Porporato v. Devincenzi

• Decision Date: 30 April 1968
• Citation: 68 Cal.Rptr. 210,261 Cal.App.2d 670
• Court: California Court of Appeals Court of Appeals
• Parties: Annie Marie PORPORATO, Plaintiff and Appellant, v. Anita DEVINCENZI, Individually, and as Executrix of the Last Will and Testament of John A. Porporato, Deceased, Defendant and Respondent. Civ. 23789.

Page 210

68 Cal.Rptr. 210

261 Cal.App.2d 670

Annie Marie PORPORATO, Plaintiff and Appellant, v. Anita DEVINCENZI, Individually, and as Executrix of the Last Will and Testament of John A. Porporato, Deceased, Defendant and Respondent.

Civ. 23789.

Court of Appeal, First District, Division 4, California.

April 30, 1968.

Rehearing Denied May 29, 1968.

Hearing Denied June 26, 1968.

Eisner & Titchell, San Francisco, for appellant.

William L. Ferdon, Charles F. Lipman, Chickering & Gregory, San Francisco, Theodore Cicoletti, Andriano, Cicoletti & Andriano, San Francisco, for respondent.

CHRISTIAN, Associate Justice.

Plaintiff appeals from a judgment of dismissal entered when the court sustained a demurrer to her complaint for quasispecific performance of an alleged oral agreement to devise real property. The following narrative takes at face value the material allegations of the amended complaint.

Appellant was the daughter-in-law of John Porporato, decedent; respondent was the residuary beneficiary of decedent's will and devisee of real property located on Marina Boulevard at Webster Street in San Francisco.

Appellant married decedent's son in 1935. The couple moved to San Francisco from Omaha and lived for a year and a half in a flat owned by the decedent. During this period a close and tender relationship developed between appellant and decedent. When decedent decided to build a residence on his Marina property, he also had a second dwelling constructed on the lot for the use of his son and daughter-in-law. Decedent's wife refused to move from North Beach to the Marina dwelling; thereupon decedent asked appellant and his son to move into the main house. They did so, and appellant has lived there ever since.

Appellant's husband entered the Navy in 1942. In 1943 appellant gave birth to a son. During appellant's pregnancy, decedent was a frequent visitor at her residence. Decedent idolized his grandson who greatly resembled the boy's father.

While appellant was visiting her family in Omaha, she received word that her husband had been killed in action. Her family wanted her to remain in Omaha. She believed that it would be better for her to do so as she could resume her nursing career and be near her family. Decedent, however, begged her to return to the Marina Boulevard home and raise her son in San Francisco in order that decedent would have the companionship of his grandson. The relationship with his grandson brought comfort to decedent and eased the burden of his loss. At this time decedent orally promised that if appellant remained in San Francisco, she could continue to reside in the Marina home and he would devise the property to her. Appellant placed great trust in decedent and believed that if she complied with his wishes, he would bequeath the property to her. In reliance on this oral promise appellant did remain in San Francisco. Appellant, living on a small pension, told decedent that she desired to obtain employment to augment her income, and also to qualify for social security benefits. Decedent opposed this idea and told appellant he would like her to remain at home and raise his grandchild. He reiterated his promise that the property would pass to her on his death. Relying on this assurance, appellant did not seek employment. Appellant was thus unable to acquire any savings or to qualify for social security benefits.

Absent decedent's promises to leave her the property, appellant would have settled in Omaha and secured employment there as a nurse. Moreover, once she decided to remain in San Francisco, she relied on decedent's promises to leave her the property and therefore gave up any opportunity for employment.

Contrary to his promises to appellant, decedent left the Marina property to respondent. Thus, it is contended, respondent holds the property for appellant's use and benefit. Appellant prayed judgment that respondent had no right, title or interest in the property and that appellant he declared the owner thereof. She also prayed for an order restraining respondent from disposing of the property.

The trial court sustained a demurrer on the following grounds: (1) no cause of action was stated; (2) the complaint alleges an oral contract to make a will but pleads no facts avoiding the statute of frauds; (3) the facts pleaded do not show estoppel: there is no showing of either unjust enrichment or unconscionable injury; (4) no cause of action for monetary relief is stated because there is no allegation that any claim was made against decedent's estate.

Appellant's claim is that decedent breached his oral agreement to devise her the Marina property. The statute of frauds provides that oral contracts to make a will are unenforceable (Civ.Code, § 1624, subd. 6); but it is contended that the complaint alleges facts sufficient to estop respondent from taking advantage of the statute of frauds.

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.

The following elements are requisite to relief: (1) a contract sufficiently definite and certain in its terms to be enforced (Civ.Code, § 3390, subd. 6; Kennedy v. Bank of America (1965) 237 Cal.App.2d 637, 646, 47 Cal.Rptr. 154; Henderson v. Fisher (1965) 236 Cal.App.2d 468, 473, 46 Cal.Rptr. 173); (2) that the contract was just and reasonable (Civ.Code, § 3391, subd. 2; Henderson v. Fisher, supra); (3) that the plaintiff has performed his side of the bargain (Civ.Code, § 3392; Shive v. Barrow (1948) 88 Cal.App.2d 838, 847, 199 P.2d 693); (4) that the promisor has failed to perform; and (5) that the contract was supported by adequate consideration.

As in all cases which invoke equitable powers, the plaintiff must show (6) that her remedy at law is inadequate. (Henderson v. Fisher, supra, 236 Cal.App.2d 468, 473--474, 46 Cal.Rptr. 173; Zellner v. Wassman (1920) 184 Cal. 80, 84, 193 P. 84 (inadequacy of legal remedy is the 'keystone of equitable jurisdiction').)

If specific performance is sought, the foregoing elements must be pleaded whether the contract sued upon is written (Henderson v. Fisher, supra, 236 Cal.App.2d 468, 470, 473, 46 Cal.Rptr. 173) or oral (Kennedy v. Bank of America, supra, 237 Cal.App.2d 637, 646, 47 Cal.Rptr. 154). Where the contract was oral as is alleged here, the complaint must also allege (7) that the defendant is estopped from reliance upon the statute of frauds because failure to enforce the contract would result in either unconscionable injury to the plaintiff or unjust enrichment of the defendant. (Estate of Baglione (1966) 65 Cal.2d 192, 197--198, 53 Cal.Rptr. 139, 417 P.2d 683; Day v. Greene (1963) 59 Cal.2d 404, 410--411, 29 Cal.Rptr. 785, 380 P.2d 385, 94 A.L.R.2d 802; Monarco v. Lo Greco (1950) 35 Cal.2d 621, 623--624, 220 P.2d 737.)

The complaint unquestionably alleges the first four elements. Turning to the adequacy of the consideration, appellant alleged that the decedent promised to permit her to occupy a portion of the Marina property, and devise the property to her, if she would comply with his request to remain there and raise her child near decedent. In exchange for the promise, 'she agreed to * * * remain in San Francisco.'

Thus, the consideration she exchanged for the promise now sued upon was her agreement--in 1945--to do as the decedent asked. The proper time for testing the adequacy of consideration is as of the formation of the contract, and the court may consider 'such factors as the relationship of the parties, their friendship, love, affection, and regard for each other, and the object to be obtained by the contract.' (Henderson v. Fisher, supra, 236 Cal.App.2d 468, 474, 46 Cal.Rptr. 173, 178.) Appellant's promise was exchanged for the decedent's: and in a bilateral contract 'Mutual promises are concurrent considerations, * * *.' (Papadakos v. Soares (1918) 177 Cal. 411, 412, 170 P. 1114.) Her agreement to raise her son near the decedent was manifestly a 'benefit conferred, or agreed to be conferred, upon the promisor * * * to which the promisor (was) not lawfully entitled' and as such was a good consideration for the decedent's promise to her. (Civ.Code, § 1605.)

It is also sufficiently alleged that appellant performed the contract she seeks to enforce. (Civ.Code, § 3392; Shive v. Barrow, supra, 88 Cal.App.2d 838, 847, 199 P.2d 693.) In the typical quasi-specific performance case, personal services were bargained for and rendered as the consideration for the promise sued upon. When enforcement of the promise is sought, quasispecific performance relief may be denied because the services rendered were adequately compensable in money. ¹ In other cases, where a money payment would not adequately compensate for the services, relief has been granted. ² These cases have fallen into one category or the other depending upon whether the plaintiff has shown the inadequacy of legal remedy which is requisite to equitable relief. But 'services' in a menial or other wage-compensable sense are not a Sine qua non of the consideration which will support a contract to bequeath or devise property. Quasi-specific performance of such a contract has been granted where the promiseeplaintiff had agreed to and did 'live near' the promisor 'and furnish her with companionship' without performing services as such (Jones v. Clark, supra, 19 Cal.2d 156, 159, 119 P.2d 731); and again where the promisor, although in his last illness, 'desired none of the usual services of a nurse or housekeeper' and received from the promisee only 'comfort, care and consolation.' (Walker v. Calloway, supra, 99 Cal.App.2d 675, 682, 222 P.2d 455, 460.)

The first question, then,...