GONZALES v. HUDSON (1988)

The sole issue in this appeal is whether an unmarried cohabitant can state a cause of action for loss of consortium.   Because we conclude that an action for loss of consortium cannot be maintained unless the plaintiff was married to the injured person at the time of injury, we affirm.

FACTS

On January 31, 1984, Alfred Gonzales and his child were injured in an automobile accident.   A complaint for damages was filed which stated several causes of action.   The only cause of action stated as to Beatrice Gonzales was for loss of consortium.   During the deposition of Beatrice Gonzales, she stated she was married to Alfred Gonzales and was married approximately 13 years ago.   They had twin daughters, one of whom was injured with Alfred Gonzales in the automobile accident.   Alfred Gonzales, however, indicated that at the time of his deposition, he and Beatrice Gonzales had only been “technically” married for eight months, although they had been “living together” for approximately thirteen years.

Thereafter, trial counsel admitted that Beatrice and Alfred Gonzales were not married on the date Alfred Gonzales was injured in the automobile accident.   The trial court then granted respondents' motion for summary judgment and entered a judgment against Beatrice Gonzales.   She appeals.

DISCUSSION

 Under the early common law, the archaic and now abandoned premise for an action for loss of consortium, founded in notions of the wife as a servant, was the husband's proprietary right in his wife and the consequent economic injury to his right of control over her services, society and sexual attentions.  (Prosser & Keeton, Torts (5th ed. 1984) §§ 124, 125, pp. 915, 931;  Comment, Limiting the Cause of Action for Loss of Consortium (1978) 66 Cal.L.Rev. 430, 432.)   Today, a married woman, as well as her husband, has a right to recover for loss of consortium.  (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669.)   The cause of action for loss of consortium arises from the spouse's injury by a third party and the consequent injury not to any economic interest but to the love, companionship, society, sexual relations and household services inherent in the marital relationship.  (Ibid.)

However, the cause of action for loss of consortium has not been expanded to the child of an injured parent (Borer v. American Airlines, Inc. (1977) 19 Cal.3d 441, 138 Cal.Rptr. 302, 563 P.2d 858) or to the parent of an injured child (Baxter v. Superior Court (1977) 19 Cal.3d 461, 138 Cal.Rptr. 315, 563 P.2d 871).   Nor has it been expanded to a woman who lived with a man for approximately two years, bore his child and intended to but did not validly marry the man.  (Ledger v. Tippitt (1985) 164 Cal.App.3d 625, 633–640, 210 Cal.Rptr. 814.)   Similarly, no cause of action exists for loss of consortium for a married woman whose spouse was injured while the couple was engaged to marry but prior to marriage (Lieding v. Commercial Diving Center (1983) 143 Cal.App.3d 72, 191 Cal.Rptr. 559), or even to a woman who was living with and was the fiancee of a man who sustained a personal injury and whom she subsequently married (Tong v. Jocson (1977) 76 Cal.App.3d 603, 142 Cal.Rptr. 726 (by the ct. opn.);   see also Etienne v. DKM Enterprises, Inc. (1982) 136 Cal.App.3d 487, 489, 186 Cal.Rptr. 321).   But for the case of Butcher v. Superior Court (1983) 139 Cal.App.3d 58, 188 Cal.Rptr. 503, virtually no further discussion would be necessary to resolve this appeal and to affirm the judgment.

The opinion in Butcher v. Superior Court, supra, 139 Cal.App.3d 58, 188 Cal.Rptr. 503 held that an unmarried cohabitant may state a cause of action for loss of consortium upon a showing that the nonmarital relationship has the characteristics of a marriage in that the relationship is “both stable and significant.”  (Id. at p. 71, 188 Cal.Rptr. 503.)   It has been aptly observed that the opinion in Butcher sits “in splendid isolation and [with] the weight of authority ․ to the contrary.”  (Ledger v. Tippitt, supra, 164 Cal.App.3d at p. 635, 210 Cal.Rptr. 814.)   The position taken in Butcher has not been adopted by any other court in this state.¹  Indeed, as a court once remarked concerning a different but equally anomalous legal precedent, the case “has become a ‘derelict on the seas of jurisprudence.’   It is often discussed but never followed.   It is simply not the law.”  (People v. Wilson (1971) 20 Cal.App.3d 507, 510, 97 Cal.Rptr. 774.) ²

The heart of the argument in support of establishing a cause of action for loss of consortium for unmarried cohabitants is simple.   It is urged that the cause of action is intended to compensate for an injury to the relationship between a man and a woman, that a cohabital relationship is a foreseeable, modern reality which can provide the same psychological and emotional support for the participants as does a marital relationship, and that an injury to either relationship should be compensable.  (Butcher v. Superior Court, supra, 139 Cal.App.3d at p. 67, 188 Cal.Rptr. 503;  Comment, Loss of Consortium:  Should California Protect Cohabitants' Relational Interest? (1985) 58 So.Cal.L.Rev. 1467, 1477–1478.)   Unmarried cohabitants, the argument goes, differ “from a married couple only in that they [do] not have a marriage certificate in the dresser drawer.   It is both unrealistic and unduly optimistic to assume that such a certificate must be a prerequisite before one may produce evidence of the loss of those qualities of comfort, affection, love, and companionship enunciated in Rodriguez v. Bethlehem Steel Corp. [, supra,] 12 Cal.3d 382 [115 Cal.Rptr. 765, 525 P.2d 669].”  (Ledger v. Tippitt, supra, 164 Cal.App.3d 625, 649, 210 Cal.Rptr. 814, dissenting opn.)

However, the premise of this argument is erroneous.   The interest protected by a cause of action for loss of consortium is, and should be, not just the psychological and emotional relationship between a man and a woman, but the marital relationship, as well.   The difference between an unmarried couple's cohabital relationship and an identical couple's marital relationship is more than just a marriage certificate in the dresser drawer.   Although it has been noted that there is a social trend toward cohabitation without marriage (Butcher v. Superior Court, supra, 139 Cal.App.3d at p. 69, 188 Cal.Rptr. 503;  see Marvin v. Marvin (1976) 18 Cal.3d 660, 665, 134 Cal.Rptr. 815, 557 P.2d 106), marriage is still the foundation of family life in this country (see Marvin v. Marvin, supra, 18 Cal.3d at p. 684, 134 Cal.Rptr. 815, 557 P.2d 106).³  “[T]he structure of society itself largely depends upon the institution of marriage․”  (Ibid.)   As the Supreme Court emphasized in Norman v. Unemployment Ins. Appeals Bd., supra, 34 Cal.3d 1, 9, 192 Cal.Rptr. 134, 663 P.2d 904, “We reaffirm our recognition of a strong public policy favoring marriage.  [Citation.]  No similar policy favors the maintenance of nonmarital relationships.”   Society in general, and the law in particular, deems the marital relationship the most formal and significant of interpersonal commitments.  (Nieto v. City of Los Angeles (1982) 138 Cal.App.3d 464, 470–471, 188 Cal.Rptr. 31.)   It is that type of commitment, in addition to the presumptively ensuing emotional and psychological relationship, which is properly recognized in a cause of action for loss of consortium by a married spouse.

We acknowledge that real injuries to cohabital relationships will go uncompensated because of the absence of a valid marriage.   However, not every relationship which exists in society receives legal protection in every regard (see, e.g., Borer v. American Airlines, Inc., supra, 19 Cal.3d 441, 138 Cal.Rptr. 302, 563 P.2d 858;  Baxter v. Superior Court, supra, 19 Cal.3d 461, 138 Cal.Rptr. 315, 563 P.2d 871;  Drew v. Drake (1980) 110 Cal.App.3d 555, 168 Cal.Rptr. 65), and not every loss is legally compensable (Tong v. Jocson, supra, 76 Cal.App.3d 603, 605, 142 Cal.Rptr. 726;  Suter v. Leonard (1975) 45 Cal.App.3d 744, 746, 120 Cal.Rptr. 110).   To attempt to correct some “wrongs or give relief from their effects ‘may do more social damage than if the law leaves them alone.’  [Citations.]”  (Hobbs v. Christenson (1988) 198 Cal.App.3d 189, 193, 243 Cal.Rptr. 633.)

It is also urged that the cause of action for loss of consortium should be extended to unmarried cohabitants because it is equally foreseeable that an injured person may be living with an unmarried or a married partner.   (Butcher v. Superior Court, supra, 139 Cal.App.3d 58, 67–68, 188 Cal.Rptr. 503;  Ledger v. Tippitt, supra, 164 Cal.App.3d 625, 650–651, 210 Cal.Rptr. 814, dissenting opn.)   In establishing the right of a wife to recover for loss of consortium, Rodriguez v. Bethlehem Steel Corp., supra, 12 Cal.3d at page 400, 115 Cal.Rptr. 765, 525 P.2d 669 discussed the foreseeability by the tortfeasor of the existence of a marital relationship and the adverse affect on that relationship by an injury to a spouse.   However, in Borer v. American Airlines, Inc., supra, 19 Cal.3d 441, 138 Cal.Rptr. 302, 563 P.2d 858, the Supreme Court narrowed the wide sweep of the foreseeability language in Rodriguez, a critical factor not recognized in the analysis in Butcher v. Superior Court, supra, 139 Cal.App.3d at pages 67–68, 188 Cal.Rptr. 503.   In Borer v. American Airlines, Inc., supra, 19 Cal.3d 441, 138 Cal.Rptr. 302, 563 P.2d 858, the court cautioned that Rodriguez should not be read so broadly as to permit a cause of action for loss of consortium whenever there is a “foreseeable injury to a legally recognized relationship․”  (Id. at p. 446, 138 Cal.Rptr. 302, 563 P.2d 858.)  “Judicial recognition of a cause of action for loss of consortium, we believe, must be narrowly circumscribed.”   (Id. at p. 446, 138 Cal.Rptr. 302, 563 P.2d 858.)  “ ‘[T]he courts must locate the line between liability and nonliability at some point, a decision which is essentially political.’ ”  (Id. at pp. 446–447, 138 Cal.Rptr. 302, 563 P.2d 858, quoting Suter v. Leonard, supra, 45 Cal.App.3d at p. 746, 120 Cal.Rptr. 110.)   We have located that line and find that it is under the word “marriage.”

The denial of a cause of action for loss of consortium for an unmarried cohabitant is also appropriate in view of the unworkability of the test articulated in Butcher v. Superior Court, supra, 139 Cal.App.3d 58, 188 Cal.Rptr. 503, which requires the courts to decide whether the cohabital relationship is “stable and significant.”  (Id. at p. 70, 188 Cal.Rptr. 503.)   Such a standard has been aptly criticized as being vague, confusing and inviting “mischief and inconsistent results.”  (Ledger v. Tippitt, supra, 164 Cal.App.3d at p. 637, 210 Cal.Rptr. 814.)   The difficulties of proof in nonmarital relationships were wisely recognized in In re Cummings (1982) 30 Cal.3d 870, 180 Cal.Rptr. 826, 640 P.2d 1101, which, in upholding a prison regulation prohibiting overnight visitation by an inmate's so-called “common law” wife, required “a readily provable, legally cognizable, traditional family relationship.”  (Id. at p. 873, 180 Cal.Rptr. 826, 640 P.2d 1101.)   As Butcher v. Superior Court, supra, 139 Cal.App.3d at page 70, 188 Cal.Rptr. 503 also suggests that a claimant prove “exclusivity of sexual relations,” there are additional serious concerns as to discovery and the unwarranted invasion of the right to privacy in sexual matters.  (Ledger v. Tippitt, supra, 164 Cal.App.3d at p. 636, 210 Cal.Rptr. 814.)

If cohabiting partners desire additional social and legal recognition of their relationship, they can consciously elect to marry.   We will not accord the legal rights now sought by the previously unmarried cohabitant and thus force upon her a formal social and legal status which did not exist at the time of the injury.   Until marriage, neither cohabiting partner has a legal right to expect from the other the comfort, companionship and sexual relations recognized by a cause of action for loss of consortium.

The judicial system, of course, has a “responsibility for the upkeep of the common law.”  (People v. Pierce (1964) 61 Cal.2d 879, 882, 40 Cal.Rptr. 845, 395 P.2d 893.)   Among the virtues of the common law are its “flexibility and capacity for growth and adaptation” (Hurtado v. California (1884) 110 U.S. 516, 530, 4 S.Ct. 111, 118, 28 L.Ed. 232) and its ability to produce common-sense justice and “to adapt to changing times and issues.”   (Butcher v. Superior Court, supra, 139 Cal.App.3d 58, 64, 188 Cal.Rptr. 503.)   Nonetheless, Butcher would establish a change in the law when, in our opinion, the time for that change, if it ever does come, has not yet arrived.

 In conclusion, we reject the reasoning of the Butcher opinion.   A cause of action for loss of consortium cannot be maintained unless the plaintiff was married to the injured person at the time of the accident.   (Ledger v. Tippitt, supra, 164 Cal.App.3d 625, 633–640, 210 Cal.Rptr. 814;  Lieding v. Commercial Diving Center, supra, 143 Cal.App.3d 72, 74–76, 191 Cal.Rptr. 559;  Tong v. Jocson, supra, 76 Cal.App.3d 603, 605, 142 Cal.Rptr. 726;  see also Rest.2d Torts, § 693(h).)

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   Two California cases have, in essence, avoided confronting the holding in Butcher because the plaintiff in each case had failed to establish the existence of the requisite 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, supra, 143 Cal.App.3d 72, 76, 191 Cal.Rptr. 559.)   In both cases, the court observed the overwhelming weight of authority against permitting the cause of action, and in neither case did the court specifically approve of Butcher 's approach.

2.   The compilation of cases addressing this issue reveals that no other state court in any other jurisdiction has allowed an unmarried plaintiff to state a claim for loss of consortium.  (See Annot. 40 A.L.R.4th 553 (1985 and Supp.1987);  Annot. 5 A.L.R.4th 300 (1981 and Supp.1987).)Two federal district courts have permitted such a cause of action in the context of attempting to predict state court rulings and apply state law.   (Bulloch v. United States (D.N.J.1980) 487 F.Supp. 1078;  Sutherland v. Auch Inter–Borough Transit Company (E.D.Pa.1973) 366 F.Supp. 127).   The Bulloch case has been subsequently repudiated by the state courts whose laws the federal court purported to predict and interpret.  (Leonardis v. Morton Chemical Co. (1982) 184 N.J.Super. 10, 445 A.2d 45;  Childers v. Shannon (1982) 183 N.J.Super. 591, 444 A.2d 1141.)   The Sutherland case has been soundly criticized for its failure to follow earlier Pennsylvania state court decisions.  (Sostock v. Reiss (1980) 92 Ill.App.3d 200, 47 Ill.Dec. 781, 415 N.E.2d 1094;  see also Curry v. Caterpillar Tractor Co. (E.D.Pa.1984) 577 F.Supp. 991, 993.)

3.   Contrary to popular misconception, the Marvin case did not legitimize the cohabitation of unmarried persons.   That case simply established the right of unmarried cohabitants to enter into a valid contractual obligation of support to the extent that the agreement does not rest upon illicit meretricious consideration.  (See Norman v. Unemployment Ins. Appeals Bd. (1983) 34 Cal.3d 1, 6, 192 Cal.Rptr. 134, 663 P.2d 904.)

BOREN, Associate Justice.

ASHBY, Acting P.J., and HASTINGS, J.,* concur.