Kenneth W. Sterling v. Monica Jeffus
Case No: 17CV01870
Hearing Date: Tue Apr 16, 2019 9:30

Nature of Proceedings: Motion Summary Judgment

Motion of Defendant Monica Jeffus for Summary Judgment on Plaintiff’s Complaint

ATTORNEYS:

For Plaintiff and Cross-Defendant Kenneth W. Sterling: Michael P. Ring, Iris L.M. Ring, Law Offices of Michael P. Ring

For Defendant and Cross-Complainant Monica Jeffus: Philip D. Dracht

RULING: For the reasons set forth herein, the motion of defendant Monica Jeffus for summary judgment on plaintiff’s complaint is denied.

Background:

Defendant Monica Jeffus and plaintiff Kenneth Sterling began dating in fall of 2012. (Plaintiff’s Response Separate Statement [PSS], fact 1 [undisputed on this point].)

The parties’ courtship was tumultuous with frequent breaks and allegations of infidelity. (Jeffus decl., ¶ 3; Dracht decl., exhibit 3 [Sterling response to special interrogatories, response to interrogatory No. 2.].) In July 2014, the parties, who had been living together in Jeffus’s house, broke up and Sterling moved out. (PSS, fact 3 [undisputed on this point].) The parties reconciled and Sterling moved back into Jeffus’s house around the end of August or beginning of September 2014. (PSS, fact 8 [undisputed on this point].) The parties decided to get married in September or October 2014 with an October 2015 wedding date. (Ibid.)

On October 8, 2015, the wedding was cancelled. (PSS, fact 24 [undisputed on this point].)

On April 27, 2017, Sterling filed his complaint in this action against Jeffus asserting three causes of action: (1) conversion; (2) recovery of gifts made in contemplation of marriage; and, (3) injunction. All causes of action arise out of allegations that Sterling had made gifts to Jeffus in contemplation of marriage, specifically, cash in the amount of $105,917.05 for Jeffus to buy out the interest of Jeffus’s ex-husband in Jeffus’s house and a new Mercedes for which Sterling paid a $11,500 down payment. (Complaint, ¶¶ 6-13.)

On June 9, 2017, Jeffus filed her answer to complaint, generally denying the allegations thereof and asserting 20 affirmative defenses. Jeffus concurrently filed a cross-complaint against Sterling. Following demurrers, Jeffus filed her operative cross-complaint, the second amended cross-complaint (SACC) on September 26, 2017. The SACC asserts four causes of action: (1) conversion, (2) breach of oral contract, (3) fraud; and, (4) intentional infliction of emotional distress. On October 24, 2017, Sterling filed his answer to the SACC, generally denying the allegations thereof and asserting 13 affirmative defenses.

Jeffus now moves for summary judgment on the causes of action of Sterling’s complaint on the ground that the breach of the marriage agreement was Sterling’s fault. The motion is opposed by Sterling.

Analysis:

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a)(1).) “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. 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.” (Code Civ. Proc., § 437c, subd. (f)(1).)

The notice of motion is ambiguous as to whether the motion seeks only summary judgment, i.e., a judgment as to the entire complaint, or summary adjudication of one or more particular causes of action. The notice is expressed only in terms of “summary judgment” and does not use the term “summary adjudication.” At the same time, the notice states that Jeffus “will move for summary judgment on the following causes of action …, on the ground that there are not triable issues of material fact and that Jeffus is entitled to judgment as a matter of law against Sterling on each of the following causes of action: [¶] 1. Conversion [¶] 2. Recovery of Gifts Made in Contemplation of Marriage; and [¶] 3. Injunction.” (Notice, p. 2.)

“If made in the alternative, a motion for summary adjudication may make reference to and depend on the same evidence submitted in support of the summary judgment motion. If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (Rules of Court, rule 3.1350(b).)

The separate statement filed in support of the motion provides an introduction citing Rules of Court, rule 3.1350(b) to (d), but states only that the facts support a motion for summary judgment. (Defendant’s Moving Separate Statement [DSS], p. 1.) The separate statement facts are set forth thereafter without stating any specific cause of action to which particular facts apply. At the same time, the footer identifies the separate statement differently from the caption as being a separate statement in support of a motion for summary adjudication. Because the notice of motion expressly seeks only summary judgment and the separate statement, notwithstanding its citation to rule 3.1350(b), fails to identify any specific cause of action to which separate statement facts apply, the Court understands and deems the motion as solely a motion for summary judgment. To the extent that the motion was intended as a motion for summary adjudication, the Court would deny the alternative motion for failing to comply with rule 3.1350(b). (See Homestead Savings v. Superior Court (1986) 179 Cal.App.3d 494, 498.)

“[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) There is no obligation on the opposing party to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element necessary to sustain a judgment in his favor. (Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 468.)

“A defendant … has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant … has met that burden, the burden shifts to the plaintiff … to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff … shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

All of the causes of action of the complaint depend upon the allegations that Sterling gave gifts to Jeffus in contemplation of their marriage and is entitled to the gifts’ return because the marriage did not take place. The Court will therefore focus on the cause of action expressly for the return of the gifts in contemplation of marriage. The return of gifts in contemplation of marriage is governed by Civil Code section 1590, which provides:

“Where either party to a contemplated marriage in this State makes a gift of money or property to the other on the basis or assumption that the marriage will take place, in the event that the donee refuses to enter into the marriage as contemplated or that it is given up by mutual consent, the donor may recover such gift or such part of its value as may, under all of the circumstances of the case, be found by a court or jury to be just.”

Civil Code section 1590 was enacted in 1939. (Stats. 1939, ch. 128, § 3.) As explained in Simonian v. Donoian (1950) 96 Cal.App.2d 259, 262 in the context of a claim for the return of an engagement ring: “The clear meaning of the quoted statute is that the donee of an engagement ring is entitled to retain possession thereof when the marriage contract is breached by the donor without any fault on donee’s part.”

(Note: Contrary to established California standards, the modern approach is that gifts in contemplation of marriage are generally returnable when the marriage does not take place regardless of whose fault caused the marriage not to take place. (Rest.3d Property, Wills and Other Donative Transfers, § 6.2 & com. m [“This Restatement takes the position that a gift of an engagement ring in contemplation of marriage is implicitly conditioned on the wedding taking place. The donor of such a gift has the right to have the ring returned if the marriage is canceled, regardless of whether there was fault in terminating the engagement or who formally broke the engagement. … [¶] There are two competing rules, both rejected in this Restatement. One is called the fault rule. Under that rule, the donor’s right to have the ring returned depends on which party was at fault in breaking the engagement. This rule is rejected for essentially the same reasons that have led to the adoption of no-fault divorce. A fault rule would inevitably invite acrimony and encourage each party to blame the other. The concept of fault is itself subject to varying definitions. In a particular case, fault may not exist or may only be slight.”].) As demonstrated below, the existing California standard leads to the not-so-nostalgic litigation of fault in the ending of a relationship that was eliminated from dissolution proceedings in 1969. (See In re Marriage of Walton (1972) 28 Cal.App.3d 108, 119.) Whether or not a no-fault rule in the gift context better fits the modern California approach to family law, it must be left to higher courts or the Legislature to address any potential changes to the existing standard. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.))

“[A] moving defendant now has two means by which to shift the burden of proof … to the plaintiff to produce evidence creating a triable issue of fact. The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] Alternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff’s cause of action. [Citation.]” (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

Under section 1590, Sterling (the donor) must show, among other things, that Jeffus (the donee) refused to enter into the marriage as contemplated or that the marriage was given up by mutual consent. In order to shift the burden using the first alternative means, “[t]he defendant must show that the plaintiff does not possess needed evidence, because otherwise the plaintiff might be able to establish the elements of the cause of action; the defendant must also show that the plaintiff cannot reasonably obtain needed evidence ….” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 854.) In the context of this motion, Jeffus must show that Sterling neither possesses such evidence nor can reasonably obtain such evidence. Jeffus fails to make such a showing. Separate statement fact 25 is that Sterling’s position is that the breaking of the engagement was mutual which is supported by Sterling’s interrogatory response to the same effect. This separate statement fact provides evidence that Sterling, by his own testimony, possesses or reasonably can acquire evidence of a mutual breakup.

The alternative means for meeting Jeffus’s initial burden on summary judgment is to negate an essential element of the cause of action. Here, Jeffus would need to provide evidence that Jeffus did not refuse to enter into the marriage as contemplated and that the marriage was not given up by mutual consent. This negation is expressed directly in the quotation above from Simonian v. Donoian, supra, 96 Cal.App. 2d at p. 262, that Jeffus (as donee) provide evidence that the marriage contract was breached by Sterling (as donor) “without any fault on donee’s part.” Again, Jeffus fails to meet her initial burden. The focus of the evidence presented by Jeffus is Sterling’s pre-wedding-date infidelity. Proof of pre-wedding infidelity by Sterling does not prove that Jeffus had no fault in the wedding not taking place.

The only separate statement fact approaching this issue of lack of fault by Jeffus is fact 26 that “Sterling does not allege any facts that support a contention that Monica [Jeffus] was unfaithful to him at any point during their engagement.” Even if undisputed, this separate statement fact does not establish a lack of fault on the part of Jeffus. The complaint may be uncertain in its particulars, but the complaint does generally allege that the marriage did not take place as contemplated within the meaning of section 1590. (See Complaint, ¶¶ 17-19.) The evidence cited in support of separate statement fact 26—Sterling’s response to special interrogatory No. 2—alleges infidelity of Monica in three particulars between December 2012 and July 2014. That same evidence includes assertions that Jeffus was jealous of Sterling’s ex-wife and of the time and money Sterling spent on Sterling’s children. The lack of allegations of fact regarding Jeffus’s infidelity during the period of their engagement does not conclusively negate any fault on the part of Jeffus, particularly where, as in separate statement 25, Sterling includes in his reasons for a mutual decision to end the engagement attitudes of Jeffus that did not involve either party’s infidelity.

The Court concludes that Jeffus has not met her initial burden on summary judgment to show entitlement to judgment.

Alternatively, there are triable issues of fact that preclude summary judgment on the issue of fault. Among other things, in opposition to the motion, Sterling presents evidence that in September and October 2015 Jeffus was questioning whether she wanted to be in this relationship with Sterling. (Dunlap depo., p. 41.) At that time Jeffus did not know about Sterling’s infidelity with Lilly Tam. (Jeffus depo., p. 331.) “ ‘[W]e accept as true the facts … in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them.’ [Citation.] And we must ‘“view the evidence in the light most favorable to plaintiff[] …’ and “liberally construe plaintiff[’s] evidentiary submissions and strictly scrutinize defendant[’s] own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff[’s] favor.”’ [Citation.]” (Nazir v. United Airlines, Inc., supra, 178 Cal.App.4th at p. 254.) This evidence taken together provides a competing inference that the parties’ calling off the wedding was mutual rather than the sole fault of Sterling.

Accordingly, Jeffus’s motion for summary judgment will be denied.