Cochran v. Cochran

• Citation: 56 Cal.App.4th 1115,66 Cal.Rptr.2d 337
• Decision Date: 14 July 1997
• Docket Number: No. B097156,B097156
• Court: California Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 5614, 97 Daily Journal D.A.R. 8995 Patricia A. COCHRAN, Plaintiff and Appellant, v. Johnnie L. COCHRAN, Jr., Defendant and Respondent.

Page 337

66 Cal.Rptr.2d 337

56 Cal.App.4th 1115, 97 Cal. Daily Op. Serv. 5614,

97 Daily Journal D.A.R. 8995

Patricia A. COCHRAN, Plaintiff and Appellant, v. Johnnie L. COCHRAN, Jr., Defendant and Respondent.

No. B097156.

Court of Appeal, Second District, Division 5, California.

July 14, 1997.

Rehearing Denied Aug. 7, 1997. ^*

As Modified Aug. 12, 1997.

Certified for Partial Publication. ^**

Review Denied Oct. 15, 1997.

Tanke & Willemsen, Gary L. Simms and Tony J. Tanke, Belmont, for Plaintiff and Appellant.

Fogel, Feldman, Ostrov, Ringler & Klevens, Larry R. Feldman and Leighanne Lake, Santa Monica, for Defendant and Respondent.

GODOY PEREZ, Associate Justice.

Plaintiff Patricia Ann Cochran appeals from the order dismissing her complaint against Johnnie L. Cochran, Jr. after his demurrers were sustained by the trial court. For the reasons set forth below, we reverse in part and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

Plaintiff and appellant Patricia Ann Cochran ("appellant") sued defendant and respondent Johnnie L. Cochran, Jr. ("respondent") in March 1995 for breach of an alleged 1983 Marvin ¹ agreement for her lifetime support. Respondent does not dispute that appellant properly alleged the elements of such an agreement and the main issue on appeal is whether appellant's cause of action for breach of the 1983 agreement is barred by the statute of limitations. ²

Appellant's operative first amended complaint alleged that she and respondent began a relationship in the mid-1960s during which they had a child together and, though unmarried, lived together as husband and wife for many years. She legally changed her surname to match respondent's. During this time, respondent allegedly promised that property acquired during the relationship belonged to him and appellant equally and promised appellant lifetime support. ³ In October 1983, appellant and respondent entered an agreement which settled their rights as to property acquired up to that point. At the same time, respondent again promised to support appellant for the rest of her life. In 1984, appellant ratified his agreement to share equally all property acquired during the relationship.

They lived together until 1986, when respondent told appellant he had married another woman. Even though respondent moved out to live with his wife, he continued to support appellant financially until February 1995. Respondent continued his relationship with appellant and during those years, through both words and conduct, ratified or renewed his promises regarding support and property acquisition. Appellant quit her job in 1991 at appellant's request, based on his promise of continued support.

Appellant's complaint was filed one month after respondent allegedly stopped supporting her. The first amended complaint included seven causes of action: (1) breach of contract; (2) and (3) for a constructive trust on properties acquired after the 1983 settlement agreement; (4) for declaratory relief; (5) for fraud, on the ground that respondent's promises were made without the intent to perform; (6) for intentional infliction of emotional distress; and (7) for negligent infliction of emotional distress.

Respondent demurred, contending that any breach of the alleged 1983 Marvin agreement occurred when he married and moved out in 1986, with the statute of limitations therefore barring any claims based on that agreement. Any agreements made after 1986 were against public policy and therefore unenforceable because he was married to another and no longer living with appellant. ⁴ Respondent also moved to strike numerous portions of the first amended complaint, in part on the ground that they were not relevant.

On June 8, 1995, the court sustained without leave to amend the demurrers to the first, third, fifth and seventh causes of action on the ground that they accrued when respondent married and moved out in 1986 and were therefore barred by the statute of limitations. The demurrer to appellant's second cause of action for constructive trust was sustained with leave to amend, so that appellant could make more specific allegations concerning any property which she contended was jointly acquired between the signing of the 1983 property settlement and respondent's 1986 marriage. The demurrer to the fourth cause of action for declaratory relief was sustained with leave to amend, but only to the extent appellant could plead more specifically in regard to the second cause of action. The demurrer to the sixth cause of action was also sustained with leave to amend so appellant could plead more specific facts which did not relate to her alleged breach of a Marvin agreement. The motion to strike was granted without leave to amend as to numerous paragraphs of the first amended complaint.

Appellant did not amend her complaint. On appeal, she has expressly abandoned the second, third and seventh causes of action. She has also raised no issues concerning the alleged agreement to share equally in property acquired by the parties and we deem her property claims waived. (Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 624, 12 Cal.Rptr.2d 741.) The only issues on appeal concern the alleged agreement for lifetime support as it relates to appellant's first cause of action for breach of contract, fourth cause of action for declaratory relief, fifth cause of action for fraud and sixth cause of action for intentional infliction of emotional distress.

STANDARD OF REVIEW

In reviewing a judgment of dismissal after a demurrer is sustained without leave to amend, we must assume the truth of all facts properly pleaded by the plaintiff-appellant. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.) Regardless of the label attached to the cause of action, we must examine the complaint's factual allegations to determine whether they state a cause of action on any available legal theory. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908, 274 Cal.Rptr. 186.) Reversible error is committed if the facts alleged show entitlement to relief under any possible legal theory. (Platt v. Coldwell Banker Residential Real Estate Services (1990) 217 Cal.App.3d 1439, 1444, 266 Cal.Rptr. 601.)

We will not, however, assume the truth of contentions, deductions or conclusions of fact or law (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125, 271 Cal.Rptr. 146, 793 P.2d 479), and may disregard allegations that are contrary to the law or to a fact of which judicial notice may be taken. (Fundin v. Chicago Pneumatic Tool Co. (1984) 152 Cal.App.3d 951, 955, 199 Cal.Rptr. 789.) When a ground for objection to a complaint, such as the statute of limitations, appears on its face or from matters of which the court may or must take judicial notice, a demurrer on that ground is proper. (Code Civ. Proc., § 430.30, subd. (a); Baillargeon v. Department of Water & Power (1977) 69 Cal.App.3d 670, 675, 138 Cal.Rptr. 338.) We may take judicial notice of the records of a California court. (Evid.Code, § 452, subd. (d).) We must take judicial notice of this state's decisional and statutory law. (Evid.Code, § 451, subd. (a).)

DISCUSSION

1. Statute of Limitations For "Marvin" Claims

The Marvin court, clarifying and expanding on earlier decisions, held that unmarried adults who live together are free under general principles of contract law to make agreements concerning their property and earnings. This includes express or implied contracts by one party to support the other or to share equally in all property which they acquired. (Marvin, supra, 18 Cal.3d at pp. 665, 670-671, 674-675, 684, 134 Cal.Rptr. 815, 557 P.2d 106.) Marvin actions based on an express oral agreement are governed by the two-year statute of limitations applicable to non-written contracts. (Code Civ. Proc., § 339, subd. (1); Kurokawa v. Blum (1988) 199 Cal.App.3d 976, 989, 245 Cal.Rptr. 463, hereafter "Kurokawa.")

A cause of action for breach of contract accrues at the time of breach, which then starts the limitations period running. (Whorton v. Dillingham (1988) 202 Cal.App.3d 447, 456, 248 Cal.Rptr. 405, hereafter "Whorton.") Respondent contends, and the trial court agreed, that the alleged Marvin agreement was breached in 1986, when respondent moved out and married another woman. It seems logical however, that if respondent agreed to support appellant for life, then did so for nine years after leaving her to marry another, he did not breach his contract until his support payments stopped. Respondent's reliance on seemingly applicable precedent is misplaced.

His thesis rests on Estate of Fincher (1981) 119 Cal.App.3d 343, 174 Cal.Rptr. 18 (hereafter "Fincher "), and the few decisions which have cited it. The Fincher court held that a woman's cause of action for breach of a Marvin agreement accrued when the relationship ended. (Id. at p. 352, 174 Cal.Rptr. 18.) The Whorton and Kurokawa courts relied on Fincher and also held that a cause of action accrues and the statute of limitations begins to run when one partner ends the relationship. (Whorton, supra, 202 Cal.App.3d at p. 456, 248 Cal.Rptr. 405 ["A Marvin-type contract is breached when one partner terminates the relationship."]; Kurokawa, supra, 199 Cal.App.3d at p. 989, 245 Cal.Rptr. 463["[W]hen the parties separated ..., any cause of action ... based upon a [Marvin ] theory of contract ... accrued at that point."].)

When viewed in isolation, this language seems to support the trial court's ruling. As Harris v. Superior Court (1992) 3 Cal.App.4th 661, 4 Cal.Rptr.2d 564, makes clear, however, the language of an opinion must be construed in light of the facts of the particular case, an opinion's authority is no broader than its factual setting and the parties cannot rely on a rule announced in a factually dissimilar case. (Id. at pp. 665-666, 4 Cal.Rptr.2d 564.) Parties and counsel were warned to take care that they do not take a...