Judge: Gregory Keosian, Case: 19STCV08600, Date: 2023-12-13 Tentative Ruling

Case Number: 19STCV08600    Hearing Date: January 23, 2024    Dept: 61

Defendant Ali Shapouri, Trustee of the Bahram Shahian Trust and Personal Representative of the Estate of Bahram Shahian’s Motion for Summary Judgment and Adjudication is DENIED..

I.                SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.”  (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment.  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.  (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.  (Aguilar, supra, 25 Cal.4th at 850.)  The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.  (Ibid.)  To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence.  (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Defendant Ali Shapouri, Trustee of the Bahram Shahian Trust and personal representative of the estate of Bahram Shahian (Defendant) moves for summary judgment or adjudication of all claims in Plaintiff Maryam Farr’s (Plaintiff) First Amended Complaint (FAC).

The basis for the motion is simple. Plaintiff’s claims are based upon the contention that Decedent Bahram Shahian (Decedent) made promises to her in the context of a romantic, cohabitating relationship, to provide for her support and to ensure that she was provided for in his estate plan, including a one-third division of his property. (FAC ¶ 15.) Defendant, however, contends that during deposition, Plaintiff denied that Decedent had ever promised her a precise one-third division, but that she had heard of his intent to make a one-third division from family members who were with him near the time of his death. (Motion Exh. A.)

Defendant’s argument is unpersuasive. An agreement to provide for the support of a cohabitant and to divide property with them may be an enforceable contract under Marvin v. Marvin (1976) 18 Cal.3d 660. “The fact that a man and woman live together without marriage, and engage in a sexual relationship, does not in itself invalidate agreements between them relating to their earnings, property, or expenses. Neither is such an agreement invalid merely because the parties may have contemplated the creation or continuation of a nonmarital relationship when they entered into it. Agreements between nonmarital partners fail only to the extent that they rest upon a consideration of meretricious sexual services.” (Id. at pp. 670–671.)

Plaintiff in opposition presents her declaration, in which she states the following:

Bahram stated to me that he wanted to continue his relationship with me, that he wanted me to marry him, that I was the love of his life, and that he wanted me to stay with him, care for him, and support him during his battle with Cancer. He said that he knew taking care of him while he is sick from cancer treatments was not what I signed up for when I agreed to marry him and that he knew he had health problems, but that he wanted me to be by his side and devote myself to him and our relationship. He also stated that if he was unable to beat the cancer diagnosis, he wanted his last stages and moments of his life to be with me.

Thus, Bahram promised me that if I continued my relationship with him, continued to be his companion, care for him, and support him during both sickness and health and during his battle with cancer, he would create a family with me, that we would live together at the Thurston Property, he would take care of me financially, and specifically stated that if something were to happen to him from a health position, he would leave me an interest in the Thurston Property. As to the Thurston Property, I understood his words to mean that he would divide his whole interest in the Thurston Property between me, his daughter, and his son in equal shares. He often talked about his children, and I understood that, as a father, he wanted to take care of his children.

(Farr Decl. ¶¶ 40–41.) Thus Plaintiff testifies that Decedent promised her an interest in the property at issue, and that she understood this entailed a division between herself and his children. Plaintiff’s understanding is corroborated by the declarations of others who spoke to Decedent before his death. (Panahpour Decl. ¶ 10; Abruzze Decl. ¶ 8.)

Defendant in reply argues that the failure to promise her the specific one-third interest is fatal to her claims, because Decedent’s offer was not “sufficiently definite” that “the performance promised is reasonably certain.” (Reply at pp. 11–12, quoting Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 811.)

This argument, however, is contradicted by applicable authority. In Byrne v. Laura (1997) 52 Cal.App.4^th 1054, the court found enforceable an oral agreement between unmarried cohabitants in which one party promised the other “many times . . . that he would take care of her for the rest of her life in exchange for her services as a homemaker,” and that “she did not have to worry because he would take care of her and she would ‘have a roof over [her] head.’” (Id. at p. 1060.) When the estate of the promisor argued that these promises were “too uncertain,” the court held as follows:

[T]he modern trend of the law favors carrying out the parties' intention through the enforcement of contracts and disfavors holding them unenforceable because of uncertainty. Marvin endorsed “a policy based upon the fulfillment of the reasonable expectations of the parties to a nonmarital relationship.” (Marvin v. Marvin, supra, 18 Cal.3d at p. 684, 134 Cal.Rptr. 815, 557 P.2d 106.) If Flo's evidence is credited, as it must be for purposes of summary adjudication, then it is certain that Skip expected to provide for Flo's support. Denial of that expectation as a matter of law would be contrary to the policy enunciated in Marvin. Moreover, as Flo observes, her understandings with Skip were no more uncertain than the “general and nonspecific” Marvin agreement which was enforced in Alderson v. Alderson (1986) 180 Cal.App.3d 450, 463, 225 Cal.Rptr. 610, where “[t]he parties never bothered to actually spell out the terms of their agreement or the consideration therefor.”

(Id. at p. 1065–1066, some internal citations and quotation marks omitted.)[1] Where there is uncertainty as to the “precise act to be done,” such uncertainty “may be resolved in light of extrinsic evidence.” (Id. at p. 1066; see also Blackburn v. Charnley (2004) 117 Cal.App.4th 758, 767 [holding that real estate purchasers could use extrinsic evidence to support claim for specific performance of purchase contract that lacked a legal description of the property].)

Here, Plaintiff testifies that Decedent promised her an interest in the property. (Farr Decl. ¶ 41.) This is consistent with her deposition testimony, in which she stated that Decedent promised her “part of the house for me and his pension plan.” (Motion Exh. A at p. 88.) Although Decedent did not specify to her the precise division of the property to be made, Plaintiff testifies that she understood that it would have to account for the interests that Decedent’s children had in the property (Farr Decl. ¶ 41), and presents evidence that Decedent conveyed the same understanding to others. (Panahpour Decl. ¶ 10; Abruzze Decl. ¶ 8.) While these statements to third parties do not constitute an offer to Plaintiff, they may constitute extrinsic evidence corroborating the understanding of the parties when the promises were made. (Byrne, supra, 52 Cal.App.4^th at p. 1066.)

The motion is therefore DENIED.