Grant v. Avis Rent a Car System, Inc.

Opinion

LILLIE, J. Shirley Grant and James Plaza filed a complaint seeking damages for personal injuries sustained by Shirley in an automobile accident which occurred September 8, 1982, and damages for James’ loss of consortium. The second cause of action (loss of consortium) alleged: At the time of the accident plaintiffs were “unmarried cohabitants possessing every characteristic of the spousal relationship except formalization”; as a result of injuries sustained in the accident, Shirley has been unable to perform her duties as a de facto spouse; by reason thereof James has been damaged by loss of the consortium of Shirley. Defendants moved for summary judgment on the second cause of action. The motion was supported by excerpts from the depositions of plaintiffs which showed: Plaintiffs began living together on August 6, 1982; at that time James was married to Hortencia Plaza; Hortencia commenced proceedings for dissolution of her marriage to James after he moved in with Shirley; the interlocutory judgment of dissolution was entered July 8, 1983. In opposition to the motion, plaintiffs submitted declarations wherein they stated that they lived together constantly since before the accident; they wanted a family and Shirley became pregnant by James but suffered a miscarriage; plaintiffs planned to marry upon entry of [816]final judgment of dissolution of the marriage of James and Hortencia; they were married in September or October 1983. The motion was granted and judgment was entered dismissing James’ cause of action for loss of consortium. Plaintiffs appeal from the judgment.1

The papers submitted in support of and in opposition to the motion for summary judgment show that there is no triable issue of fact. The only issue presented to the trial court was an issue of law, which may be determined in summary judgment proceedings. (Coast-United Advertising, Inc. v. City of Long Beach (1975) 51 Cal.App.3d 766, 769 [124 Cal.Rptr. 487]; Rader v. Thrasher (1972) 22 Cal.App.3d 883, 887 [99 Cal.Rptr. 670].) The sole question on appeal is whether the trial court, applying the law to the undisputed facts, correctly resolved that issue.

In Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382 [115 Cal.Rptr. 765, 525 P.2d 669], our Supreme Court held that a married person whose spouse has been injured by the negligence or intentional conduct of a third party has a cause of action for loss of consortium, i.e., for loss of conjugal fellowship and sexual relations. With but one exception, noted below, the courts of this state have refused to recognize such a cause of action where a man and a woman were not married at the time one of them was injured, but were merely engaged or living together. (Lieding v. Commercial Diving Center, supra, 143 Cal.App.3d 72; Tong v. Jocson (1977) 76 Cal.App.3d 603 [142 Cal.Rptr. 726].) A similar conclusion has been reached by a majority of other courts which have considered the question. (Laws v. Griep (Iowa 1983) 332 N.W.2d 339; Weaver v. G. D. Searle & Co. (N.D.Ala. 1983) 558 F.Supp. 720; Childers v. Shannon (1982) 183 N.J. Super. 591 [444 A.2d 1141]; Miller v. Davis (1980) 107 Misc.2d 343 [433 N.Y.S.2d 974]; Sawyer v. Bailey (Me. 1980) 413 A.2d 165 [5 A.L.R.4th 292]; Tremblay v. Carter (Fla.App. 1980) 390 So.2d 816; Sostockv. Reiss (1980) 92 Ill.App.3d 200 [47 Ill.Dec. 781, 415 N.E.2d 1094]; Chiesa v. Rowe (W.D.Mich. 1980) 486 F.Supp. 236; Annot. (1981) 5 A.L.R.4th 300.) Butcher v. Superior Court (1983) 139 Cal.App.3d 58 [188 Cal.Rptr. 503], extended a cause of action for loss of consortium to unmarried cohabitants who can show that their nonmarital relationship is “both stable and significant.” (Butcher v. Superior Court, supra, at p. 71.)