I dissent. From our lofty perch my colleagues perceive a very different reality than I do. They fault the trial judge for awarding to a now disabled woman interim support from her partner in a 21-year relationship *Page 891 during which the couple lived as a family and raised 3 children. The majority instead tell her she has no more recourse than a buyer of widgets faced with breach of a sale contract by its supplier. Their advice to her: Stand in line; we'll offer you a trial someday.
Judge Duncan was candid and direct: "If ever there is to be an award of support based on an implied contract in a Marvin case, it is difficult to imagine a scenario more compelling than [the one] presented herein." On the basis of the uncontradicted evidence summarized below, I concur fully in Judge Duncan's assessment.
The majority gloss over significant details of the parties' 21 years of life together. Plaintiff and defendant began living together in 1967, forming a family which included her seven-year-old son by a previous marriage. In 1971, at defendant's insistence, they moved to Alaska. Once in Alaska they set about homesteading, and built a cabin some 12 miles from the nearest town. When defendant left for a job as an investigator in Anchorage, some 200 miles away, plaintiff, then 5 months pregnant remained at the remote cabin in the company of her son.
During the winter months defendant worked in Anchorage. Much of the physical burden of homesteading was literally borne by plaintiff. "During these months, the inside of our cabin was so cold that standing water would freeze. We had no indoor plumbing, and water was hand carried in 5 gallon containers from a frozen stream nearby." Plaintiff kept the home fires burning by splitting wood "and breaking up large blocks of coal with a sledge hammer." She used a sled or a wheelbarrow to bring in clean laundry and food. Summer months were filled with the heavy labor of constructing improvements to the cabin or the homestead. "In the early fall of each year I would do the harvesting, filleting of Salmon, butchering, packaging, canning and freezing of our foods in large volume." Defendant by his declaration characterizes their Alaskan experience as "without any of the comforts of modern life." He, however, emphasizes the communal endeavor: "We grew our own food, built our own cabin, had no modern utilities, and scraped a living from the land as best we could."
After seven years defendant decided he wished to return to the Bay Area to attend law school. Although plaintiff was reluctant to leave the now developed homestead, she did so on the understanding that she too would return to school. While defendant attended law school plaintiff renovated and decorated a "fixer-upper" home that they purchased from their Alaskan savings. The couple had a second child whose poor health precluded plaintiff from returning to college. Defendant completed law school and went into *Page 892 practice. Plaintiff began to suffer from back problems which were diagnosed as a herniated disc which required surgery and seven months of recovery in bed. The couple purchased a larger home in 1986. In the following year plaintiff again required back surgery, which once again entailed lengthy recuperation.
Defendant and plaintiff separated in 1988. As of April 1992 plaintiff described her physical condition as: "I wear a hard fiberglass back brace all the time except for sleeping. I cannot walk more than one short block, sit for more than 45 minutes a day or drive for more than 20 minutes. I need two periods during the day to lay [sic] down and hired help to run my household."
During the course of the relationship the parties raised their own two children and plaintiff's son. They consistently held themselves out as husband and wife to the Internal Revenue Service, to their insurers, their bankers, and in numerous real estate transactions.
Judge Duncan made his finding of an implied contract to support expressly in reliance upon Marvin v. Marvin (1976) 18 Cal.3d 660 [134 Cal.Rptr. 815, 557 P.2d 106]. Marvin emphatically rejected the notion that it was inappropriate for courts "to apply principles of implied contract" or to "extend equitable remedies" to unmarried partners. (Id. at p. 682.) The decision then directed trial courts to look at the conduct of the parties to see if it demonstrated an implied contract. (Id. at p. 684.) Having set out various theories of remedial aid, the opinion then noted: "Our opinion does not preclude the evolution of additional equitable remedies to protect the expectations of the parties to a nonmarital relationship in cases in which existing remedies prove inadequate; the suitability of such remedies may bedetermined in later cases in light of the factual setting inwhich they arise." (Id. at p. 684, fn. 25, italics added.) That is precisely what the trial court did here.
Judge Duncan was fully aware of the novelty of what he was being asked to do: "The court finds that `what the parties were doing' was maintaining a marriage relationship with everything except a license and ceremony and that there was an implied contract between them that if they separated, plaintiff would be supported by defendant in the same manner as if they had been legally married. . . .1
"Finding there is a contract for support, the question remains whether it is appropriate to make the highly unusual provision for damages to be paid *Page 893 pending trial. Such a trial may be years away. In the interim, plaintiff is left in poor health living off her dwindling personal assets." "Totally physically disabled and with only modest liquid savings, plaintiff faces irreparable harm in being [un]able to support her daily needs and to maintain her mortgage, insurance and real property tax payments unless she receives injunctive relief forthwith." "Preliminary relief is appropriate only in the absence of other adequate remedies, irreparable injury and the reasonable probability of success at trial on the merits. The court finds those conditions exist here."
The majority does not challenge Judge Duncan's conclusion that plaintiff was confronting irreparable injury if left unaided. Nor does the majority dispute his estimation that plaintiff was likely to prevail on the merits at trial. This would ordinarily be more than enough to uphold the preliminary injunction. (See, e.g., King v. Meese (1987) 43 Cal.3d 1217, 1226-1228 [240 Cal.Rptr. 829, 743 P.2d 889]; Nutro Products, Inc. v. ColeGrain Co. (1992) 3 Cal.App.4th 860, 865 [5 Cal.Rptr.2d 41].) The majority, however, chooses to fault Judge Duncan's determination that plaintiff had no other adequate remedy.
It is generally true that equity will not act where there is an adequate legal remedy, and that the legal remedy of damages is ordinarily deemed adequate to redress a breach of contract. But the very authority cited by the majority for these principles admits not only that the legal remedy must be "full and adequate and does complete justice" but also that damages are sometimes inadequate to compensate for a breached contract. (Morrison v.Land (1915) 169 Cal. 580, 586-587 [147 P. 259].) A more comprehensive formulation of the principles is this: "The mere fact that there may be a remedy at law does not oust the jurisdiction of a court of equity. To have this effect, the remedy must also be speedy, adequate, and efficacious to the end in view. [Citation.] It must reach the whole mischief and secure the whole right of the party in a perfect manner at the present time and not in the future. Otherwise, equity will interfere and give such relief and aid as the exigencies of the case may require." (Quist v. Empire Water Co. (1928) 204 Cal. 646, 653 [269 P. 533].)
The majority further fail to appreciate how adequacy is decided. "The question whether or not a given remedy at law is adequate is in the first instance a question of fact for the trial court and even where the evidence is unconflicting, if opposing inferences may be reasonably drawn therefrom, it still remains a question of fact in the first instance. The finding and conclusion of the trial court thereon will not be disturbed upon appeal, therefore, unless it is shown that the evidence is legally insufficient to support the same." (People v. StaffordPacking Co. (1924) 193 Cal. 719, 728 *Page 894 [227 P. 485]; accord, People v. Monterey Fish Products Co. (1925) 195 Cal. 548, 564 [234 P. 398, 38 A.L.R. 1186].)
The evidence supports Judge Duncan viewing the situation in this light: There was an implied contract for support. In the face of defendant's refusal to honor that agreement, plaintiff was forced to seek judicial redress. Ultimate vindication, in the form of a money judgment, was years in the future. In the meantime plaintiff "is left in poor health living off her dwindling assets." Clearly, plaintiff was deemed to face the very real prospect of insolvency or considerably straightened circumstances while awaiting trial, with little or no chance of compensating employment. In the circumstances there is ample basis for the trial court's conclusion that a lump sum money judgment awarded sometime in the not so near future was not a "speedy" remedy, was not a remedy that would secure plaintiff's "whole right [to support] in a perfect manner at the present time," and thus was not adequate.
The majority concludes that the trial court wandered into legal error in equating plaintiff's need to spend her liquid assets with irreparable harm, absent a showing that defendant was insolvent or would be unable to respond to a judgment for damages. (Maj. opn., ante, at p. 890.) In short the majority dismisses plaintiff's injury as "mere monetary loss."
Plaintiff is severely disabled and unable to work. How in good conscience can we postulate such a legal fiction in the face of the reality that she will be forced to liquidate what assets she has as she awaits some far off day when our overloaded judicial system finally accords her a trial on her contract claim? To quote Mr. Bumble, "If the law supposes that . . . the law is a ass — a idiot." (Dickens, Oliver Twist, ch. 51, p. 489.)
The evidence fully supports the trial court's finding that the parties did have an implied contract whereby defendant agreed to support plaintiff in the event they separated. Uncontradicted evidence shows that defendant voluntarily paid approximately $190,000 in monthly support payments to plaintiff following their separation, and that these payments were still being made at the time the order for support was made. As an implied contract is one identified by conduct (Civ. Code, § 1621), this alone constitutes substantial evidence in support of the trial court's finding. There is also the matter of the "situation or mutual relation of the parties" from which an implied contract may be inferred. (Division of Labor Law Enforcement v. TranspacificTransportation Co. (1977) 69 Cal.App.3d 268, 275 [137 Cal.Rptr. 855] .) The evidence on this score goes beyond abundant to become overwhelming.
In light of these circumstances, the trial court was fully justified in concluding that the parties were "maintaining a marriage relationship" in all *Page 895 respects except that of legal sanction. As this court has recently noted, the duty of support is inherent to the marital relationship. (Borelli v. Brusseau (1993) 12 Cal.App.4th 647 [16 Cal.Rptr.2d 16]; see Civ. Code, §§ 242, 5100, 5132.) It is therefore no great jurisprudential leap to conclude that parties who treat themselves as married may have made provision for this duty of support should they separate. Defendant's postseparation payments of $190,000 put considerable flesh on the bones of the inference of an implied contract derived from the "situation or mutual relation of the parties." (Division of Labor LawEnforcement v. Transpacific Transportation Co., supra,69 Cal.App.3d 268, 275.)
The majority speak of the trial court exceeding its jurisdiction by "creat[ing a] totally new substantive right under the guise of doing equity." (Maj. opn., ante, at p. 886.) The only "right" involved here is the right to support based directly and solely on the parties' agreement. The trial court was thus not creating a right, but only an equitable remedy to preserve that right. (Cf. Camp v. Board of Supervisors (1981)123 Cal.App.3d 334, 355-356 [176 Cal.Rptr. 620].) Granted, the remedy it did award is probably unprecedented, but that is not to say, as do the majority, that it is illegitimate. In my view Judge Duncan was following the explicit guidelines set forth by the Supreme Court in Marvin v. Marvin: fashioning an additional equitable remedy to protect the expectations of the parties to a nonmarital relationship in a situation where existing remedies were inadequate. Far from being illegitimate, the remedy was suggested by the California Supreme Court.
The majority take great umbrage at the notion that any principles of the Family Law Act be applied to nonmarital partners. Apparently they adopt the position that a trial court may not use the magic language of "temporary support," nor base its relief upon the county guidelines used in dissolutions. Such literal mindedness has no place in the law of equity.
Judge Duncan specifically described the problem before him. He noted that the parties had "not probed income and expense issues." "If this were a family law case (it is not), temporary spousal support per Alameda County guidelines would be $1426 per month. In her apparently disabled situation, such awards would not come close to meeting the budget plaintiff has filed with the court. . . . Given the court's conclusion that the parties have agreed to be treated as a married couple, the guideline amount will be ordered." This sounds like equity to me. Indeed it sounds like injunctive relief measured by the only available legal standard in a situation where the parties had failed to offer an alternative measure of damages. There is nothing mysterious about the order or suspect about its rationale. *Page 896
If 21 years of living together in a mutually supportive family relationship, of taking title to property and otherwise conducting one's financial affairs as if one were married is insufficient evidence of an implied contract to conduct oneself as married with all the moral and legal obligations to the other spouse that such a relationship entails, then I simply cannot imagine any relationship which the majority would find sufficient. The result reached by the majority may be, in the eyes of some, good law; it is lousy justice.
A petition for a rehearing was denied December 27, 1993.