Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. RG3115808
NEEDHAM, J.
Joyce Heilig appeals from a judgment entered after the court granted the summary judgment motion of respondent Ralph Wood on Heilig’s complaint to enforce an oral agreement to devise real property. Heilig contends Wood failed to establish the affirmative defense of the statute of frauds as a matter of law, because there was a triable issue whether Wood should be equitably estopped from asserting the defense. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
This is the second appeal in this litigation. As background for the present appeal, we set forth a portion of our decision in the prior appeal, summarizing the allegations of Heilig’s second amended complaint:
The clerk’s transcript does not contain the second amended complaint. We therefore must rely on our prior decision, as do the parties, for a description of Heilig’s allegations.
“Plaintiff Heilig is the daughter of John Spengler, who at the time of his death in 1981 was married to Doris Spengler. Defendant Ralph Wood is Doris Spengler’s son. It appears that Heilig is John Spengler’s daughter from a prior relationship and Ralph Wood is Doris Spengler’s son from a prior relationship. It also appears that neither John nor Doris Spengler had any other children.
“Doris Spengler died in 1996, her estate was entered into probate, and Ralph Wood was appointed administrator of the estate. In her will, she bequeathed to Wood her home and a duplex, both in Oakland; she bequeathed $20,000 to Heilig and $1,000 to each of Heilig’s children. Although Heilig has lived at the same address in Oakland since 1983 and has been listed in the telephone book and in voter registration records for many years, Wood failed to notify Heilig of the probate proceedings. Wood listed Heilig in the initial petition for probate of Doris Spengler’s will with address ‘unknown’ and Wood did not list Heilig as an individual receiving notice of the petition.
“In 2000, the duplex was sold for $510,000. Heilig was not mailed a copy of the notice of the proposed sale. Heilig learned about the probate proceedings in the year 2003; she filed a claim requesting the proceeds of the sale of the duplex, plus interest.” (Heilig v. Wood, No. A109483, April 25, 2006, at pp. 1-2 (Heilig I).)
Heilig also filed a lawsuit against Wood, individually and in his capacity as administrator of the estate of Doris Spengler.
A. Heilig’s Second Amended Complaint
By her second amended complaint, Heilig asserted three causes of action. The first cause of action alleged breach of an oral agreement between John and Doris Spengler and Heilig, to bequeath the duplex (Property) to Heilig. Implicitly recognizing that an oral agreement might be unenforceable in this context, Heilig further alleged that Wood should be estopped from relying on the statute of frauds to avoid the agreement, because John “was induced to seriously change his position as to the ownership of the [Property] in reliance on the contract and that an unjust enrichment would result if [Doris Spengler] and her Estate are allowed to invoke the Statute of Frauds.” Heilig alleged that Doris Spengler benefited from the agreement because the Property provided rental income and she “had the benefit of all the incidents of ownership of the [Property] from the time of her husband’s death in 1981.”
Heilig’s second cause of action alleged that Wood fraudulently concealed the probate proceedings from Heilig. Her third cause of action alleged that Wood negligently failed to inform Heilig of the probate proceedings.
B. Demurrer and Prior Appeal
Wood demurred to the second amended complaint, contending that Heilig’s causes of action were barred by the statute of frauds and adequate facts had not been pled to justify estopping him from invoking the defense. As to the second cause of action, Heilig did not object to the demurrer being sustained. As to the first and third causes of action, Heilig did object, but the trial court sustained the demurrer without leave to amend. The court dismissed the case, and Heilig appealed.
We reversed the trial court as to the first and third causes of action, finding that the allegations, broadly construed, could give rise to the inference that Doris Spengler benefitted from the alleged oral agreement because, due to the agreement, John Spengler did not sever their joint tenancy and devise his own interest in the Property. (Heilig I, supra, at p. 7.) With this inference, and the allegation that Doris Spengler retained the Property for 15 years after John’s death, it could be inferred that allowing Wood to invoke the statute of frauds would lead to unjust enrichment. (Ibid.) Assuming the truth of the allegations, there was no showing that Heilig could not, as a matter of law, establish that Wood should be equitably estopped from invoking the statute of frauds, and therefore the demurrer should not have been sustained. (Ibid.)
C. Summary Judgment Upon Remand
On remand, the demurrer as to the first and third causes of action was overruled; the demurrer as to the second cause of action remained sustained without leave to amend.
Wood brought a motion for summary judgment, contending the first and third causes of action were barred by his affirmative defense of the statute of frauds, because there was no triable factual issue in regard to Heilig’s claim of equitable estoppel. Specifically, Wood argued, Heilig had no evidence to support any allegation that Wood would be unjustly enriched by invoking the statute of frauds to avoid the alleged oral agreement.
1. Wood’s Separate Statement of Undisputed Material Facts
In support of his motion, Wood asserted and supported with evidence the following facts:
John and Doris Spengler acquired the Property in July 1970, taking title as joint tenants.
The only statement John and Doris Spengler ever made to Heilig concerning the alleged oral agreement to transfer the Property was merely that “it was their intention to leave the Property to [Heilig] for her security and for her children in case they needed a place to live.” No documents set forth the terms of the alleged oral agreement to transfer the Property to Heilig.
When John Spengler died in December 1981, his wife Doris survived him, title to the Property remained in joint tenancy, and Doris Spengler had the benefit of owning the Property and receiving income from it.
Doris Spengler died in March 1996. Her will did not devise any interest in the Property to Heilig. Nor did it mention anything about the alleged oral agreement or whether John Spengler considered severing the joint tenancy and chose not to because of the agreement.
Relying on Heilig’s discovery responses, Wood also asserted the following: Heilig’s only fact in support of her claim that Wood would be unjustly enriched if the estate were allowed to invoke the statute of frauds is that Doris Spengler received the benefit of owning the Property and the income after John Spengler’s death; Heilig has no document showing that any party would be unjustly enriched if the statute of frauds was invoked; and Heilig knows of no fact supporting the proposition that John Spengler ever considered whether to sever the joint tenancy title to the Property or refrained from doing so because of the alleged oral agreement.
2. Heilig’s Response to Wood’s Summary Judgment Motion
Heilig did not file a response to Wood’s separate statement of undisputed facts. She did not object to any of the evidence Wood submitted in support of those facts. She did not submit her own separate statement of material facts. Nor did she submit any evidence in opposition to Wood’s motion.
Instead, Heilig argued that Wood was again challenging the “pleading” reviewed in Heilig I, and that in “overruling the demurrer” we had already decided that “adequate facts were plead [sic] to allow this case to proceed to trial.” Citing from our opinion in Heilig I, Heilig urged that once the alleged oral agreement is proven, “it can be inferred that title was not changed in reliance upon Doris’[s] promise” and “[n]o further facts are needed.”
3. Court’s Decision
The trial court granted Wood’s summary judgment motion and entered judgment accordingly.
This appeal followed.
II. DISCUSSION
In reviewing the grant of summary judgment, we conduct an independent review to determine whether there is a triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860; Buss v. Superior Court (1997) 16 Cal.4th 35, 60; Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1485.) We construe the moving party’s evidence strictly, and the nonmoving party’s evidence liberally, in determining whether there is a triable issue. (See D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20; Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72 (Thomas).)
A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or (as here) that there is a complete defense to the cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue. (See Code Civ. Proc., § 437c, subd. (p)(2); Thomas, supra, 98 Cal.App.4th at p. 72.)
A. Statute of Frauds and Equitable Estoppel
A contract to make a will or devise, if formed before January 1, 1985, can be established only under the law applicable as of December 31, 1984. (Prob. Code, § 21700, subd. (c).) John and Doris Spengler’s alleged oral contract to devise the Property to Heilig must have been formed before John died in December 1981. At that time, Civil Code section 1624 provided that an agreement to devise or bequeath any property was invalid unless the agreement was in writing. (Estate of Housley (1997) 56 Cal.App.4th 342, 350 fn. 7 (Housley).)
Before 1985, Civil Code section 1624 read: “The following contracts are invalid, unless the same, or some note or memorandum thereof, is in writing and subscribed by the party to be charged or by his agent: . . . 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.” (Housley, supra, 56 Cal.App.4th at p. 350, fn.7.)
However, an oral contract to make a will is not unenforceable under Civil Code section 1624 if equitable estoppel applies. (Day v. Greene (1963) 59 Cal.2d 404, 409-410.) A party may be equitably estopped from invoking the statute of frauds if: (1) another party was induced to make a serious change in position in reliance on the oral agreement; or (2) unjust enrichment would result if a party who has received the benefits of the other’s performance were allowed to invoke the statute. (Id. at p. 410; see Housley, supra, 56 Cal.App.4th at p. 351.)
B. Wood Met His Initial Burden
Based on the undisputed material facts, Wood established that the alleged agreement to will or devise the Property to Heilig was oral, and it was thus subject to the statute of frauds. In addition, as we discuss next, Wood made a prima facie showing that he could not be equitably estopped from invoking the statute of frauds defense.
Arguably, Wood’s showing that the alleged agreement was oral and there was no written “note or memorandum thereof” (Civ. Code, § 1624) was sufficient in itself to shift the burden to Heilig to demonstrate a triable issue of fact as to the statute of frauds defense, including any evidence that would support equitable estoppel. (See Housley, supra, 56 Cal.App.4th at pp. 358-359 [“Although equitable estoppel principles may apply in situations like the one here, we believe it is incumbent on the alleged promisee . . . to show there is a triable issue of whether equitable estoppel should apply. [The promisee] therefore must submit sufficient evidence to raise triable issues of fact on the elements of a prima facie case for application of equitable estoppel.”]. Italics added.) The parties, however, assume that Wood had to demonstrate that equitable estoppel did not apply. We need not decide the issue, since in either event Heilig’s failure to present evidence supporting equitable estoppel would warrant summary judgment.
As mentioned, there are two bases for equitable estoppel in this context: detrimental reliance by the promisee, and unjust enrichment to the beneficiaries.
1. Detrimental Reliance
As to the detrimental reliance theory, estoppel may arise where a party has changed his position in reliance on the promise—as where the decedent promisor induced the party claiming the oral agreement to rely on the promise. (See, e.g., Housley, supra, 56 Cal.App.4th at p. 360 [decedent promisor induced the party attempting to enforce the oral promise to provide care and companionship to decedent]; Day, supra, 59 Cal.2d at p. 408 [decedent promisor induced husband not to devise property to the party attempting to enforce the oral promise].)
Heilig does not assert the detrimental reliance theory of equitable estoppel. We nonetheless briefly address it, in light of her allegations, for clarity of our analysis. As mentioned, Heilig alleged in her second amended complaint that John “was induced to seriously change his position as to the ownership of the PROPERTY in reliance on the contract.” However, there is no evidence that John Spengler changed his position in reliance on the alleged oral agreement to devise the Property to Heilig. (Cf. Day, supra, 59 Cal.2d at p. 408.) As Wood established as an undisputed material fact, Heilig knows of no fact supporting the proposition that John Spengler refrained from severing the joint tenancy due to the alleged agreement. Nor is there any evidence that Heilig changed her position in reliance on the alleged agreement. (Cf. Housley, supra, 56 Cal.App.4th at p. 360.) The detrimental reliance theory of equitable estoppel is therefore unavailable.
In Heilig I, we construed the allegation of John’s change of position to give rise to an inference as to the unjust enrichment theory of equitable estoppel, since that was the theory Heilig was pursuing; however, as we discuss post, for purposes of summary judgment no such inference can arise as to the unjust enrichment theory either.
2. Unjust Enrichment
As we stated in Heilig I, under the derivative estoppel theory the “beneficiary of a promisor can be derivatively estopped where the decedent received the benefit of the agreement; permitting the beneficiary to invoke the statute of frauds would otherwise constitute unjust enrichment.” (Heilig I, supra, at p. 4.) (See, e.g., Stahmer v. Schley (1979) 96 Cal.App.3d 200, 203 [beneficiary under will of a person who obtained the benefit of an earlier agreement to create a joint will was derivatively estopped from invoking the statute of frauds to avoid enforcement of the agreement to make the joint will].) The question, therefore, is whether Wood (as beneficiary) would be unjustly enriched if the oral agreement was not enforced, such that he should be estopped from invoking the statute of frauds, because Doris Spengler (as decedent promisor) received the benefit of the oral agreement.
In his summary judgment motion, Wood established through Heilig’s discovery responses that Heilig’s only fact in support of her claim of unjust enrichment is Doris Spengler’s benefit in owning the Property and receiving its income.
Wood further demonstrated, however, that Doris Spengler’s ownership of the Property and receipt of its income was not a benefit attributable to the alleged oral agreement. It was undisputed that John and Doris Spengler held the Property in joint tenancy until John’s death. As the surviving joint tenant, Doris Spengler was entitled to the full benefit of owning the Property and receiving the income therefrom. (Estate of Propst (1990) 50 Cal.3d 448, 455 [“The principal characteristic of joint tenancy is the right of survivorship”]; Estate of Dow (1947) 82 Cal.App.2d 675, 680 [the deceased joint tenant’s interest ceases at death and is not part of his estate].) When the oral agreement was allegedly formed, therefore, Doris Spengler was already entitled to survivorship benefits, and it was thus the joint tenancy—not the alleged oral agreement to devise the Property to Heilig—that created the purported benefit to Doris Spengler.
The parties recognize that Doris Spengler would have benefitted from the alleged oral agreement if, in reliance on the agreement’s terms or existence, John Spengler had decided not to sever the joint tenancy, thus permitting the Property to pass to Doris Spengler. Indeed, it was this possible inference from Heilig’s pleading that previously precluded Wood’s demurrer.
In seeking summary judgment, however, Wood asserted as an undisputed fact—which Heilig did not dispute—that Heilig had no facts to support the proposition that John Spengler refrained from severing the joint tenancy due to the alleged oral agreement. As supporting evidence, Wood submitted Heilig’s responses to interrogatories, which requested all facts supporting Heilig’s claim that unjust enrichment would result from invocation of the statute of frauds. In her response, Heilig asserted that Doris had the full benefit of owning the Property and receiving the income, and argued that failure to enforce the alleged oral agreement would constitute a fraud on Heilig and her children. However, Heilig provided no facts or evidence suggesting fraud. Furthermore, when asked to produce all documents supporting her interrogatory responses, Heilig identified only the order confirming the sale of the Property and Doris Spengler’s will, neither of which indicates that John Spengler intended to sever the joint tenancy but for the agreement to leave the Property to Heilig, or that he even considered the matter.
In sum, Wood met his burden of demonstrating the bar of the statute of frauds and the absence of any unjust enrichment that would support an equitable estoppel exception to the statute of frauds. The burden then shifted to Heilig to produce admissible evidence demonstrating a triable issue of material fact.
C. Heilig Failed To Establish A Triable Issue of Material Fact
In opposing the motion for summary judgment, Heilig did not submit any evidence that Doris Spengler received any benefit from the alleged oral agreement beyond what she was entitled to as the surviving joint tenant. In particular, Heilig produced no evidence that John Spengler decided not to terminate the joint tenancy because of the alleged oral agreement, or even that John ever considered terminating the joint tenancy. Although for purposes of demurrer it was implicit in Heilig’s allegations that John Spengler might have bargained away his right to sever the joint tenancy in consideration of the alleged agreement to devise the Property to Heilig, at the summary judgment stage there was no evidence to support that proposition.
Heilig contends requiring evidence of John Spengler’s decision not to sever the joint tenancy due to the agreement would impose a requirement for equitable estoppel beyond Heilig I and the law. Not so. The point is that Heilig can never establish the element of unjust enrichment unless she shows it was the agreement that caused John Spengler to maintain the joint tenancy to Doris Spengler’s benefit. There is no evidence from which to draw that conclusion.
Heilig also argues that a triable issue of equitable estoppel arises from the undisputed facts asserted by Wood. In particular, she urges, from the mere fact that John Spengler never terminated the joint tenancy, it can be inferred he did rely on the alleged oral agreement. We disagree. To defeat a summary judgment motion, inferences from undisputed facts cannot be based on speculation or surmise. (Joseph E. Di Loreto, Inc. v. O’Neill (1991) 1 Cal.App.4th 149, 161.) To the contrary, Heilig “must submit sufficient evidence to raise triable issues of fact on the elements of a prima facie case for application of equitable estoppel.” (Housley, supra, 56 Cal.App.4th at p. 358-359.) Thus, in Housley, the court concluded there was a triable issue of fact not only from the existence of the alleged oral agreement, but also from evidence that the promisee provided a great benefit to the decedent-promisor. (Housley, supra, 56 Cal.App.3d at p. 360; see also Day v. Greene, supra, 59 Cal.2d at p. 408 [relying not only on evidence of husband and wife’s promise to devise property to daughter, but also on evidence that father omitted devises to his daughter and instead transferred everything to wife based on the understanding that wife would in turn devise property to daughter].)
In the final analysis, the question is whether a reasonable jury could conclude that John Spengler decided not to terminate the joint tenancy because of the alleged oral agreement. Without any evidence that he even considered terminating the joint tenancy (or knew that he could), or any evidence that the alleged oral agreement required maintaining the joint tenancy, there can be no reasonable inference that the oral agreement caused him not to terminate it.
To the extent Heilig argues to the contrary based on our opinion in Heilig I, she misunderstands the opinion. We address this topic next.
D. Heilig Misreads Heilig I
In opposing Wood’s summary judgment motion, Heilig relied on selected language in Heilig I and essentially argued that she did not have to present any evidence to support the allegations in her pleadings: “The Decision, by use of footnotes, clearly holds that all of the elements of an adequate pleading have been presented. The Decision verifies no shortcomings or inadequacy of the Amended Complaint. Therefore, so long as those material facts—i.e., the existence of the oral agreement—are proven, Plaintiff wins without having to prove anything more.” In addition, Heilig argued: “As the Court of Appeal discussed on page 5 of its Opinion and following, the only fact that needs to be plead and proved is the existence of the oral agreement itself. Once this agreement is proven, it can be inferred that title was not changed in reliance upon Doris’s promise. No further facts are needed. . . .” (Underscoring in original.)
These arguments, as well as Heilig’s arguments in this court, rely on the following passage she quotes from our opinion in Heilig I: “Assuming the truth of the agreement as alleged, Doris Spengler benefitted because her husband did not separately devise his interest and she retained the property for 15 years after his death until her own. That is enough to justify application of equitable estoppel.” (Heilig I, supra, at p. 7.) From this, Heilig insists we meant that proof of equitable estoppel required nothing more than the fact the joint tenancy was never severed. We neither said nor meant any such thing.
In Heilig I, we reviewed a demurrer ruling. Construing Heilig’s allegations broadly, we found an implicit allegation that the oral agreement included a promise that John Spengler would not sever the joint tenancy. We explained: “Although the second amended complaint does not expressly allege that the oral agreement included mutual promises to abstain from severing the joint tenancy, we decline to shave the allegations of the complaint that closely. The complaint alleges that John and Doris Spengler agreed to bequeath the duplex to Heilig and that due to the agreement John Spengler ‘was induced to seriously change his position as to the ownership of the PROPERTY.’ His promise not to terminate the joint tenancy and separately devise his interest in the property is implicit in the agreement as alleged. (See Yue v. City of Auburn (1992) 3 Cal.App.4th 751, 756 [‘We treat the demurrer as admitting all material facts properly pleaded, as well as those which reasonably arise by implication’].) Applying liberal rules of construction of pleadings, we view the complaint as also containing the implicit allegation that John forbore making the change of title in reliance on his wife’s promise to carry out his wishes. [Citation.]” (Heilig I, supra, at p. 6, italics added; see also Code Civ. Proc., § 452 [liberal construction of pleadings at demurrer stage].)
In the matter before us, by contrast, we review a summary judgment by looking not to the pleadings but to the evidence. In Heilig I, we inferred from the pleadings a potential benefit to Doris Spengler in part from the allegation that “due to the agreement John Spengler ‘was induced to seriously change his position as to the ownership of the PROPERTY.’ ” (Heilig I, supra, at p. 6.) But here, Heilig failed to present any evidence that, in fact, the oral agreement induced John Spengler to change his position in regard to the ownership of the Property. Thus, although in Heilig I we could infer from the “agreement as [implicitly] alleged” that John Spengler promised not to terminate the joint tenancy and separately devise his interest in the property, we cannot make that inference here because there is no evidence that the agreement was, in fact, the “agreement as [implicitly] alleged.” (Ibid.) Nor is there any other evidence that the oral agreement included mutual promises to abstain from severing the joint tenancy or that John Spengler promised not to terminate the joint tenancy and separately devise his interest in the Property.
Moreover, Heilig ignores other language in Heilig I, which highlights the difference between a demurrer and a summary judgment motion. We explained: “Because John Spengler had the ability to terminate the joint tenancy at any time, the fact that Doris Spengler had the right to survivorship at the time the alleged agreement was made does not demonstrate that she obtained no benefit from the agreement.” (Heilig I, supra, at p. 5, italics added.) In other words, for purposes of the demurrer in Heilig I, we could not say that the right of survivorship precluded unjust enrichment as a matter of law, and thus it did not negate the possibility of an equitable estoppel exception to the statute of frauds. For purposes of summary judgment, however, the right of survivorship, plus Wood’s showing that there was no evidence John Spengler maintained the right of survivorship due to the alleged agreement, gave rise to an inference that there would be no unjust enrichment; on that basis, the burden shifted to Heilig to provide evidence creating a triable issue. She failed to do so.
The court did not err in granting summary judgment.
III. DISPOSITION
The judgment is affirmed.
We concur: SIMONS, Acting P. J., REARDON, J.
Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.