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Hugh J. Mcmackin v. Kellian Mcginness Ehrheart

April 8, 2011

HUGH J. MCMACKIN, PLAINTIFF AND RESPONDENT,
v.
KELLIAN MCGINNESS EHRHEART, INDIVIDUALLY AND AS ADMINISTRATOR, ETC., ET AL., DEFENDANTS AND APPELLANTS.



(Los Angeles County Super. Ct. No. LC088219) APPEAL from an order of the Superior Court of Los Angeles County. Richard B. Wolfe, Judge. Affirmed.

The opinion of the court was delivered by: Mallano, P. J.

CERTIFIED FOR PUBLICATION

In a case of first impression, we are asked to determine whether a Marvin claim*fn1 based on a decedent's promise to leave her cohabitant a life estate in real property is governed by the one-year statute of limitations of Code of Civil Procedure section 366.3, and, if so, whether the doctrine of equitable estoppel can be applied to preclude assertion of section 366.3's statute of limitations.*fn2 We conclude that the Marvin claim here is an action to enforce a claim that arises from a promise or agreement with a decedent for distribution from an estate and, thus, is governed by section 366.3, which requires the action to be commenced within one year after the date of death. We further conclude that, depending on the circumstances of each case, the doctrine of equitable estoppel may be applied to preclude a party from asserting the statute of limitations set forth in section 366.3 as a defense to an untimely action where the party's wrongdoing has induced another to forbear filing suit.

BACKGROUND

The facts and evidence pertinent to this appeal are taken from the declarations submitted by the parties in connection with the application for injunctive relief. The original complaint alleged as follows.

Plaintiff Hugh J. McMackin lived with Patricia Lyn McGinness in her home from approximately 1987 until McGinness died intestate on October 1, 2004. McMackin was never on title to the home but continued to occupy it after McGinness's death. Defendants Kimberly Frost and Kellian McGinness Ehrheart are McGinness's daughters and are the heirs of McGinness's estate. On February 25, 2008, more than three years after McGinness's death, Ehrheart opened a probate of the McGinness estate (Estate of Patricia Lyn McGinness, Super. Ct. L.A. County, No. LP013431). In April 2009, Ehrheart delivered a lease agreement for the home to McMackin, which he refused to sign. On November 23, 2009, Ehrheart served McMackin with a 60-day notice to quit. On January 13, 2010, McMackin filed a complaint, the gravamen of which was that McGinness promised him a life estate in the home upon her death in consideration for 17 years of his "love, affection, care and companionship." The complaint alleged causes of action for declaratory relief; intentional interference with quiet enjoyment; abuse of process; trespass to land; nuisance; injunctive relief; breach of contract; and promissory estoppel.

A. Temporary Restraining Order

On January 21, 2010, McMackin 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 Frost and Ehrheart from evicting him from the home. In his ex parte application, McMackin claimed that he possessed a life estate in the home based on a promise made by McGinness that he would be entitled to reside in the home for the rest of his life "in consideration of their life together [and] their mutual care and companionship."

In support of the ex parte application, McMackin declared that in 1987 he began residing with McGinness at her home. McGinness maintained title to the home solely in her name. He and McGinness made a life together and cared for one another continuously until McGinness's death from cancer on October 1, 2004. On several occasions McGinness 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." After McGinness died, McMackin continued to reside in the home and paid for the expenses of maintaining it, including the mortgage, until Ehrheart unilaterally advised "the bank" in 2009 to send her the mortgage bills. In April 2009, Ehrheart delivered a residential lease to McMackin, which he refused to sign. On November 23, 2009, Ehrheart delivered a 60-day notice to quit to McMackin.

Magdalena Guerrero, the housekeeper for McMackin and McGinness, declared that "on approximately twenty (20) different occasions" McGinness told her that she wanted McMackin to live in the home for the rest of his life. Maureen Zumbro, a neighbor, declared that on several occasions McGinness told her that she wanted McMackin to live in the home for the rest of his life. Zumbro promised McGinness that she would prevent Frost and Ehrheart from throwing McMackin out of the home after McGinness's death. She told Frost of her promise to McGinness.

In a declaration attached to the opposition to McMackin's ex parte application, Ehrheart declared that since October 1982 the home had been the sole property of McGinness, who had never transferred any interest in the home to McMackin or anyone else. According to Ehrheart, "It was always our understanding that the [home] was left to [Frost and Ehrheart]." After McGinness passed away, McMackin told Frost and Ehrheart not to open probate because the lender would then be able to call the loan due and payable. Ehrheart and Frost relied on McMackin, who was a sophisticated businessman, for advice. Frost and Ehrheart declined McMackin's request to give him a small percentage of ownership in the home so that he could take the mortgage deduction. Ehrheart also relied on McMackin's advice to refrain from making any claim on McGinness's individual retirement account so that Wells Fargo Bank would not call due the equity line of credit on the home. She later discovered the advice he gave her was incorrect.

Ehrheart further declared that McMackin has never accounted for insurance funds provided to McMackin to establish bank accounts for Frost's and Ehrheart's sons' educations. McMackin had promised to release "the rest" of the insurance funds for the boys' tuition after Frost and Ehrheart delivered a lease to him. Ehrheart delivered a lease to him within two weeks of his request. McMackin never mentioned that he thought he had a life estate in the home prior to retaining counsel. Ehrheart filed the probate action on February 25, 2008, and letters of administration were issued on April 14, 2008.

Frost declared that prior to May 5, 2009, McMackin had never made a claim regarding the home. McGinness never told Frost she had given McMackin any interest in the home. According to Frost, Guerrero is employed by McMackin and "would do anything he asks, including signing the declaration filed in support of [McMackin's] request for an injunction." McMackin hired Zumbro for the company at which he works; McMackin participates in hiring and firing decisions; and Zumbro told Frost she "would like to avoid at all costs" having to box up and move McMackin's belongings out of the home.

The Honorable Richard B. Wolfe granted McMackin's application for a temporary restraining order and set a hearing on an order to show cause why a preliminary injunction should not issue for March 25, 2010. The trial court also set an order to show cause to determine why the case should not be transferred to the probate court for hearing on March 2, 2010. (The record does not indicate whether the March 2, 2010 hearing was held or the outcome of any such hearing.)

B. Preliminary Injunction

On March 25, 2010, the trial court issued a tentative ruling to grant the preliminary injunction in which the court stated that the agreement was "an oral non-marital Marvin agreement." Following oral argument, the trial court requested ...


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