Case Name: Juanita Zuniga v. Terrence Myers, et al.
Case No.: 16CV299448

This is a “Marvin” action in which Plaintiff Juanita Zuniga (“Plaintiff”) is suing the estate of Decedent Thomas Myers, Jr. (“Decedent”), a man with whom she had a nonmarital relationship for approximately 28 years which included cohabitation. Decedent died on November 23, 2015. Plaintiff’s original complaint was filed on August 31, 2016. The operative Second Amended Complaint (“SAC”) was filed on December 2, 2016 and originally stated claims for: 1) Breach of Express Contract & Accounting; 2) Promissory Estoppel & Accounting; 3) Constructive Trust & Accounting; 4) Quiet Title, and; 5) Quasi-Specific Performance. The parties entered into a stipulation on February 3, 2017 that eliminated the fourth and fifth causes of action.

A “Marvin” action refers to the California Supreme Court’s decision in Marvin v. Marvin (1976) 18 Cal.3d 660 (“Marvin”), which recognized the existence of broad contractual and equitable rights of a party in a nonmarital living arrangement. The Marvin court found that although the Family Law Act did not govern the distribution of property acquired during a nonmarital relationship, lower courts should enforce express contracts between nonmarital partners except to the extent that the contract is explicitly founded on the consideration of meretricious sexual services. (Marvin, supra, 18 Cal.3d at pp. 671-672.) In Marvin, the Court held that the defendant’s agreement to “provide for all of plaintiff’s financial support and needs for the rest of her life” was sufficient to state a cause of action for breach of an express contract. (Marvin, supra, 18 Cal.3d at pp. 666-667.)

The Marvin Court also recognized that an implied contract might exist between nonmarital partners based on a “tacit,” or unspoken, understanding. (Marvin v. Marvin (1976) 18 Cal.3d 660, 665.) The Court explained that adults living together and having a romantic relationship can make a wide variety of arrangements concerning their earnings and property rights. “[T]hey may agree to pool their earnings and to hold all property acquired during the relationship in accord with the law governing community property; conversely they may agree that each partner’s earnings and the property acquired from those earnings remains the separate property of the earning partner.” (Marvin, supra, 18 Cal.3d at p. 674.) They may choose to pool only part of their earnings and property, to form a partnership or joint venture, or to hold property acquired as joint tenants or tenants in common, or agree to any other such arrangement. (Id. at fn. 10.) The court further held that in the absence of an express contract, the court should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties, and that courts may also employ the doctrine of quantum meruit, or equitable remedies such as constructive or resulting trusts, when warranted by the facts of the case. (Id. at p. 684.)

Currently before the Court is a motion for partial summary adjudication brought by Defendant Terrence Myers (“Defendant”), Administrator of Decedent’s Estate. The motion seeks summary adjudication of “certain claims for damages” in the SAC’s first and second causes of action. (See Notice of Motion at p. 1:8-13.)

The first cause of action for breach of contract alleges (SAC at para. 51) that “[t]he enforceable oral contracts the parties entered into during the 28 years they lived together are set forth in paragraph 47,” which is part of the general allegations incorporated by reference into each cause of action. Paragraph 47 describes five oral promises (subparagraphs a-e): 1) that “in the spring of 1987 Decedent promised Plaintiff that “if she would agree to let him move in and live with her . . . and handle the household chores, he would agree to handle the household expenses and make certain that she would never have anything financially to worry about for the rest of her life.” 2) That Decedent later made Plaintiff an offer that “if she would agree to go out and find a house that she wanted to live in with him he would agree to buy it for her.” 3) That Decedent later “made an offer” to Plaintiff that “if she would agree to rent out [the Gattucio property] and live out their lives together in [Mozart property], he would agree to give her Mozart.” 4) That Decedent later “made an offer” to Plaintiff that “if she would agree to let him invest her $152,000 along with his $152,000 . . . he would agree to repay to her her $152,000 if it was lost, and it was lost.” 5) That after Defendant’s conservatorship over Decedent was terminated Decedent “learned that [Defendant] had sold Gattucio during the conservatorship. He immediately offered [to Plaintiff] to pay her whatever the price was that [Defendant] obtained when he sold it.” (Brackets added.)

The second cause of action alleges (SAC at para. 57 that “[a]ll of the unperformed promises of [Decedent] to [Plaintiff] set forth in paragraph 48 were promises that [Plaintiff] detrimentally relied upon as set forth in paragraph 49.” Paragraph 49 lists 12 separate acts/services Plaintiff performed for Decedent in reliance on his promises (paying the bills, maintaining the home, managing the bar Decedent owned, managing rental properties, talking to Spanish-speaking customers at a used car lot Decedent owned, taking care of Decedent until he died, etc.) in subparagraphs a-l.

1. Requests for Judicial Notice
Both sides have submitted requests for judicial notice. A precondition to judicial notice in either its permissive or mandatory form is that the matter to be noticed be relevant to the material issue before the Court. (Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, citing People v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422 fn. 2.)

Defendant’s request for judicial notice for five documents, submitted with the motion, is GRANTED pursuant to Evidence Code §§ 452(c) (the recorded grant deed) and (d) (the other four documents, all court records). With her (late) Opposition Plaintiff has submitted a request for the Court to take judicial notice of the SAC. While notice is unnecessary as the targeted pleading is already considered by the Court when ruling on a motion for summary adjudication, the SAC can be noticed as a court record pursuant to Evidence Code §452(d).

2. Motion for Summary Adjudication of “certain claims for damages”
The pleadings limit the issues presented for summary judgment or adjudication. (See Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73 [“the pleadings determine the scope of relevant issues on a summary judgment motion.”].) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (See CCP §437c(f)(1); McClasky v. California State Auto. Ass’n (2010) 189 Cal.App.4th 947, 975 [“If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.”]; Palm Spring Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 288.) Summary adjudication of general “issues” or of facts is not permitted. (See Raghavan v. The Boeing Company (2005) 133 Cal.App.4th 1120, 1136.)

The moving party’s declarations and evidence will be strictly construed in determining whether they negate or disprove an essential element of a plaintiff’s claim “in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (or opposing party’s) favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64, parentheses added.) While the same standards of admissibility govern both, the opposition declarations are liberally construed while the moving party’s evidence is strictly scrutinized. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) The evidence must be liberally construed in support of the opposing party, resolving any doubts in favor of that party. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)

A defendant seeking summary judgment [or adjudication] must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted, brackets added.)

Defendant’s motion for summary adjudication is DENIED in its entirety for failure to meet the initial burden as follows.

Defendant’s entire argument in support of the notion that partial summary adjudication is permitted here is as follows: “The five alleged promises are individual claims for damages and can be summarily adjudicated separately. (CCP §437c(f)(1); Byrne v. Laura (1997) 52 Cal.App.4th 1054, 1064 [Requiring lower court to treat support and property division promises separate for purposes of summary judgment.].)” (Memorandum of points & authorities at p. 6:18-21.)

Partial summary adjudication of “certain claims for damages” is not permitted under CCP §437c(f)(1) as summary adjudication “shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages or an issue of duty.” Defendant’s proposed issues (imprecisely defined due to Defendant’s failure to comply with Rule of Court 3.1350(b) ) do not completely dispose of the SAC’s first or second causes of action as they do not address all of the promises and actions taken in reliance on those promises alleged in the SAC at 47-49 and incorporated by reference into the first and second causes of action. The only “claim for damages” that can be independently summarily adjudicated under CCP §437c(f)(1) is a claim for punitive damages. (See DeCastro West Chodorow & Burns, Inc. v. Superior Court (1996) 47 Cal.App.4th 410 [Summary adjudication statute does not permit summary adjudication of one or more components of compensatory damages which does not dispose of entire cause of action; punitive damage claim is only type of damage claim which may be summarily adjudicated without disposing of entire cause of action]. See also Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1312; Jameson v. Desta (2013) 215 Cal.App.4th 1144, 1169; Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 240-241.)

Even if the failure to comply with CCP §437c(f)(1) could be overlooked (and it cannot) Defendant has failed to demonstrate that “certain claims for damages” are either time-barred or fail for lack of consideration.

Defendant has failed to demonstrate that the statute of limitations began running on any of the targeted Marvin agreement promises Decedent allegedly made to Plaintiff throughout their relationship until his death. Contrary to Defendant’s argument, an involuntary conservatorship cannot be reasonably construed as analogous to a voluntary repudiation by Decedent of any of his alleged promises to Plaintiff, particularly when the relationship between Decedent and Plaintiff continued both during and after the conservatorship until his death. The decision in Cochran v. Cochran (1997) 56 Cal.App.4th 1115, 1124 (“Cochran I”), stating that that “a Marvin agreement is breached when the party charged with a duty to perform refuses to do so,” does not provide support for Defendant’s argument that the limitations period was triggered by the conservatorship. No evidence has been submitted demonstrating that Decedent had anything to do with the sale of property during the conservatorship. As for the argument that Decedent breached the Marvin agreement when Plaintiff filed for bankruptcy in 1999, no evidence has been submitted suggesting that Decedent knew of Plaintiff’s bankruptcy filing when it occurred, and, since Defendant has also not submitted any evidence suggesting Decedent did not continue to support Plaintiff financially throughout her bankruptcy, there is no indication of any express voluntary breach of the Marvin agreement by Decedent during Plaintiff’s bankruptcy that would have started the limitations period running.

As for the argument that “certain claims for damages” fail for lack of consideration, it is undisputed that Plaintiff and Decedent cohabitated for much of their relationship. Defendant’s argument on this point ignores the significant line of authority, beginning with the Supreme Court’s decision in Marvin, holding that a promise to cohabitate (see SAC at para. 47) can function as consideration for nonmarital support arrangements in a Marvin action. “We base our opinion on the principle that adults who voluntarily live together and engage in sexual relations are nonetheless as competent as any other persons to contract respecting their earnings and property rights. . . . So long as the agreement does not rest upon illicit meretricious consideration, the parties may order their economic affairs as they choose . . .” (Marvin v. Marvin (1976) 18 Cal.3d 660, 674.) “Cohabitation is necessary not in and of itself, but rather, because from cohabitation flows the rendition of domestic services, which services amount to lawful consideration for a contract between the parties. We make the additional observation that if cohabitation were not a prerequisite to recovery, every dating relationship would have the potential for giving rise to such claims, a result no one favors.” (Bergen v. Wood (1993) 14 Cal.App.4th 854, 858.) In Cochran v. Cochran (2001) 89 Cal.App.4th 283, 292-293 (“Cochran II”) the court found that the Marvin consideration rationale was satisfied even by a less than full-time cohabitation. “The purpose of Marvin was to permit parties to a significant and stable relationship to contract concerning their earnings and property rights. ‘So long as the agreement does not rest upon illicit meretricious consideration, the parties may order their economic affairs as they choose . . . .’ (Citation.) To require nothing short of full-time cohabitation before enforcing an agreement would defeat the reasonable expectations of persons who may clearly enjoy a significant and stable relationship arising from cohabitation, albeit less than a full-time living arrangement. For instance, it would exclude otherwise valid support agreements made by parties who, perhaps because their jobs are geographically far apart, maintain a part-time residence for one party, and also a second residence where at times they live jointly. Certainly the rationale of Marvin does not support such a result.”

The argument by Defendant that Plaintiff’s deposition testimony that some of her actions were motivated by love for Decedent rather than a bargained for exchange renders her unable to establish the element of consideration for “certain claims for damages,” is also unpersuasive. In the context of a Marvin action, the parties to the implied contract may often be motivated by emotion rather than a risk-benefit analysis. An emotional motivation does not bar the enforcement of a Marvin agreement. As the court in Byrne v. Laura, supra, noted in a different context (considering whether love for the other party prevented a plaintiff in a Marvin action from establishing an estoppel defense to the statute of frauds): “If such a requirement were engrafted onto the equitable estoppel doctrine, then the doctrine would be abrogated in the context of Marvin agreements, because the sentiments which led the parties to cohabit would prevent a finding that their actions toward each other were motivated solely by their property agreements. Marvin noted that most cohabitation agreements are oral, and that cases had ‘expressly rejected defenses [to such agreements] grounded upon the statute of frauds.’ In light of Marvin’s endorsement of ‘equitable remedies to protect the expectations of the parties to a nonmarital relationship,’ the court’s observations on the enforcement of oral cohabitation agreements con only be interpreted as an approval of the use of equitable estoppel by cohabitants in appropriate cases. Love does not vitiate [appellant’s] equitable estoppel claim.” (52 Cal.App.4th at 1072, internal citation omitted, emphasis added.)

As Defendant’s motion fails to meet the initial burden, the burden never passes to Plaintiff and it is not necessary for the Court to determine whether to consider Plaintiff’s late-filed, overlong opposition that does not comply with Rules of Court 3.1113(d) & (f). “A trial court has broad discretion to under rule 3.1300(d) of the California Rules of Court to refuse to consider papers served and filed beyond the deadline without a prior court order finding good cause for late submission.” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765. CCP §437c(b)(2) “forbids the filing of any opposition papers less than 14 days prior to the scheduled hearing, and case law has been strict in requiring good cause to be shown before late filed [opposition] papers will be accepted” in a summary judgment proceeding. (Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 625, disapproved on another point in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn. 6.)