Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura, Super. Ct. No. CIV 230 297, Henry J. Walsh, Judge.
Malcolm Tator; Law Offices of Malcolm Tator, for Appellant.
Esther Sorkin; Ball & Sorkin, for Respondents
YEGAN, J.
Jan "Gigi" Bennett-Cooper appeals from the judgment entered in favor of Henry Cooper, respondent, her former husband. Appellant contends that the trial court erroneously granted respondent's motion for summary adjudication on her cause of action for breach of an express contract. As to the remaining causes of action, she contends that the trial court erroneously sustained respondent's demurrer without leave to amend. We reverse in part and affirm in part.
Procedural Background
On November 3, 2004, appellant filed a four-count complaint against respondent and his daughters, Susan Cooper (Cooper) and Arlene Goldman (Goldman). The complaint had four causes of action. The first cause of action was against respondent alone (express contract). The second cause of action was also against respondent alone (implied contract). The third cause of action was against respondent, Cooper, and Goldman. It sought to impose a constructive trust on a residence located at 3341 West Hemlock Street in Oxnard (hereafter the residence). The fourth cause of action was also against respondent, Cooper, and Goldman. It sought to quiet title to a one-half undivided interest in the residence.
Respondent and his daughters jointly filed a motion for summary judgment or, in the alternative, summary adjudication. The trial court granted the daughters' motion for summary judgment, and judgment in their favor was entered. Appellant has filed a separate appeal. (Bennett-Cooper v. Cooper et al., 2d Civil No. B188221.) We consider and decide that appeal concurrently with the instant case.
As to respondent, the trial court granted summary adjudication on the first cause of action for breach of an express contract. It denied summary adjudication on the other causes of action, except to the extent that the fourth cause of action to quiet title was based on a claim of adverse possession. The third cause of action to impose a constructive trust was subsequently dismissed on appellant's motion.
Appellant filed a first amended complaint incorporating what remained of the fourth cause of action to quiet title and modifying the second cause of action for breach of an implied contract. The trial court sustained respondent's demurrer to the first amended complaint without leave to amend. The demurrer was based on statute of limitations grounds. The court entered judgment in favor of respondent.
Demurrer
" 'On appeal from a judgment after a demurrer is sustained without leave to amend, we assume the truth of the facts alleged in the complaint, facts that reasonably can be inferred from those expressly pleaded, and facts of which judicial notice can be taken. [Citation.] We liberally construe the complaint to achieve substantial justice between the parties. [Citation.] In so doing, we construe the complaint in a reasonable manner and read the allegations in context. [Citation.] We determine de novo whether the complaint states facts sufficient to state a cause of action and whether the complaint or matters that are judicially noticeable disclose a complete defense. [Citations.] We affirm the judgment if it is correct on any ground stated in the demurrer, regardless of the trial court's stated reasons. [Citation.]' [Citation.]" (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.)
The amended second cause of action for breach of an implied contract states as follows:
For approximately 30 years until November 6, 2002, the parties lived together. They "had a confidential relationship and impliedly agreed to pool their assets." Based on this implied agreement, appellant "provided services and assets for the couple . . . ."
In August 1980 the parties "jointly purchased [the residence], and from that point [appellant] provided half the money to pay the first mortgage. However, [respondent] insisted that title be in his name alone, although he told [appellant] he would put her on to title later. This promise was repeated on numerous occasions." But "[respondent] never put [appellant] onto title. Instead, between September 19, 1988 to June 18, 1991 [respondent] gave the [residence] to his daughters Susan Cooper and Arlene Goldman." Respondent "said the divestiture was only temporary" and was made "to protect [the residence] from creditors." "[B]y 1999 [respondent] had regained ownership."
Appellant "disregarded any repudiation, anticipatory breach, or successive breaches, nor did she abandon or mutually rescind the contract. Instead, she continued to rely on it." After the residence was conveyed to respondent's daughters, appellant paid the utilities and maintained the property. She also paid for improvements to the residence.
The parties were married on November 11, 1991. Except for brief separations, they "continued to live in the house together as owners until November 6, 2002, when defendant left." In December 2003 Cooper evicted appellant from the residence.
Respondent demurred to the first amended complaint on the ground that the second cause of action was barred by the two-year statute of limitations applicable to actions upon an unwritten contract. (Code Civ. Proc., § 339, subd. 1.) The trial court deemed the demurrer to also encompass by implication the fourth cause of action to quiet title, which was based on the existence of an implied contract as alleged in the second cause of action.
Judicially noticeable facts showed that, on June 18, 1991, respondent had deeded his interest in the residence to Cooper and Goldman. The court concluded that, by this conveyance, respondent had breached the implied contract. The conveyance, therefore, "trigger[ed] the running of the two-year limitation period, and absent some showing of equitable tolling or equitable estoppel, [appellant's] claim is barred by the statute of limitations." The trial court ruled that respondent was neither equitably nor judicially estopped from asserting the statute of limitations as a defense. Accordingly, it sustained the demurrer without leave to amend.
The second cause of action in effect alleges an implied agreement between unmarried cohabitants to share property pursuant to Marvin v. Marvin (1976) 18 Cal.3d 660. "A cause of action for breach of contract accrues at the time of breach, which then starts the limitations period running. [Citation.]" (Cochran v. Cochran (1997) 56 Cal.App.4th 1115, 1120.) "[A] Marvin agreement is breached when the party charged with a duty to perform refuses to do so." (Id., at p. 1124.) A breach ordinarily occurs, and the statute of limitations begins to run, when the parties end their relationship. (Whorton v. Dillingham (1988) 202 Cal.App.3d 447, 456-457; Kurokawa v. Blum (1988) 199 C.A.3d 976, 989; Estate of Fincher (1981) 119 C.A.3d 343, 352.)
Appellant contends that the statute of limitations on the implied Marvin agreement did not begin to run until the parties separated on November 6, 2002. Since the complaint was filed less than two years later on November 3, 2004, appellant maintains that her action was not barred by the statute of limitations.
Appellant does not dispute that the implied Marvin agreement was breached on June 18, 1991. Appellant characterizes respondent's breach as "a classic anticipatory breach" that did not start the running of the statute of limitations. We need not resolve this issue because, irrespective of whether an anticipatory breach occurred, the implied contract to pool the parties' assets was an "ongoing contractual obligation" that did not end until the parties separated on November 6, 2002. In Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 489, our Supreme Court stated that, "whether the breach is anticipatory or not, when there are ongoing contractual obligations the plaintiff may elect to rely on the contract despite a breach, and the statute of limitations does not begin to run until the plaintiff has elected to treat the breach as terminating the contract. [Citation.]" Prior to her separation from respondent in 2002, appellant did not elect to treat the breach that occurred in June 1991 as terminating the implied Marvin agreement.
A similar situation, although not in the context of a Marvin agreement, occurred in Baugh v. Garl (2006) 137 Cal.App.4th 737, 747, decided by this court. In Baugh the defendant breached a settlement agreement whereby he had agreed not to take water from a pipeline that served a parcel of land. The owner of the parcel and the owner's tenant brought an action to enforce the settlement agreement. The defendant contended that the action was barred because the statute of limitations had run. We rejected this contention because the settlement agreement was still executory: "Where a contract is still executory, the promissee is not bound to treat the contract as abandoned on the first breach or any particular breach, and the statute of limitations does not begin to run as long as the promissee elects to rely on the contract . . . . Here the settlement agreement is still executory, it has no expiration date. [Plaintiffs] were not required to bring an action on the first breach or any particular breach. Thus their action on the contract is not barred by the statute of limitations." (Id., at p. 747.)
The parties' implied Marvin agreement was executory when respondent breached it in June 1991 by deeding his interest in the property to his daughters. Like the settlement agreement in Baugh, the implied Marvin agreement had no fixed expiration date and remained in effect after the breach until the parties ended their relationship. Thus, as in Baugh, respondent's breach in June 1991 did not start the running of the statute of limitations. Appellant had the right to stand on the implied Marvin agreement based on the continuation of the parties' relationship and respondent's continuing obligation to perform under the agreement.
We need not, therefore, consider the effect of the allegation in the amended second cause of action that "by 1999 [respondent] had regained ownership" of the residence.
Policy considerations support our ruling. So long as cohabiting parties to a Marvin agreement desire to continue their relationship, it would be unreasonable to expect one party to sue the other for a breach of that agreement. Such legal action against the other party would in all likelihood lead to a breakup of the relationship, a result that appellate courts should not encourage.
We reject respondent's contention that the statute of limitations started to run not on November 6, 2002, when the final separation of the parties occurred, but on earlier dates during their marriage when the parties temporarily separated. Evidence was presented that they had temporarily separated in 1996 and 1999.
Respondent's reliance on Estate of Fincher (1981) 119 Cal.App.3d 343, is misplaced. The conduct of the plaintiff in Fincher established a clear and final break of the relationship when she terminated it in July 1971. Not only did she leave the decedent, but she married another man. Thus, the statute of limitations began to run on the implied Marvin agreement in July 1971. Here, in contrast, respondent has not referred us to judicially noticeable facts establishing a clear and final break of the parties' marital relationship when appellant separated from respondent in 1996 or in 1999. In his statement of facts, respondent acknowledges that the parties "finally separated on November 6, 2002." (RB 7)
Summary Adjudication
Respondent's motion for summary adjudication was granted on the first cause of action for breach of an express contract. The cause of action alleged that in 2000 respondent had orally made the following offer to appellant: "If [appellant] would move back into [the residence] . . . and give up her apartment, [respondent] would promise and guarantee [she] could live in [the residence] for the remainder of her life and never be kicked out or evicted from the house again." Appellant accepted the offer. She gave up her apartment and moved into the residence. Respondent breached the express contract "when he directed his daughter, Susan Cooper, to evict [appellant]."
Appellant does not challenge the granting of summary adjudication on the adverse possession claim in the fourth cause of action to quiet title.
"[F]rom commencement to conclusion, the party moving for summary [adjudication] bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to [adjudication] as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) "As with a motion for summary judgment, the court must view the evidence and reasonable inferences from the evidence in the light most favorable to the opposing party. [Citations.] On appeal, we independently review the trial court's ruling and apply the same legal standard that governs the trial court. [Citations.]" (London Market Insurers v. Superior Court (2007) 146 Cal.App.4th 648, 655.)
The evidence on the summary adjudication motion was as follows: At the time of respondent's offer, appellant knew that in 1991 the residence had been deeded to Cooper and Goldman. However, in a court document filed on October 18, 1999, respondent declared under penalty of perjury that he was the owner of the residence. In 2003 Cooper brought an unlawful detainer action against appellant to evict her from the residence. The unlawful detainer judgment, filed on November 6, 2003, provides that Cooper "is entitled to possession" of the residence.
The trial court granted the motion for summary adjudication "on the ground that [respondent] had no interest in the subject property that would have permitted him to confer a life estate . . . ." Thus, respondent's performance of the express contract was excused by the impossibility of performance. The court's minute order states: " 'The impossibility which will excuse the performance must consist in the nature of the thing to be done and not in the inability of the obligor to do it.' In the nature 'of the thing to be done,' [respondent] could not grant an interest in the property."
The trial court misapplied the law. Respondent bound himself to a contract that could not be performed without the consent or cooperation of third persons: his daughters who had title to the property. He is not relieved of liability because he was unable to obtain their consent or cooperation. "One who binds himself to a contract which cannot be performed without the consent or cooperation of a third person is not relieved of liability because of his inability to secure the required consent or cooperation. [Citation.] The courts hold that this is merely subjective impossibility, which does not excuse nonperformance of a contract. [Citations.] . . . 'The obligor contracts that he can and will control the acts of third parties, so far as necessary to enable him to perform his contract. . . .' . . . 'If performance is not inherently impossible, and there is an unconditional promise to perform, nonperformance is a breach where the obligator becomes unable to perform even though through causes beyond his control, since he might have provided against them in his contract (citations).' [Citation.]" (Hensler v. City of Los Angeles (1954) 124 Cal.App.2d 71, 83.)
Here respondent could have provided in the contract that his promise was conditional upon the consent and cooperation of his daughters. By failing to so provide, he in effect promised that he could and would "control the acts of third parties [his daughters], so far as necessary to enable him to perform his contract. . . .' " (Hensler v. City of Los Angeles, supra, 124 Cal.App.2d at p. 83.)
As an alternative ground for granting the motion for summary adjudication, the trial court concluded that appellant's "right to possession was adjudicated in the prior unlawful detainer action and is therefore barred by the doctrines of res judicata/collateral estoppel." " 'Collateral estoppel precludes relitigation of issues argued and decided in prior proceedings.' [Citation.]" (Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th 921, 944.) The doctrine applies " 'only if several threshhold requirements are fulfilled,' " one of which is that " 'the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding.' " (Ibid.)
The doctrine of collateral estoppel is inapplicable here because the issues are not identical. In the unlawful detainer action, the issue decided was the right to possession of the residence. The court did not decide the issue to be litigated in the instant case: whether respondent breached a promise he had made in 2000 to appellant that, if she moved back into the residence and gave up her apartment, she could live in the residence "for the remainder of her life and never be kicked out or evicted from the house again." Indeed, if respondent had made such a promise, the judgment in the unlawful detainer action would have established that he had breached it.
Thus, respondent did not carry his "burden of persuasion that there is no triable issue of material fact and that he is entitled to [adjudication] as a matter of law." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) The trial court, therefore, erred in granting the motion for summary adjudication.
Respondent has filed a motion requesting that appellant be sanctioned for filing a frivolous appeal and for violating the California Rules of Court. The motion is denied.
The judgment is reversed. The trial court is directed to vacate its order sustaining the demurrer without leave to amend and to enter a new order overruling the demurrer. The trial court is also directed to vacate its order granting summary adjudication on the first cause of action and enter a new order denying summary adjudication. We affirm the trial court's order granting summary adjudication on the adverse possession claim in the fourth cause of action to quiet title. Appellant shall recover her costs on appeal.
We concur: GILBERT, P.J., COFFEE, J.