Zoppa v. Zoppa

• Decision Date: 05 February 2001
• Docket Number: No. A090260.,A090260.
• Citation: 103 Cal.Rptr.2d 901,86 Cal.App.4th 1144
• Parties: Celeste DELLA ZOPPA, Plaintiff and Appellant, v. Joseph DELLA ZOPPA, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

103 Cal.Rptr.2d 901

86 Cal.App.4th 1144

Celeste DELLA ZOPPA, Plaintiff and Appellant, v. Joseph DELLA ZOPPA, Defendant and Respondent.

No. A090260.

Court of Appeal, First District, Division 2.

February 5, 2001.

Law Offices of Brian D. Thiessen, Brian D. Thiessen, Alamo; Filice Law Offices and Gerald W. Filice, Sacramento, for Appellant.

Fershko, Lewis & Blevans, LLP, Robert E. Blevans and James R. Rose, San Jose, for Respondent.

HAERLE, J.

I. INTRODUCTION

This is an appeal from a summary judgment entered below in favor of the defendant and respondent in a Marvin-type of action.¹ The trial court held that the Marvin doctrine did not apply because, notwithstanding the fact that the parties cohabited and, indeed, later married, the alleged agreement regarding respondent's property also anticipated appellant "bearing a child." The court concluded that the agreement thus necessarily involved sexual intercourse and was therefore unenforceable because "dependent upon a meretricious consideration." We reverse.

II. FACTUAL AND PROCEDURAL BACKGROUND

Joseph Della Zoppa (hereafter Joseph)² was a relatively wealthy 48-year-old man who, in 1988, was engaged in the garbage business in Solano and Contra Costa Counties. In that year, he met Celeste Concannon (later Celeste Della Zoppa, hereafter Celeste) who, at that time, was 22 years old. Both were single at the time; Joseph had been married twice before, but both marriages had ended in divorce and neither had produced any children.

Starting, apparently, in the fall of 1988, the couple began dating regularly. Among other things, they occasionally traveled together and, according to Celeste, they "spent time together overnight a lot at his place...." During this year, Joseph importuned Celeste to move in with him permanently. She initially resisted, asserting that she "did not want to move in unless we were going to have a long range permanent husband and wife type of relationship." However, in October or November 1989, she did in fact move into Joseph's home and, in her words, the two "started living together by mutual agreement as Husband and Wife."

This included, Celeste set forth to the trial court, "spending almost all of our time with each other, acquiring things together, entertaining, getting rid of things together, having the freedom to make decisions for the both of us, making plans for traveling together, discussing (and to the extent we could do so, implementing) hopes and dreams and fears and future plans, making joint decisions on a host of different things, etc. [¶] ... Instead of just being a couple who dated, did not concentrate on the strengthening of each other, and had separate lives, we merged our lives, our activities, our plans, our hopes, our dreams, our work, our energies for the joint benefit of each of us and, more importantly, for our future together. [¶] We agreed that we were thereafter building our future together—personal, family, social contacts, community activities, our joint assets, debts and everything else was thereafter being done as husband and wife—not for Joe, not for Celeste, but for our joint benefit."

Included in Celeste's agreed-upon responsibilities were such matters as preparing meals, managing the home generally, arranging for remodeling, including arranging for new carpeting, furniture, artwork and appliances in, and painting of, the home. Joseph, in addition to his employment, generally managed the investments of the couple.

Celeste alleged that, in consideration of her moving in and commencing "living together ... as Husband and Wife," it was agreed between them, and understood, that "all property acquired [with either party's skills, efforts, labor or earnings] were to be treated as their joint property." She added, in answers to interrogatories: "As mentioned above, Joe and I in everything we did merged our skills, efforts, labor and earnings as our joint property. There was no reason for Joe to transfer title of any properties to my name as I trusted him completely to do what he said, that is to manage and control the assets we had for our joint benefit. It did not matter to Joe or to me in whose name an asset was held, we were committing our entire beings, our fiber, our energies, our assets, our time, our talents, to build our future together. [H] ... [11] ... We just did what we had said we would do and built a life together and this included the assets that were being acquired during that period, primarily by and through Joe's actions."

An integral part of the basic agreement, Celeste acknowledged in the trial court, was a commitment to try to "have a family." "Joe wanted me to get pregnant and have his children, to stop using birth control." And, indeed, they did: Celeste became pregnant in, apparently, late 1990; their first child, Joseph, Jr., was born in August 1991. During her pregnancy, she started using the surname Della Zoppa at certain times. The parties married in April 1992 and two more children, twin girls, were born to them in November 1996. Celeste apparently filed a dissolution action in January 1998 and, in the course of that action, Joseph asserted various separate property claims. As a result, Celeste filed this Marvin-style complaint in September 1998.

The complaint alleged causes of action for, among other things, a constructive trust and a resulting trust covering all of Joseph's assets and an adjudication that Celeste held equitable title to an undivided 50% ownership interest in all of the real and personal property accumulated by the couple.

Joseph filed a general demurrer and a motion to strike certain portions of the complaint. He argued, in support of both, that the parties' subsequent marriage vitiated any Marvin-type claim, and that any and all property accumulated during the marriage was subject to distribution under, and only under, the Family Law Act. The trial court denied Joseph's general demurrer, but granted his motion to strike. As a result, this action became limited to income and properties owned and received before the parties' marriage.

In November 1999, Joseph filed a motion for summary judgment arguing that, since the alleged Marvin agreement included the bearing of children, it was based upon an illicit, meretricious, sexual relationship, rendering the consideration unlawful under Civil Code section 1667.

Celeste, naturally, opposed the motion and also moved for leave to amend her complaint. The trial court denied the latter motion and granted Joseph's motion for summary judgment. It held: "The agreement between the parties to share ownership of property in exchange for bearing a child is an unenforceable contract. It is dependent upon meretricious consideration, as it is based upon sexual conduct, [¶] In the alternative, if it is based upon a promise to bear children, it is an unenforceable promise. [Citation.] As stated in Marvin[, supra,] 18 Cal.3d 660 [134 Cal.Rptr. 815, 557 P.2d 106], a contract between nonmarital partners is invalid only if sexual acts form an inseparable part of the consideration for this agreement. The undisputed evidence in this case shows that sexual conduct does indeed form an inseparable part of the consideration for the agreement."

The trial court thereafter entered judgment in favor of Joseph and, later, denied motions for reconsideration and for a new trial. A timely notice of appeal followed.

III. DISCUSSION

"Summary judgment is proper when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. [Citation.]" (Barkley v. City of Blue Lake (1996) 47 Cal.App.4th 309, 313, 54 Cal.Rptr.2d 679.) "Since a summary judgment motion raises only questions of law regarding the construction and effect of the supporting and opposing papers, we independently review them on appeal, applying the same three-step analysis required of the trial court." (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064, 225 Cal.Rptr. 203.) We must identify the issues framed by the pleadings, determine whether the moving party has negated the opponent's claims, and determine whether the opposition has demonstrated the existence of a triable, material factual issue. (Id. at pp. 1064-1065, 225 Cal.Rptr. 203.) "On appeal our review is limited to the facts shown in the documents presented to the trial judge in making our independent determination of their construction and effect as a matter of law." (Bonus-Bilt, Inc. v. United Grocers, Ltd. (1982) 136 Cal.App.3d 429, 442, 186 Cal. Rptr. 357.)

As noted above, the trial court granted summary judgment on two closely-related bases. First, it ruled that the alleged agreement between Joseph and Celeste was "an unenforceable contract" because it was dependent upon "meretricious consideration, as it is based upon sexual conduct." Alternatively, the court said, if the consideration was "a promise to bear children, it is an unenforceable promise" because "sexual conduct does indeed form an inseparable part of the consideration for the agreement." In addition to Marvin, the court cited in support of this conclusion Hill v. Estate of Westbrook (1950) 95 Cal. App.2d 599, 213 P.2d 727 (Hill) and excerpts from the deposition of Celeste that were filed in support of Joseph's motion for summary judgment.

We profoundly disagree with the trial court's conclusion.

The starting point is, of course, our Supreme Court's landmark holding in Marvin which, as almost all knowledgeable Californians know, held that "nonmarital partners" may enter into an enforceable agreement to share property. It stated: "[W]e base our opinion on the principle that adults who voluntarily live together and engage in sexual relations are nonetheless as competent as any other persons to contract respecting their earnings and property rights.... So long as the agreement does not rest upon illicit meretricious consideration, the parties may order their economic affairs as t...