Beach v. Arblaster

This is an appeal from a summary judgment and from an order denying a motion for reconsideration of the order granting the summary judgment and denying a motion for leave to file an amended complaint.

A résumé of some of the events as set forth in the pleadings, statements and declarations in the case, is as follows: On February 11, 1960, plaintiff, an unmarried woman, filed a 11 Complain't foe Damages (Fraud and Estoppel) ” against "Gladys G. Arblaster, Executrix of the Last Will and Testament of William E. Arblaster, also known as W. E. Arblaster, Deceased.” It was therein alleged that William E. Arblaster (hereinafter referred to as "deceased”), died on or about August 12, 1959; that his will dated March 19, 1929, was admitted to probate, and that Gladys G. Arblaster (wife of deceased) was appointed executrix. Plaintiff asserted that during January 1955 and prior thereto, the deceased "proposed to plaintiff that he and plaintiff marry, and he orally represented, warranted and promised that he would marry plaintiff. Said proposal was then and there accepted by plaintiff”; that from January 1955 to August 1959, deceased repeated his promise and representation and that deceased "represented, warranted and promised that he had provided well for her and if anything happened to him she was and would be well provided for, meaning and representing thereby that, in the event of his death, she was and would be well provided for by him by will and otherwise. ’ ’ Further it was alleged that plaintiff believed and relied upon the aforesaid representations and that she "in reliance thereon and at his special instance and request gave to him companionship, comfort, society, all her love and affection, attention, rendered services to him, was ready, willing and able to marry him, refrained from encouraging and making other friendships, companionships and acquaintanceships, remained unmarried, and during or about 1955 gave up her career in television producing, writing and acting, has lost her contacts, connections and skill pertaining thereto which she had established by hard work during a period of over five years.” She also alleged on information and belief that deceased made the above representations "fraudulently without any intention on his part of performing or carrying out the same, for the purpose of inducing plaintiff” to pursue the course of conduct allegedly pursued. She then alleged that she did not discover that deceased did not intend to marry her and that

The declaration of Charles Matter (plaintiff’s brother), filed May 24, 1960, set forth among other things that during the period from early 1951 to December 1958, he had resided in Los Angeles; that during the period from January 1, 1952, to December 1958, he saw deceased at plaintiff’s apartment hundreds of times and that he saw deceased and plaintiff at declarant’s residence on six separate occasions when deceased and plaintiff were dinner guests of declarant; that he saw plaintiff prepare and serve food and drink to deceased at plaintiff’s residence on numerous occasions and heard plaintiff tell deceased that he (deceased) should lie down and rest; that during 1958 deceased appeared to be in much poorer health than he had been in previous years and many times deceased called declarant and inquired where plaintiff was; that in 1954 at plaintiff's apartment, in the presence of plaintiff’s aunt and uncle, deceased stated that he and plaintiff were going to be married very soon; that during the period from 1953 to 1955 and at other times, plaintiff produced, directed and acted in a number of television shows; that from 1954 to 1956, deceased stated to declarant and plaintiff that he (deceased) did not want plaintiff in television; that he wished

The declaration of Bertha B. Lininger, also filed May 24, 1960, set forth in effect that she met deceased during 1951 or 1952 and saw him several times each year thereafter to and including 1959; that declarant was in the dress shop operated by plaintiff during 1957, 1958, and 1959 on several different occasions and on each of those occasions deceased telephoned plaintiff; that she was in plaintiff’s residence on several occasions when people were entertained and on each of these occasions deceased was present; that on several occasions deceased stated that he and plaintiff were going to be married and frequently spoke of the plaintiff’s looking for a home for them to buy and that he would be very happy when they got married; that the deceased had stated that they would be married soon and during 1958 he stated that if anything happened to him the plaintiff would have no worries; that she was well taken care of by him. She also set forth that during the period from 1952 to 1955 deceased requested that plaintiff give up her career in television; that deceased never stated that he was married, although one time many months or possibly a few years after declarant had first seen him in the presence of plaintiff, plaintiff came to declarant, appeared upset and hurt, cried, and stated that she (plaintiff) had heard that deceased was married; that plaintiff never requested or asked deceased to divorce or leave his wife and he never

The declaration of plaintiff, Mildred Beach, was filed May 26. She set forth in effect that George L. Roberts introduced declarant to deceased as Bill Lewis and that this introduction took place at 645 South Olive Street in Los Angeles; that Mr. Roberts did not advise or inform her that Bill Lewis (i.e. deceased) was married and that declarant did not know or hear of the same or of such fact at any time until after deceased told declarant that he loved her, wanted to marry her and was going to marry her and she stated to him that she loved him and would marry him. She further stated that after declarant (plaintiff) and deceased were in love and had agreed to marry, deceased stated to her that if anything happened to him, he had taken care of her; that he had made such statements from 1954 through 1959 and frequently during each of said years stated to her that he wanted to marry her and that they would be married soon-—within a few weeks; that prior to and during 1955 plaintiff was working and had a career in television producing, writing and acting and had developed many contacts, connections and skills pertaining thereto which had been established by hard work during a period of over five years; that at the request of deceased and in reliance on his promises and statements, she gave up this work and career and all of her television connections and has lost her skills and contacts in connection therewith, and she also gave to deceased companionship, comfort, society, love and affection; refrained from encouraging or making other friendships, companionships and acquaintanceships, and was unable to care for or be interested in any other man; that at no time did plaintiff demand or ask deceased to obtain a divorce or separate from his wife, but many times after deceased confessed that he was married he told plaintiff that he and his wife had been going their separate ways for over 10 years and that he and his wife were separated; that he and his wife had planned to obtain a divorce.

A second declaration of Charles Matter was filed May 26th wherein he set forth that deceased told him in 1953 that deceased had bought plaintiff a new car as a wedding gift and on two occasions gave declarant lumber for building purposes at his home and said, 11 Since I am going to be your brother-in-law, I want to help you all I can”; further that declarant “drove the lumber in William E. Arblaster’s Pontiac station wagon and at another time drove the lumber in a large truck

A second declaration of Mildred Beach was filed June 14, 1960. Therein she stated that she first met deceased at a restaurant ; that this meeting occurred in 1950, at which time George Roberts introduced deceased as Bill Lewis; that nothing was said as to the fact that deceased was married; that it was several months after their meeting that plaintiff first learned deceased’s true name was William Arblaster. Plaintiff stated that a few months after the first meeting, but before she heard the name Arblaster and before she had learned of his marital status, declarant and George Roberts were at a restaurant talking about the feelings and relationship of deceased and declarant for each other, and Mr. Roberts stated, “Why don’t you two go to Las Vegas and get married?” At all times during the first many months after declarant met deceased she believed and assumed that he was not married and while she so believed, deceased asked her to marry him, promised that he would marry her, and she promised to marry him. That it was long thereafter that declarant first heard the name Arblaster and only then did she learn that he was married. (See footnote 2.) She confronted him with the statement that he was married and that his name was Arblaster instead of Lewis and that he admitted the foregoing and

The declaration of Richard Boyer was filed on June 14, 1960. Therein he stated that he had met deceased eight or nine years ago in the presence of plaintiff and that deceased was introduced as Bill Lewis; that he knew deceased as Lewis for approximately one or two years. Declarant saw deceased many times during the three years thereafter, generally in the plaintiff’s presence and that on one or more occasions plaintiff mentioned that she and deceased were going to be married; that deceased never denied this, but spoke of plans indicating that they were going to be married. Declarant further stated

It was stipulated that the contents of the deposition of Myrtle S. Davis taken by the plaintiff on February 29, 1960, be considered as an affidavit by the court in connection with the motion for summary judgment. In general, the deposition is to the effect that declarant first met deceased in the latter part of March 1956, when she, Myrtle S. Davis, was met at the Los Angeles airport by plaintiff and deceased; that she visited plaintiff on this occasion for about two weeks, went to San Diego and La Jolla for about two weeks and then returned for another week or ten days. She stated that she saw deceased almost every evening and that he took them to cocktails and dinner every night to various fine eating establishments; that deceased seemed to be a very jealous or possessive person; that deceased stated that he and plaintiff planned to be married; that he had lumber that he was holding out for a house and that they were in the process of looking for a house. He did not want to spend all of their time shopping but to help plaintiff look for a house. When the food was poorly prepared, deceased said that he and plaintiff would be getting married soon and would have their own furniture and a new stove. There were other statements concerning household items. Deceased also stated that when they got married he was going to get plaintiff a Lincoln for her wedding gift and at the same time mentioned a mink stole; he also stated that he did not approve of plaintiff’s television work

In January of 1957, plaintiff visited deponent in Milwaukee and deceased called every few days but he had a slight difficulty in his speech. It was deponent’s understanding that deceased had a stroke. She found out from plaintiff that deceased was already married when plaintiff visited her in Milwaukee.

The motion was set to be heard on May 18, 1960. A minute order dated May 18 (a portion of which is set forth in footnote No. 2, supra), discloses that plaintiff withdrew her motion for a continuance and consented to the hearing of the motion for summary judgment; that defendant’s motion for an order dismissing the action and for entry of summary judgment, and defendant’s motion that the declaration of plaintiff be stricken pursuant to Code of Civil Procedure section 1880 were ordered to stand submitted as of May 25, 1960. Each party was given permission to submit additional authorities, and it was stipulated “(1) that plaintiff knew as early as 1954 that William E. Arblaster was a married man, (2) that the deposition of Myrtle S. Davis taken by plaintiff on February 29, 1960 shall be considered as an affidavit- by the Court in connection with this motion and ... (3) plaintiff shall have one week from today to file additional affidavits to be considered in opposition to this motion.” (Emphasis added.)

The minute order of June 1, 1960, discloses that “The Motion for Summary Judgment is granted. Defendant’s oral motion to strike the affidavit of Mildred Beach is denied. Defendant’s counsel to prepare and submit a form of judg

“The affidavits and stipulations show that decedent was married and plaintiff knew it prior to his alleged proposal to plaintiff. If the arrangement between plaintiff and decedent obligated decedent to break up his existing marriage for plaintiff’s benefit, the scheme was contrary to public policy and plaintiff is in pari delicto. On the other hand if the proposed marriage was contingent on the dissolution of decedent’s existing marriage under other circumstances, the contingency never arose. No legal damage could result from decedent’s alleged intent not to perform because no performance ever came due.”

On June 14,1960, plaintiff filed “Notice of Motion ; Memorandum of Points and Authorities ; Second Declaration of Mildred Beach ; Declaration of Richard Boyer ; Proposed First Amended Complaint for Damages, etc.” Plaintiff sought “ (1) ... an order granting leave to file an amended complaint and that the attached First Amended Complaint be deemed such amended complaint without the necessity of filing any other or further documents; (2) ... an order vacating the order granting the motion for summary judgment and reconsidering such motion and denying the same.” The proposed amended complaint is captioned “Proposed First Amended Complaint for Damages (Fraud and deceit, inducing plaintiff to enter a marriage contract); for Equitable Promissory Estoppel and Imposition of a Constructive Trust and Lien; and for Reasonable Value of Services.”

The charging allegations of the first cause of action are that prior to 1954 deceased fraudulently concealed from plaintiff that he was a married man and during 1950 and 1951 plaintiff was fraudulently led to believe that deceased was a competent person to enter into a marriage contract; that when plaintiff believed that deceased was competent to marry, he made a proposal of marriage to her which she accepted. That at least once a month except for three months from January 1955 to August 1959, deceased fraudulently misrepresented that he would marry her within a very short period of time; that when plaintiff discovered that deceased was already married, he fraudulently misrepresented that he and his wife had been separated for over 10 years and were obtaining a divorce, and often during each of said years at such times he fraudulently represented that he had provided well for plaintiff and if anything happened to him she was and would be well

It was further alleged that deceased made said fraudulent misrepresentations without any intention on his part of performing or carrying out the same, for the purpose of inducing plaintiff to enter into a marriage contract and to do the things herein alleged; that plaintiff did not discover, until after August 12, 1959, that deceased did not intend to marry her within a reasonable time; that he did not intend to provide for her; that he had not provided for her, and that the fraudulent representations made by deceased were wilfully false and malicious. Plaintiff alleged that she did not encourage deceased to prosecute a divorce action and that plaintiff did not at any time promote the dissolution of the bonds of matrimony between deceased and his wife. That as a direct and proximate result of the fraudulent misrepresentations made by deceased, plaintiff has been “deprived of any opportunities she might have had to make friendships with other persons, or to marry anyone else during said time, nor did said William E. Arblaster provide well or at all for her; plaintiff’s affections have been blighted; she has suffered great and grievous mental pain and anguish, wounded pride, mortification, humilation, shame and disgrace, rendered services and given up other opportunities for companionships and acquaintanceships, gainful occupation and business endeavor, all to her damage in the sum of $425,000.00.” Plaintiff then alleges that because the misrepresentations were made in a heartless way, with malice, the damages should also be awarded to her for the sake of example.

The second cause of action incorporates the allegations of the first cause of action and further alleges that by virtue of the promise made by deceased to plaintiff that he had provided for her and he intended to provide for her upon his death, which promise was made by him fraudulently and

The third cause of action incorporated the allegations of the first cause of action and further alleged that:

“During the two years last past plaintiff at the request of said William E. Arblaster furnished goods and rendered services to him of the reasonable value of $10,000.00.”

On June 17, 1960, defendant filed a “Notice of Motion to Strike From the Declarations of Mildred Beach and Points and Authorities in Support Thereof.”

The minute order dated June 20, 1960, discloses that the “Motion of plaintiff (1) for order granting leave to file amended complaint,” was denied “without prejudice to the filing of a new suit based on the theory of quantum meruit. ’ ’ The motion “(2) for order vacating order granting motion for summary judgment,” was denied. Insofar as plaintiff’s motion “ (3) for reconsideration of Motion for summary judgment” the court stood on the ruling previously made. The defendant's motion to strike from the declarations of Mildred Beach was denied.

On the same date, June 20th, the “Judgment for Defendant Under OOP Section 437C” was filed. It was entered on June 22, 1960. The judgment provided in pertinent part that “summary judgment be granted in favor of defendant Gladys G. Arblaster, Executrix of the Last Will and Testament of William E. Arblaster, also known as W. E. Arblaster, Deceased, and that plaintiff Mildred Beach take nothing by reason of her complaint. Defendant to recover costs in the sum of $52.95.”

Plaintiff’s Notice of Appeal was filed July 1, 1960, wherein “plaintiff . . . appeals . . . from the judgment in the above entitled matter, from the order denying a motion for leave to file an amended complaint in the above entitled matter, and from the motion to reconsider the court’s order granting defendant Gladys G. Arblaster’s motion to strike and dismiss the complaint and for summary judgment, and from the whole thereof.”

Appellant contends that “The Promise to Marry was not Necessarily Either Contingent upon a Contingency which did not Occur or Void as being Against Public Policy.”

As indicated in the statement of facts, appellant knew as early as 1954 that Mr. Arblaster was a married man. In spite of this knowledge, she continued to carry on a clandestine courtship with him up to the time of his death in 1959.

An agreement by a married man to marry another woman is void as opposed to public policy. Any agreement which has for its object the dissolution of the marriage contract or facilitates such dissolution is void as contra bonos mores. (Pereira v. Pereira, 156 Cal. 1 , 5 [ 103 P. 488 , 134 Am.St.Rep. 107 , 23 L.R.A. N.S. 880 ]; Smith v. McPherson, 176 Cal. 144 , 146 [ 167 P. 875 , L.R.A. 1918B 66]; Hill v. Hill, 23 Cal.2d 82 , 92-94 [ 142 P.2d 417 ] ; Updeck v. Samuel, 123 Cal.App.2d 264 , 267 [ 266 P.2d 822 ] ; Whiting v. Whiting, 62 Cal.App. 157 , 165 [ 216 P. 92 ]; Ponzi v. Ponzi, 157 Cal.App.2d 772 , 778-780 [ 321 P.2d 847 ]; 130 A.L.R. 1011 .)

Appellant cannot maintain an action against a married man’s estate predicated upon his illegal promise to marry her and, leave her property under a will or otherwise. Appellant was in pari delicto because she knew he was married yet continued to carry on a relationship with him in reliance on his alleged promise to marry her, which, of necessity, was conducive to divorce or conditioned upon it and therefore void as opposed to public policy and good morals. (See Beard v. Beard, 65 Cal. 354 , 355-356 [ 4 P. 229 ]; Abbe v. Marr,

“3. An agreement made upon consideration of marriage other than a mutual promise to marry;

“4. . . .

“5. . . .

“6. An agreement which by its terms is not to be performed during the lifetime of the promisor, or an agreement to devise or bequeath any property, or to make any provision for any person by will.

iirj ? 1

In regard to subdivision 1 above, the only reference made to any divorce proceedings in the testimony submitted in behalf of the plaintiff (appellant) is contained in her declarations in which she quotes oral statements purportedly made by Mr. Arblaster. Even her statements, however, make no reference to any interlocutory decree of divorce having been entered and the evidence is uncontradicted that no divorce proceedings had ever been instituted. Under the law of this state, at least one year must elapse from the date of the entry of the interlocutory decree before a final decree of divorce can be entered. Thus, the agreement could not have been performed within one year.

Regarding subdivision 3 above, plaintiff is seeking to enforce an agreement to leave her property by will or otherwise, on the basis of or in consideration of an agreement to marry. Subdivision 6 defeats appellant’s assertion that “The promise to provide for plaintiff upon death was enforceable.” The purported promise “to provide well” was not only oral but is also indefinite. It is stated in 12 California Jurisprudence 2d, Contracts, section 107, pages 308-309:

“Whether an express contract is oral or written, there must be certainty and definiteness of language or words used in expressing the terms and in showing a meeting of the minds of the parties as to the terms. No action will lie to enforce the performance of a contract, or to recover damages for its breach, unless the contract be complete and certain; ... A contract one seeks to enforce must be so certain that its meaning can be ascertained. An indefinite contract cannot be enforced because the courts cannot know to what the parties agreed. The meaning and intent of the parties must be placed beyond the bounds of mere conjecture.

“. . . Where, . . . there has been no agreement upon an essential element and the contract provides no means for the determination thereof but leaves it to the negotiation and agreement of the parties, the contract is void. If matters in

the agreement are the subject of future ascertainment, the agreement is not final but indefinite and uncertain in its terms, and cannot be enforced.”

Appellant’s contention that respondent should be estopped to assert the statute and that the promise should be enforced by quasi-specific performance is without merit. As stated in Smith v. Smith, 126 Cal.App.2d 194 , 196-197 [ 272 P.2d 118 ] :

“Normally oral agreements to devise or bequeath any property or to make any provision for any person by will are unenforceable under the statute of frauds in the absence of a written memorandum thereof. (Civ. Code § 1624, subd. 6; Code Civ. Proc., § 1973, subd. 6.) However, under special circumstances which cause an estoppel to assert the statute of frauds, quasi-specific enforcement of such an oral contract will be permitted on an equitable basis. Appellant concedes that ‘To enforce an oral contract to bequeath or devise property in equity by quasi-specific performance, it must he shown that the contract is definite and certain, . . (Emphasis added.) (See Parker v. Solomon, 171 Cal.App. 2d 125 [ 340 P.2d 353 ].)

Appellant cannot circumvent the impact of the statute of frauds by the mere device of contending that the action is not upon the invalid agreement, but is an action for damages for fraud. As stated in Kroger v. Baur, 46 Cal.App.2d 801 , 803 [ 117 P.2d 50 ] :

“. . . Appellant contends that his action is not upon the invalid agreement, but is an action for damages for fraud, upon the theory that the oral promise . . . was made without any intention of performing it. . . . If the law can be thus nullified by the transparent device of predicating a tort action upon the invalid oral promise on the ground that the promisor did not intend to perform it, then the section might just as well be stricken from the statute. To license such a circuitous procedure to evade the provisions of such legislation would be to nullify and destroy its wholesome effect and the protection it affords against fraud.”

The trial court did not err in granting the summary judgment.

For the reasons stated, the judgment is affirmed.

Wood, P. J., and Lillie, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied September 20, 1961.