Case Number: BC545202    Hearing Date: November 07, 2014    Dept: 46

Case Number: BC545202
MICHELE KOHSE VS RANDOLPH ROGERS
Filing Date: 05/09/2014
Case Type: Other Contract (General Jurisdiction)

11/07/2014
Hearing on Demurrer

TENTATIVE RULING: Demurrer is OVERRULED. Defendant is ordered to Answer Complaint within 20 days. See discussion.

This UPDATED tentative ruling is posted at 12:00 p.m. on 11/6/2014 and the matter is set for hearing on 11/07/2014 at 8:30 a.m. / If there are no parties other than Plaintiff/Petitioner, then Plaintiff/Petitioner may submit to the tentative without appearance by telephonic notification to the clerk of Dept. 46 between 8:00 a.m. and 4:30 p.m. on a date prior to the hearing or morning prior to the hearing by calling (213) 974-5665, and the court will issue the tentative ruling as the final ruling. If the other parties have appeared in the action, then the parties must first confer and all agree that the tentative ruling will be the final ruling on the matter. If the parties to the matter before the court all agree, a representative of the parties may call the clerk and submit without an appearance, and the court will issue the tentative ruling as the final ruling. If an order is required, it should be lodged directly in Dept. 46 with a copy to adverse/other parties, if any.

On 5/9/14, Plaintiff filed her complaint for (1) Breach of Implied Contract; (2) Quantum Meruit; (3) Promissory Estoppel and (4) Accounting and Constructive Trust against Defendant Randolph Rogers and fictitiously named defendants. The essence of the case relates to a “Marvin”-type palimony action against Defendant based on implied in fact agreements.

The court acknowledges that “Family Code property and ‘spousal-type’ support rights, obligations and remedies are predicated on the existence of a valid marriage or registered domestic partnership (or, as to an invalid marriage, ‘putative spouse’ status). Simply living together as alleged husband and wife cannot give rise to a ‘marriage’ or other legal marriage-like union under California (or federal) law; the concept of ‘common law marriage’ has long been abolished in California. [Maglica v. Maglica (1998) 66 C.A.4th 442, 447]. Consequently, nonmarital cohabitation falling short of a registered domestic partnership does not itself confer property or ‘spousal-type’ rights or obligations under the Family Code. Any such rights and obligations arising from the relationship may only be adjudicated in a general civil action—not in an action under the Family Code…[Marvin v. Marvin (1976) 18 C.3d 660, 679-681 & fns. 17, 18 & 19; Velez v. Smith (2006) 142 C.A.4th 1154, 1175-1176].” Hogoboom, et al., CAL. PRAC. GUIDE: FAMILY LAW (The Rutter Group 2014) ¶ 20:1.

However, California Law, has long held that “[t]he fact of nonmarital cohabitation is not itself a barrier to the judicial recognition and enforcement of express and implied agreements between the parties. They have the same right to enforce contracts and assert equitable rights and interests as do any other unmarried persons. And courts may also look to a ‘variety of other remedies’ in order to protect the parties’ lawful expectations. [Marvin[, supra,] 18 C.3d 660, 684 & fn. 24].” Id. at ¶ 20:20. “Thus, unmarried cohabitants can avail themselves of the following traditional legal and equitable remedies to enforce properly-founded property, support and other financial claims and obligations arising out of their relationship:…

1. Action on an implied contract based upon the parties’ conduct (e.g., to share earnings and acquisitions or to provide support). [Marvin v. Marvin, supra, 18 C.3d at 677-684; see Friedman v. Friedman (1993) 20 C.A.4th 876, 887-888—alleged implied agreement for support upon termination of relationship]…

2. Action to impose a constructive trust, resulting trust or equitable lien. [Marvin v. Marvin, supra, 18 C.3d at 684]…

3. Action in quantum meruit to recover the reasonable value of services rendered (household, business or other legally-compensable services), less the reasonable value of support received, upon proof the services were rendered ‘with the expectation of monetary reward.’ [Marvin v. Marvin, supra, 18 C.3d at 684; see Maglica v. Maglica (1998) 66 C.A.4th 442, 449].” Id. at ¶¶ 20:20, 20:21, 20:23, 20:25 and 20:26. “Where existing (traditional) remedies prove ‘inadequate,’ trial courts may fashion additional equitable remedies to protect the parties’ ‘reasonable expectations.’ ‘[T]he suitability of such remedies may be determined in later cases in light of the factual setting in which they arise.’ [Marvin v. Marvin, supra, 18 C.3d at 684, fn. 25].” Id. at ¶ 20:27 (emphasis theirs).

Following these cases, the plaintiff’s pleading is adequate. A demurrer attacks the adequacy of the pleading of a cause of action and does not consider extraneous facts of which the court cannot take judicial notice. As Plaintiff points out, “[t]he plethora of questions raised in the demurrer…concern evidentiary matter that Plaintiff is not required to set forth at this stage of the proceedings.” (Opposition, 1:16-18).

1st COA: Breach of Implied Contract: CC § 1621 states that “[a]n implied contract is one, the existence and terms of which are manifested by conduct.” “’A cause of action for damages for breach of contract is comprised of the following elements: (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.’ (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 C.A.3d 1371, 1388).” Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 C.A.4th 221, 228. Each of these elements is clearly pled in the Complaint.

2nd COA: Quantum Meruit: “[W]here services have been rendered under a contract which is unenforceable because not in writing, an action generally will lie upon a common count for quantum meruit. (See Parker v. Solomon (1959) 171 C.A.2d 125, 134).” Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 C.A.4th 990, 996. This cause of action has been adequately alleged in the Complaint.

3rd COA: Promissory Estoppel: “The elements of a promissory estoppel claim are “(1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3)[the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.” US Ecology, Inc. v. State (2005) 129 C.A.4th 887, 901. This cause of action has been adequately alleged in the Complaint.

4th COA: Accounting and Constructive Trust: “A cause of action for an accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting, and that some balance is due the plaintiff that can only be ascertained by an accounting. (Brea v. McGlashan (1934) 3 Cal.App.2d 454, 460; 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 819, p. 236.).” Teselle v. McLoughlin (2009) 173 C.A.4th 156, 179. A constructive trust is not an independent cause of action, but a remedy for certain wrongs. Glue-Fold, Inc. v. Slautterback Corp. (2000) 82 Cal. App. 4th 1018, 1023 n.3. To impose a constructive trust, the plaintiff must allege: (1) the existence of a res (property or some interest in property); (2) the plaintiff’s right to that res; and (3) the defendant’s gain of the res by fraud, accident, mistake, undue influence, the violation of a trust or other wrongful act. Lazar v. Hertz Corp. (1983) 143 C.A.3d 128, 139.

IT IS SO ORDERED:

Frederick C. Shaller, Judge