Fresno Lawyer – Randolf Krbechek

In McMackin v. Ehrheart (April 8, 2011) 2011 DJDAR 5122, the court of appeal held that a Marvin-based palimony claim under California law could be asserted against an estate more than three years after the decedent’s death.  We remark on the extent to which the law is willing to allow a person to make a claim to real property when that claim is not evidenced by a writing, and, even when title was held 100% in the decedent’s name, as in McMackin.

Before reviewing the decision, let’s cut to the chase.  Hugh McCrackin lived with Patricia McGinness for 17 years, from 1987 until 2004.  He helped her in her declining health.  Patricia told people that she wanted Hugh to live in her house for the rest of her life.  The couple never married.

Let’s accept all of the foregoing as true.  On the other hand, Patricia did not make a will manifesting her intentions.  Nor did she undertake the simple expediency of executing a deed with a life estate in favor of Hugh.  Now, after Patricia’s death, Hugh petitions the court to enforce Patricia’s oral intentions.

These facts do not strike this writer as commanding judicial intervention.  The ability to execute a will or a deed with a life estate is known to all.  The notion that courts should be quick to enforce oral agreements in derogation of the statute of frauds is discomforting, and bears greater scrutiny.

To return to the case.  “Plaintiff Hugh J. McMackin lived with Patricia Lyn McGinness in her home from approximately 1987 until [Patricia] died intestate on October 1, 2004. [Hugh] was never on title to the home but continued to occupy it after [Patricia]’s death.

“Defendants Kimberly Frost and Kellian Ehrheart are [Patricia]’s daughters and are the heirs of [Patricia]’s estate. On February 25, 2008, more than three years after [Patricia]’s death, [her daughter] opened a probate . . .

“On November 23, 2009, Ehrheart served [Hugh] with a 60-day notice to quit. On January 13, 2010, [Hugh] filed a complaint, the gravamen of which was that [Patricia] promised him a life estate in the home upon her death in consideration for 17 years of his ‘love, affection, care and companionship.’”

That’s the stage for this action.  “On January 21, 2010, [Hugh] filed an ex parte application for a temporary restraining order and for an order to show cause why an injunction should not issue to enjoin [the daughters] from evicting him from the home.”

The injunction was entered in favor of Hugh, and was affirmed on appeal.  According to Hugh, Patricia “agreed that he could live in the home for the rest of his life after her death and that she made this promise in consideration of the love, affection, care and companionship we shared over those 17 years.”  The housekeeper “declared that on approximately twenty (20) different occasions [Patricia] told her that she wanted [Hugh] to live in the home for the rest of his life.”

This is a classic case of an promise that lies outside the statute of frauds, and would normally be unenforceable.  Even more, California Probate Code section 366.3 provides that an action to enforce a claim arising from an agreement with a decedent for distribution from an estate must be filed within one year after the decedent’s death.  This statute applies to “a promise to transfer property upon death [that] could be performed only after death, by the decedent’s personal representative, by conveying property that otherwise belonged to the estate.”

The court of appeal noted that “The limitations period provided in this section for commencement of an action shall not be tolled or extended for any reason except as provided in Sections 12, 12a, and 12b of this code, and [certain provisions] of the Probate Code [not applicable to this action].”

Hugh would appear to be out of luck.  However, the court of appeal rescued Hugh by allowing him to apply the doctrine of “equitable estoppel.”  “The court held that there is a distinction between the doctrine of equitable estoppel, on the one hand, and the tolling or extension of the statute of limitations, on the other hand.”

In other words, “there is a distinction between tolling and equitable estoppel. Tolling concerns the suspension of the statute of limitations. The doctrine of equitable estoppel applies only after the limitations period has run to preclude a party from asserting the statute of limitations as a defense to an untimely action where the party’s conduct has induced another into forbearing to file suit.”

The court of appeal ruled that “depending on the circumstances of each case, the doctrine of equitable estoppel may preclude a party from asserting section 366.3 as a defense to an untimely action where the party’s wrongdoing has induced another to forbear filing suit.”

Unfortunately, the opinion does not address whether there was any factual basis for Hugh’s assertion of equitable estoppel against the daughters.  We do not know that the daughters did after the death of their mother that stopped the statute of limitations from running.

Stated the court, “We are not asked, nor do we decide, whether this implied ruling was supported by substantial evidence because [the daughters] made it clear at oral argument on appeal that they challenge the application of equitable estoppel as a matter of law, not whether the evidence supported its application for the purposes of the issuance of a preliminary injunction.“

That’s the easy way out.  The court does not tell us what the daughters said or did that gave Hugh the right claim they were estopped (i.e., prevented by their conduct) from asserting the one-year statute of limitations as a defense.  For the time being, Hugh has deftly stepped over both the statute of frauds and the statute of limitations.

McMackin v. Ehrheart (April 8, 2011) 2011 DJDAR 5122

Scholars trace the creation of the English common law to the second half of the 12th century, at the time of Henry II.  Explains Belgian scholar Raoul Van Caenegem in The Birth of the English Common Law (Cambridge Univ. Press 1973), “the Common Law of England – so different from the jus commune or common learned law of the European universities – is the oldest national law in Europe.  It is the oldest body of law that was common to a whole kingdom and administered by central court with the nation-wide competence in first instance.  In the rest of Europe, law was either European or local, not national.”

Prof. Van Caenegem continues.  “The breakthrough of a centralized and modernized legal system took place exceptionally early in England (and Normandy), before Roman law was in a position to exert any profound influence . . .

“If the modernization of law came exceptionally early in England, it was also remarkably systematic.  The activity of the justices at Westminster and in eyre and the various actions with which they dealt formed a coherent whole and were grasped and described as such.  This new law and its judicial apparatus were national and royal.  Not local magnates, but the king and his central justices were the bearers of the whole system and application was nation-wide.  This was very unlike the Continent, were local and regional custom reigned supreme . . .

“The breach came during the momentous modernization of European society in general, and the law in particular, that took place in the 12th and 13th centuries, a watershed of the greatest importance . . .

The professor traces these developments to William the Conqueror’s invasion of England in 1066.  After losing control over Normandy at the beginning of the 12th century, the English rulers (of Norman descent) began to centralize the legal system in England.

“English law prefers precedent as a basis for judgments, and moves empirically from case to case, from one reality to another.  Continental law tends to move more theoretically by deductive reasoning, basing judgments on abstract principles; it is more conceptual, more scholastic and works with more definitions and distinctions.”

Twenty years of chaos during the first half of the 12th century gave Henry II a footing on which to establish binding legal precedent in a society that had been sorely lacking therein.  “It was a coincidence again that Henry II ruled after Stephen and Matilda had created such chaos that the country was ripe for the stern, nation-wide clean-up of the Assizes and the liquidation of judicial contradictions and uncertainties through centralization in the royal courts.”

“This Anglo-Norman law only became English after the loss of Normandy, nurtured (while it withered away in Normandy) by a state that had turned from the Anglo-Norman into an English state, with English instead of French kings, justices of English descent on the benches, and with an aristocracy that had in the end become so English that the conquest was viewed with distaste by men who were French in speech and habits, and who owned their whole family fortune to William I and his successors.  It was in the 13th century the diffusion of Norman and English into one nation took place in that, and Common Law, which bound together for freemen of every descent, became truly English.”

Who created the English Common Law?  Not surprisingly, it was initially established to protect the upper class.  “The Common Law took no interest in the unfree peasants who were harshly excluded and amerced if they tried to use its benefits.  The man who created it were members of a small aristocracy and it was accessible to them and the free minority of the natives [ ] and they created it in order to preserve harmony among the free, landowning top class.”

(The professor notes that French was the language of the English legal system from the late 13th century until 1731, when English was established as the official language of the law in England by an act of Parliament of George II.)

The law of eviction, or unlawful detainer, has roots that extend back hundreds of years.  Here in California, where everyone has the opportunity to make a fresh start, we sometimes forget the past and how it affects our laws.

Yet in eviction, which is properly referred to as “unlawful detainer,” the historical underpinnings are quite plain.  Unlawful detainer is concerned with the possession of real property and is described as a “summary remedy.”  In contrast, an action to determine title to real estate is known as a “quiet title” proceeding, and involves the full trial process.

This distinction between an action for possession and an action for title existed in feudal England.  Legal historian R.C. Van Caenegem, in a series of lectures compiled in The Birth of the English Common Law (Cambridge Univ. Press 1973), explained how these two legal actions were established under King Henry II (1133–89), who reigned from 1154.

It is astonishing to note how closely the forms of action that existed almost 900 years ago parallel those that we use today in California.  Prof. Van Caenegem begins by noting that, “The assize and the action based on it offered protection of tenure, i.e. the peaceful possession and exploitation of free land, at a time when land was the essential form of wealth, the basis of almost everyone’s livelihood and the great source of power and prestige.”

Let’s pause.  It was important for the King to maintain peace in his kingdom.  Acts of self-help to regain possession of real property were likely to lead to violent responses.  The use of the courts, and a ban on self-help, helped preserve peace.  We continue to follow this rule to this day.

Prof. Van Caenegem continues.  “The classic action of novel disseisin, a fruit of Henry II’s reign, was the culmination of a very long royal preoccupation with seisin, witnessed by numerous orders to restore possession, with or without certain forms of judicial enquiry.”

“It was not the preoccupation with seisin that was new, but its systematic judicial form in the hands of the royal justices and the fact that it was now at the disposal of all free men.  Seisin and the protection of seisin – as opposed to right and the lawsuits connected with it – were very old notions, with roots in Germanic gewere, feudal vestitura and ecclesiastical ideas . . . of the early Middle Ages.”

Listen carefully to the following words, for they remain valid today.  “People had known for centuries that seisin and right – possessio and proprietas being the corresponding Roman notions – were two different things and that measures concerning seisin could be followed by litigation on right, but could just as well be taken for their own sake and without further litigation.  So it had been in the past and so it remained after novel disseisin had taken shape.”

Here he is explaining that distinct legal procedures existed for actions based on possession, as opposed to actions based on title, during the time of Henry II.  Were we to meet a lawyer from that time, we would speak the same language when it came to a lawsuit for eviction, in which the sole legal issue is the right to possession of the property.  That is a remarkable notion.

Prof. Van Caenegem continues. “Of course, people who lost their case on seisin could try an action on right, but this was an exceedingly rare phenomenon and the reason is not far to seek.  Seisin was not merely a question of material but of lawful detention: ‘seisin must include some modicum of right, and it is hardly possible to say where seisin ends and right begins.’”

“The question put to the jury was not only whether A had been disseised without judgment, but whether he had been disseised unjustly and without judgment: the jury had to go into the legal situation and if a jury of twelve lawful freemen had found that a man had not been disseised unjustly the chances that a subsequent jury of twelve knights in a process on right would find that he had, after all, the greater right were very small.  It is not because a negative judgment on seisin leaves the loser the theoretical liberty to start a plea on right that his real chances are good.”

So remains the law today.  Which is remarkable to this author; an everyday lawsuit in California is the same lawsuit that would have been filed in feudal England in 1150.

R.C. Van Caenegem, The Birth of the English Common Law (Cambridge Univ. Press 1973)