Opinion
E077018
08-05-2022
WILLIAM PATRICK MURPHY, Plaintiff and Appellant, v. LINDA CHRISTINA WIESE, Defendant and Respondent.
Anderholt Evans and Robert James Evans for Plaintiff and Appellant. Law Offices of Paul M. Stoddard and Paul M. Stoddard for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. PSC1905041 Kira L. Klatchko, Judge. Reversed.
Anderholt Evans and Robert James Evans for Plaintiff and Appellant.
Law Offices of Paul M. Stoddard and Paul M. Stoddard for Defendant and Respondent.
OPINION
MILLER J.
Plaintiff and appellant William Patrick Murphy appeals the grant of the demurrer filed by defendant and respondent Linda Christina Wiese, and dismissal of his third amended complaint (TAC) without leave to amend.
Murphy and Wiese began a romantic relationship in 2011 and got engaged. Murphy alleged that he and Wiese had an oral agreement to buy a house together (the property). It was agreed that Murphy was to provide the down payment, escrow costs and closing fees, and Wiese would obtain a mortgage and put the house in her name based on her good credit. Murphy initially claimed that upon close of escrow, Wiese would put his name on the title of the property. Wiese never put Murphy's name on the title for the property and they eventually broke up.
Murphy, appearing in propria persona, filed several complaints beginning in 2019 alleging breach of the oral contract along with other causes of action. Wiese filed a demurrer alleging that escrow closed in November 2012. As such, even if she and Murphy had an oral agreement, which she disputed, the statute of limitations to file a lawsuit claiming breach of the oral agreement had long since passed. She also claimed the oral agreement for real property violated the statute of frauds. Murphy hired counsel who filed the TAC, which included additional facts that Murphy and Wiese had orally agreed that before Murphy's name could be put on the title, he had to complete several agreed-upon tasks and obligations. Murphy completed these tasks in 2018. Murphy's counsel insisted these facts had been recently disclosed, and that based on this additional information, the statute of limitations had not run. The trial court granted Wiese's demurrer to the TAC and dismissed it without leave to amend finding that the TAC was a sham pleading and that the statute of limitations had run.
Murphy contends on appeal that the trial court erred by determining the oral agreement was barred by the statute of frauds. He further contends the trial court erred by finding the statute of limitations applied to bar Murphy's cause of action for breach of oral agreement. Finally, he contends the trial court erred in not permitting him to amend the TAC to add a cause of action for breach of implied contract as set forth in Marvin v. Marvin (1976) 18 Cal.3d 660 (Marvin).
FACTUAL AND PROCEDURAL HISTORY
A. ORIGINAL COMPLAINT, FIRST AND SECOND AMENDED COMPLAINTS
We will discuss the facts presented in each of the complaints as it is relevant to the trial court's findings that the TAC was a "sham pleading." We also note that facts in the respondent's brief which refer to Wiese obtaining a temporary restraining order against Murphy in 2019 because he was physically and emotionally violent against her were not part of the record in the trial court and will be disregarded.
Plaintiff filed his original complaint on July 23, 2019. He represented himself. He alleged one cause of action for breach of contract. He alleged that he and Wiese entered into an oral agreement in December 2011. He provided a statement regarding the oral agreement as follows "That plaintiff and defendant would purchase the . . . property, house and improvements located at 52945 Avenida Herrera, La Quinta, CA 92253 together, that they would co-own it and that both had the right to access and live there. The parties agreed that plaintiff would provide the down payment and pay half of the monthly payments while the defendant would use her credit in order to purchase the property. The parties did purchase the . . . property." Murphy alleged that in June 2019, Wiese changed the locks to the house and refused him access.
Murphy alleged he was entitled to half of the current value of the real property, his expenses in having to relocate and an equitable amount for his loss of use of his home. He was also entitled to compensation for court costs, home improvements and attorney fees.
Before Wiese filed a demurrer, Murphy filed his first amended complaint (FAC) on July 31, 2019. He filed the FAC in propria persona. He alleged causes of action for breach of contract and conversion. He made the same statement as in the original complaint as to the terms of the oral agreement. For the conversion cause of action, he alleged on June 12, 2019, Wiess changed the locks on the house and refused to allow him to retrieve any of his personal belongings.
Wiese filed the operative demurrer to the FAC on May 11, 2020. As to the breach of contract cause of action, Wiese argued that it failed to set forth any facts to support there was a written agreement regarding this real property interest. An oral agreement for real property violated the statute of frauds. Further, there were not sufficient facts alleged to support the second cause of action for conversion as there were no material facts as to what property was converted. Wiese apparently filed a demurrer, which was sustained, and Murphy was given 20 days to amend the causes of action.
On July 17, 2020, Murphy hired legal counsel, Robert J. Evans. Evans sought leave to file a second amended complaint (SAC). It was alleged in the motion that Murphy had retained Evans on June 26, 2020. Evans began researching additional causes of action on June 30, 2020. Evans claimed that had he been hired initially to file the original complaint, he would have alleged causes of action for promissory estoppel, constructive trust and breach of oral contract. After further research and consultation with Murphy, it was determined a cause of action for conversion was not warranted. Allowing the SAC was in the furtherance of justice and would not prejudice Wiese. Evans sought leave from the court to add new and different causes of action.
In support of the motion, Evans presented his own declaration. He averred that Murphy had hired him on June 26, 2020, and that he began researching the matter on June 30, 2020. He believed that a motion for leave to amend was necessary to add new causes of action.
The SAC was attached to the motion for leave to amend. It raised three causes of action for breach of oral contract, promissory estoppel, and constructive trust. It was stated in the facts that Murphy and Wiese had begun an intimate relationship on or about June 16, 2011. In August 2012, they discussed the next steps in their relationship, including getting engaged and purchasing a home together. It was alleged that they got engaged and entered into an oral contract in which it was agreed Murphy would pay the down payment, escrow costs and closing fees, and Wiese would obtain the loan and put the properly in her name "temporarily." It was further alleged, "Plaintiff and Defendant also orally agreed to own the house 50/50 and Plaintiff's name would be added to title after the close of escrow." Wiese obtained a $200,000 loan and Murphy paid over $12,000 in fees and a down payment. Escrow closed on November 21, 2012 Murphy listed numerous improvements to the property that he either "installed and/or purchased" on the property over the years. He listed other sums that were accepted by Wiese that were to be applied to the "Contract from the Property." To date, Wiese had not put Murphy on the title to the property.
As for the breach of oral contract cause of action, Murphy claimed he had paid $59,250 between December 2012 and June 2019, which was a 50 percent share of the property taxes, insurance and mortgage payments. Wiese failed to honor the oral contract by putting his name on the title. He sought damages. For the second cause of action, promissory estoppel, Murphy claimed to have relied on the oral contract in paying the escrow and closing fees, and the down payment on the house. He also paid half of the mortgage and expenses for the house. The third cause of action, constructive trust, alleged that Wiese had no intention of fulfilling her promise to put his name on the title to the property when she entered into the oral agreement with Murphy. Her acts were fraudulent. He alleged the property had a current value of $379,000. He sought half of the value of the property, and attorney's fees and costs. The SAC was filed on August 14, 2020.
Wiese filed a demurrer to the SAC on October 7, 2020. For the first cause of action, Wiese insisted that it was uncertain, violated the statute of frauds, and failed to comply with the statute of limitations for oral agreements. Wiese insisted that the breach of oral contract occurred on November 21, 2012, the close of escrow, when Murphy was not added to the title of the property at that time. Murphy did not take action until their relationship was terminated, which was seven years after the breach. During the seven- year period, Murphy paid "nominal" rent of $750 each month, and made minor repairs to the property, which included a washer and dryer set he purchased for $800.
Wiese denied there was an oral agreement to add Murphy to the title to the property after the close of escrow. Moreover, an oral agreement for an interest in real property violated the statute of frauds. Wiese stated that she purchased the property for $213,000 and Murphy paid "the deposit plus escrow fees." There was no allegation of fraud or unjust enrichment. There was only the oral agreement for an interest in the property by adding his name to the title of the property, a violation of the statute of frauds.
Wiese insisted that pursuant to Civil Code sections 339, subdivision (1), and 335, a suit for breach of an oral agreement had to be brought within two years of the date of the breach. The breach of oral contract claim was barred by the statute of limitations.
Wiese indicated there was nothing that showed such an agreement existed as there was no emails or notes discussing the agreement. Wiese also insisted that once the oral agreement was eliminated and barred, the remaining allegations failed. Wiese argued that a cause of action for promissory estoppel was inconsistent with a breach of contract action based on the same facts. Further, Murphy had failed to allege an unconscionable injury to support estoppel. The constructive trust cause of action would not be successful without the breach of contract cause of action. Further, constructive trust was a remedy, not a cause of action.
Murphy filed opposition to the demurrer to the SAC on October 29, 2020. Murphy insisted that although the statute of frauds was applicable to oral agreements on real property, his actions in possessing the property and making valuable improvements removed the subject matter from the application of the statute of frauds. He insisted he made valuable improvements to the property in reliance on the oral contract.
Murphy also stated for the first time that there were additional terms to the oral contract. He stated that the allegations should have included the additional terms that he was to be placed on title for the property after he got his personal credit improved, completed his five-year electrical education and apprenticeship, and passed his final exam to become recognized as a journeyman in the electrical trade. He alleged that he completed his apprenticeship in June 2017 and passed the exam on December 12, 2018. His credit score "dramatically improved" at that time. Murphy stated that if necessary, he would amend to include the above facts, which moved the time for accrual of the claim for breach of oral contract to on or after December 12, 2018. The initial action was filed on July 23, 2019. It was not barred by the statute of limitations. He also argued that the promissory estoppel and constructive trust causes of action were supported by the allegations in the SAC.
On November 4, 2020, Wiese filed a reply to the opposition to the demurrer to the SAC. Wiese noted that Murphy wanted to amend the SAC to include the additional terms to the oral agreement. This was a concession that the demurrer to the SAC should be granted. Wiese also noted that the promissory estoppel and constructive trust causes of action did not survive demurrer.
The trial court ruled on the SAC without oral argument. The trial court found that Murphy had conceded he did not allege sufficient facts in the SAC, which demonstrated how the statute of frauds was not applicable and that the statute of limitations had not run. The court would grant the demurrer as to the causes of action of breach of oral contract and constructive trust with leave to amend. Further, as for the promissory estoppel cause of action, Murphy had failed to allege a promise other than what was bargained for in the oral contract. This did not support a cause of action for promissory estoppel as the promise must be something other than the bargained-for promise. The trial court granted the demurrer with leave to amend on the promissory estoppel cause of action.
B. THIRD AMENDED COMPLAINT AND DEMURRER
Murphy's counsel filed the TAC on November 30, 2020. He alleged the same three causes of action for breach of oral contract, promissory estoppel and constructive trust. The TAC was nearly identical to the SAC. Murphy added the additional facts that he was to be placed on title for the property after he got his personal credit improved, completed his five-year electrical education and apprenticeship, and passed his final exam to become recognized as a journeyman in the electrical trade. He alleged that he completed his apprenticeship in June 2017, and passed the exam on December 12, 2018. His credit score "dramatically improved" at this time. Despite completing the requirements of the oral agreement, Wiese continued to refuse to put him on title to the property.
Murphy listed the improvements to the property which he claimed to either have "installed and/or purchased." These amounted to over $12,000 in improvements.
For the promissory estoppel cause of action, he alleged he relied on the promise of Wiese to put him on title to the property in treating the property, as though he was a homeowner and not a renter. He made numerous improvements to the property. He made these improvements based solely on the promise by Wiese that he would become half owner of the property.
Murphy alleged for the constructive trust cause of action the same facts as in the oral breach of contract cause of action. He insisted that Wiese made him the promise to put him on title to the property in order to defraud him into paying the fees and down payment, and to pay half of the mortgage. By virtue of Wiese's fraudulent acts, she held the property as a constructive trustee for Murphy's benefit. He estimated the property value as $379,000.
On January 4, 2021, Wiese filed a demurrer to the TAC. Wiese again alleged that the first cause of action for breach of oral contract failed to state facts sufficient to state a cause of action as the oral agreement for property violated the statute of frauds, and the cause of action failed to comply with the statute of limitations for enforcement of an oral agreement. Wiese again argued for the second cause of action for promissory estoppel that Murphy failed to allege facts showing an unconscionable injury and the third cause of action was a remedy and not a cause of action, and even it was, it failed since the oral contract was eliminated.
Wiese contended that in the TAC, Murphy attempted to avoid the statute of limitations by providing new terms that he claimed were part of the oral contract. Wiese insisted the trial court should disregard the contradictory allegations and find that the statute of limitations had run. Further, the TAC did not provide any facts to support that the oral agreement did not violate the statute of frauds. Wiese argued that the TAC was "merely a sham" as it alleged new facts to avoid the statute of limitations and there was no explanation for the change of facts from the prior complaints. The prior complaints all alleged that the breach of the oral contract occurred on November 21, 2012, when escrow closed.
Wiese further argued that Murphy suffered no damages and actually benefitted from improving his credit and completing his education. There were not sufficient facts presented to support the promissory estoppel cause of action. Further, the statute of frauds applied as there was no evidence of a written agreement. Wiese insisted the TAC should be dismissed as the claims could not be brought as the statute of limitations had expired. The demurrer to the TAC should be sustained without leave to amend.
The opposition to the demurrer to the TAC was filed on January 14, 2021.
Murphy insisted that the TAC was not a sham pleading. The new facts came to light during a mediation occurring on October 15, 2020. Murphy disclosed the additional terms of the oral agreement on that day. Further, Murphy's counsel, Evans, requested that the trial court give "leeway" to Murphy since his original complaint and the FAC were filed in pro. per. without the assistance of counsel. Evans only had eight days in which to prepare the SAC. He had limited discussions with Murphy prior to filing the SAC, which was further impacted by Covid restrictions.
Murphy further argued he made significant repairs to the property and paid $750 each month, which was not a nominal amount. Murphy insisted that the first cause of action for breach of oral contract was removed from the application of the statute of frauds because he held possession of the property and made valuable improvements. The recently discovered facts in the TAC show the statute of limitations had not run. Murphy also insisted that the second and third causes of action were supported by sufficient facts, and if not, further facts could be alleged.
On January 14, 2021, Evans filed a declaration in support of the opposition to the demurrer to the TAC. Evans declared that in preparing the SAC, he and his firm had limited time to speak with Murphy. Evans insisted that Murphy advised him of the additional terms of the oral agreement during a mediation between the parties on October 15, 2020. The mediator was concerned about the statute of limitations and Murphy then stated the additional terms.
Wiese filed a reply to the opposition to the demurrer to the TAC on January 25, 2021. Wiese insisted that the new facts in the TAC were presented in order to avoid the demurrer based on the statute of limitations and resulted in a sham pleading. Further, Murphy's counsel had sufficient time to discover the facts prior to filing the SAC. Murphy would have disclosed the facts if they existed to be included in the SAC. Evans admitted he met with Murphy on June 26, 2020, and they discussed the case. The new facts fundamentally changed the character of the oral agreement. They also were not newly discovered facts because Murphy insisted they were conditions of the oral agreement entered into in 2012.
C. TRIAL COURT RULING ON THE THIRD AMENDED COMPLAINT
The trial court issued a tentative ruling on February 1, 2021. It tentatively ruled that it would sustain the demurrer to the TAC without leave to amend. It concluded that Murphy had failed to correct the deficiencies in the prior pleadings and any attempts to correct fell within the scope of the sham pleading doctrine. The trial court agreed with the allegation in the demurrer that the breach of oral contract cause of action was barred by the statute of limitations and violated the statute of frauds. The trial court rejected the additional facts presented in the TAC. "These new promises contradict the prior complaints and are not 'new' facts as they are all within Murphy's knowledge. The striking contradiction between this pleading and the prior pleadings has not been satisfactorily explained and is a sham; the explanation given for the discrepancy, as it were, is not plausible." The trial court found that the promissory estoppel and constructive trust arguments failed.
Argument on the demurrer to the TAC was heard on February 1, 2021. Evans reiterated that the facts provided in the TAC were clarifications and not new promises. He stated his declaration could have been more detailed in regards to discovery of the facts from Murphy, but he prepared the declaration shortly after recovering from Covid. The trial court stated that the declaration was sufficiently detailed. It was not plausible to excuse the late disclosure as Murphy had known of the terms since 2012. Evans added that Murphy told him that he thought Evans knew about the additional terms and said that" 'we were busy'" and" 'we were hectic.'" The trial court did not believe that Murphy just forgot to tell Evans. The facts were added to avoid the statute of limitations, which was the definition of a sham pleading. Evans requested one more chance to the amend the pleadings.
The trial court noted that the SAC made clear that Murphy's name would be added to title after the close of escrow in 2012. The TAC changed that date by adding additional conditions extending the date indefinitely. The trial court asked why Murphy did not sue Wiese in 2014 after she failed to put him on title to the property. Evans argued it was due to him thinking he had to complete his apprenticeship and pass his test. Finally, the trial court asked if there were any other amendments to the allegations that could be made. Evans argued that there could be an amendment to allege an implied contract. The trial court denied the request. The trial court concluded that the new facts were "sham allegations" as the SAC "very explicitly says plaintiff's name would be added to the title after the close of escrow."
The trial court adopted the tentative ruling, and dismissed the TAC against Murphy without leave to amend. Notice of entry of judgment was filed on March 15, 2021.
DISCUSSION
Murphy contends the trial court erred by determining the oral agreement was barred by the statute of frauds. He further contends the trial court erred by finding the statute of limitations applied to bar Murphy's cause of action for breach of oral agreement. He argues for the first time on appeal that there was no clear date upon which he would be added to title after the close of escrow pleaded in the SAC and which the trial court could determine from which date the statute of limitations had run. Finally, he contends the trial court erred in not permitting him to amend the TAC to add a cause of action for breach of implied contract.
A. STANDARD OF REVIEW
A demurrer should be sustained when "[t]he pleading does not state facts sufficient to constitute a cause of action." (Code Civ. Proc., § 430.10, subd. (e).) "We independently review the superior court's ruling on a demurrer and determine de novo whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense. [Citations.] We assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken. [Citations.] We liberally construe the pleading with a view to substantial justice between the parties." (Regents of University of California v. Superior Court (2013) 220 Cal.App.4th 549, 558; see also Rufini v. CitiMortgage, Inc. (2014) 227 Cal.App.4th 299, 303-304.)
Murphy raised three causes of action in the TAC. It is clear on appeal that he is only raising the claim that the first cause of action, breach of oral contract, should not have been dismissed.
B. STATUTE OF LIMITATIONS
We address the statute of limitations argument first as it resolves the issue as to the breach of oral contract raised in the first cause of action. The SAC clearly stated that Wiese and Murphy agreed that his name would be added to the title on the property after the close of escrow. As such, the breach of oral contract occurred on November 21, 2012, the close of escrow; the time to file a claim for breach of oral contract was two years from the date of the breach. (Code of Civ. Proc., § 339, subd. (1).) Since Murphy did not file the original complaint until July 2019, the breach of oral contract cause of action is barred by the statute of limitations.
For the first time on appeal, Murphy states that the SAC did not specify when Wiese was to add his name to the title on the property. He insists it was just "sometime" after the close of escrow. The allegations did not provide a definite date. From the face of the pleading, it cannot be determined when the period of limitation starts without the trial court's intervention. Here, the trial court made up the date of the close of escrow, which was not part of the pleading. As such, the statute of limitation had not expired even without consideration of the additional facts.
"A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred." (Marshall v. Gibson, Dunn &Crutcher (1995) 37 Cal.App.4th 1397, 1403.) "The application of a statute of limitations based on facts alleged in the complaint is a legal question subject to de novo review." (Gilkyson v. Disney Enterprises, Inc. (2016) 244 Cal.App.4th 1336, 1340.)
In the SAC, prepared by counsel, it was stated that "Plaintiff's name would be added to the title after the close of escrow." It was averred that escrow closed on November 21, 2012. It was further stated that Wiese would put the property in her name only "temporarily." In the demurrer, Wiese alleged that the breach of contract as alleged in the SAC occurred on November 21, 2012, when escrow closed and Wiese did not add him to the title. In response, in the opposition to the demurrer, Murphy alleged that additional facts should have been added that his name would not be added to the title on the property until he completed several obligations. These obligations were fulfilled on or after December 12, 2018, which would extend the statute of limitations.
It is disingenuous for Murphy to claim now that the time of the breach of the oral contract was uncertain in the SAC, and that adding the facts in the TAC to extend the time was unnecessary. It was clear that the parties and the trial court-up until the filing of the TAC-understood the pleadings to provide that the breach occurred at the close of escrow. This is the only fair reading of the pleadings.
Murphy insists that the additional terms and conditions added to the TAC, after Wiese had filed her demurrer claiming the first cause of action was barred by the statute of limitations, are merely "clarifying terms" and the TAC is not a sham pleading.
"Under the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment. [Citations.] A noted commentator has explained, 'Allegations in the original pleading that rendered it vulnerable to demurrer or other attack cannot simply be omitted without explanation in the amended pleading. The policy against sham pleadings requires the pleader to explain satisfactorily any such omission.'" (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425-426.) Conversely, "when a complaint contains allegations that are fatal to a cause of action, a plaintiff cannot avoid those defects simply by filing an amended complaint that omits the problematic facts or pleads facts inconsistent with those alleged earlier." (Banis Restaurant Design, Inc. v. Serrano (2005) 134 Cal.App.4th 1035, 1044.) "The sham pleading doctrine is not 'intended to prevent honest complainants from correcting erroneous allegations . . . or to prevent correction of ambiguous facts.' [Citation.] Instead, it is intended to enable courts 'to prevent an abuse of process.'" (Deveny, at p. 426.)
Here, the sham pleading doctrine applies because the excuse given by Evans-that Murphy had failed to disclose the terms to him until after the demurrer-did not excuse that Murphy possessed the knowledge when filing the original complaint, FAC, and SAC. These additional facts changed the nature of the original allegations that Murphy was only putting title in her name "temporarily" because of her good credit and that she would add his name after the close of escrow. The facts were added in order to avoid the statute of limitations and were properly disregarded by the trial court.
Murphy insists that these additional terms existed because it was the only reason he would not have filed his lawsuit immediately after Wiese failed to add his name to the title after the close of escrow. However, it could have been due to the fact that Murphy and Wiese were still in a relationship and he was living in the property. Filing a lawsuit could jeopardize both his living situation and relationship with Wiese.
We will not consider a memorandum referenced in the appellant's opening brief, which was allegedly prepared by Murphy dated December 16, 2019, as it was never made part of the record.
The trial court properly sustained the demurrer on the first cause of action for breach of oral contract based on the statute of limitations having run and finding the TAC was a sham pleading by adding additional facts to avoid the statute of limitations.
D. LEAVE TO AMEND TO ADD CAUSE OF ACTION
Murphy contends the trial court erred by refusing to allow him leave to amend the TAC by adding a cause of action for implied contract pursuant to Marvin, supra, 18 Cal.3d 660.
"[W]hen [a demurrer] is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)" 'To satisfy that burden on appeal, a plaintiff "must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading." [Citation.] The assertion of an abstract right to amend does not satisfy this burden.'" (Maxton v. Western States Metals (2012) 203 Cal.App.4th 81, 95.) "[T]here is a strong policy in favor of liberal allowance of amendments." (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296-297.)
Here, Murphy alleges that he can add a cause of action for implied contract relying on Marvin, supra, 18 Cal.3d 660. In Marvin, the California Supreme Court found that nonmarital partners may enter into an enforceable agreement to share property. The court 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." (Id. at p. 674.) Nonmarital partners "may agree to pool their earnings and to hold all property acquired during the relationship in accord with the law governing community property; conversely they may agree that each partner's earnings and the property acquired from those earnings remains the separate property of the earning partner." (Ibid.)
A Marvin agreement to share assets may be express. Absent an express agreement, "[t]he courts may inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract . . . or some other tacit understanding between the parties." (Marvin, supra, 18 Cal.3d at p. 684; see also Maglica v. Maglica (1998) 66 Cal.App.4th 442, 455 ["[A]n implied-in-fact contract entails an actual contract, but one manifested in conduct rather than expressed in words"].) A number of factors, including pooling of finances to purchase property, joint decisions on purchasing property and the nature of the title taken on property can support a finding an implied agreement to share the property acquisition or acquisitions equally. (Maglica, at p. 456.)
Here, Murphy contends that he can amend the TAC to allege the facts that he lived at the property, paid a monthly amount equal to half of the mortgage, he paid the down payment and he made improvements to the property as evidence that they had an implied contract that upon the dissolution of their relationship, he would equally share in the value of the property. Murphy states that he did these things with the "expectation of obtaining the benefits and value from the property, and in the event the relationship ended he would be entitled to share in that value they built together." Such allegations could support a cause of action of a Marvin-type implied contract.
Wiese contends that an action for an implied contract must be brought within two years and that the breach occurred at the close of escrow. However, as noted by Murphy in his reply brief, most Marvin-type claims accrue upon termination of the relationship. (See Kurokawa v. Blum (1988) 199 Cal.App.3d 976, 989; Whorton v. Dillingham (1988) 202 Cal.App.3d 447, 456; but see Cochran v. Cochran (1997) 56 Cal.App.4th 1115, 1124 [holding that a Marvin "agreement is breached when the party charged with a duty to perform refuses to do so"].) Here, the relationship was terminated in 2018, Wiese changed the locks on the property in 2019, and the original complaint was filed in July 2019. The statute of limitations had not run on an implied contract.
Wiese additionally claims that Murphy could not replace his cause of action for breach of an oral contract with a Marvin claim of an implied contract based on the same facts. Initially, Murphy does not appear to be relying on the same facts. He alleges that could amend the TAC to provide that he contributed both financially and in making improvements to the property with the understanding that if their relationship ended, he would be entitled to share in the value of the property. This is not the same accusation that they agreed before buying the property that he would be added to the title after the close of escrow.
Moreover, even if it was based on the same facts, this is similar to the situation that occurred in Marvin. In Marvin, the plaintiff alleged the parties expressly agreed to pool their earnings, that they contracted to share equally in all property acquired, and that defendant agreed to support plaintiff. (Marvin, supra, 18 Cal.3d at pp. 674-675.) The California Supreme Court concluded that such an agreement was valid, in that it was not based on performance of sexual services, and 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." (Id. at p. 674.)
The Marvin court went on to find that plaintiff could amend her complaint to add a cause of action founded upon theories other than an express contract, i.e. implied contract and equitable relief. (Marvin, supra, 18 Cal.3d at p. 675.) "We add that in the absence of an express agreement, the courts may look to a variety of other remedies in order to protect the parties' lawful expectations." (Id. at p. 684, fn. omitted.) The court concluded, "Since we have determined that plaintiff's complaint states a cause of action for breach of an express contract, and, as we have explained, can be amended to state a cause of action independent of allegations of express contract, we must conclude that the trial court erred in granting defendant a judgment on the pleadings." (Id. at pp. 684-685, fn. omitted.)
We interpret Marvin to allow Murphy to have additionally alleged a cause of action for implied contract. As such, the trial court erred by sustaining the demurrer to the TAC without leave to amend to add a cause of action for a Marvin-type implied contract to have Murphy share in the value of the property upon their dissolution of the relationship.
DISPOSITION
For the reasons set forth ante, we reverse the order dismissing Murphy's TAC and the order sustaining the demurrer, and the trial court is directed to enter a new order granting the demurrer to the first, second and third causes of action and granting leave to amend to plead a cause of action based on breach of the Marvin-type implied contract. In the interests of justice, the parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
We concur: McKINSTER Acting P. J. FIELDS J.