CIV 515674 CHRISTINA ABELLERA, ET AL. VS. STEVE HUNG CHIU, ET

AL.

CHRISTINA ABELLERA MARK W. SWANSON

STEVE HUNG CHIU G. KELLEY REID

MOTION FOR SUMMARY ADJUDICATION OF ISSUES BY STEVE HUNG CHIU AGAINST CHRISTINA ABELLERA

· Plaintiff has filed a wrongful death action against Defendant following the untimely death of her companion. Plaintiff and the decedent were not married, but did have children together and lived as a family unit. This motion for summary adjudication raises an issue also raised by Co-Defendant EBay in its successful motion for summary judgment. The issues argued by both Defendant Chiu and Plaintiff are identical to that motion. The Court’s ruling and reasoning is likewise identical to that granting of EBay’s motion for summary judgment. Defendant’s motion for summary adjudication is GRANTED.

· At issue is whether or not Plaintiff, the unmarried heterosexual partner of Decedent, may bring a claim for wrongful death. As a matter of law, only a surviving spouse or a surviving domestic partner may bring a wrongful death action based on the death of that person’s partner. (Code of Civ. Proc. § 377.60, subd. (a).) If this statute and that defining domestic partnership withstand constitutional challenge, Plaintiff does not have standing to bring suit, for she does not meet the statutory criteria.

· In evaluating issues impacting those rights enshrined by our Constitution, courts apply the rational basis test, intermediate review or strict scrutiny. Unlike decisions applying the federal equal protection clause, California cases continue to review, under strict scrutiny rather than intermediate scrutiny, those statutes that impose differential treatment on the basis of sex or gender.

· Plaintiff argues that under either the rational basis test or the strict scrutiny standard, the law as it now stands is unconstitutional. Plaintiff also argues that the rational basis test should not be applied, relying on the recent Supreme Court decision in Hollingsworth v. Perry (2013) 133 S.Ct. 2652, footnote 60 of Holquin v. Flores (2004) 122 Cal.App.4th 428 and the California Supreme Court’s decision in In Re Marriage Cases (2008) 43 Cal. 4th 757. It is important to note that Holquin was a direct assault on the wrongful death statute of California in which the court held that only registered domestic partners had standing to sue for wrongful death. In that case, the Appellate Court found that the statutory distinction between registered domestic partners and unmarried heterosexual couples was supported by a rational basis, and thus did not violate the equal protection clause. Footnote 60 in Holquin states:

“At this point, we have no occasion to consider whether a legislative enactment or constitutional decision authorizing same-sex couples to marry (while also continuing to permit them the alternative of registering as domestic partners) might affect the constitutional analysis in this opinion. We only observe that in such circumstances, opposite-sex couples would appear to have a stronger claim of discriminatory treatment under the existing wrongful death provisions.”

· While undeniably illustrative of its thought process, this dictum by the appellate court in Holquin is in no way binding.

· Four years later, the California Supreme Court was asked to address, not the constitutionality of the wrongful death statute and statutory distinction between domestic registered partners and unmarried heterosexual couples, but whether or not a proposition passed by the voters of California defining marriage as only between one man and one woman violated the equal protection clause, in that it denied the right to marry to homosexual couples. The Supreme Court began its analysis with determining the nature and scope of the “right to marry” — “a right that past cases establish as one of the fundamental constitutional rights embodied in the California Constitution.” In Re Marriage Cases at 781. The focus of the Court’s analysis was heavily weighted in a discussion of the liberty interests involved in electing who to marry versus having the populace eliminate that right all together. As such, the Court had to engage in an analysis of whether or not sexual orientation was part of a suspect classification warranting the higher level of strict scrutiny upon any enactment which appeared to impinge upon the rights of homosexuals. The issue being one of first impression in California, the Supreme Court concluded that sexual orientation should be viewed as a suspect classification for purposes of the California Constitution’s equal protection clause and those statutes that treat persons differently because of their sexual orientation should be subjected to strict scrutiny.

· Since 2008 no case has been published which addresses whether or not CCP 377.60 and Fam. Code 297 violate the equal protection afforded heterosexual couples living together. Plaintiff’s argument is this: Heterosexual couples who are not married face unconstitutional discrimination because they cannot sue for wrongful death, as that remedy is afforded only to legally married spouses or registered domestic partners; the Family Code defines registered domestic partners as either same sex couples or heterosexual couples where one is over the age of 62; therefore because Plaintiff and Decedent did not meet the statutory definition of domestic partner, their right to equal protection is being violated.

· Plaintiff argues that she is being discriminated against because of her gender. As the California Supreme Court identified, there is a distinction between gender and sexual orientation, although it determined both are suspect classifications. As a general rule, the state may place persons in different classes and treat those classes differently so long as the classification and treatment are not arbitrary and rest on some ground of difference having a rational relationship to the object of the legislation. Holquin v. Flores (2004) 122 Cal.App.4th 428. Some classifications, however, because of their very nature or effect are subjected to a higher level of scrutiny, requiring they be justified by a substantial or, in some cases, compelling state interest. Id.

· Even assuming arguendo that Plaintiff is correct and application of the laws at issue must be subjected to strict scrutiny, there is no Constitutional violation. The wrongful death statute does not discriminate against Plaintiff on the basis of her gender, but on the basis of her marital status — unmarried with the right to wed. A compelling state interest exists for doing so.

· When Holquin was decided, same-sex couples did not have the right to marry. Plaintiff argues that Section 377.60 violates equal protection now that same-sex couples may marry, because they have the option to be domestic partners, whereas opposite-sex couples do not. The argument is unpersuasive. No common law right for recovery for wrongful death exists; the right is legislatively created.

“It is well settled under California law recovery for wrongful death is a legislatively created right and in creating such a right the Legislature is not required to extend it to every conceivable class of persons who might suffer injury from the death of another. The decision of the Legislature as to just how far to extend a statutorily created right of action ‘is conclusive, unless it appears beyond rational doubt that an arbitrary discrimination between persons or classes similarly situated has been made without any reasonable cause therefor.’ [Citations] Thus California courts have found the equal protection clause does not stand in the Legislature’s way if it wants to deny a cause of action for wrongful death to the parent of a stillborn fetus, [citation] to a non-adopted stepchild, [citation] to a spouse whose marriage to the decedent has been dissolved, [citation] or to an adopted child for the wrongful death of her natural mother” [citation] Holquin at 437.

· The Holquin court also stated: “The evidence is overwhelming that in adopting Assembly Bill Number 25 the Legislature only intended to extend the rights and benefits of members of domestic partnerships as defined in section 297, not to create new rights and benefits for unmarried cohabiting couples in general.” Id at 436 (emphasis added). Even though the Holquin court framed its ruling under the rational basis test, their analysis is equally applicable under this higher level of scrutiny. No wrongful death rights are lost, since an unmarried opposite-sex couple never had them to begin with. To that end, an unmarried same-sex couple does not have the right to sue for wrongful death. The right is obtained only by marrying or by registering a domestic partnership.

· That same-sex couples now have two options, whereas opposite-sex couples have only one (marriage) does not alter the result. Section 377.60, on its face, provides same-sex and opposite-sex couples a manner of gaining wrongful death recovery rights. It does not unlawfully discriminate based on sex or sexual orientation. Rather, it permissibly discriminates against certain persons who have a right to marry, but choose not to do so. It is important to remember that Fam. Code 297 allows heterosexual couples who meet the statutory requirements set forth therein to register as domestic partners, thereby affording them the relief this Plaintiff seeks.

· Plaintiff argues that opposite-sex couples should have the right not to marry, but register as domestic partners instead. This argument also is unpersuasive. The 2003 Note to Fam. Code 297, which defines Domestic Partnership, provides the reason for its amendment to provide same-sex couples with rights already available to persons who had a choice to legally wed. That Note states:

This act shall be construed liberally in order to secure the eligible couples who register as domestic partners the full range of legal rights, protections and benefits, as well as all of the responsibilities, obligations, and duties to each other, to their children, to third parties and to the state, as the laws of California extend to and impose upon spouses.

· Therefore, the reason for the amendment was not to grant to ALL COUPLES the rights of marriage, but rather to grant to a distinct class of couples who publicly demonstrated their desire and intent to live together in committed relationships but for which by virtue of their sexual orientation had been denied rights associated with marriage.

· In amending Section 377.60, the Legislature could have concluded the state had a compelling interest to afford survivors of same-sex couples and couples with an aged member eligible for Social Security benefits certain statutory relief because they were as likely to suffer economic loss from the death of their partners as were spouses, but, because of other statutory schemes, they were legally or practically prevented from marrying. Plaintiff is not entitled to the same solicitude, because the law has never prevented her from marrying.

· Although identified in Holquin as a rational basis for the law, it truly is a compelling state interest involved wherein the statutory right to recover under wrongful death is limited to certain couples who exhibit and demonstrate the type of commitment one associates with marriage.

· Holquin states at 443:

The Legislature could reasonably have concluded the failure of opposite sex couples “to adopt the responsibility of the marital vows and the legal obligation resulting from a formal marriage ceremony evidenced a lack of permanent commitment which made compensation for loss of monetary support too speculative to calculate.” In the case of married couples this permanency is evidenced by the marriage certificate which provides a public record to all that a legal relationship exists between two persons. [citation] In the case of domestic partners this permanency is evidenced by the Declaration of Domestic Partnership which also provides the parties and the public with a record of the partners’ legal relationship. [citation] NO EQUIVALENT PUBLIC record exists for unmarried cohabiting couples who are of opposite sex [emphasis in original].

· The State has a compelling interest not to afford the right to pursue a claim for wrongful death for every person involved in a dating relationship. One can only imagine the havoc which would result if numerous litigants came into court after the death of someone whom they had casually dated and claimed survivor benefits. The courts would potentially be clogged with persons seeking compensation from the death of another with whom they likely had no relationship evincing any level of permanency. The Legislature’s intent was to ensure that partners in committed publicly recognized relationships would have some opportunity for economic recourse should their life-partner, with whom they likely shared financial as well as other legal obligations, meet an untimely death attributable in some way to another. While Plaintiff certainly presents a sympathetic situation in that her relationship with Decedent could not fairly be described as “casual,” the fact remains that she and Decedent always had the right to marry, and in turn always had the right to benefit from the legislatively-created right to sue for wrongful death. It is permissible for the law to vest certain rights in couples who adopt the responsibility of marital vows or registered domestic partnership. In any such partnership, be it marriage or registered domestic, a public record exists which evidences the members’ permanent commitment to embrace both rights and obligations associated with such a union. Plaintiff and the decedent always had the opportunity to marry which would have not only enshrined their commitment in the public record, but also vest them with both the legal rights and obligations associated therewith. For reasons personal to them, rather than for any reasons imposed upon them by the law, they elected not to do so. That is also their right. Plaintiff argues that she is being penalized for her personal choice in not having married. However her personal choice of not marrying is quite distinct from either her gender or sexual orientation or the fundamental right to marry. The laws at issue do not penalize any suspect classification. Having exercised her right not to wed does not in turn equate to her having been denied equal protection.

· If the tentative ruling is uncontested, it shall become the order of the Court. The moving party shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.