant v. Avis Rent a Car System, Inc. (1984) 158 Cal.App.3d 813, 817-818, 204 Cal.Rptr. 869; Lieding v. Commercial Diving Center (1983) 143 Cal.App.3d 72, 76, 191 Cal.Rptr. 559.) In both cases, the court noted the overwhelming weight of authority against permitting a cause of action; in neither case did the court explicitly condone Butcher 's approach.
The reasons are two-fold. First, despite Butcher 's in-depth analysis of the issue, public policy in this state strongly favors marriage. This policy is evident not only in statutes such as the wrongful death provisions (Code Civ.Proc., § 377; see Harrod v. Pacific Southwest Airlines (1981) 118 Cal.App.3d 155, 173 Cal.Rptr. 68), but also in judicial decisions. In Marvin v. Marvin (1976) 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106, the Supreme Court gave cohabitants the right to enforce express or implied contracts with their partners, except to the extent the contract was based on sexual services. The court acknowledged the changing mores of society and the increasing numbers of people who cohabit outside marriage, but admonished, "Lest we be misunderstood, however, we take this occasion to point out that the structure of society itself largely depends upon the institution of marriage, and nothing we have said in this opinion should be taken to derogate from that institution. The joining of the man and woman in marriage is at once the most socially productive and individually fulfilling relationship that one can enjoy in the course of a lifetime." (P. 684, 134 Cal.Rptr. 815, 557 P.2d 106.)
This belief was reaffirmed in Norman v. Unemployment Ins. Appeals Bd. (1983) 34 [220 Cal.Rptr. 620] Cal.3d 1, 9, 192 Cal.Rptr. 134, 663 P.2d 904, where the court again recognized the strong public policy favoring marriage, while noting no similar policy favored nonmarital relationships.
We agree with the Butcher court that a partner in a cohabitational arrangement may be just as devastated as a legally married spouse upon the injury of his or her mate. (Butcher v. Superior Court, supra, 139 Cal.App.3d at p. 67, 188 Cal.Rptr. 503.) But, we also recognize that, absent a Marvin contract, partners do not gain legal rights to support or services before marriage. (See, e.g., Marvin, supra, 18 Cal.3d at p. 681, 134 Cal.Rptr. 815, 557 P.2d 106; Civ.Code, §§ 4800-4813, 5100; Prob.Code, §§ 100-105.) Consequently, an injury to a cohabiting partner does not interfere with a legally cognizable right. (Accord, e.g., Sostock v. Reiss, supra, 92 Ill.App.3d 200, 47 Ill.Dec. at p. 784, 415 N.E.2d at p. 1097; Sawyer v. Bailey, supra, 413 A.2d at p. 167; Gillespie-Linton v. Miles, supra, 58 Md.App. 484 [473 A.2d at pp. 953-954].) "Presumably, when partners wish social and legal recognition of their relationship, they marry. To accord consortium to an unmarried plaintiff is to force upon him or her a status which he or she had not, at the time of the injury, asserted; it is an ill-conceived intrusion into the private lives of individuals." (Childers v. Shannon, supra, 183 N.J.Super. 591, 444 A.2d 1141, 1143.)
Second, as every other court that has grappled with Butcher guidelines, we find the standard of " 'stable' " and " 'significant' " relationship unworkable. (E.g., Ledger v. Tippitt, supra, 164 Cal.App.3d at pp. 637-638, 210 Cal. Rptr. 814; Gillespie-Linton v. Miles, supra, 58 Md.App. 484, 473 A.2d at p. 954; Childers v. Shannon, supra, 183 N.J.Super. 591, 444 A.2d at p. 1142.) This standard may well lend itself to interesting academic discussions, but is too amorphous to provide for predictable application in the real world. "Would the giving of an engagement ring qualify as creating a significant relationship? If not, how long would the engagement have to exist? Would 'going steady' be sufficient? Is cohabitation sufficient? If it is, how much cohabitation? Would a simple 'rent sharing' do the trick?" (Weaver v. G.D. Searle & Co. (N.D.Ala.1983) 558 F.Supp. 720, 723.) The Ledger court articulated the problems that may arise, given differing notions and definitions of a "stable and significant relationship." "Significant", the court commented, is defined as " 'Having or expressing a meaning; meaningful; notable; valuable.' (The American Heritage Dict. (1982) p. 1139.)" (164 Cal.App.3d P. 637, 210 Cal.Rptr. 814.) " 'Stable' is defined to mean 'resistant to sudden change of position or condition; maintaining equilibrium; self restoring,' as well as 'immutable and permanent; enduring.' (The American Heritage Dict. (1982) p. 1186.) [p] Under these confusing definitions, one juror might be satisfied with a 'meaningful' relationship. A second juror may be impressed with plaintiff's claim that she had fallen head-over-heels in love, despite the fact that she never cohabitated with the injured party. A third juror condemns all forms of premarital sex while a fourth juror believes that a 'stable' relationship only exists if the couple has children. A fifth juror might require the couple to cohabit for a decade although a sixth juror, repeatedly married and divorced, might be enchanted by a relationship which existed for a whole year. The seventh juror will insist that the lovers announced their wedding date prior to the injury but the eighth juror will be entirely satisfied if the couple married after the injury. And, of course, the ninth juror who previously lived in Texas will soon ask our perplexed friend on the trial court bench for a definition of a common law marriage. [p] In short, under this vague standard, courts and jurors alike must necessarily 'guess at its meaning and differ as to its application.' [Citation.]" (164 Cal.App.3d at pp. 637-638, 210 Cal.Rptr. 814.)
We adhere to the original position of this court in Etienne v. DKM Enterprises, supra, 136 Cal.App.3d 487, 186 Cal.Rptr. 321, [220 Cal.Rptr. 621] that marriage is an essential element to a claim of loss of consortium.
Even under a Butcher standard, plaintiff's appeal fails. Plaintiff bears the burden of showing her relationship with Theron Lewis was stable and significant. Plaintiff argued a Butcher standard to the trial court but the only evidence submitted to the court was portions of depositions attached to defendants' motion for summary judgment, in which the parties stated they had lived together for three years. There was no evidence of "a mutual contract; ... economic cooperation and entanglement; exclusivity of sexual relations; ... a 'family relationship with children," or any other factors that might establish a "de facto marriage." Living together for three years is not sufficient evidence of a stable and significant relationship to raise a question of fact. (See Grant v. Avis Rent a Car System, Inc., supra, 158 Cal.App.3d at pp. 817-818, 204 Cal.Rptr. 869; Lieding v. Commercial Diving Center, supra, 143 Cal.App.3d at p. 76, 191 Cal.Rptr. 559.)
DISPOSITION
The judgment is affirmed.
BLEASE, Acting P.J., and SPARKS, J., concur.
[*] See post, 1557, for opinions withdrawn and subsequent histories.