Wagner v. County of Imperial

Opinion

BROWN (Gerald), P. J.

Plaintiff Sharon Wagner appeals a judgment favoring the County of Imperial (County) on her complaint for Clifton Wagner’s wrongful death.

[982]

In October 1976, Sharon and Clifton exchanged personal marriage vows. At Clifton’s request, Sharon promised to take his name, be his wife, love him, have his children and live with him all their lives in sickness and health. Sharon and Clifton began living together and held themselves out as a married couple. In May 1977, their son was born. Sharon and Clifton lived together with their son until Clifton was killed in a traffic accident in October 1978.

Alleging she was Clifton’s surviving putative spouse, Sharon sued the County under Code of Civil Procedure

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section 377 for wrongfully causing his death by maintaining its property in a dangerous condition. Under section 597 the court ordered a separate trial on the issue whether Sharon was Clifton’s putative spouse; the parties waived jury trial on such issue. After trial the court found Sharon was dependent on Clifton and believed in good faith she was validly married to him. The court also found the relationship between Sharon and Clifton was a void or voidable common law marriage. However, the court held Sharon was not a putative spouse entitled to sue under section 377 for Clifton’s wrongful death, saying: “The law does not permit recovery for wrongful death by a party to a marital agreement where no actual solemnization has occurred.” The court entered judgment for the County and Sharon appeals.

Sharon contends the court erred in ruling she was not entitled to recover for Clifton’s wrongful death because she and Clifton did not participate in a marital solemnization ceremony. Under section 377 an action for wrongful death may be brought by the decedent’s putative spouse where such putative spouse was dependent on the decedent. Section 377, subdivision (b)(2) defines putative spouse 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.” Here the court specifically found Sharon met all the elements of section 377, subdivision (b)(2)’s definition of putative spouse: Sharon’s relationship with Clifton was a void or voidable common law marriage but Sharon believed in good faith they were validly married. The court further found Sharon was dependent on Clifton. Despite such findings the court said Sharon could not recover for Clifton’s wrongful death because “[t]he law does not permit recovery for wrongful death by a party to a marital agreement where no actual solemnization has occurred.”