PETITION for writ of mandate. Emilie H. Elias, Judge. (Los Angeles County Super. Ct. No. BC468065)
The opinion of the court was delivered by: Aldrich, J.
CERTIFIED FOR PUBLICATION
The first element of a loss of consortium cause of action is the existence of a marriage at the time of injury to the plaintiff's spouse. With asbestos-related illnesses, as with other latent diseases, appreciable injury does not occur at the time of exposure to the toxic substance, but often decades later when disease is diagnosed or symptoms are discovered. In this opinion, we hold that the first element of a loss of consortium cause of action is satisfied if the plaintiff's marriage to the injured spouse predates discovery of symptoms, or diagnosis, of an asbestos-related disease. This is so even if the marriage postdates the spouse's exposure to the asbestos that ultimately results in the injury.
Petitioner Sherrell Vanhooser seeks a writ of mandate directing the trial court to vacate its order granting the motion of defendant Hennessy Industries, Inc. (Hennessy) for summary judgment of her loss of consortium cause of action. Hennessy premised its motion on Zwicker v. Altamont Emergency Room Physicians Medical Group (2002) 98 Cal.App.4th 26 (Zwicker) to argue that petitioner has no claim for loss of consortium because she was not married to her husband when he was exposed to the asbestos that caused his mesothelioma. Petitioner contends the ruling was incorrect because, pursuant to California Supreme Court authority, her cause of action for loss of consortium damages could only arise once her husband was diagnosed with mesothelioma, not when he was exposed to the asbestos that later resulted in the disease.*fn1 The trial court certified its ruling granting summary judgment to this court (Code Civ. Proc., § 166.1). We conclude that Zwicker is entirely distinguished, and we grant the petition and the writ.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner's husband, Frederick Kenney, was exposed to asbestos in the 1960's and 1970's during his service in the United States Navy, and until 1990 as an automobile mechanic working with asbestos-containing automobile parts. It is undisputed that his last encounter with Hennessy's products was sometime between 1988 and August 1990. The couple married on December 31, 1991 or 1992. Petitioner's husband first exhibited symptoms of mesothelioma in late 2010 almost 20 years later, and he was diagnosed with the disease in June 2011.
Frederick*fn2 sued numerous companies, including Hennessy, seeking damages for negligence and strict products liability. Petitioner included a cause of action for loss of consortium. Hennessy's ground for summary judgment of petitioner's cause of action was that petitioner did not marry Frederick until after "the claimed injury-causing event in this case," namely his exposure to asbestos, with the result that, as a matter of law, petitioner has no cause of action for loss of consortium. Hennessy argued the dates of both diagnosis and discovery of the illness are irrelevant under Zwicker.
The trial court granted Hennessey's summary judgment motion ruling pursuant to Zwicker that the date of the wrongful act, namely exposure to asbestos, was the relevant date for ascertaining existence of a loss of consortium cause of action. As Frederick married petitioner after he was exposed to asbestos, the court ruled, petitioner had no claim for loss of consortium damages as a matter of law. Petitioner effectively married her cause of action. The court expressed its dislike for the result Zwicker engendered and certified its ruling to this court. The trial court stated: "The loss of consortium issue addressed in this order is a recurring issue in the [Los Angeles, Orange, and San Diego County] Asbestos Cases pending before this Court. The Court believes that it is 'a controlling question of law as to which there are substantial grounds for difference of opinion, appellate resolution of which may materially advance the conclusion of the litigation.' " This petition for writ of mandate ensued because Frederick is gravely ill and the question presented by this petition is one of statewide concern. We issued a stay of the trial court proceedings and an order to show cause.
a. For purposes of creation of a loss of consortium cause of action, injury to the spouse in the latent disease context occurs when the illness or its symptoms are discovered or diagnosed, not at the time of the tortious act causing the harm.
"[T]he right to recover for loss of consortium is founded on the relationship of marriage, and absent such a relationship the right does not exist." (Elden v. Sheldon (1988) 46 Cal.3d 267, 278.) "A person who suffers a loss of consortium as the result of a negligent or intentional injury to his or her spouse is entitled to recover damages from the tortfeasor." (Mealy v. B-Mobile, Inc. (2011) 195 Cal.App.4th 1218, 1223, citing Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 408.)
There are four elements to a cause of action for loss of consortium: "(1) a valid and lawful marriage between the plaintiff and the person injured at the time of the injury; [¶] (2) a tortious injury to the plaintiff's spouse; [¶] (3) loss of consortium suffered by the plaintiff; and [¶] (4) the loss was proximately caused by the defendant's act." (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 746, fn. 2, italics added, citing 4 Levy et al., Cal. Torts (2006) Loss of Consortium, § 56.02, p. 56-4.) A loss of consortium cause of action is triggered by the spouse's injury. (Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1089; cf. Bartalo v. Superior Court (1975) 51 Cal.App.3d 526, 533 [husband's loss of consortium cause of action "does not arise unless his wife has sustained a personal injury"].) "A cause of action for loss of consortium is, by its nature, dependent on the existence of a cause of action for tortious injury to a spouse." (Hahn v. Mirda, supra, at p. 746.) And, there is no right of action for loss of consortium if the spouse's " 'injury occurs ...