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Court of Appeal, Second District, Division 7, California.

Dolores MATUZ, Plaintiff and Appellant, v. The GERARDIN CORPORATION and George E. Twidwell, Defendants and Respondents.


Decided: July 23, 1986

Belgum, Wulfsberg, Belgum & Weber and Lee Belgum, Long Beach, for plaintiff and appellant. Lord, Bissell & Brook, Terry W. Backus and Caroline B. Newcombe, Los Angeles, for defendants and respondents.

Plaintiff, Dolores Matuz, appeals from judgment dismissing her cause of action for loss of consortium entered after the granting of motion for judgment on the pleadings.


The first through the sixth causes of action of the complaint sought damages on several theories for personal injuries sustained by plaintiff when a Seneca model airplane in which she was a passenger crashed January 3, 1983, at Catalina Airport on Catalina Island.1  The seventh cause of action, labeled “loss of consortium,” alleged:  For up to five years prior to January 3, 1983, plaintiff and James Gibbon had a “stable and significant relationship with each other” and a mutual understanding and agreement to cohabit and eventually marry.   Plaintiff and Gibbon maintained exclusive sexual relations with each other;  they had a “family type” relationship in that they maintained only one residence at which they lived together and gave the appearance of a marriage relationship.   There was a “high degree of economic cooperation and entanglement” between plaintiff and Gibbon.   On January 3, 1983, Gibbon was a passenger with plaintiff on the Seneca model airplane.   As a result of the crash Gibbon died.   Plaintiff witnessed Gibbon's injury and death and thereby has been damaged.   Further, plaintiff has been permanently deprived of the consortium of Gibbon, and of his society, comfort, protection, services and support.

Defendants The Gerardin Corporation and George Twidwell demurred generally to the second and seventh causes of action, arguing that the latter cause of action actually is one for wrongful death and therefore does not lie inasmuch as plaintiff is not decedent Gibbon's heir as defined in Code of Civil Procedure section 377.   The demurrer was overruled.   Defendants petitioned this court for a writ of mandate to compel the trial court to vacate its order overruling the demurrer to the seventh cause of action and enter a new and different order sustaining the demurrer to that cause of action.  (The Gerardin Corporation, et al. v. Superior Court (Matuz), No. B005364, Div. 1.)   The petition was summarily denied, without opinion, “for absence of facts showing petitioner [sic ] is entitled to extraordinary relief.”

Defendants answered the complaint and thereafter moved for judgment on the pleadings as to the seventh cause of action on the same ground urged in their demurrer, viz.:  While the seventh cause of action ostensibly seeks damages for loss of consortium, it is in reality a cause of action for wrongful death which cannot be maintained because plaintiff is not an heir of Gibbon within the meaning of the wrongful death statute (Code Civ.Proc., § 377).   The trial court granted the motion stating, “I have had a change of heart on this case.” 2

Plaintiff appeals from the ensuing judgment dismissing the seventh cause of action.3  She also moves to strike portions of respondents' brief.4



Appellant's opening brief includes the following argument:  “The true issue becomes whether Respondents can use the statutory wrongful death act, which was intended to broaden a tort-feasor's liability, to instead reduce that liability to zero.   Such a result cannot be permitted.”   In reply to that argument respondents in their brief state:  “On October 16, 1985 as consideration for a settlement offer made by defendants and respondents herein plaintiff voluntarily dismissed her personal injury claims against respondents [citation] including her claim for emotional distress.  [¶]  The voluntary dismissal of six of plaintiff's seven causes of action is brought to the court's attention to demonstrate the falsity of plaintiff's contention that if she does not prevail in this appeal that [sic] the court would ‘reduce (a tortfeasor's) liability to zero.’ ”  (Emphasis added.)

Appellant moves to strike the underscored language from respondents' brief on the grounds it refers to matters which are irrelevant and are not supported by the record on appeal, is misleading, and constitutes an attempt by respondents “to defeat a further and separate claim for the loss of consortium of James Henry Gibbon.”

The methods of control over the form and content of briefs are stated in rule 18, California Rules of Court:  “When a brief fails to comply with the requirements of these rules the reviewing court, on application of any party, or on its own motion, and with or without notice as it may determine, may:  (1) order the brief to be returned to counsel for correction by interlineation, cancellation, revision or replacement in whole or in part, and to be redeposited with the clerk within a time specified in the order;  (2) order the brief stricken from the files, with leave to file a new brief within a specified time;  or (3) disregard defects and consider the brief as if it were properly prepared.”

 The defects in respondents' brief noted by appellant do not warrant striking portions of the brief.   Thus, an appellate court is required to ignore matters mentioned in a brief which are not presented by the record on appeal (see In re Hochberg (1970) 2 Cal.3d 870, 875, 87 Cal.Rptr. 681, 471 P.2d 1);  and irrelevant matters in a brief have no persuasive weight in determining an appeal.  (Estate of Green (1955) 133 Cal.App.2d 451, 452, 284 P.2d 202.)   Accordingly, as authorized by rule 18, we disregard such matters in respondents' brief and deny the motion to strike.

We turn now to the merits of the appeal.


Citing Butcher v. Superior Court (1983) 139 Cal.App.3d 58, 188 Cal.Rptr. 503, appellant argues that although she and decedent Gibbon admittedly were not married, the seventh cause of action of the complaint states a cause of action for appellant's loss of consortium by the death of Gibbon 5 because it alleges that they had a “stable and significant relationship with each other.”   Appellant's reliance on Butcher is misplaced.   There, damages for loss of consortium resulted from personal injury to one of the parties to a nonmarital relationship, whereas in the present case appellant seeks damages for loss of consortium resulting from the death of the person with whom she shared a nonmarital relationship.   The distinction is crucial and defeats appellant's cause of action for loss of consortium.

 As evidenced by Code of Civil Procedure section 377,6 “the Legislature intends to occupy the field of recovery for wrongful death.   For this reason the remedy remains a creature of statute in California [citations] regardless of whether a cause of action for wrongful death did or did not exist at common law.”  (Justus v. Atchison (1977) 19 Cal.3d 564, 575, 139 Cal.Rptr. 97, 565 P.2d 122, disapproved on another point in Ochoa v. Superior Court (1985) 39 Cal.3d 159, 171, 216 Cal.Rptr. 661, 703 P.2d 1.)   Section 377 “and the remedies contained therein completely occupy the field of wrongful death to the exclusion of any other action or remedy.   [Citations.]”  (Vander Lind v. Superior Court (1983) 146 Cal.App.3d 358, 364, 194 Cal.Rptr. 209.)   Thus, for any loss sustained as a result of the death of a spouse, the surviving spouse must recover, if at all, under the wrongful death statute.  (Ledger v. Tippitt (1985) 164 Cal.App.3d 625, 639–640, 210 Cal.Rptr. 814.)   In a wrongful death action the plaintiff may recover for those elements of damages which are recoverable for loss of consortium in an action for personal injuries to a spouse.  (See Krouse v. Graham (1977) 19 Cal.3d 59, 67–70, 137 Cal.Rptr. 863, 562 P.2d 1022;  Lamont v. Wolfe (1983) 142 Cal.App.3d 375, 380, 190 Cal.Rptr. 874.)  “ ‘The concept of consortium includes not only loss of support or services ․ [but also] such elements as love, companionship, affection, society, sexual relations, solace and more.’  [Citation.]”  (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 404–405, 115 Cal.Rptr. 765, 525 P.2d 669;  see also Krouse v. Graham, supra, 19 Cal.3d at p. 70, 137 Cal.Rptr. 863, 562 P.2d 1022.)   Inasmuch as appellant's seventh cause of action seeks damages for loss of consortium resulting from the death of her nonmarital partner, it may be maintained only if it could be amended to state a cause of action in appellant for the wrongful death of that partner.

 “Because it is a creature of statute, the cause of action for wrongful death ‘exists only so far and in favor of such person as the legislative power may declare.’  [Citation.]”  (Justus v. Atchison, supra, 19 Cal.3d 564, 575, 139 Cal.Rptr. 97, 565 P.2d 122.)   Hence, a wrongful death action may be brought only by the persons described in Code of Civil Procedure section 377.  (Steed v. Imperial Airlines (1974) 12 Cal.3d 115, 119, 115 Cal.Rptr. 329, 524 P.2d 801.)   With the exception of certain enumerated classes of persons dependent on the decedent, section 377 limits the right to bring such an action to heirs of the decedent.   Included in the classes of persons dependent on the decedent is the decedent's putative spouse, defined as “the surviving spouse of a void or voidable marriage who is found by the court to have believed in good faith that the marriage to the decedent was valid.”   (Code Civ.Proc., § 377, subd. (b)(2).)   As indicated by such definition, the essence of a putative spousal relationship is a good faith belief in the existence of a valid marriage.  (See Wagner v. County of Imperial (1983) 145 Cal.App.3d 980, 982–983, 193 Cal.Rptr. 820.)   The seventh cause of action does not allege, nor does appellant contend, that she was the putative spouse of decedent Gibbon within the meaning of the wrongful death statute.   The relationship alleged to have existed between appellant and decedent was meretricious in nature.   Under section 377 the meretricious spouse of a decedent is not an “heir” who may bring an action for wrongful death.   (Ledger v. Tippitt, supra, 164 Cal.App.3d 625, 632, 210 Cal.Rptr. 814;  Garcia v. Douglas Aircraft Co. (1982) 133 Cal.App.3d 890, 893, 184 Cal.Rptr. 390;  Harrod v. Pacific Southwest Airlines (1981) 118 Cal.App.3d 155, 157, 173 Cal.Rptr. 68.)

Appellant argues that such conclusion is contrary to the legislative intent to broaden liability for wrongful death.   We do not agree.   As explained in Garcia v. Douglas Aircraft Co., supra, 133 Cal.App.3d 890, 894, 184 Cal.Rptr. 390;  “Marvin [Marvin v. Marvin (1976) 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106] held that meretricious spouses have the same rights to enforce contracts and to assert their equitable interests in property acquired through their effort as do other unmarried persons.  [Citation.]  It did not enlarge the statutory definition of ‘heir’ under the Probate Code or under section 377.   The Legislature has manifested its intent, notwithstanding Marvin, not to expand the classification of persons entitled to recover to include meretricious spouses.   Yet the Legislature in 1975 responded to Steed v. Imperial Airlines (1974) 12 Cal.3d 115 [115 Cal.Rptr. 329, 524 P.2d 801] ․, which denied standing in a wrongful death action to a stepchild, by amending section 377 to include this class.   [Citation.]  ‘It is assumed that the Legislature has in mind existing laws when it passes a statute.  [Citations.]  “The failure of the Legislature to change the law in a particular respect when the subject is generally before it and changes in other respects are made is indicative of an intent to leave the law as it stands in the aspects not amended.”  [Citations.]’  [Citation.]  [¶]  ‘[T]he limitation on those who may bring the action [for wrongful death] is one which is imposed by the Legislature and, absent a constitutional basis for departure from a clear expression of legislative intent, we are bound thereby․’  [Citation.]”

 Appellant contends there is a constitutional basis for departure from the legislative limitation of persons entitled to sue for wrongful death, arguing that to deny a meretricious spouse the right to recover damages for the wrongful death of his or her nonmarital partner violates the equal protection clauses of the California and federal constitutions.   This contention was answered by Harrod v. Pacific Southwest Airlines, supra, 118 Cal.App.3d 155, 173 Cal.Rptr. 68, wherein it is stated:  “The Legislature may decide who is entitled to sue for wrongful death, and its determination must be upheld if it is rationally related to the legitimate state purpose of placing reasonable limits on the right to recover for wrongful death [citations].  The exclusion of a decedent's meretricious spouse from the class of persons entitled to sue for wrongful death is a reasonable limitation by the Legislature on a right it has created.   The Legislature could reasonably conclude a relationship which the parties have chosen not to formalize by marriage lacks the necessary permanence to allow the survivor to recover damages for wrongful death—damages which look to the future and are intended to compensate for future loss.   In addition, an action based on a meretricious relationship presents greater problems of proof and dangers of fraudulent claims than an action by a spouse or putative spouse.   Finally, the exclusion of meretricious spouses is reasonably related to the state's legitimate interest in promoting marriage [citation].  Section 377 does not deny [appellant] equal protection of the laws.”  (Pp. 157–158, 173 Cal.Rptr. 68.   See also Nieto v. City of Los Angeles (1982) 138 Cal.App.3d 464, 468–472, 188 Cal.Rptr. 31;  Garcia v. Douglas Aircraft Co., supra, 133 Cal.App.3d 890, 894–895, 184 Cal.Rptr. 390.)

Under the facts alleged in the seventh cause of action of the complaint, Code of Civil Procedure section 377 precludes appellant's maintenance of an action for the wrongful death of James Gibbon.   Appellant may not avoid the bar of the statute by including, in an action for damages for her personal injuries, a cause of action for damages for loss of consortium resulting from the death of Gibbon.   Accordingly, judgment on the pleadings was properly entered as to the seventh cause of action.  (See Wagner v. Benson (1980) 101 Cal.App.3d 27, 32–33, 161 Cal.Rptr. 516.)


The judgment is affirmed.   Appellant's motion to strike portions of respondents' brief is denied.


1.   Among the defendants were the owner, the lessor and the manufacturer of the airplane, the estate of the deceased pilot, the State of California and the County of Los Angeles.   At plaintiff's request the first through the sixth causes of action were dismissed with prejudice as to some of the defendants including respondents herein, The Gerardin Corporation and George Twidwell.

2.   The summary denial, without opinion, of defendants' petition for writ of mandate was not a ruling on the merits of the demurrer and hence was not res judicata of the merits in a subsequent proceeding.  (See People v. Municipal Court (Marandola) (1979) 97 Cal.App.3d 444, 447, 158 Cal.Rptr. 739;  8 Witkin, Cal.Procedure (3d ed. 1985) Extraordinary Writs, § 166, pp. 801–802.)   The trial court was free to grant the motion for judgment on the pleadings based on the ground asserted in defendants' earlier, unsuccessful general demurrer.  (See Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 877, 168 Cal.Rptr. 361.)

3.   While the action apparently is not terminated as to all of the defendants (see fn. 1), the judgment leaves no issue to be determined as between plaintiff and defendants The Gerardin Corporation and George Twidwell.   Accordingly, it operates as a final judgment for purposes of appeal.  (See Buckaloo v. Johnson (1975) 14 Cal.3d 815, 821, fn. 3, 122 Cal.Rptr. 745, 537 P.2d 865.)

4.   Combined with the motion to strike is notice of the pendency, in the Supreme Court, of disposition of Elden v. Sheldon (No. LA 32063, hg. granted Apr. 25, 1985), a case which presents issues similar to those in the present appeal.   We decline appellant's invitation to review the briefs filed in Elden.

5.   While the seventh cause of action includes the allegation that appellant “witnessed the injury to and death of James Henry Gibbon, and has thereby been damaged,” appellant does not contend that a cause of action for negligent infliction of emotional distress is stated.  (See Drew v. Drake (1980) 110 Cal.App.3d 555, 557–558, 168 Cal.Rptr. 65.)

6.   Section 377 provides in pertinent part:  “(a) When the death of a person is caused by the wrongful act or neglect of another, his or her heirs or personal representatives on their behalf may maintain an action for damages against the person causing the death․  In every action under this section, such damages may be given as under all the circumstances of the case, may be just, but shall not include damages recoverable under Section 573 of the Probate Code․“(b) For the purposes of subdivision (a), ‘heirs' means only the following:“(1) Those persons who would be entitled to succeed to the property of the decedent according to the provisions of Part 2 (commencing with Section 6400) of Division 6 of the Probate Code.“(2) Whether or not qualified under paragraph (1), if they were dependent on the decedent, the putative spouse, children of the putative spouse, stepchildren, and parents.   As used in this paragraph, ‘putative spouse’ means the surviving spouse of a void or voidable marriage who is found by the court to have believed in good faith that the marriage to the decedent was valid․”

LILLIE, Presiding Justice.

THOMPSON and JOHNSON, JJ., concur.