## Facts

- Raphel Etienne injured his arm while cutting down a tree with a chainsaw supplied by DKM Enterprises, Inc.
- Raphel and Bobby J. Etienne sued DKM; the first four causes of action related solely to Raphel’s personal injuries.
- Bobby asserted two separate claims: negligent infliction of emotional distress and loss of consortium, each premised on her being Raphel’s spouse.
- DKM moved for summary judgment only on Bobby’s two claims, offering evidence that Bobby and Raphel were not legally married.
- Bobby opposed by asserting that she and Raphel had formed a valid Texas common law (informal) marriage that California should recognize.
- The trial court granted partial summary judgment against Bobby, concluding the evidence did not establish a Texas common law marriage; Raphel’s claims remained pending.
- Bobby appealed from the order disposing of her two causes of action.

## Issues

1. Whether an order granting partial summary judgment that disposes of all claims asserted by one party is immediately appealable although other parties’ claims remain pending.
2. Whether Bobby produced evidence sufficient to create a triable issue that she and Raphel formed a valid Texas common law marriage, supplying the marital status required for her emotional distress and loss of consortium claims.

## Decision

- The order was appealable because it conclusively disposed of all causes of action asserted by Bobby, leaving nothing further to litigate as to her.
- The court affirmed partial summary judgment for DKM because Bobby’s evidence was legally insufficient to show a Texas common law marriage.
- Because a lawful marriage was an essential element of both of Bobby’s tort claims, her causes of action failed as a matter of law.

## Legal Principles

- A partial summary judgment order is generally reviewable only on appeal from a final judgment, but it is appealable when, as to a particular party, it leaves no issue to be determined and effectively ends that party’s involvement in the case.
- California will recognize a common law marriage if it was validly created in a jurisdiction that permits it, but the proponent must satisfy that jurisdiction’s substantive requirements.
- Under Texas informal marriage law, the proponent must show: (1) a present agreement to be married, (2) cohabitation in Texas as spouses, and (3) holding out in Texas that the parties are married.
- Fleeting or temporary visits to Texas, even with statements that the parties are married, do not establish the Texas elements of cohabitation and holding out sufficient to create an informal marriage.
- In California, a lawful marriage is an essential element of a spouse’s bystander negligent infliction of emotional distress claim and a loss of consortium claim.

## Conclusion

The court allowed an immediate appeal because the partial summary judgment terminated all of Bobby Etienne’s claims, then affirmed on the merits because her evidence showed only brief Texas contacts and did not raise a triable issue that a valid Texas common law marriage existed, defeating the marital-status element of her emotional distress and consortium causes of action.


Etienne v. DKM Enters., Inc., 136 Cal. App. 3d 487, 186 Cal. Rptr. 321 (Ct. App. 1982)