Lombardo v. Santa Monica Young Men's Christian Assn.

• Decision Date: 21 June 1985
• Citation: 169 Cal.App.3d 529,215 Cal.Rptr. 224
• Court: California Court of Appeals Court of Appeals
• Parties: Ione Dominique LOMBARDO, Plaintiff, Cross-Defendant and Appellant, v. SANTA MONICA YOUNG MEN'S CHRISTIAN ASSOCIATION, a California corporation, Defendant, Cross-Complainant and Respondent. B009237.

Page 224

215 Cal.Rptr. 224

169 Cal.App.3d 529

Ione Dominique LOMBARDO, Plaintiff, Cross-Defendant and Appellant, v. SANTA MONICA YOUNG MEN'S CHRISTIAN ASSOCIATION, a California corporation, Defendant, Cross-Complainant and Respondent.

B009237.

Court of Appeal, Second District, Division 7, California.

June 21, 1985.

[169 Cal.App.3d 535] Joseph Edward Hitzman, Woodland Hills, for plaintiff, cross-defendant and appellant.

Levin & Freedman and Marvin E. Levin, Santa Monica, for defendant, cross-complainant and respondent.

LILLIE, Presiding Justice.

Plaintiff and cross-defendant Ione Lombardo appeals from summary judgment entered

against her and in favor of defendant and cross-complainant Santa Monica Young Men's Christian Association (Y.M.C.A.). ¹

PROCEEDINGS IN TRIAL COURT

Only the third cause of action of the complaint was directed against defendant Y.M.C.A. ² That cause of action (imposition of constructive trust on property devised by will) alleged: In July 1982 Clara Hollowell died leaving a will executed in 1979 wherein she devised to defendant real property at 938 Second Street, Santa Monica (the property). Plaintiff filed in the probate proceeding a creditor's claim for $222,770 which included $840 as rent for the property which the executor of the estate wrongfully collected from plaintiff in view of the decedent's promise to plaintiff that she could occupy an apartment on the property rent-free for so long as she chose; and specific performance of decedent's promise to devise the property to plaintiff, or alternatively damages of $200,000 (the estimated value of the property). The executor rejected the claim. From September 21, 1981 to June 8, 1982, at the express request of the decedent and upon her express promise to pay the sums and do the other things described in the claim, plaintiff performed the services and did the things described in the claim. Prior to November 10, 1981, plaintiff and decedent entered into an oral contract "MEMORIALIZED IN PART" BY A WRITING DATED NOVEMBEr 10, 1981 and signed by decedent. By the terms of said contract plaintiff agreed to supply personal services to decedent and decedent agreed to devise the property to plaintiff. The contract "was just and reasonable as to decedent" and the "consideration accruing to decedent was adequate" in that she desired to reward plaintiff for past services, spiritual assistance, help and friendship and had need of the future personal services plaintiff agreed to supply. In reliance on the contract plaintiff performed numerous and varied services for decedent from September 21, 1981 to June 8, 1982, and thus has performed all conditions, covenants and provisions required of her by the contract. Plaintiff has no adequate remedy at law in that the writing of November 10, 1981 does not qualify as a valid will. Attached to the complaint, and incorporated therein by reference, were copies of the writing of November 10, 1981 and of a writing dated October 1981 which was the basis of plaintiff's claim of the right to reside rent-free in the property.

Defendant answered the complaint and cross-complained for declaratory relief. The cross-complaint sought a declaration that plaintiff and decedent did not enter into an oral contract or a written contract whereby decedent agreed to devise the property to plaintiff; that plaintiff is not the beneficiary of a constructive trust on the property; and that the writing of October 1981 did not give plaintiff any possessory right to occupy the property.

After plaintiff answered the cross-complaint defendant moved for summary judgment in its favor on the complaint and for an order determining that the following issues in the cross-complaint are without substantial controversy: plaintiff's claim of the right to live rent-free on the property after decedent's death is barred by her failure to file a creditor's claim in decedent's estate asserting that right; plaintiff is not entitled to the equitable remedy of declaratory relief in her favor because the equities favor defendant. The motion was granted. Judgment was entered ordering that plaintiff take nothing as against defendant;

that plaintiff is not entitled to a declaration that a constructive trust be imposed for her benefit against the property; and that plaintiff has not acquired a possessory right to occupy the property rent-free for any period following the death of decedent.

DISCUSSION

I

In its answer to the complaint defendant alleged, as an affirmative defense, that the alleged oral agreement between plaintiff and the decedent is invalid under the statute of frauds. Defendant also made that argument in support of its motion for summary judgment.

At the time the oral contract to devise property allegedly was made, Civil Code section 1624 (statute of frauds) provided in pertinent part: "The following contracts are invalid, unless the same, or some note or memorandum thereof, is in writing and subscribed by the party to be charged or by his agent: ... [p] 6. An agreement which by its terms is not to be performed during the lifetime of the promisor, or an agreement to devise or bequeath any property, or to make any provision for any person by will; ...." ³ (Emphasis added.) The statute of frauds does not apply where the plaintiff is entitled to the imposition of a constructive trust, for such a trust arises by operation of law. (Briggs v. Nilson (1964) 226 Cal.App.2d 342, 346, 38 Cal.Rptr. 68.)

The purpose of the within constructive trust action is to enforce an oral contract to devise property, in equity, by quasi-specific performance. (See Dini v. Dini (1961) 188 Cal.App.2d 506, 513, 10 Cal.Rptr. 570.) "The relief which may be granted in an action for quasi-specific performance of a contract to bequeath or devise property is the imposition of a constructive trust upon the property in favor of the promisee-plaintiff. It differs from the relief which would be available in a traditional specific performance action, and the remedy bears a different name, because the court cannot compel the making of a will." (Porporato v. Devincenzi (1968) 261 Cal.App.2d 670, 674, 68 Cal.Rptr. 210.) The elements requisite to relief in such an action are: (1) a contract sufficiently definite in its terms to be enforced; (2) that the contract was just and reasonable; (3) that plaintiff performed his side of the bargain; (4) that the promisor failed to perform; (5) that the contract was supported by adequate consideration; (6) that the remedy at law is inadequate; and (7) where the contract was oral, the complaint also must allege that defendant is estopped to rely on the statute of frauds because failure to enforce the contract would result in either unconscionable injury to plaintiff or the unjust enrichment of defendant. (Porporato v. Devincenzi, supra, 261 Cal.App.2d at pp. 674-675, 68 Cal.Rptr. 210.) The complaint in the present action did not allege, either expressly or by implication from facts which were alleged, that defendant is estopped to rely on the statute of frauds to establish the invalidity of the alleged oral contract whereby decedent agreed to devise the property to plaintiff. Accordingly, the complaint fails to state a cause of action for imposition of a constructive trust on the property effecting quasi-specific performance of the contract.

Failure to state a cause of action is a proper ground for granting summary judgment ⁴ since "a motion by a defendant under section 437c of the Code of Civil Procedure necessarily includes a test of the sufficiency The complaint alleged that the oral contract whereby decedent agreed to devise the property to plaintiff was "memorialized in part" by a writing dated November 10, 1981 and signed by decedent. Thus, plaintiff apparently relies on a written contract, as well as an oral contract, as the basis for imposition of a constructive trust. The writing of November 10, 1981 reads: ⁵

                of the complaint....  Motions for summary judgment in such situations have otherwise been allowed as being in legal effect motions for judgment on the pleadings.  [Citation.]"  (C.L. Smith Co. v. Roger Ducharme, Inc.  (1977) 65 Cal.App.3d 735, 745, 135 Cal.Rptr. 483;  original emphasis.  See also Slaughter v. Legal Process & Courier Service (1984) 162 Cal.App.3d 1236, 1245-1246, 209 Cal.Rptr. 189;  Stance v. Jackson (1984) 155 Cal.App.3d 838, 844, 202 Cal.Rptr. 480;  Barnett v. Delta Lines, Inc.  (1982) 137 Cal.App.3d 674, 682, 187 Cal.Rptr. 219;  Brown v. Critchfield (1980) 100 Cal.App.3d 858, 862, fn. 1, 161 Cal.Rptr. 342;  Bowden v. Robinson (1977) 67 Cal.App.3d 705, 710, 136 Cal.Rptr. 871.)   Inasmuch as summary judgment on the complaint is sustainable on that ground, we need not determine whether a triable issue of fact exists regarding plaintiff's right to the imposition of a constructive trust based on the alleged oral agreement.  (See Slaughter v. Legal Process & Courier Service, supra, 162 Cal.App.3d at pp. 1244-1245, 209 Cal.Rptr. 189.)
                

"Nov 10, 81

"To whom it may concern:

"In gratitude to Ione Dominique Lombardo for her dear friendship, love & many services rendered for my comfort & welfare it is my sincere desire that she remain in house at 938 2nd St. Upon my death I bequeath to her the said property at 938 2nd St. & an allowance to feed the pets.

/s/ Clara C. Hollowell"

In order to satisfy the statute of frauds a written note or memorandum of a contract must state with reasonable certainty (1) each party to the contract, (2) the subject matter to which the contract relates, and (3) the terms and conditions of all promises constituting the contract and by whom and to whom the promises are made. (Ellis v. Klaff (1950) 96 Cal.App.2d 471, 476-477, 216 P.2d 15; 1 Witkin, Summary of Cal.Law (8th ed. 1973) Contracts, § 206, p. 187.) The writing of November 10, 1981 fails to meet the third requirement inasmuch as it contains no promise by either the decedent or plaintiff.

Where a writing discloses no...