2002 Cal. App. Unpub. LEXIS THALEIA MARSTON, Plaintiff and Appellant, v. ROBERT C. MARSTON, JR., et al., Defendants and Respondents B141956

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1 THALEIA MARSTON, Plaintiff and Appellant, v. ROBERT C. MARSTON, JR., et al., Defendants and Respondents B COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION THREE 2002 Cal. App. Unpub. LEXIS 8557 September 12, 2002, Filed SUBSEQUENT HISTORY: Order Modifying Opinion and Denying Request for Publication No Change in Judgment October 8, PRIOR HISTORY: APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. BC Charles W. McCoy, Judge. COUNSEL: Hinojosa, Khougaz & Wallet, Lynard C. Hinojosa and Trudi Baltz Sabel for Plaintiff and Appellant. Irell & Manella, Charles A. Collier, Jr., Laura W. Brill and Cathy A. Karlstad for Defendants and Respondents Robert C. Marston, Jr., Peter G. Marston, Robert C. Marston III, Jennifer C. Marston, Christopher J. Marston, Michael S. Marston, Peter G. Marston, Jr., Leigh T. Marston, Claudia K. Marston and Cynthia W. Marston. JUDGES: KITCHING, J. We concur: KLEIN, P.J., ALDRICH, J. OPINION BY: KITCHING OPINION INTRODUCTION Plaintiff Thaleia Marston ("Thaleia") 1 appeals the grant of summary judgment in her action for quasi-specific enforcement of an oral contract to make a will. Thaleia's evidence creates a triable issue of fact whether, in an oral agreement with Robert C. Marston ("Robert," now deceased), she agreed to marry Robert's son David Marston ("David"), who suffered from mental health problems, in exchange for Robert's financial support of the couple during their marriage and a one-third share of Robert's estate after Robert's death. We conclude that Thaleia has created a triable issue of fact as to whether the equitable estoppel doctrine prevents defendants (trustees and beneficiaries of a trust created by Robert C. Marston) from raising the defense that the statute of frauds bars Thaleia from enforcing an oral agreement. We also conclude that the statute of limitations does not bar Thaleia's action. We reverse the grant of summary judgment. 1 Because they share a surname, for clarity and convenience this opinion will refer to Thaleia Marston, David Marston, and Robert C. Marston by their first names. PROCEDURAL HISTORY In the operative complaint, plaintiff Thaleia named as defendants Robert Marston, Jr., and Peter G. Marston, individually and as co-trustees of the Robert C. Marston Trust Agreement of 1979, Ramona Portillo Gutierrez, Robert C. Marston III, Jennifer C. Marston, Christopher J. Marston, Michael S. Marston, Peter G. Marston, Jr., Leigh T. Marston, Claudia K. Marston, Cynthia W. Marston, and Barlow Respiratory Hospital. The complaint alleged a single cause of action for quasi-specific performance of a contract to make a will and sought to impose a constructive trust on a one-third interest in the estate of Robert. The trial court granted defendants' motion for summary judgment and entered judgment in favor of defendants. Thaleia filed a timely notice of appeal. STANDARD OF REVIEW This court reviews de novo a trial court's grant of summary judgment. ( Carlton v. Quint (2000) 77 Cal.App.4th 690, ) Under summary judgment law, any party to an action may move for summary judgment on a cause of action

2 or defense. The court must grant the motion if all the papers submitted show no triable issue exists as to any material fact: that is, no issue requires a trial as to any fact necessary under the pleadings and the law and the moving party is entitled to a judgment as a matter of law. ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar). The party moving for summary judgment bears the burden of persuasion that no triable issue of material fact exists and that it is entitled to judgment as a matter of law. A triable issue of material fact exists only if the evidence would allow a reasonable trier of fact, under the applicable standard of proof, to find the underlying fact in favor of the party opposing the motion. A plaintiff bears the burden of persuasion that each element of the cause of action in question has been proved, and that there is no defense thereto. ( Aguilar, supra, 25 Cal.4th at p. 850; Code Civ. Proc. ß 437c, subd. (o)(1) and (2).) The party moving for summary judgment bears an initial burden of production to make a prima facie showing that no triable issue of material fact exists. If the moving party carries its burden, the burden of production shifts to the opposing party to make a prima facie showing by producing evidence that a triable issue of fact exists. A prima facie showing is one sufficient to support the position of the party in question. ( Aguilar, supra, 25 Cal.4th at pp ; Evid. Code, ßß 115, 602.) A defendant moving for summary judgment must present evidence, and not simply argue, that the plaintiff does not possess and cannot reasonably obtain needed evidence of at least one essential element of plaintiff's cause of action. ( Aguilar, supra, 25 Cal.4th at pp ) FACTS Thaleia's complaint alleges that in April 1970, Thaleia met David, a son of Robert. Between April 1970 and September 1971, a romantic relationship developed between Thaleia and David, who proposed marriage to Thaleia several times. Thaleia refused because she knew David was not mentally healthy and had been committed to Westwood Psychiatric Hospital and the Camarillo State Hospital for the Mentally Insane. Thaleia's complaint alleges that in October 1971, Thaleia learned she was pregnant from her relationship with David. Thaleia's complaint alleges that Robert learned Thaleia was pregnant and wanted Thaleia and David to marry. Thaleia refused because David's mental and emotional problems made him unemployable and unable to raise or support a family. Thaleia presented evidence that in three conversations during November and December 1971, Robert made promises to her to induce her to marry David. The first conversation took place in Robert's office in Westwood. Robert, David, and Thaleia were present. Robert said he did not believe in abortion and told Thaleia she should marry David. Thaleia, 18 years old at the time, responded that she did not feel David was mentally, financially, or emotionally able to care for a family. Robert responded that he had been told that brain cells regenerate every seven years and he felt confident David would get well. Robert also said he would help them financially and that when he died, David would inherit a third of Robert's estate and David and Thaleia would be able to live comfortably on that the rest of their lives. About a week later, Robert visited the house of Thaleia's parents, where a second conversation took place. David, Thaleia, her mother, and her four sisters were present. Robert asked Thaleia's mother to encourage Thaleia to marry David. He again said he did not believe in abortion and that David would be well within a short time. Robert told Thaleia's mother he would see to it that David and Thaleia were financially comfortable during their marriage. Robert stated that on his death, David and Thaleia would receive a third of his estate and they would be able to live comfortably on that. The third conversation took place in the house where David and Robert lived. Thaleia, Robert, and David were in David's bedroom. Robert sent David to get them drinks. During David's absence, Robert pressured Thaleia to marry David. Robert stated that David had a trust from his grandfather worth $ 105,000. Robert also said he felt sure David would get well and be able to work, and that if David could not provide for himself and Thaleia comfortably, Robert would assist them. Robert told Thaleia that when he died, she would inherit a third of the estate. David's declaration stated he was present on at least two occasions when Robert said he wanted David and Thaleia to marry. David's declaration stated: "On each of these occasions, my father promised Thaleia that if she married me he would render financial assistance to us during our marriage so that we were financially comfortable and would leave one-third of his estate to Thaleia and myself upon his death." Robert repeated his promises and Thaleia relented. Thaleia and David married on January 29, They remain married. Thaleia testified that Robert repeated the alleged promise after January 1, Thaleia admitted she had no writing referring to Robert's promise. Robert died on February 8, Before his death he had created the Robert C. Marston Trust of 1979, which left $ 150,000 to David. David executed a full release of claims against the Robert C. Marston Trust and Estate upon receipt of the $ 150,000 gift to him under the trust. Thaleia was aware of David's release shortly after March 31, Thaleia commenced her action on March 23, 1999.

3 The trial court's order granting summary judgment concluded that the statute of frauds (former Civ. Code, ß 1624, subd. (3)) required a writing evidencing the 1971 agreement, because Robert's alleged promise to Thaleia was "made in consideration of marriage." The trial court rejected Thaleia's argument that there was adequate, legal consideration aside from the marriage itself. The court found no evidence taking the agreement out of the statute of frauds. Finding that no triable issue of fact existed concerning a written agreement, the court granted summary judgment for defendants. ISSUES Thaleia claims on appeal that: 1. Equitable estoppel provides a basis for avoiding the statute of frauds, and whether equitable estoppel applies is generally a question of fact; 2. Equitable estoppel applies to all contracts; and 3. The one-year statute of limitations in Code of Civil Procedure section does not apply to actions for quasispecific performance of a contract to leave by will. DISCUSSION 1. Thaleia's Evidence Creates a Triable Issue of Fact as to Whether She and Robert Made an Oral Contract in 1971 Thaleia presented evidence of three conversations during November and December 1971 in which Robert made promises to Thaleia that if she married David, Robert would provide financial support during their marriage and that David (or David and Thaleia) would inherit a third of Robert's estate after Robert's death, which would be sufficient for them to live comfortably. That Thaleia's evidence comes from her own testimony goes to its weight and credibility, but Evidence Code section 411 makes the testimony of a single witness sufficient to prove any fact. The sole declaration by a party opposing a summary judgment motion, if it raises a triable issue of fact, will be sufficient to deny that motion. ( Estate of Housley (1997) 56 Cal.App.4th 342, 359; Evid. Code, ß 411; In re Marriage of Mix (1975) 14 Cal.3d 604, 614, 122 Cal. Rptr. 79, 536 P.2d 479.) Here David's declaration supports Thaleia's testimony. Thaleia's evidence is sufficient to create a triable issue of fact concerning whether she and Robert made an oral contract in We therefore assume, for the purposes of reviewing this summary judgment based on statute of frauds defenses raised by defendants and relied upon by the trial court, that a 1971 oral contract between Robert and Thaleia existed. The legal issue is whether the statute of frauds made that oral contract unenforceable because it was not in writing. 2. A Triable Issue of Fact Exists Whether the Equitable Estoppel Doctrine Bars a Statute of Frauds Defense, Pursuant to Civil Code Section 1624, Subdivisions (6) and (3) Defendants claim that the statute of frauds provides two provisions which required the agreement between Thaleia and Robert to be in writing, and therefore that agreement is unenforceable. Thaleia responds that the equitable estoppel doctrine bars defendants from relying on the defense of the statute of frauds. The statute of frauds, as relevant to the contract Thaleia alleges she made with Robert in 1971, stated: "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:... [P]... "3. An agreement made upon consideration of marriage other than a mutual promise to marry;... [P]... "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." (Civ. Code, ß 1624, subd. (6); Stats. 1967, ch. 52, p. 953, ß 1.) a. Thaleia Has Raised a Triable Issue of Fact Whether the Equitable Estoppel Doctrine Bars a Statute of Frauds Defense to a Contract to Make a Will Thaleia claims the equitable estoppel doctrine prevents application of the statute of frauds in former Civil Code section 1624, subdivision (6), 2 quoted supra, as a defense to her action for quasi-specific performance of a contract to make a will. 2 Probate Code section 150 replaced Civil Code section 1624, subdivision (6) as the statute of frauds applicable to a contract to make a will after December 31, In 2000, Probate section 150 was repealed, but its provisions form part of the present statute, Probate Code section Thaleia and Robert made the alleged contract in The parties agree that Civil Code section 1624, subdivision (6), as it existed before December 31, 1984, is the statute of frauds that applies to this appeal. ( Estate of Housley, supra, 56 Cal.App.4th at p. 350.)

4 With regard to Thaleia's claim, an action for quasi-specific performance requires: (1) a contract that is sufficiently definite to be enforced; (2) a contract that is just and reasonable; (3) performance by the plaintiff; (4) failure to perform by the defendant; (5) adequate consideration; (6) an inadequate legal remedy; and (7) if the contract is oral and subject to a statute of frauds, a means--such as estoppel--of avoiding the statute. ( Byrne v. Laura (1997) 52 Cal.App.4th 1054, 1073.) Because a deceased person cannot be compelled to make a will, specific performance in a strict sense is not possible. Nonetheless under certain circumstances equity will give relief equivalent to specific performance by impressing a constructive trust on property the decedent promised to leave to the plaintiff. (Ibid.; Estate of Brenzikofer (1996) 49 Cal.App.4th 1461, 1467.) Regarding subdivision (6) of section 1624, equitable estoppel is available to enforce qualifying oral agreements to make a will. Where equitable estoppel applies, Civil Code section 1624, subdivision (6) does not prevent enforcement of an oral agreement to make a will. Under the equitable estoppel doctrine, a party will be estopped from relying on the statute of frauds where refusal to enforce an oral contract would result in fraud. Equitable estoppel has been applied (1) where, after one party has been induced to make a serious change of position in reliance on the contract, denying enforcement would result in an unconscionable injury, or (2) where allowing a party who received the benefits of the other's performance to invoke the statute of frauds would result in unjust enrichment. A court may rely on either of these circumstances to estop a promisor from relying on the statute of frauds to avoid an oral agreement to make a will. ( Estate of Housley, supra, 56 Cal.App.4th at p. 351; Redke v. Silvertrust (1971) 6 Cal.3d 94, 101, 98 Cal. Rptr. 293, 490 P.2d 805.) Whether equitable estoppel should be applied in a given case is generally a question of fact. ( Byrne v. Laura, supra, 52 Cal.App.4th at p ) Thaleia's deposition testimony and David's declaration create a triable issue of fact whether the equitable estoppel doctrine bars the statute of frauds defense. Thaleia made a significant change of position in reliance on her contract with Robert: she married David, took on the obligations of caring for a person experiencing mental health problems, and gave up the opportunity to marry some other husband. In so doing, she relied on Robert's promise to provide for her and David in his will. A trier of fact could find that denying enforcement of Robert's oral promise would result in an unconscionable injury to Thaleia, who performed her part of the agreement by marrying David and assuming obligations for his care. Thaleia's evidence is sufficient to raise a triable issue of fact whether the equitable estoppel doctrine should bar enforcement of the statute of frauds. b. Thaleia Has Raised a Triable Issue of Fact Whether the Equitable Estoppel Doctrine Bars a Statute of Frauds Defense to an Agreement Made Upon Consideration of Marriage Defendants raise a second statute of fraud defense, based on subdivision (3) of Civil Code section They argue that Thaleia's agreement with Robert that she would marry David in exchange for Robert's promise to leave her an inheritance was "an agreement made upon consideration of marriage other than a mutual promise to marry" within the statute of frauds. (Civ. Code, ß 1624, subd. (3).) We assume that section 1624(3), as it existed in 1971, would be the version of the statute of frauds that applies to the oral agreement by Thaleia and Robert. The successor statutes, Civil Code section 5311 and Family Code section 1611, apply to contracts after January 1, (Former Civ. Code, ß 5302; Stats. 1985, ch. 1315, ß 3, p. 4582; Fam. Code, ß 1601.) Moreover, these statutes of fraud apply only to agreements between prospective spouses made in contemplation of marriage. (Fam. Code, ß 1610, subd. (a); former Civ. Code, ß 5310, subd. (a), and ß 5311; Stats. 1985, ch. 1315, ß 3, p ) Thaleia and Robert were not prospective spouses. California case law does not clearly state whether section 1624, subdivision (3), as it existed in 1971, applies to an agreement between a father-in-law and a daughter-in-law. Based on their facts, the cases give rise to the inference that "an agreement made upon consideration of marriage" to which the statute of frauds refers means an oral agreement between prospective spouses made before their marriage. ( Peek v. Peek (1888) 77 Cal. 106, , 19 P. 227; Trout v. Ogilvie (1919) 41 Cal.App. 167, , 182 P. 333; Hughes v. Hughes (1920) 49 Cal.App. 206, , 193 P. 144.) Defendants argue that section 1624, subdivision (3) requires an oral promise made in consideration of marriage to a third party, such as the oral contract between Robert and Thaleia, to be in writing. Neither California case cited in support of this proposition so holds. 3 3 Defendants cite two California cases, Cohen v. Knox (1891) 90 Cal. 266, 27 P. 215 and McComsey v. Leaf (1939) 36 Cal. App. 2d 132, 141, 97 P.2d 242. Cohen v. Knox differs factually from this appeal and addresses different legal issues. In Cohen, a daughter sued her father's judgment creditor to restrain him from levying execution on property her father previously conveyed to her when she married. In affirming a judgment

5 for plaintiff daughter, Cohen held that the conveyance of the property from the father to plaintiff daughter was not void as against the father's creditor. ( Cohen v. Knox, supra, 90 Cal. at pp ) The only oral contract in Cohen was between the prospective spouses' fathers, who orally agreed that the future wife's father would convey a lot to his daughter and build a house for the couple if the future husband's father would furnish it. Both fathers executed these contractual obligations. ( Id. at p. 271.) Cohen thus did not involve either a cause of action to enforce an oral contract or a statute of frauds defense. In a brief reference to whether "an antenuptial contract" had to be in writing, Cohen stated: "We see nothing in the point that an antenuptial contract must be in writing. No question arises here as to the enforcement of a verbal contract which ought to have been in writing." ( Id. at p. 276.) McComsey v. Leaf, supra, 36 Cal. App. 2d 132 resembles this appeal factually, but does not hold that an agreement between a third party and a prospective spouse upon consideration of marriage must be in writing. It states: "If this were an action to recover upon a promise made as a consideration for a marriage," section 1624, subdivision (3) would invalidate the oral contract. (McComsey, at p. 141.) Despite this dicta, McComsey does not apply section 1624, subdivision (3) to invalidate an oral contract between a father-in-law and son-in-law. The son-in-law's "gift" version of the contract was fully executed, and the statute of frauds did not make a fully executed contract unenforceable. (36 Cal. App. 2d at p. 141.) The issue in McComsey was whether the parties' declarations were competent to create a triable issue of fact whether the father-in-law's payment of money to the son-in-law was a loan or a gift. McComsey reversed the grant of summary judgment based on the existence of a triable issue of fact, not because section 1624, subdivision (3) barred the oral contract. Even assuming that section 1624, subdivision (3) as it existed in 1971 applies to the oral contract between Robert and Thaleia, the law recognizes exceptions that "take the case out of the statute" of frauds requirement of a written contract. One such exception, equitable estoppel, has "universal application" and is not limited to a particular class of contracts within the statute of frauds. ( Estate of Housley, supra, 56 Cal.App.4th at p. 357.) "[A] substantial change of position in reliance on an oral agreement will estop reliance on the statute[.]" ( Hall v. Hall (1990) 222 Cal. App. 3d 578, 585, 271 Cal. Rptr. 773.) Defendants cite the trial court's finding that no evidence showed any other consideration but the marriage itself for Robert's promise, and the trial court's conclusion that the record contained no evidence that would take the oral agreement between Thaleia and Robert out of the statute of frauds. Defendants argue that this finding means that the equitable estoppel doctrine provides no exception to requirements of the statute of frauds. The trial court's own citation to Hall v. Hall, supra, 222 Cal. App. 3d at page 586, refutes this argument. Hall addresses the question "whether traditional exceptions to the statute of frauds remain viable in terms of the new [Uniform Premarital Agreement] act." ( Id. at p. 585.) Hall states two exceptions to the requirement that premarital agreements had to be in writing pursuant to former Civil Code section 5311: "Exceptions 'taking the case out of the statute [of frauds]' have traditionally been recognized as to all statute of frauds provisions. Thus, a substantial change of position in reliance on an oral agreement will estop reliance on the statute [citation], and an actual transfer of realty constituting partial performance of the oral agreement will satisfy the proof element otherwise reflected in the requirement of a writing." (222 Cal. App. 3d at pp ) Thus, the first exception Hall refers to, is equitable estoppel; the second exception refers to the part performance doctrine. 4 Defendants rely on cases refusing to apply the part performance doctrine to excuse compliance with the statute of frauds requiring an "agreement made upon consideration of marriage" to be in writing. Such cases have not considered marriage an act constituting part performance. ( Peek v. Peek, supra, 77 Cal. at p. 108; see also Hughes v. Hughes, supra, 49 Cal.App. at p. 210, and Hall v. Hall, supra, 222 Cal. App. 3d at pp ) "To take a contract out of the operation of the statute of frauds... the acts relied upon must be unequivocably referable to the contract. Acts which, though in truth done in performance of a contract, admit of an explanation without supposing a contract, are not... such acts of part performance as will take the case out of the operation of the statute." ( Trout v. Ogilvie, supra, 41 Cal.App. at p. 172.) 4 The doctrine of partial performance by a purchaser is an exception to the statute of frauds applied to contracts to sell or lease real property. Under this doctrine, an oral agreement to transfer an interest in real property is enforced when the buyer has taken possession of the property and either fully or partly pays the purchase price or makes valuable, substantial improvements on the property in reliance on the oral agreement. ( Sutton v. Warner (1993) 12 Cal.App.4th 415, 422.) Thaleia, however, does not claim part performance; she relies on the other exception: equitable estoppel. The part performance doctrine differs from and is more narrow than equitable estoppel. "All that is required for an equitable estoppel is a 'serious' change of position and 'unconscionable' injury. [Citation.] Performance unequivocally referable to the agreement is not an indispensable part of the equation." ( Byrne v. Laura, supra, 52 Cal.App.4th at p ) Thaleia has introduced evidence sufficient to create a triable issue of fact whether the oral contract induced her to make a serious change of position. A trier of fact could find that Thaleia's marriage to David seriously changed her position in reliance on Robert's promise of financial support during the marriage and of a bequest after his death. (See Byrne v. Laura, supra, 52 Cal.App.4th at p. 1069; Peek v. Peek, supra, 77 Cal. at p. 110.) It required her to assume personal and legal obligations to care and support a spouse with mental and emotional problems, and foreclosed her marriage to someone else. A trier of fact could also conclude that Thaleia would suffer an "unconscionable" injury if the lack of a

6 written contract caused Robert's oral promise to bequeath an inheritance sufficient for her and David to live on for the rest of their lives to be unenforceable. (77 Cal. at p. 110.) Whether an equitable estoppel exists to prevent a defendant from asserting a statute of frauds defense is, as stated, a question of fact. We conclude that Thaleia provided sufficient evidence to create a triable issue of fact that an estoppel existed. 3. Statute of Limitations The main theory of defendants' summary judgment motion was that the one-year limitations period in Code of Civil Procedure section barred Thaleia's complaint, filed on March 23, 1999, more than one year after Robert's death on February 8, Although the order granting summary judgment did not rely on the statute of limitations, defendants raise this defense on appeal as a basis for affirming the grant of summary judgment. As stated in subdivision (c), Code of Civil Procedure section "applies to actions brought on liabilities of persons dying on or after January 1, 1993." Thus it applies to Robert, who died on February 8, Subdivision (a) states: "(a) If a person against whom an action may be brought on a liability of the person, whether arising in contract, tort, or otherwise, and whether accrued or not accrued, dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply." Code of Civil Procedure section does not bar Thaleia's complaint. First, the statute refers to a cause of action which "survives" the death of a person. Here no cause of action "survived" Robert, because no cause of action existed before his death. During life, a person has the power to use property and to dispose of it, as well as to make, amend, and revoke a will. Not until death, moreover, does a promisor lose the ability to comply with an agreement to make a will or a disposition in a will. Therefore no breach of a contract to make a will occurs until the promisor dies, and often no specific property subject to such a promise can be identified until that event. ( In re Marriage of Edwards (1995) 38 Cal.App.4th 456, ) An action for quasi-specific performance accrues on the death of the person who breached the agreement. ( Estate of Brenzikofer, supra, 49 Cal.App.4th at p. 1468; Ludwicki v. Guerin (1961) 57 Cal.2d 127, 130, 17 Cal. Rptr. 823, 367 P.2d 415.) Battuello v. Battuello (1998) 64 Cal.App.4th 842 cited this accrual rule as correct. Battuello found that Code of Civil Procedure section applied because the facts of that case gave rise to an exception. Where a promisor made an intervivos transfer of property specifically covered by the contract, the promisee could seek equitable relief against the promisor during the promisor's lifetime. That transfer gave the promisee a cause of action against the promisor before his death. That cause of action survived the promisor's death, and therefore one-year limitation in Code of Civil Procedure section applied. (Battuello, at p. 846.) Robert C. Marston, however, made no intervivos transfer of property specifically covered by his agreement with Thaleia. Thus the general rule cited in Battuello, not the exception, governs Thaleia's complaint. Code of Civil Procedure section does not apply because Thaleia had no cause of action against Robert C. Marston which "survived" his death. Code of Civil Procedure section 366.2, subdivision (a) moreover, applies to an action brought "on a liability of the person." An action for quasi-specific performance of a contract to make a will is not an action "on a liability of the person." Instead this cause of action seeks the remedy of imposing a constructive trust on property in the estate which the decedent promised to leave to the plaintiff. ( Estate of Watson (1986) 177 Cal. App. 3d 569, 573, 223 Cal. Rptr. 14; Estate of Brenzikofer, supra, 49 Cal.App.4th at p. 1467; Ludwicki v. Guerin, supra, 57 Cal.2d at p. 130.) The action does not set forth a claim against the deceased, the estate of the deceased, or against an executor. An action for quasispecific performance of a contract to make a will is a contest between a claimant under the contract and claimants under the will or by intestacy as to who is entitled to all or part of the estate. (57 Cal.2d at p. 132.) Thus an action for quasispecific performance of a contract to make a will is not an action on "a liability against the person. " This is a second reason why Code of Civil Procedure section does not apply to Thaleia's appeal. An action seeking to impose a constructive trust is subject to the underlying limitation period of the substantive right. ( Davies v. Krasna (1975) 14 Cal.3d 502, 515, 121 Cal. Rptr. 705, 535 P.2d 1161.) In this appeal, breach of an oral contract is the substantive right. Code of Civil Procedure section 339, subdivision 1, establishes a two-year limitations period for an "action upon a contract, obligation or liability not founded upon an instrument [in] writing." This statute of limitations does not bar Thaleia's action. 4. Other Issues The summary judgment motion argued that David's execution of a document releasing all his claims against the Robert C. Marston Trust or against his father's estate in consideration of his receipt of a $ 150,000 bequest constituted a release of Thaleia's claims as well, or at least reduced Thaleia's claim by 50 percent. The trial court made no determination based on this ground of the motion.

7 On appeal, defendants again argue that David's release, as a matter of law, extinguishes any claims Thaleia may have had under the agreement. Whatever the effectiveness of David's release of his own claims, his declaration, submitted in opposition to the summary judgment motion, states: "In March, 1998, I signed a receipt for $ 150,000 which I received from the Robert C. Marston Revocable Trust. In signing that receipt, I had no knowledge that I was waiving any right of Thaleia Marston that she might have against anyone." Even assuming David could release Thaleia's rights, this declaration creates a triable issue of fact whether he did so. Defendants also claim Thaleia's claim is not enforceable because the oral contract was indefinite. While Thaleia's deposition testimony gives different versions of whom the agreement between herself and Robert would benefit-- Thaleia only, David and Thaleia, or David only--uncertainty about contractual terms should be resolved based on the parties' reasonable expectations. Uncertainty about the precise act to be done may be resolved in light of extrinsic evidence. Where an agreement is reasonably susceptible of different interpretations, summary adjudication is not an appropriate way to resolve the ambiguity. Questions of the intent and purpose of a contract are ordinarily questions of fact. ( Byrne v. Laura, supra, 52 Cal.App.4th at pp ) DISPOSITION The judgment is reversed. Costs on appeal awarded to plaintiff Thaleia Marston. KITCHING, J. We concur: KLEIN, P.J. ALDRICH, J.