Reviewing a Marvin Action From a Litigator’s Perspective

by

Reviewing A Marvin Action From A Litigator’s Perspective

John Martin

John P. Martin is a solo practitioner who focuses on civil litigation and mediation in San Diego, and is a member of the Family Law and Litigation Section of the State Bar of California. He may be reached at martlaww@msn.com.

This article addresses Marvin v. Marvin, 18 Cal. 3d 660 (1976) and its progeny, and provides an overview of points for every practitioner to consider when advising a client who is either contemplating or defending against a Marvin action. It reviews the nature of such actions and potentially related claims or defenses, the pros and cons of filing or threatening to file a Marvin action, and what type of expert or co-counsel associations, if any, may be useful, no matter how large or small the case.

An Overview of Marvin and its Progeny

Marvin involved the actor Lee Marvin and his girlfriend Michelle Marvin, who lived together for approximately seven years without marrying. Michelle, the plaintiff, claimed that she and Lee "…entered into an oral agreement" that during the time they lived together, she would give up her career as an entertainer and singer to devote herself full time to Lee as his companion, homemaker, housekeeper, and cook and they would share equally all property accumulated. Lee would also provide for all her financial support for the rest of her life. All property was in Lee’s name. Michelle alleged that Lee thereafter forced her to leave his home and then repudiated the agreement about a year and a half later, refusing to provide further support as promised.1Michelle prayed for declaratory relief, asking the court to determine her contract and property rights and to impose a constructive trust on one-half of the property acquired during the relationship. The trial court denied Michelle’s request to amend her complaint to add contractual claims and granted a nonsuit to Lee. Michelle then appealed.2

The California Supreme Court reversed in part and remanded on the issue of legal and equitable relief, holding that Michelle stated a valid claim for express oral contract and could amend her complaint to make a claim for an implied contract, as well as allege equitable theories. The court rejected any claim of common law marriage or a contract based "primarily" on meretricious services, which would be void as a matter of law.3

Thus, the central holding of Marvin established that unmarried domestic partners may, through express or implied contractual agreements, establish enforceable contractual or equitable rights. Enforceable Marvin agreements most often focus on ownership and sharing of property, and/or an exchange of financial support for homemaking services, business assistance, or other lawful consideration.4

What Marvin is Not

A Marvin action is NOT a family Law action.

The Marvin court was quite explicit in stating that while recognizing the potential for concurrently filed civil and equitable remedies, the Family Code did not create a claim for community property or quasi-community property for cohabitees.5 However, the court also recognized at the outset that during the 1960s and ’70s, there was a "substantial increase in the number of couples who live together without marrying."6 It observed that there were many reasons why people choose to live together, some related to a potential for future marriage, plus various others. The court opined that it was perfectly legal for a couple to enter into an agreement concerning their living arrangements, so long as the agreement is primarily non-sexual in nature.7 Thus, a Marvin action is a permissible claim founded on such an agreement, giving rise to legal remedies such as breach of contract (express or implied) or common counts,8 as well as equitable remedies including declaratory relief, quantum meruit, accounting, unjust enrichment, and a request to impose a constructive trust on property9 (if the court finds the plaintiff has a right to some property at issue based on the parties’ agreement).

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Nevertheless, the litigants in a Marvin action often face property and support disputes that are fundamentally similar to those involved in a divorce (although governed by contract law rather than family law). Therefore, counsel representing such parties may need to bring in the same type of experts and consultants that would be consulted in a dissolution case—appraisers, accountants, financial planners, etc.10

Also, because people who cohabit without marriage form a legally distinct type of family from their married counterparts, but a family nonetheless, they frequently face the same emotional challenges that come with dismantling any family unit. Counsel should be prepared not only to deal with clients who may be more emotionally invested in the case than most, but also to recommend mediation, counseling, or other help with personal issues where appropriate.

Marvin actions can be especially thorny when the contract case is intertwined with a matter governed by family law. This most often occurs when a couple lived together for a significant period of time and then married, and/or had children.11 A civil litigator representing a party in such circumstances will likely need to consult or associate with a family law practitioner, while an attorney who strictly practices in the family law arena may need the assistance of a colleague more familiar with contract litigation and other aspects of practice in civil court.

A Marvin Action is Not a Tort Action

Again, Marvin actions sound in contract, so available damages on such a claim are limited to contract damages—which means that neither emotional distress damages12 nor punitive damages13 are ordinarily recoverable.

However, as in any contract case, the plaintiff may also have distinct tort claims that can be brought as alternative causes of action in the same lawsuit. For example, if one partner made factual representations to induce the other to cohabit (such as falsely claiming the financial ability to provide all support, promising to buy the other a new car, or similar inducements if he/she would relocate and provide housekeeping services) but fails to fulfill these promises, the wronged party may have a claim for fraudulent inducement to enter into the Marvin contract.14

Likewise, if one partner refuses to allow the other to remove his property from the home when the relationship ends, an action for conversion may lie. Of course, if one partner abuses the other, such claims as intentional infliction of emotional distress, civil assault, or domestic battery may be brought in a complaint or cross-complaint filed in a Marvin action. The addition of tort claims can complicate the case, but can provide powerful leverage toward a fair settlement and may give the plaintiff a chance to recover a broader range of damages, including emotional distress and punitive damages.15 Such damages have been held recoverable even when the underlying relationship between the parties was contractual, when the contract was shown to be the product of intentional fraudulent inducement or when other intentionally harmful behavior is proven.16

Where To File

At least initially, a Marvin claim must be filed in superior court rather than family court, as any effort to apply the Family Code in a Marvin case has consistently been rejected.17 If there is already a family law action pending, a party can file a Marvin claim in superior court and then request that the two cases be consolidated into one action on the grounds that consolidation serves the interest of the parties and judicial economy. However, careful consideration should be given to such a request, since when a party pleads a "legal" action (such as breach of contract, which is the gravamen of a Marvin action), the opposing party has the right to request a jury trial for a determination on that claim,18 as opposed to equitable claims, which do not come with a right to a jury and thus are more easily consolidated into a family law action. It is essential to evaluate how that option might impact your client’s position, and whether the other party would waive the right to a jury, before either requesting or consenting to a consolidation of the family law and non-family law claims.

Subsequent Developments in the Law Governing Marvin Actions

In the forty years since Marvin was decided, California’s courts have refined, but not fundamentally changed, the holding of this seminal case. Among the key decisions:

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  • Bergan v. Wood, 14 Cal. App. 4th 854, 857 (1993) held that recovery in a Marvin action requires a showing of a "stable and significant relationship arising out of cohabitation." Thus, there is no Marvin case in which the parties reside separately, even if one paid for the other’s housing and support. However, as clarified in Cochran v. Cochran, 89 Cal. App. 4th 283, 291-293 (2001), the parties need not live together full time. The fact that one keeps a second residence will not defeat the case as long as the parties are essentially cohabitants.
  • Byrne v. Laura, 52 Cal. App. 4th 1058 (1997) held that a surviving cohabitant could enforce a Marvin agreement against the estate of the other, who died intestate. However, a party seeking to enforce a Marvin agreement as to property subject to a deceased partner’s will or trust may risk violating a no-contest clause depending on the particular circumstances of the case.19
  • Della Zoppa v. Della Zoppa, 86 Cal. App. 4th 1144 (2001) illustrates that only rarely will a couple’s agreement be held unenforceable as "meretricious," and even then, it will fail only to the extent it is based on sexual services. If that form of consideration may be severed from other types of lawful consideration, the agreement will remain enforceable. The Della Zoppa court reversed a ruling finding the parties’ agreement unenforceable because the bearing of children was part of the consideration. It reiterated the Marvin court’s observation that the word "meretricious" pertains to prostitution; thus, only a contract that explicitly rests on consideration of sexual services should be characterized as such.20
  • While most Marvin actions involve domestic services or business assistance, other types of services may also form all or part of the consideration. Determining the validity of such a contract can get tricky where one party agreed to perform services for which a license is required, such as contracting, accounting, or serving as a talent agent. If the party did not hold a valid license, the contract may be declared void or voidable (although such unlawful consideration may be severable where lawful consideration, such as homemaking services, is also alleged).21
  • Post-Marvin decisions reiterate that a non-marital relationship that supports Marvin rights is not the equivalent of marriage, nor does it support the special rights accorded to married partners in other contexts, including the evidentiary privilege for marital communications, standing to bring a wrongful death action,22 rights related to unemployment benefits when a spouse relocates, ability to recover damages for negligent infliction of emotional distress or loss of consortium,23 or similar rights unique to married persons.24

Why File a Marvin Action?

At the very least, a family law practitioner representing a client with a potential Marvin claim should review the facts of the case to determine whether the risks and costs of a Marvin action may be worth the investment of time and money required to pursue it. This will require careful consideration of all pertinent facts and circumstances, which can add up to a substantial number of factors depending on the length of time the parties were together and the complexity of their property and history.

For example, what if one partner stayed home to perform all housekeeping tasks and support the other’s career instead of pursuing his or her own career, as the plaintiff alleged in Marvin? Or perhaps one invested time and money to purchase rental properties while the other handled some or all the maintenance and management tasks. What if the parties later married and/or had a child together? Suppose the plaintiff cared for the defendant’s family from a pre-existing relationship, sparing the need for that person pay for childcare? What if those services had a market value of $1,000 per month and the parties lived together for ten years? Such contributions provide significant financial benefits and must be considered.

On the other hand, it is equally important to balance such benefits against the value of goods and services provided by the other party (room, board, and saved rent, for example). Analysis of such facts is essential to assessing the value of the case and may lead to an even greater potential recovery if there is evidence to support an express or implied agreement with respect to such matters. Most importantly, it will provide key evidence to sustain a plaintiff’s fundamental claim for breach of contract and equitable remedies, as well as any other causes of action that may be supported.25

These foundational facts should be explored and reviewed very carefully. In addition to the parties’ own testimony, the testimony of the couple’s family and friends regarding their expressed intentions and how they conducted their lives and financial arrangements, documents showing shared title to property, joint bank accounts, or other jointly held assets, such as stocks or trusts, can provide evidence of the parties’ intent.26 Moreover, in a Marvin case, as in a divorce, the issues of property division and support are distinct matters and must be analyzed in terms of any agreement the parties made (or that their actions implied) regarding each issue.27

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Also, counsel must consider the cost to file and potentially litigate in two different courts if family law claims are also involved (for instance, in the case of a couple who lived together for a significant period of time then married), which can quickly add up for both parties.28 Yet depending on the type of agreement alleged, along with the time period and/or economic benefits the plaintiff allegedly provided to the defendant, it is certainly worth exploring a Marvin claim where one may be available.

Defenses and Collection Risks in Marvin Actions:

In analyzing whether or not it is in the client’s best interest to pursue such a case, remember that Marvin actions, as well as any recovery that may be awarded in such a case, can be vulnerable to various defenses and risks that would not apply in a family law case. With respect to affirmative defenses, most, if not all, defenses typically raised in other contract cases may be validly asserted in Marvin actions if supported by the facts. The defendant may claim there was a lack of mutuality (or "no meeting of the minds"). He may also assert such defenses as unenforceability due to the statute of frauds or accord and satisfaction. The defendant may also claim the plaintiff breached any alleged agreement so as to excuse his further performance29 or raise a statute of limitations defense if the plaintiff waited too long to file the action (with accrual of the cause of action likely occurring at the time of any alleged breach, for example, when the couple split or when the defendant otherwise failed to perform, as the agreement required, for example, by cutting off promised support).30 Moreover, Marvin actions may be pared down through pretrial motions, including demurrer or summary judgment. If the plaintiff includes irrelevant allegations or seeks remedies not available in a contract action (such as punitive or emotional distress damages, as discussed previously), such allegations may be subject to a motion to strike.31

EquitabLe Defenses

Just as the plaintiff in a Marvin case may be able to assert familiar equitable claims (such as unjust enrichment, quantum meruit, or establishment of a constructive trust on property),32 the defendant may be able to assert the usual equitable defenses (including, but not limited to, unclean hands, laches, and equitable estoppel). In addition, Marvin actions provide a unique defense,—the allegation that the relationship was "primarily sexual in nature," politely termed the "meretricious consideration" defense. As previously noted, such a claim is difficult to prove, but may be raised strategically and occasionally succeeds.33

Collection Issues

A plaintiff who successfully prosecutes a Marvin action and receives a judgment awarding property may face unanticipated obstacles to collecting on the judgment. For example, because a Marvin claim is based essentially on contract law, and not subject to the protections provided by the Family Code, an award made in a Marvin judgment may be dischargeable in bankruptcy. Also, unlike an award of spousal support, a Marvin award may have adverse tax consequences. In addition, absent any express contractual provision or statutory basis, there is likely no provision for the recovery of attorney’s fees in a Marvin action.34

Conclusion:

In evaluating the representation of a client who is a party to a pending or potential Marvin action, it is often best to begin with the "Joe Friday" rule: urge the client to focus on "just the facts," then analyze each situation in light of the established legal principles. What was promised, if anything, apart from activity related to the romantic relationship? If there was no express agreement while living together, how did the parties behave toward each other, their property, and their responsibilities? What non-sexual benefits did each party provide (housing, financial support, accounting services, housekeeping, caretaking, partnership or help with a business)? Did either party give up something of value for the other (pursuit of a career, relocation, sale of a dwelling)? What costs (emotional and financial) and what benefits would a Marvin action bring to your client? If there are eligible family law claims, how would a Marvin action add to or subtract from those claims? Each case will be different and the facts should be pled very specifically to increase the chances of a successful outcome.

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Evaluating the case carefully, and retaining proper co-counsel and experts to assist in the analysis can be invaluable to helping your client make the right decision in whether to pursue or how best to defend a Marvin action.

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Notes:

1. Id. at 666.

2. Id. at 666-667.

3. See Id. at 684-685, n. 24: "We do not seek to resurrect the doctrine of common law marriage, which was abolished in California by statute in 1895…we hold only that she has the same rights to enforce contracts and to assert her equitable interests in property acquired through her effort as does any other unmarried person." The court also declined to limit any particular claim not arising under the Family Code, recognizing the "…evolution of equitable remedies.the suitability of these remedies may be determined later in light of the factual setting in which they arise." Id. at 685, n. 25.

4. Marvin actions are commonly referred to as "palimony" cases, but this term is not accurate. Many Marvin cases involve an alleged agreement to provide financial support under a distinct concept based on contract law, not family law.

5. Id. at 665. Subsequent authority has repeatedly recognized that the Family Code does not apply to Marvin actions. See, e.g., Lantz v. Goldstone, 243 Cal. App. 4th 441, 464-465 (2015).

6. Id. at 665.

7. "In summary, we base our opinion that adults who voluntarily live together and engage in sexual relations are nevertheless as competent as any other persons to contract respecting their earnings and property rights.they may agree to pool their earnings and hold property acquired in relationship in accord.. the parties may order their economic affairs as they choose, and no policy precludes the courts from enforcing their agreements." Id. at 674.

8. Common count is an alternate theory of recovery based on a contract that is either implied in fact or implied in law. Katsura v. City of Buenaventura, 155 Cal. App. 4th 104, 109 (2007).

9. Claims for unjust enrichment, for imposition of a constructive trust, or for an accounting actually constitute equitable remedies rather than substantive claims for relief; that are dependent upon an underlying substantive basis for liability, generally arising from a contract. See Glue-Fold, Inc. v. Slautterback Corp., 82 Cal. App. 4th 1018, 1023 (2000).

10. A Marvin action is also distinct from a "putative spouse" case, in which one or both parties believe in good faith that a void or voidable marriage was in fact valid. Such cases are governed by Cal. Fam. Code §§ 2251-2254.

11. See, e.g., Della Zoppa v. Della Zoppa, 86 Cal. App. 4th 1144 (2001), involving a couple who lived together for several years before marrying and had children, in which the court noted that the Marvin action was limited to income and property owned before the marriage, with family law governing the post-marital issues.

12. "[D]amages for mental suffering and emotional distress are generally not compensable in contract actions." Applied Equipment Corp. v. Litton Saudi Arabia, Ltd., 7 Cal. 4th 503, 516 (1994). While an exception been recognized for contracts that have as their express objective action that directly impact the emotional well-being of one of the contracting parties, the exception is rarely applied, and has been rejected in contract-based actions between domestic partners even where parental rights are impacted. See Dunkin v. Bosky, 82 Cal. 4th 171, 193 (2000) (emotional distress damages held unrecoverable in a domestic partner’s action claiming defendant’s breach resulted in loss of paternal rights).

13. Cal. Civ. Code § 3294(a) permits recovery of punitive damages only "for breach of an obligation not arising from contract." See Spinks v. Equity Residential Briarwood Apts., 171 Cal. App. 4th 1004, 1033 (2009) (since a party may not recover in tort for breach of the implied covenant of good faith and fair dealing, an award of punitive damages is not permitted on such a claim).

14. Such circumstances are analogous to employment agreements, in which the employer makes false promises to lure an employee to contract for a new position that turns out to be far different than what was represented. See, e.g.,Lazar v. Sup. Ct., 12 Cal. 4th 631, 638 (1996) (noting that the elements for any type of intentional fraud are (1) a misrepresentation [false representation, concealment or nondisclosure], (2) knowledge of falsity [scienter], (3) intent to defraud, (4) justifiable reliance, and (5) resulting damage. Fraud must be pled with particularity in order to withstand demurrer.

15. See Erlich v. Menezes, 21 Cal. 4th 543, 556-557 (1999), establishing the general rule that where a plaintiff brings a case not involving personal injury, which sounds in breach of contract, emotional distress damages may only be recovered if the plaintiff pleads and proves non-economic damages under a separate tort claim involving intentional behavior.

16. See Butler-Rupp v. Lourdeaux, 134 Cal. App. 4th 1220, 1227 (2005) (tort damages may be recoverable in a contract-based case where the contract is the product of intentional fraudulent inducement, or other intentionally harmful behavior is proven); Gonzalez v. Personal Storage Inc., 56 Cal. App. 4th 464, 474475 (1997). Bear in mind that the standard of proof for punitive damages is clear and convincing evidence, a much higher threshold than the usual civil "preponderance of the evidence" standard.

17. See Friedman v. Friedman, 20 Cal. App. 4th 876 (1993) (spousal support denied to cohabitee of 21 years); Schaffer v. Sup. Ct., 180 Cal. App. 3d 305 (1986) (Family Code rules for ex parte orders shortening time do not apply to Marvin actions).

18. See Cal. Const. art. I §16.

19. See Nairne v. Jessop-Humboldt, 101 Cal. App. 4th 1124(2002).

20. Id. at 1150-1151, citing Marvin, 18 Cal. 3d at 683.

21. See Chiba v. Greenwald, 156 Cal. App. 4th 71 (2007), and dissenting opinion (noting homemaking services alone are sufficient consideration to support a Marvin agreement). Regarding severability, see also Marathon Entertainment, Inc. v. Blasi, 42 Cal. 4th 974, 992-993 (2008).

22. Holguin v. Flores, 122 Cal. App. 4th 428, 437 (2004) explained that reference to a surviving "domestic partner" in Cal. Civ. Proc. Code § 377.60(a) means a registered domestic partner; thus, the surviving partner of a cohabiting couple does not have standing to bring a wrongful death action. The special rights and responsibilities of registered domestic partners (that are essentially the same as those of married couples and governed by the Family Code) are beyond the scope of this article, since people in such partnerships have no need to consider a Marvin action unless the registration turns out to be invalid.

23. See Elden v. Sheldon, 46 Cal. 3d 267 (1988).

24. See Norman v. Unemployment Ins. App. Bd., 34 Cal. 3d 1, 7-8 (1983).

25. While the parties’ conduct toward one another during the course of the relationship may be relevant to establishing an implied contract or other understanding with regard to the property interests at issue, the Marvin court recognized that concepts of "guilt" cannot justify an unequal division of property subject to a contract between cohabiting individuals. See Id. at 682-684. Disregarding guilt or innocence in property division supports the purposes of California law, and this remains true whether the parties are married, in a putative marriage, or cohabitants. In re Marriage of Tejada, 179 Cal. App. 4th 973, 984-985, (2009) citing Marvin, 18 Cal. 3d at 680-681 n. 18.

26. If the couple had any type of written agreement or executed legal documents such as deeds in conjunction with jointly purchased property, these may impact not only the specific matter addressed in the document, but also provide evidence of their mutual intentions on a broader basis. See Cal. Evid. Code § 622 ("The facts recited in a written instrument are conclusively presumed to be true as between the parties thereto, or their successors in interest; but this rule does not apply to the recital of a consideration").

27. The policy behind Marvin is the fulfillment of the reasonable expectations of parties to a non-marital relationship with property division treated as a separate matter that is distinct from other issues such as support. Byrne v. Laura, 52 Cal. App. 4th 1054, 1064 (1997).

28. It is also essential to remember that, absent a statute or express contractual language, attorney fees are normally not recoverable a Marvin action. However, if the Marvin case is consolidated with a family court action, there is always an argument to invoke Family Code provisions awarding attorney fees, citing the Marvin action and associated costs as essential to the prosecution of the family law action.

29. For example: Was the agreement vague or too general to enforce? Did the parties have an explicit understanding that one would provide financial support only while they lived together; thus, if one leaves, the agreement is breached and the obligation of the other ends at that point? Or, did one party think the other would provide financial support forever, while the other believed he/she would only be obligated during cohabitation? Did the parties promise fidelity as a condition of support/services? Could leaving the relationship be deemed a breach or would it take more, such as leaving and simultaneously withdrawing the agreed-upon contribution to the household?

30. See Cochran v. Cochran, 56 Cal. App. 4th 1115 (1997). The statute of limitations for oral contracts is two years from the date of the breach. See Cal. Civ. Proc. Code § 339.

31. Again, "guilt" or "innocence" is disregarded in determining support and property division, regardless of whether the parties are married, in a putative marriage, or cohabitants. Tejada, 179 Cal. App. 4th at 984-985, citing Marvin, 18 Cal. 3d at 680-681 n. 18. However, as noted, evidence of wrongful acts that contravene the parties’ agreement may demonstrate a breach of contract in a Marvin case; and if a party also raises a tort claim such as intentional infliction of emotional distress, evidence supporting the elements of that claim will be relevant and admissible to prove the tort cause of action.

32. A finding of unjust enrichment may justify establishment of a constructive trust where the parties have a contractual or quasi-contractual relationship, and a constructive trust may be sought where the breach of an agreement involving property is alleged. See Westbrook v. Sup. Ct., 176 Cal. App. 3d 703, 712 (1986).

33. See Marvin, 18 Cal. 3d at 672; Jones v. Daly, 122 Cal. App. 3d 500 (1981) (demurrer sustained without leave to amend when complaint alleged plaintiff agreed to act as "lover, companion, homemaker, traveling companion, and cook." For examples of where this defense was rejected and the Marvin claim was successful, see Alderson v. Alderson, 180 Cal. App. 3d 450 (1986); Della Zoppa, 89 Cal. App. 4th 283.

34. See Cal Civ. Proc. Code § 1021.