[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 878 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 879 OPINION
Elliott Friedman (appellant), defendant in a "Marvin" action (Marvin v. Marvin (1976) 18 Cal.3d 660 [134 Cal.Rptr. 815,557 P.2d 106] [Marvin I]), appeals from an order awarding temporary spousal support pending trial to Terri Friedman (respondent), plaintiff in that action. We reverse.
I. BACKGROUND A. Procedural History On January 13, 1992, respondent filed a complaint, seeking damages and various forms of equitable relief from appellant, following termination of a relationship in which the two had cohabited for twenty-one years. On April 21, 1992, respondent filed a motion, requesting "temporary support" pending trial. The motion was supported by a lengthy declaration by respondent, *Page 880 chronicling the history of her relationship with appellant. Appellant filed opposition to the motion, including a declaration which contradicted a number of facts set forth in respondent's declaration. The trial court conducted a two-day evidentiary hearing, rendering its decision shortly thereafter.
In its "Statement of Decision on Motion for Temporary Support" the court noted that respondent's motion presented a "compelling" case for an award of (temporary) support "based on an implied contract. . . ." The court found that the evidence presented was insufficient to support a finding of an express agreement to provide support but that it was adequate to support a finding of an "implied" agreement. Specifically, the court found that there was an implied contract between the parties "that if they separated, [respondent] would be supported by [appellant] in the same manner as if they had been legally married."
After finding an implied contract for support, the court examined the question of "whether it is appropriate to make the highly unusual provision for damages to be paid pending trial." The court found that trial could be years in the future, leaving respondent "in poor health living off her dwindling personal assets." The court found that such an award was proper because there were no other adequate remedies, respondent would suffer irreparable injury (if the award were not made) and respondent had a "reasonable probability of success at trial on the merits." Finally, the court awarded $1,426 per month in temporary support, based on Alameda County spousal support guidelines.
Apparently in response to appellant's request, the court issued a "Further Statement of Decision." This statement expanded the court's earlier findings on the issues of irreparable harm and inadequacy of legal remedies. On the question of irreparable harm, the court found that "injunctive relief" was required because respondent was totally physically disabled and had only modest liquid savings to use to "support her daily needs and to maintain her mortgage, insurance and real property tax payments. . . ." On the question of the inadequacy of monetary damages the court reiterated that trial might be years in the future. A formal "Order for Temporary Support" was then entered which ordered appellant to pay the sum of $1,426 per month, beginning April 21, 1992, until the time of trial or further order of the court.
Shortly thereafter appellant filed a motion to dissolve injunction and, in the alternative, to fix the amount of security for undertaking. During the course of that hearing, the court noted that its original order, indeed, had been framed as an injunctive order. However, the court ultimately "changed *Page 881 [its] mind" and denied "appellant's motion to dissolve injunction and to require security" because the earlier order was not an injunctive order but rather, an "order to pay money. . . ."
B. Factual Background The evidence presented at the original hearing on the motion for temporary support consisted of the declarations of the parties filed in support of and in opposition to the motion, as well as testimony from appellant and respondent. The evidence presented very few factual conflicts.
(1) History of Relationship Respondent and appellant began living together in 1967, when respondent was 25 years old. Respondent had a child from a previous marriage when she and appellant began their cohabitation. Respondent and appellant did not believe that a license for marriage was necessary to bond together in a lifetime commitment. Thus, they vowed to be husband and wife and to strive to be partners in all respects "without any sanction by the State."
In 1971 respondent and appellant purchased land in Alaska in partnership with several other individuals; title to their portion referred to them as "Husband and Wife." Over a period of two years, they built a home on their property. Appellant worked as an investigator the entire time they were in Alaska. Respondent initially worked as a waitress; however, her principal work was in contributing to appellant's career, building up and maintaining the property, and caring for their first child, who was born in 1974. Along the way they also acquired an interest in some commercial property, the deed to which listed respondent as "Terri Friedman." When they decided to leave Alaska that property was sold.
In 1978 or 1979 respondent and appellant moved back to the Bay Area; appellant began attending law school in 1979. Their plans for respondent to complete her college education fell through in part due to illness of their second child, who was born in 1981. Also in 1981 they purchased and fixed up a home in Berkeley; they apparently sold that home and purchased a new home in Kensington in 1986.
After law school appellant became a practicing attorney and entered into a small partnership; respondent assisted in designing and decorating his office. When that partnership dissolved appellant continued in practice and did well economically. Respondent involved herself in upgrading and maintaining their homes, cooking, cleaning, entertaining and caring for their children. *Page 882
In the mid-1980's respondent was experiencing back trouble; ultimately, she was diagnosed as having a herniated disc which required surgery. Respondent is currently disabled; her ability to walk is extremely limited, and she must wear a back brace at all times, except when she is asleep.
In 1982 respondent and appellant planned to be formally married. However, appellant was prevented by a storm from returning to the Bay Area on the day of the wedding; so, no formal wedding ceremony ever took place.
(2) Evidence Pertaining to Financial Affairs and Support Respondent's declaration contained no references to discussions or agreements between the parties about their financial obligations to each other, apart from noting the manner in which they took title to property together. Appellant's declaration stated that he and respondent had no discussions about their financial obligations to each other. Moreover, according to appellant, they never discussed what would happen if they separated, and the issue of support never arose. Appellant did not contest respondent's ownership of a one-half interest in their real property in Alaska and California.1 However, he denied any further agreements to pool their other accumulations while they were together.
At the hearing on the motion for temporary support, respondent testified that she and appellant had an understanding and had had conversations dealing with "financial, economic equality" and sharing of property. She further testified that they understood and appellant had said that all the property they were involved in was "equal in ownership. . . ."
Very little testimony was offered by appellant on the issue of support. Appellant testified that he and respondent never discussed the concept of support after separation. He stated, "That was not part of our life. It was not part of what we were doing. . . . [W]hen we split up, we split up." He also testified that he did nothing he was aware of to lead respondent to believe he would provide support for her if they separated.
Respondent's testimony on the issue of support was also limited. She testified that appellant did agree (expressly) at one time to support her if their relationship ended. She stated that, although she never expected that she and appellant would separate, they did discuss the subject on one or two occasions, and appellant said not to worry about support. *Page 883 II. DISCUSSION A. Appellant's Contentions Appellant first contends that the trial court erred in issuing a pretrial "order to pay money." He then argues that, if the order to pay money is considered to be, in reality, a preliminary injunction, it was granted in error because (a) respondent has an adequate remedy at law; (b) insufficient evidence was presented that respondent would suffer irreparable harm; and (c) respondent failed to demonstrate that she has a reasonable probability of success on the merits. Finally, appellant argues that the trial court erred in making its support award retroactive to the date on which respondent's motion for temporary support was filed. Because we agree with appellant's first two arguments, we do not reach the third.
B. Discussion (1) The Trial Court's "Order to Pay Money" Was Made Without Authority In Marvin I, supra, 18 Cal.3d 660, 681, the Supreme Court determined that the Family Law Act was not intended by the Legislature to delineate the property rights of nonmarital partners. However, the court also determined (a) that the courts should enforce contracts between nonmarital partners and (b) that in the absence of an express contract, the courts should look to the conduct of the parties to determine whether or not that conduct demonstrates "an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties." (Id. at p. 665.)
The Marvin court also held that, in the absence of an express agreement, the courts may look to a variety of remedies to protect the parties' expectations. Among those remedies, the court suggested that principles of constructive trust, resulting trust or quantum meruit might be employed by the courts. (MarvinI, supra, 18 Cal.3d at p. 684.) In footnote 25, the court noted that the remedies suggested were not exclusive and that "additional equitable remedies [may evolve] to protect the expectations of the parties to a nonmarital relationship in cases in which existing remedies prove inadequate . . . in light of the factual setting in which they arise." (Ibid.)
The court made one other finding and reserved a decision on one other question which bear on the case before us. In footnote 24, the court stated: "we do not hold that plaintiff and defendant were `married,' nor do we extend to plaintiff the rights which the Family Law Act grants valid or *Page 884 putative spouses. . . ." (Marvin I, supra, 18 Cal.3d at p. 684.) However, in footnote 26, the court stated: "We do not pass on the question whether, in the absence of an express or implied contractual obligation, a party to a nonmarital relationship is entitled to support payments from the other party after the relationship terminates." (Id. at p. 685.)
Our analysis of the trial court's "order to pay money" is guided by the Supreme Court's pronouncements in Marvin. However, that analysis is complicated by the difficulty we face in understanding exactly what type of order was entered below.
The trial court's statement of decision makes it clear that the court found that there was an "implied" agreement between appellant and respondent. However, the statement of decision does not reflect what specific conduct of the parties led to its conclusion that such an implied agreement existed. (Marvin I,supra, 18 Cal.3d at p. 678, fn. 16.) Moreover, the statement of decision fails to set forth the terms of the implied agreement with regard to support. Specifically, the statement of decision does not make findings on such questions as (a) the amount of support one party impliedly agreed to provide to the other, following termination of the relationship; (b) how long such support would last; and (c) most significantly, whether or not such support should be paid from the moment the relationship terminated and before any other rights of the parties were determined by a court of law.2 We first address the questions of whether or not the trial court's order is supportable as an "order to pay money" or an award of "temporary spousal support" in the absence of an express agreement to make such payments.
(a) California Law Does Not Give a Trial Court the Power to Issue "Orders to Pay Money" (1) Appellant correctly points out that there are no provisional remedies available to litigants in civil contract actions apart from those set forth in titles 6.5 (Attachment) and 7 (Other Provisional Remedies in Civil Actions), of part II of the Code of Civil Procedure; those remedies include attachment, claim and delivery, injunction, and deposit in court. (6 Witkin, Cal. Procedure (3d ed. 1985) Provisional Remedies, §§ 1-2, pp. 15-16.) Appellant also points out that, apart from the provisions dealing with an injunction, none of the provisional remedies even arguably applies to the order issued by the trial court herein. (Ibid.)
Respondent does not reply directly to appellant's point about the trial court's order potentially passing muster only in the form of a preliminary *Page 885 injunction. Instead, respondent first argues that an award of temporary support may take injunctive form. Respondent then argues that appellant is estopped under principles of promissory estoppel and equitable estoppel to deny his legal responsibilities to support respondent. Finally, she argues that the court has "inherent equity powers" to make an award of temporary spousal support.
As to promissory estoppel, respondent refers to the Restatement of Contracts section 90, subdivision (1), which states that: "[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise." Respondent argues that she relied on appellant's commitment "which included the promise of support in the event of a separation." However, that claim is unsupported by the record; no evidence was presented through respondent's declaration or at the hearings that she, in fact, relied on any promise by appellant regarding support after termination of their relationship. Moreover, no evidence was introduced or argument made that respondent acted or forbore from any action based on any promise allegedly made by appellant.
Respondent's "equitable estoppel" argument is based on Evidence Code section 623, which states that "[w]henever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it." Respondent argues that appellant's signing of joint tax returns for the state and federal governments constitutes a representation that he was married and that, accordingly, he should not be permitted to deny the legal responsibilities which would otherwise flow from that representation (presumably, an obligation to provide temporary spousal support).
Respondent's argument fails for at least two reasons. First, no evidence was presented and no argument made by respondent that the litigation in question (respondent's Marvin action) arose out of appellant's conduct (signing joint tax returns). Moreover, in order for estoppel principles to apply, the party invoking estoppel (respondent) must be ignorant of the true facts. (11 Witkin, Summary of Cal. Law (9th ed. 1990) Equity, § 177, pp. 858-860.) No such showing can be made here. The evidence was uncontroverted that respondent knew at all times that she was not married to appellant.
In sum, we conclude that an amorphous "order to pay money" is not a cognizable provisional remedy under California law and that appellant is not *Page 886 estopped from asserting that the trial court exceeded its authority in making such an order.
(b) The Trial Court Lacks "Inherent Equity Power" to Award (Spousal) Support Pending Trial (2) Our analysis of whether or not the trial court had "inherent equity powers" to make an award of temporary support begins with footnotes 24, 25, and 26 in Marvin I, supra, 18 Cal. 3d at pages 684-685. Footnote 25 seemingly invites lower courts to fashion equitable remedies to protect the expectations of the parties in a nonmarital relationship. Footnote 26 specifically leaves open the question of whether or not an award of spousal support may be made in the absence of an express or implied contractual obligation. Finally, footnote 24 makes it clear that, even if such an award may be proper under some circumstance(s), it cannot be based on the support provisions of the Family Law Act.
We note, preliminarily, that although courts of equity have broad powers, they may not create totally new substantive rights under the guise of doing equity. (Marvin v. Marvin (1981)122 Cal.App.3d 871, 876 [176 Cal.Rptr. 555] (Marvin II).) InMarvin II, the Second District (Div. Three) reversed the trial court's award of $104,000 for "rehabilitation." In making that judgment, the Court of Appeal noted that there was nothing in the trial court's findings to suggest that such an award was warranted "to protect the expectations of both parties." (Id. at p. 876, italics in original.) The court went on to note that the trial court's findings that plaintiff needed the award and that defendant had the ability to respond to the need was not enough; as a "nonconsensual" award, it required support by "some recognized underlying obligation in law or equity." (Ibid.)
We agree with the court in Marvin II. Under Marvin I, an award of temporary spousal support cannot be justified as a substantive right under the Family Law Act. Under the facts of this case, the only potential equitable remedy which could justify an award of temporary spousal support was an injunction. To the extent that the trial court's order was intended to constitute an award of such support under other "inherent equitable principles," the court exceeded its authority.3 *Page 887 (2) The Trial Court's Order Cannot Pass Muster as a Preliminary Injunction (3a) Our next task is to analyze the trial court's order as a preliminary injunction. Since the effect of the order was to change the status quo by ordering appellant to pay money, pending trial on the merits, we subject it to close scrutiny. (Board ofSupervisors v. McMahon (1990) 219 Cal.App.3d 286, 295-296 [268 Cal.Rptr. 219].)
(a) The Evidence Was Insufficient to Support a Finding of an Implied Agreement to Provide Temporary Spousal Support The trial court's statement of decision begins with a discussion of footnotes 25 and 26 in Marvin I; it then proceeds to describe the evidence introduced by the parties regarding the length and conduct of their relationship, emphasizing the testimony pertaining to their filing tax returns as husband and wife and taking title to real property as husband and wife. The court then discusses respondent's testimony pertaining to appellant's alleged assurances that he would "always support" her. However, the court specifically found that the evidence pertaining to an express agreement to provide support was "[not] enough." Finally, the court found that there was an implied agreement to provide support "in the same manner as if [the parties] had been legally married." It appears that the court then ordered appellant to pay temporary support (either in the form of a preliminary injunction, an award of specific performance, or some other unidentified form of relief) based on its finding that the parties' conduct somehow proved the existence of that implied agreement. Accordingly, we first examine the evidence pertaining to the parties' conduct to determine whether or not substantial evidence supported the trial court's finding.
(4) An implied contract "`. . . in no less degree than an express contract, must be founded upon an ascertained agreement of the parties to perform it, the substantial difference between the two being the mere mode of proof by which they are to be respectively established.'" (Silva v. Providence Hospital ofOakland (1939) 14 Cal.2d 762, 773 [97 P.2d 798].) It is thus an actual agreement between the parties, "the existence and terms of which are manifested by conduct." (Civ. Code, § 1621) Although an implied in fact contract may be inferred from the "conduct, situation or mutual relation of the parties, the very heart of this kind of agreement is an intent to promise." (Division ofLabor Law Enforcement v. Transpacific Transportation Co. (1977) 69 Cal.App.3d 268, 275 [137 Cal.Rptr. 855].) *Page 888 (3b) The record before us discloses no conduct on the part of the parties from which it can be implied that the parties (particularly appellant) intended to promise that respondent would be supported as if she and appellant had actually been married if the relationship ended. In fact, the record discloses that the parties specifically chose to live together "without any sanction by the State." It is true that the parties took title to certain real property together, as husband and wife. That fact may impact on the parties' rights in that property now that the relationship has ended. However, the record discloses no conduct from which it can be concluded that the parties agreed they would be bound by state laws (sanction) pertaining to temporary spousal support from the termination of the relationship until establishment of contractual rights at trial.4
The net effect of the trial court's findings regarding support is to resurrect common law marriages in California. That institution was abolished by the Legislature in 1895, a fact emphasized by the court in Marvin I, supra, 18 Cal.3d at page 684, footnote 24.
Our reasoning is consonant with that of the Fourth District (Div. One) in Schafer v. Superior Court (1986) 180 Cal.App.3d 305 [225 Cal.Rptr. 513]. In Schafer, the Fourth District issued a writ of mandate ordering the trial court to vacate an ex parte order shortening time for deposition and hearing on order to show cause why respondent, plaintiff in a Marvin action, should not be awarded temporary support; Schafer ordered the case heard according to the procedural rules applicable to civil litigants generally and not according to family law rules and procedures.
After reviewing the decision in Marvin I, the Schafer court discussed the fact that the only two appellate cases sinceMarvin I to consider trial court orders granting support to nonmarital partners on implied contract theories (including the court in Marvin II) reversed the trial court's orders. (Schafer v. Superior Court, supra, 180 Cal.App.3d at p. 310.) The Schafer court also noted that legal principles governing issuance of preliminary injunctions are relevant to a request for support pending trial. (Id. at p. 311.) *Page 889 (b) Injunctive Relief Was Improper Due to Respondent's Inability to Prove That Damages Failed to Provide an Adequate Remedy and That She Would Be Irreparably Harmed If Injunctive Relief Were Denied (5) In its original statement of decision and its further statement of decision, the trial court awarded relief based on its finding that respondent would be irreparably harmed if temporary support were not awarded because she is physically disabled and has modest liquid savings which would not be adequate to support her daily needs and to maintain her mortgage, insurance and property tax payments. The court also found that damages would be inadequate because trial may be years in the future.
The trial court's findings reflect its understanding that the relief accorded respondent was supportable only in the form of a preliminary injunction. Moreover, they reflect the court's understanding that showings of irreparable injury and inadequacy of damages are required for such extraordinary relief. (Schafer v. Superior Court, supra, 180 Cal.App.3d at p. 311.) However, the trial court confused respondent's perceived needs for cash in the near term with the concepts of irreparable injury and inadequacy of damages.
First, it is absolutely clear that respondent has an adequate remedy under the law. The Supreme Court has determined that nonmarital partners have the same contractual rights as any other unmarried persons, including the right to sue for breach of contract. (Marvin I, supra, 18 Cal.3d at pp. 682-685.) That is precisely what respondent has done: she has sued for breach of contract; the relief requested includes a prayer for an award of spousal support, based on express and implied agreements between the parties. An award of damages (spousal support) constitutes an adequate legal remedy, precluding issuance of an injunction. (Morrison v. Land (1915) 169 Cal. 580, 586, 589-590 [147 P. 259].)
The trial court's findings on irreparable harm were presumably based on respondent's income and expense declarations, her declaration in support of her motion for an award of temporary support, and her testimony at the hearing in support of the motion which reflected that her savings had dwindled from $95,000 to $59,000 by the time of the hearing and that those savings constituted her only means for making mortgage payments and meeting her other monthly expenses.
Even if we accept respondent's showing at face value, it still fell far short of establishing that she would be irreparably harmed by a failure to award temporary support. At best, the record reflected that respondent had a need and that appellant was able to meet it; such a showing is not enough to *Page 890 justify such an award. (Schafer v. Superior Court, supra, 180 Cal.App.3d at p. 311.)
Marvin I makes it clear that unmarried cohabitants have the same contract rights as other civil litigants; however, nonmarital cohabitation does not confer any special privilege over and above those of other civil litigants. (Schafer v.Superior Court, supra, 180 Cal.App.3d at pp. 309-310.) Case law has made it clear that mere monetary loss does not constitute irreparable harm in the context of proposed injunctive relief unless there is some showing that one against whom injunctive relief is sought is insolvent or otherwise unable to respond in damages. (West Coast Constr. Co. v. Oceano Sanitary Dist. (1971) 17 Cal.App.3d 693, 700 [95 Cal.Rptr. 169].) Here, there was no evidence presented that appellant was insolvent or otherwise unable to respond in damages. In fact, the opposite is true because respondent's motion for temporary support was predicated not just on her needs, but also on appellant's ability to meet those needs.
In sum, the effect of the trial court's order was to give respondent relief to which other, noncohabiting contracting parties would not have been entitled. An award of such relief constitutes an abuse of discretion.
III. CONCLUSION We share the trial court's concern with the economic situation confronted by respondent, and we regret that there is no basis upon which her short-term needs can be met under existing law. Justice Mosk's lament (concerning another law) also applies to the situation we face here: "As a judge, I am bound by the law as I find it to be and not as I might fervently wish it to be." (Inre Anderson (1968) 69 Cal.2d 613, 635 [73 Cal.Rptr. 21,447 P.2d 117].)
Marvin I was decided in 1976. Since that time the Legislature has not seen fit to extend spousal rights under the Family Law Act to unmarried cohabitants. Nor has the Legislature acted to expand the provisional remedies available to unmarried cohabitants beyond those available to other litigants. Respondent's remedy, if any, lies with that branch of government. Accordingly, we reverse and remand to the trial court to vacate its order granting temporary support to respondent. Respondent is to bear the costs of appeal.
Perley, J., concurred.
1 Appellant also does not challenge the award of child support in the sum of $937 per month, made in a separate proceeding.
2 Our analysis of the evidence supporting the finding of an implied agreement is found in part II.B.(2) of this opinion.
3 We note that the question of whether or not a court may award spousal support to a party in a nonmarital relationship in the absence of an express or implied contractual obligation (the question left open by the Supreme Court in fn. 26 in Marvin I) is not before us. Here, the trial court specifically based its order on its finding that the parties had an implied agreement to provide support after termination of the relationship. Our opinion is limited to an analysis of whether or not that finding is supported by substantial evidence and whether or not the court's order is a proper one based on that finding.
4 Our dissenting colleague argues that the fact that appellant voluntarily paid money to respondent in varying amounts over a period of four years after the relationship ended constitutes evidence that there was an implied contract under which appellant was obligated to pay (temporary) support. We note, preliminarily, that the trial court did not rely on that fact in support of its finding that there was an implied contract under which temporary support payments were required. Furthermore, we believe that reliance on posttermination conduct to establish the existence of such a contract would constitute poor public policy: if making posttermination payments constitute evidence of a contractual obligation to make payments, those who might otherwise voluntarily provide financial assistance to another in need would be discouraged from doing so.