The Demurrer General And Introduction

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Filed 5/22/01

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

            APPEAL from judgments of the Superior Court of Los Angeles County.  Wendell Mortimer, Jr., Judge.  Reversed.

            Tony J. Tanke and Joseph W. Carcione, Jr., for Plaintiff and Appellant.

            Fogel, Feldman, Ostrov, Ringler & Klevens, Larry R. Feldman, Lester G. Ostrov, Lawrence C. Jones, and John T. Fogarty for Defendant and Respondent.

I.   INTRODUCTION

            Plaintiff and cross-complainant Patricia A. Cochran appeals from the judgment of dismissal entered after the trial court sustained without leave to amend the demurrers which defendant and cross-defendant Johnnie L. Cochran, Jr., brought to her cross-complaint for rescission of their 1983 property settlement agreement.[1]  She also appeals from the summary judgment entered for the defendant on her complaint for breach of an alleged agreement for lifetime support.  For the reasons set forth below, we reverse both judgments.

II.   PROCEDURAL HISTORY

            This is the third appeal arising from two separate, but related, actions between appellant Patricia A. Cochran (appellant) and respondent Johnnie L. Cochran, Jr. (respondent) arising out of their long-term, nonmarital relationship.

            The first action (Super. Ct. L.A. County, 1995, No. BC124156) was filed in March 1995.  The operative, first amended complaint of April 1995 was primarily concerned with respondent’s alleged breach of a supposed Marvin[2] agreement to provide appellant with lifetime support.  In Cochran v. Cochran (1997) 56 Cal.App.4th 1115 (Cochran I), we held that the statute of limitations for breach of a Marvin agreement did not begin to run until the defendant failed to perform as the agreement required.  (Id. at p. 1124.)  As a result of our decision, all that remained of the complaint in Cochran I were causes of action based on the alleged Marvin agreement.

            The second action (Super. Ct. L.A. County, 1996, No. EC021315) was filed in November 1996 while the appeal in Cochran I was still pending.  The original complaint in the second action included a cause of action seeking to rescind a 1983 property settlement agreement because the agreement was induced by fraud.  The operative first amended complaint omitted the rescission claim, but sought damages for intentional infliction of emotional distress based on a message left on a telephone answering machine which appellant construed as a death threat.  In Cochran v. Cochran (1998) 65 Cal.App.4th 488, 498-499 (Cochran II), we held that the message was not actionable as a death threat.

            After our decision in Cochran I became final, that action was remanded to the trial court.  On January 26, 1998, respondent cross-complained against appellant, contending she had breached the confidentiality provisions of their 1983 property settlement agreement by appearing on television to discuss their relationship.  Appellant answered the cross-complaint on February 11, 1998, and filed a cross-complaint of her own (“the fraud cross-complaint”), seeking to rescind the 1983 settlement agreement because it allegedly had been induced by respondent’s fraud.  Respondent dismissed his cross-complaint without prejudice on March 13, 1998.  He then demurred to the fraud cross-complaint, contending among other things that it was barred by the statute of limitations and was contrary to certain verified allegations in the Cochran I complaint concerning the validity of the settlement agreement.  By minute order dated April 2, 1999, the trial court sustained the demurrers without leave to amend on two grounds:  (1)  the fraud cross-complaint was barred by appellant’s earlier allegations;  and (2)  the action was also barred under the law of the case doctrine by our decision in Cochran I.[3]

            In November 1999 respondent moved for summary judgment on the Cochran I complaint, contending appellant could not prevail on her remaining Marvin claims because:  (1)  the parties were not cohabiting when the agreement was made;  (2)  the alleged promise of support was made under circumstances which made it unreasonable to believe the statements were a contractual offer;  (3)  the alleged promise to support was too uncertain to be enforced;  and (4)  in any event, the claim was barred by the statute of limitations.  The motion was granted and judgment for respondent was entered December 21, 1999.  This appeal followed.

III.   DEMURRER 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.  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.  Reversible error is committed if the facts alleged show entitlement to relief under any possible legal theory.  (Cochran I, supra, 56 Cal.App.4th at pp. 1119-1120.)  The plaintiff-appellant bears the burden of showing how the complaint might be amended to state a viable cause of action.  (Hendy v. Losse (1991) 54 Cal.3d 723, 742.)  We will affirm an order sustaining a demurrer which is correct on any applicable theory.  (Kennedy v. Baxter Healthcare Corp. (1996) 43 Cal.App.4th 799, 808.)

            We will not, however, assume the truth of contentions, deductions or conclusions of fact or law.  We may disregard allegations that are contrary either to the law or to a fact of which judicial notice may be taken.  When a ground for objection to a complaint, such as the statute of limitations, appears on its face, or appears 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);  Cochran I, supra, 56 Cal.App.4th at p. 1120.)  We may take judicial notice of the records of a California court.  (Evid. Code, § 452, subd. (d).)[4]  We must take judicial notice of the decisional and statutory law of California and the United States.  (Evid. Code, § 451, subd. (a).)

A.   Facts Relating to Demurrer

            Appellant’s first amended complaint alleged that she and respondent entered an agreement in October 1983 to settle their claims to certain property acquired during their relationship up to that time.  In addition to pleading the existence of the 1983 settlement agreement, appellant’s first amended complaint alleged that “[d]ue to the 1983 agreement, [she did] not seek damages for any breach of the parties’ agreement or make any claim whatsoever for anything which occurred or which was acquired prior to the 1983 agreement. . . .”

            Our decision in Cochran I summarized the pleadings as follows:  “Appellant’s operative first amended complaint alleged that she and respondent began a romantic relationship in the mid-1960’s . . . 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.  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, [respondent] 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.”  (Cochran I, supra, 56 Cal.App.4th at p. 1118, fn. omitted.)

            We went on to recount the procedural history and its effect on the issues on appeal as follows:  “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.  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 . . . .)  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.”  (Cochran I, supra, 56 Cal.App.4th at p. 1119.)

            Respondent argued below, and the trial court agreed, that appellant’s allegations in the first amended complaint concerning the 1983 settlement agreement effectively conceded the validity of that agreement.  He claimed that the allegations of her fraud cross-complaint were fatally at odds with this concession, leading to the conclusion that the cross-action was a sham.  Furthermore, respondent contended, our pronouncement in Cochran I that appellant’s property claims were waived was law of the case which barred the fraud cross-complaint.

            As further proof that the cross-action was a sham, respondent noted inconsistencies between the fraud cross-complaint and the original complaint in Cochran II concerning appellant’s discovery of the alleged fraud.  Appellant’s November 1996 complaint in Cochran II alleged that she did not discover the alleged fraud until February 1995 after a series of discussions with respondent’s first wife Barbara relating to a book Barbara was writing about her relationship with respondent.  In the fraud cross-complaint, however, appellant alleged she did not discover the fraud until August 1995 when Barbara Cochran’s book was published.  Respondent argued that these inconsistencies showed that the fraud cross-complaint was not only a sham, but was also barred by the three-year statute of limitations for fraud.

IV.   SUMMARY JUDGMENT STANDARD OF REVIEW

            Summary judgment is granted when a moving party establishes the right to the entry of judgment as a matter of law.  (Code Civ. Proc., § 437c, subd. (c).)  In reviewing an order granting summary judgment, we must assume the role of the trial court and redetermine the merits of the motion.  In doing so, we must strictly scrutinize the moving party’s papers.  The declarations of the party opposing summary judgment, however, are liberally construed to determine the existence of triable issues of fact.  All doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment.  While the appellate court must review a summary judgment motion by the same standards as the trial court, it must independently determine as a matter of law the construction and effect of the facts presented.  (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.)

            A defendant moving for summary judgment meets his burden of proof showing that there is no merit to a cause of action if that party has shown that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action.  (Code Civ. Proc., § 437c, subd. (o)(2).)  Once the defendant does so, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or to a defense to the cause of action.  In doing so, the plaintiff cannot rely on the mere allegations or denial of his pleadings, “but, instead, shall set forth the specific facts showing that a triable issue of material fact exists . . . .”  (Ibid.;  see Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590.)

A.   Summary Judgment Facts

            Appellant and respondent began their relationship in 1966, at a time when respondent was still married to his first wife.  Appellant later changed her surname to match respondent’s.  In 1973, the parties’ son was born.  In 1974, appellant and respondent bought a house in North Hollywood.  Title was eventually placed in both their names as joint tenants.  Respondent also owned a home on Hobart Street.  He and appellant split their living time between the two homes.  Respondent stayed with appellant and their son at the North Hollywood home from two to four nights a week.  He kept clothes there and took meals at the house.  Respondent held himself out to the world as appellant’s husband.  In 1978, respondent divorced his first wife.

            In 1983, they experienced relationship troubles after appellant learned respondent was unfaithful.  On October 21, 1983, they signed the property settlement agreement.  Pursuant to the settlement agreement, respondent quitclaimed to appellant all his interest in their North Hollywood house.  He agreed, among other things, to pay child support of $350 each month, to buy appellant a new car, to pay for construction of a swimming pool at the North Hollywood house, and to provide medical and dental insurance for their son.  The agreement was expressly limited to claims then existing and included assurances of full disclosure as to all assets then owned by the parties.  It did not include a waiver or release of future or unknown claims.  (Civ. Code, § 1542.)

            Within one to three weeks of signing the settlement agreement, respondent told appellant he wanted to keep things as they had been before.  He also promised to care for her “financially, emotionally and legally” for the rest of her life.  In return, she agreed to maintain their home and care for respondent and their son.[5]  After that time, he continued to live with appellant and her son “as he had before.”  Appellant said respondent “wanted me to continue providing a home and continue our lifestyle and he was going to continue supporting me.”  The support agreement was formed as part of discussions about the future of their relationship, their continued love for each other, and their desire to eventually marry.  Appellant said she wanted proof of respondent’s fidelity before marriage, “so we were working on that.”

            Appellant said in her declaration that after the support agreement was formed, respondent “continued to live with me and our son at the [North Hollywood] house as he had done before. . . .  He continued to support me as he had promised until February 1995.”  Much of respondent’s summary judgment motion centered on the form of that support, and whether it was sufficient to make the agreement enforceable or was so sporadic that it constituted a breach of the agreement which set the statute of limitations running by 1985.

            In 1985, respondent married his second wife.  Between 1984 and late 1992 or January 1993, appellant worked for a company named Ipson.  During those years, respondent helped pay for various of appellant’s expenses.  He gave her cash and paid her bills as needed, including utilities and medical insurance.  He twice provided her with new cars and sometimes paid for car repairs.  Respondent also gave appellant credit cards issued in either her name or respondent’s, with respondent paying the charges she incurred.  During those years, respondent “paid child support for [their son] . . . and gave me money whenever I needed it.  [Respondent] paid amounts over the $350.00 required in the [1983] Settlement Agreement because he and I understood that more was required to maintain the standard of living to which me [sic] and our son were accustomed.  Throughout this period of time, [respondent] and I spoke on a regular basis and [respondent] knew what my financial needs were.  When I needed funds he always provided funds as he promised.”  Cancelled checks produced by respondent showed child support payments of $1,000 were made at least as of 1991 through January 1995.  A notice from appellant’s bank showed that respondent wrote her a check for $4,500 in or about May 1991.  However, appellant admitted that the support she received was not regular, either in amount or time of payment.

            At respondent’s behest, on or about January 1993, appellant left her job at Ipson.  After that, in accord with the support agreement, respondent provided regular, monthly support checks for appellant.  Respondent also made direct deposits to appellant’s bank account.  Appellant testified that the total was between $3,500 and $4,000 each month.  Respondent also gave appellant cash, paid her credit card bills, car expenses, medical insurance, and cellular phone bills.  Respondent concedes he provided regular support for appellant after she left her job, but contends he agreed to do so at his son’s request only until appellant got another job.

            Respondent produced copies of more than 200 cancelled checks in connection with payments made to appellant or their son between September 1990 and December 1998.  Many were made payable to appellant, but bore notations indicating they were for child support or other expenses related to the parties’ son.  Several were payable to appellant herself:  a July 1993 deposit of $1,500 to appellant’s bank account;  an August 1993 check for $375;  a September 1993 check for $1,500 bearing the notation “Expenses”;  and many others between January 1994 and February 1995 in amounts ranging from $1,800 to $3,557.  Respondent admitted that he was unsure whether the checks he produced were all those relating to the support of either appellant or their son.  He admitted that there might be other checks written on different accounts.

V.   DISCUSSION

A.   Demurrer to Fraud Cross-Complaint

            Trial and appellate courts may properly take judicial notice of a party’s earlier pleadings and positions, along with established facts from the same and other cases.  (Evid. Code, § 452;  Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 877 (Cantu).)  The complaint should be read to include the facts judicially noticed, even if it contains an expressly contrary allegation.  A plaintiff may not avoid a demurrer by pleading facts or positions in an amended complaint that contradict facts pleaded in the original complaint, or by suppressing facts which prove the pleaded facts false.  The same applies to pleadings from earlier actions.  The principle is that of truthful pleading.  When the plaintiff pleads inconsistently in separate actions, the complaint is a sham designed to avoid the effect of a demurrer.  In such a case, the court will disregard the falsely pleaded facts and affirm the demurrer.  (Id. at pp. 877-878.)

            Respondent contends this rule relating to inconsistent pleadings applies to the fraud cross-complaint on two counts.  First, he notes that in the first amended complaint appellant alleged that because of the 1983 settlement agreement, she sought no relief for matters occurring before that time.  He maintains that this allegation is fatally inconsistent with the claim in her fraud cross-complaint that the settlement was induced by fraud.  Second, respondent cites the allegation in the 1996 original complaint in Cochran II that appellant discovered the fraud in February 1995.  He argues that this allegation is inconsistent with, and takes precedence over, the allegation in the fraud cross-complaint that appellant did not discover the fraud until August 1995.

            However, respondent’s reliance on the inconsistent pleading rule is misplaced.  That rule “is reserved . . . for the extreme case, and it may not be indiscriminately applied;  it ‘must be taken together with its purpose, which is to prevent amended pleading which is only a sham, when it is apparent that no cause of action can be stated truthfully.’  [Citation.]”  (Amarel v. Connell (1988) 202 Cal.App.3d 137, 144.)  Further, decisions invoking the rule arise where two allegations expressly contradict one another.  (See Cantu, supra, 4 Cal.App.4th at pp. 878-879 [plaintiff in malicious prosecution action arising from his former status as a defendant in an interpleader action;  plaintiff’s action hinged on allegations that there were no competing claims to disputed funds when interpleader action was filed, but those allegations were contradicted by the plaintiff’s interpleader answer where he alleged that specific other parties had made competing claims to the funds];  Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379 (Owens) [plaintiff alleged accident occurred on public roadway next to defendant’s market;  after demurrer sustained on ground the city controlled the public streets, plaintiff amended to allege the accident occurred on defendant’s premises].)  Here, there is no express contradiction between allegations.

            Appellant alleged the existence of the 1983 settlement and stated that “[d]ue to the 1983 agreement, [she] does not seek damages for any breach of the parties’ agreement or make any claim whatsoever for anything which occurred or which was acquired prior to the 1983 agreement.”  This is not an express allegation that the 1983 settlement was procured without fraud.  Rather, it is merely a disavowal of any then-existing claims for breach of the agreement, and any claims based on events that occurred or property that was acquired before the 1983 agreement.

            We find the present case analogous to Parsons v. Tickner (1995) 31 Cal.App.4th 1513 (Parsons).  In Parsons, plaintiff was the daughter of deceased songwriter Gram Parsons and sued music managers for improperly using the decedent’s copyrighted material.  Plaintiff contended her complaint was not barred by the statute of limitations because defendants concealed the existence of assets for purposes of the delayed discovery rule.  Defendants demurred, contending this allegation was inconsistent with the original complaint, in which plaintiff made no allegation concerning misrepresentations by defendants and alleged that she delayed suit during her minority and for other reasons.  Distinguishing Owens, supra, 198 Cal.App.3d 379, the court held there was no inconsistency.  “Here, the original complaint contains no allegation that the [defendants] did not conceal any relevant facts and [plaintiff] is not precluded from alleging concealment when compelled to amend to bring herself within the delayed discovery rule.”  (Parsons, supra, 31 Cal.App.4th at p. 1530, fn. omitted.)

            As in Parsons, appellant here did not expressly plead what respondent asks us to infer from her allegations—that there was no fraud in connection with the 1983 settlement.  Instead, her allegation could reflect nothing more than a decision that it was more advantageous to accept the benefits of the settlement, a decision she abandoned when respondent cross-complained against her for breach of that agreement.  Application of the inconsistent pleading rule has been criticized where the asserted inconsistencies arise from inartfully drawn or otherwise ambiguous allegations.  (See Macomber v. State of California (1967) 250 Cal.App.2d 391, 399.)[6]  Accordingly, we decline to invoke the rule here.

            Respondent next contends that in Cochran I we held appellant’s property claims were waived, precluding the fraud cross-complaint under the doctrine of law of the case.  Under that doctrine, where an appellate court states in its opinion a principle of law necessary to its decision, the principle becomes the law of the case for later proceedings, including appeals.  The doctrine applies only to issues which were both presented and determined in an earlier appeal.  Where a particular point was essential to the decision and the appellate judgment could not have been rendered without deciding the point, it follows that the point was determined.  (Bovard v. American Horse Enterprises, Inc. (1988) 201 Cal.App.3d 832.)

            Appellant’s first amended complaint mentioned the 1983 settlement, but sought damages only for property acquired after that time and for respondent’s breach of the support agreement allegedly made after the settlement was reached.  When we stated in Cochran I, supra, 56 Cal.App.4th at page 1119 that appellant had waived her property claims, we referred solely to the property claims raised in her complaint—for matters not connected to the 1983 settlement.  Neither the validity nor the enforceability of the 1983 settlement was at issue on appeal.  Hence, resolution of such issues was not necessary to our determination of the appeal.  Accordingly, there is no law of the case determination regarding the validity of that agreement.

            As for the conflicting allegations regarding appellant’s discovery of the alleged fraud, respondent no longer relies on the February 1995 discovery alleged in the first amended complaint to argue that the statute of limitations bars the fraud cross-complaint.  Instead, respondent contends that the pleading discrepancy is further proof that appellant has violated the law of the case from Cochran I.  He also maintains that the discrepancy shows the fraud allegations to be a sham, since appellant supposedly knew of the alleged fraud at the time she pleaded the validity of the 1983 settlement.[7]  However, since we hold that law of the case is not applicable here, and that the allegations about the existence and effect of the settlement agreement are not inconsistent, these contentions also fail.

B.   Summary Judgment On Marvin Claim

            1.  Uncertain contract

            The Marvin court held that unmarried adults who live together are free under general principles of contract law to make agreements concerning their property and earnings, including agreements by one party to support the other or to share in their property.  (Cochran I, supra, 56 Cal.App.4th at p. 1120.)  Marvin actions based on an express oral agreement are governed by the two-year limitations period applicable to oral contracts.  (Ibid.)  In Cochran I, we clarified that such agreements are subject to the ordinary rules applicable to contractual relations, including the rule that the statute of limitations for a claim based on breach of a Marvin agreement does not begin to run until the party charged with a support obligation breaches the agreement.  (Id. at pp. 1124-1125.)

            Respondent contends the support agreement was too uncertain to be enforced.  He also contends that even if the agreement were valid, the action is time barred because his sporadic performance breached the agreement years before appellant filed her complaint.  However, we conclude that appellant raised triable issues of fact indicating that the support agreement called for irregular support while she was employed and regular support after she left her job.  She has also raised triable issues of fact to support a finding that respondent did not breach the agreement until February 1995, thus making the action timely.

            Appellant testified at her deposition that respondent promised to support her financially, legally and emotionally for the rest of her life.  In regard to financial support, he would provide what was needed to maintain the lifestyle they had enjoyed up to the time the support agreement was entered.  Respondent’s contention that this was too uncertain a promise to be enforced is refuted by Byrne v. Laura (1997) 52 Cal.App.4th 1054 (Byrne).

            The plaintiff in Byrne lived with a man for five years until his death.  They commingled their assets and cohabited as husband and wife.  The decedent also promised to take care of plaintiff for life.  Plaintiff sued decedent’s estate to enforce the Marvin agreement.  Defendants were granted summary adjudication in part on the ground that the alleged promise to take care of plaintiff for life was too uncertain to be enforced.  Noting that the law disfavors holding contracts unenforceable for uncertainty, the Byrne court held that defeating plaintiff’s reasonable expectations of support would be contrary to the policies announced in Marvin.  (Byrne, supra, 52 Cal.App.4th at pp. 1065-1066.)  While it was uncertain how much support decedent intended to provide, the uncertainty could be resolved by extrinsic evidence.  Plaintiff’s receipt of decedent’s retirement benefits and the standard of living decedent provided before his death could provide evidence of the intended level of support.  Because the evidence and its attendant inferences were in conflict, summary adjudication was improper.  (Id. at p. 1066.)

            Here, any uncertainty as to the scope of the support agreement can likewise be resolved by resort to extrinsic evidence.  Appellant’s evidence showed that while she was employed between 1984 and approximately 1993, she used her salary to cover her daily expenses.  She spoke regularly with respondent, who knew her financial needs, provided money when needed, and paid bills and expenses.  She said respondent paid amounts greater than the $350 in child support called for by their 1983 settlement agreement because they both understood she needed more to maintain her accustomed standard of living.  Respondent’s own cancelled checks showed that he wrote checks during that period which were designated as child support, but which were for amounts far greater than the $350 called for by the settlement agreement.  Appellant said respondent encouraged her to leave her job, stating again she did not need to work because he would support her.  After that, he began to provide regular support in accordance with their agreement until shortly after her televised appearance in February 1995.  From this evidence, a trier of fact could infer an agreement to provide, as needed, support above and beyond appellant’s income while she was employed and to provide regular, full-time support once she became unemployed.[8] 

            Attempting to distinguish Byrne, respondent contends that an agreement to provide support as needed is invalid for uncertainty.  His arguments are unpersuasive.  The parties to a contract are generally free to shape their agreement as they choose.  (Greenberg v. Continental Cas. Co. (1938) 24 Cal.App.2d 506, 514, disapproved on other grounds in Kennedy v. Occidental Life Ins. Co. (1941) 18 Cal.2d 627, 634-635.)  We are aware of no contract law principle that would preclude an agreement like that inferable from appellant’s showing:  an agreement to provide support as needed to maintain the parties’ prior lifestyle while the supported party was working, and regular support in the necessary amount if that party became unemployed.  (See Marvin, supra, 18 Cal.3d at p. 674 [“So long as the agreement does not rest upon illicit meretricious consideration, the parties may order their economic affairs as they choose . . . .”].)  In the commercial law context, for instance, so-called “requirements” contracts—where a seller agrees to provide all of a buyer’s needs for a product—are routinely enforced despite the seeming uncertainty in determining the parties’ mutual obligations.  This principle has even been extended to a commercial lease, where a lessor was obliged to provide space in accordance with the lessee’s changing needs.  (Fisher v. Parsons (1963) 213 Cal.App.2d 829, 833-836.)

            Even if respondent’s performance of his support obligations was sporadic, his partial performance could remove any uncertainty and establish an enforceable agreement.  (Rest.2d, Contracts, § 34, subd. (2).)  Moreover, appellant was not awarded unlimited discretion in determining the amounts to be paid.  The parties’ prior lifestyle provides the benchmark by which respondent’s support obligations are to be measured, with appellant subject to a duty of good faith under the alleged support agreement.  (Byrne, supra, 52 Cal.App.4th at p. 1066 [parties’ standard of living could establish support obligation];  Rest.2d, Contracts, § 34, com. b, p. 98 [no uncertainty if choice of performance is limited and any discretionary power may be exercised in good faith and in accordance with fair dealing].)

            Finally, any uncertainty about respondent’s support obligations was removed by his providing regular support for approximately two years after appellant left her job.  Rather than address this point, respondent attempts to shield it from consideration in the uncertainty analysis.  Instead, he argues that the undisputed evidence shows the regular support payments he made were separate from any alleged Marvin agreement, and were a charitable act in response to his son’s request.  On that question, however, the evidence is far from undisputed.  Appellant stated in her declaration that with respondent’s reassurance that he would support her, she quit her job at respondent’s request.  According to appellant, consistent with his 1983 promises, respondent supported her until February 1995.  From this evidence it may be inferred that the period of regular support flowed directly from the Marvin agreement, and was not a product of the son’s urgings.  Respondent’s failure to confront the period of regular support and its effect on his claim of uncertainty may be deemed an abandonment of his uncertainty claim.  (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.)  Alternatively, we hold that to the extent there was any lingering uncertainty in the support agreement, it was removed by the period of regular support.

            2.   Statute of limitations

            Since we hold that there are triable issues of fact to show an enforceable agreement to support appellant, it necessarily follows that there are triable issues of fact to show that respondent did not breach the agreement until he stopped support payments in February 1995.  Accordingly, it was error to award summary judgment on statute of limitations grounds.

            3.   Cohabitation

            Respondent also contends that the support agreement is unenforceable because he and appellant did not cohabitate, or live together.  Viewing the evidence in appellant’s favor, it appears that before entering the 1983 settlement and support agreements, respondent stayed at the North Hollywood house two to four nights a week.  Appellant and the parties’ son sometimes stayed at respondent’s house on Hobart Street.  Appellant stated in her declaration that after respondent made his support promises, he continued to live with her as he had before.  However, from her deposition testimony it is apparent that after respondent remarried in 1985, he stayed at the house less often.  Appellant testified she was not sure whether respondent ever spent the night after his remarriage, although he did come for frequent visits, with appellant continuing to prepare his meals. 

            The Marvin court held “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.”  (Marvin, supra, 18 Cal.3d at p. 674, italics added.)  So long as the agreement does not depend upon meretricious sexual relations for its consideration, or so long as that portion of the consideration may be severed from other proper forms of consideration, such agreements are enforceable.  (Ibid.)

            In Taylor v. Fields (1986) 178 Cal.App.3d 653 (Taylor), the court seized upon the italicized “live together” reference in Marvin to hold that a dead man’s mistress, who never lived with the decedent, was not entitled to enforce their purported Marvin agreement.  Examining Marvin and other related decisions, the Taylor court held that cohabitation was a prerequisite to recovery under Marvin.  Because the appellant’s agreement in Taylor rested upon an illicit sexual relationship for its consideration, it was not enforceable.  (Taylor, supra, 178 Cal.App.3d at pp. 660-665.)

            Taylor was followed by Bergen v. Wood (1993) 14 Cal.App.4th 854 (Bergen).  The plaintiff in Bergen had a long-term sexual relationship with the decedent, acting as his hostess and social companion.  Though he had supposedly promised to support the plaintiff, they never lived together.  In reversing a judgment for the plaintiff, the Bergen court noted that cohabitation was required under Marvin “not in and of itself, but rather, because from cohabitation flows the rendition of domestic services, which services amount to lawful consideration for a contract between the parties.  [¶]  We make the additional observation that if cohabitation were not a prerequisite to recovery, every dating relationship would have the potential for giving rise to such claims, a result no one favors.”  (Id. at p. 858.)  Citing both Marvin and Taylor, the Bergen court noted that recovery under Marvin “requires a showing of a stable and significant relationship arising out of cohabitation.”  (Id. at p. 857.)  Because the plaintiff never lived with her decedent, it was impossible to sever the sexual component of their relationship from other appropriate consideration.  (Id. at p. 858.)

            Citing Taylor and Bergen, respondent contends that his relationship with appellant did not involve cohabitation, since the evidence showed that he spent as little as one night a week at appellant’s house after their property settlement agreement was reached in 1983.  As a result, he characterizes their relationship as no more than “dating.”  On the other hand, appellant relies on Bergen’s statement that cohabitation was required not in and of itself, but in order to establish lawful consideration through the performance of domestic services.  Since appellant provided such services, she contends there was lawful consideration even absent cohabitation.  Alternatively, she contends that there was sufficient evidence to raise a triable issue of fact as to the issue of cohabitation.

            We save for another day the issue whether consenting adults need cohabit at all in order to enter an enforceable agreement regarding their earnings and property.  Assuming for discussion’s sake that cohabitation is required, we conclude that the rationale of Marvin is satisfied in appropriate cases by a cohabitation arrangement that is less than full-time.  Here, as so construed, there was sufficient evidence to raise a triable issue of fact on the cohabitation element.

            Both Taylor and Bergen considered claims by parties who served, in effect, as the mistress or girlfriend of their respective decedents.  Neither plaintiff had ever cohabited with their respective decedents.  Moreover, neither decision considered whether anything less than a full-time living arrangement was necessary to show cohabitation.  By contrast, in the present case, when respondent supposedly entered the support agreement in late October or early November of 1983, he and appellant had shared a relationship for approximately 17 years.  That relationship produced a son, whom they were raising together.  They held themselves out to the world as husband and wife.  Appellant legally changed her surname to respondent’s.  They had jointly owned their home until respondent quitclaimed his interest as part of their settlement agreement.  Appellant performed a variety of domestic chores for respondent, including raising their son and maintaining the house.  Respondent kept clothes at the house, “spent family time there” and “slept there on a regular basis.”

            At common law, the term “cohabitation” means to live together as husband and wife.  (People v. Ballard (1988) 203 Cal.App.3d 311, 317-318 (Ballard).)  Various criminal law decisions have construed this common law meaning in the context of reviewing convictions of inflicting corporal injury on a cohabitant.  (Pen. Code, § 273.5.)  These decisions all conclude that cohabitation may exist even if the cohabitants do not live together full-time.  In Ballard, after examining the common law definition of cohabitation, the court held that even though the defendant maintained a separate apartment, there was sufficient evidence of cohabitation.  The court cited evidence that the defendant and his victim had lived together for two years, slept together in one bed, and were often together.  (Ballard, supra, 203 Cal.App.3d at pp. 314, 317-318.)  In People v. Holifield (1988) 205 Cal.App.3d 993, the defendant and his victim had seen each other “off and on” for four years.  In the three months before the assault, the defendant stayed in at least three other places for weeks at a time, taking his possessions with him whenever he left.  He stored clothes and personal items at three other homes and did not have a key to the victim’s room.  They did not share rent or make joint purchases, did not spend much free time together and had infrequent sexual relations.  On those facts, the court upheld a finding that the two were cohabiting.  (Id. at pp. 995-996, 1002.)

            Finally, in People v. Moore (1996) 44 Cal.App.4th 1323 (Moore), the court considered whether a defendant could be deemed a cohabitant with his victim when he was cohabiting with someone else at a different location during the same time frame.  Synthesizing Ballard, Holifield, and other decisions, the court held that cohabitation under Penal Code section 273.5 occurred where the defendant maintained a substantial relationship with his victim and lived with her part of the time, even though he had a similar relationship with another woman, and lived part of the time with her.  The court reasoned that the defendant should not be able to immunize himself from criminal liability for injuring a cohabitant simply because he lived part-time somewhere else with another.  (Id. at pp. 1333-1335.)

            We find these decisions both persuasive and analogous on the issue of cohabitation in the context of a Marvin agreement.  The purpose of Marvin was to permit parties to a significant and stable relationship to contract concerning 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 they choose . . . .”  (Marvin, supra, 18 Cal.3d at p. 674.)  To require nothing short of full-time cohabitation before enforcing an agreement would defeat the reasonable expectations of persons who may clearly enjoy a significant and stable relationship arising from cohabitation, albeit less than a full-time living arrangement.  For instance, it would exclude otherwise valid support agreements made by parties who, perhaps because their jobs are geographically far apart, maintain a part-time residence for one party, and also a second residence where at times they live jointly.  Certainly the rationale of Marvin does not support such a result.

            Here, the parties had shared a long-term, stable and significant relationship.  In this context, evidence that they lived together two to four days a week both before and at the time they entered their Marvin agreement is sufficient to raise a triable issue of fact that they cohabitated under Marvin.

            4.   Reliance

            Respondent also contends that appellant could not reasonably have taken his promises of lifetime support seriously, because they were made in the context of romantic discussions about love and marriage and were therefore nothing more than the “reassuring puffery commonplace among couples . . . .”  Since appellant “had heard these types of promises before,” she knew or should have known that respondent’s statements were not intended to create a binding agreement.  Finally, respondent analogizes this action to the “anti-heart balm” statutes which forbid claims based on promises to marry.  (Civ. Code, §§ 43.4, 43.5.)  His arguments are misplaced.

            Whether the parties intended to enter a legally binding agreement may depend on the circumstances under which a purported promise was made.  If the circumstances—such as a family discussion—show that no binding agreement was intended, then none was formed.  (Fowler v. Security-First Nat. Bank (1956) 146 Cal.App.2d 37, 46-47.)  Although respondent cites this decision, he has not quoted the more relevant part of its holding:  “Whether these spoken ‘plans, ‘understandings,’ or ‘agreements’ are intended by the family members as a binding contract among them is a question of fact for the trial court. . . .”  (Id. at p. 46, italics added.) 

            Respondent’s summary judgment motion did not dispute that he made the promises alleged by appellant.  Nor did he introduce any evidence of his own intent when he made those statements.  The evidence presented permits a reasonable inference that appellant intended to form a binding agreement.  The evidence also shows that respondent performed under the alleged agreement.  Hence, there are certainly triable issues of fact concerning his intent when he made the statements attributed to him.

            As for respondent’s analogy to the anti-heart balm statutes and his reliance on decisions involving those provisions, we find the analogy unpersuasive.  Appellant’s claim is not for breach of a promise to marry or cohabit—it is for breach of a Marvin agreement for lifetime support.  The anti-heart balm provisions are therefore inapplicable.  (Marvin, supra, 18 Cal.3d at p. 674;  Feldman v. Nassi (1980) 111 Cal.App.3d 881, 884, fn. 1.)

VI.   DISPOSITION

            For the reasons set forth above, we direct the trial court to enter nunc pro tunc a judgment dismissing the fraud cross-complaint based upon its orders sustaining respondent’s demurrers to that pleading.  To the extent appellant appeals from the order sustaining those demurrers, we deem the appeal to be taken from that judgment.  The judgment of dismissal on the fraud cross-complaint and the summary judgment on the complaint are reversed.  Appellant to recover her costs on appeal.

            CERTIFIED FOR PARTIAL PUBLICATION.

                                                            WILLHITE, J.*

We concur:

TURNER, P.J.

ARMSTRONG, J.

Filed 5/22/01