Borelli

Plaintiff and appellant Hildegard L. Borelli (appellant) appeals from a judgment of dismissal after a demurrer was sustained without leave to amend to her complaint against defendant and respondent Grace G. Brusseau, as executor of the estate of Michael J. Borelli (respondent). The complaint sought specific performance of a promise by appellant's deceased husband, Michael J. Borelli (decedent), to transfer certain property to her in return for her promise to care for him at home after he had suffered a stroke.

Appellant contends that the trial court erred by sustaining the demurrer on the grounds that the "alleged agreement [appellant] seeks to enforce is without consideration and the alleged contract is void as against public policy." We conclude that the contention lacks merit.

(1) The only "facts" we can consider on this appeal from the sustaining of a demurrer are those "material facts properly pleaded, but not contentions, deductions or conclusions of fact or law." ( Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [ 216 Cal. Rptr. 718 , 703 P.2d 58 ].) Since both parties' briefs wander far from the allegations of the complaint we will set out those…

Plaintiff and appellant Hildegard L. Borelli (appellant) appeals from a judgment of dismissal after a demurrer was sustained without leave to amend to her complaint against defendant and respondent Grace G. Brusseau, as executor of the estate of Michael J. Borelli (respondent). The complaint sought specific performance of a promise by appellant’s deceased husband, Michael J. Borelli (decedent), to transfer certain property to her in return for her promise to care for him at home after he had suffered a stroke.

Appellant contends that the trial court erred by sustaining the demurrer on the grounds that the “alleged agreement [appellant] seeks to enforce is without consideration and the alleged contract is void as against public policy.” We conclude that the contention lacks merit.

*650 Facts

The only “facts” we can consider on this appeal from the sustaining of a demurrer are those “material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [ 216 Cal.Rptr. 718 , 703 P.2d 58 ].) Since both parties’ briefs wander far from the allegations of the complaint we will set out those allegations in…

A very ill person wishes to be cared for at home personally by his spouse rather than by nurses at a health care facility. The ill person offers to pay his spouse for such personal care by transferring property to her. The offer is accepted, the services are rendered and the ill spouse dies. Affirming a judgment of dismissal rendered after a general demurrer was sustained, this court holds that the contract was not enforceable because—as a matter of law—the spouse who rendered services gave no consideration. Apparently, in the majority’s view she had a preexisting or precontract nondelegable duty to clean the bedpans herself. Because I do not believe she did, I respectfully dissent.

The majority correctly read Estate of Sonnicksen (1937) 23 Cal.App.2d 475 [ 73 P.2d 643 ] and Brooks v. Brooks (1941) 48 Cal.App.2d 347 [ 119 P.2d 970 ] as holding that a wife cannot enter into a binding contract with her husband to provide “nursing-type care” for compensation. (Maj. opn., ante, p. 652.) It reasons that the wife, by reason of the marital relationship, already has a duty to provide such care, thus she offers no new consideration to support an independent contract to the same effect.…