Sad Song

Illegal and Legal Provisions of a Contract Are Too Intertwined to Sever

Chiba v. Greenwald (Oct. 16, 2007, B193173, Second Dist.)
23 p. opinion (11 p. majority, 12 p. dissent)

This case stands out primarily because it concerns the estate of singer-songwriter Elliott Smith. While never a major commercial success he had, and despite his death on Oct. 21, 2003, continues to have, a devoted fan base. Outside of the world of indie music, he is probably best know for his Oscar-nominated song Miss Misery from the movie Good Will Hunting.

In this action Smith's live-in girlfriend sued the administrator of his estate for breach of an oral contract containing a provision that she would manage his music career in exchange for a 15% commission, and a Marvin agreement to provide household services in exchange for support. The provision that she would manage his career in exchange for compensation was illegal because the plaintiff was not a licensed talent agent as required by the Talent Agencies Act. (Labor Code section 1700 et seq.)

The question then became whether the legal Marvin agreement could be severed from the illegal management provision. The trial court concluded that the provisions were too intertwined to be severed and therefore the entire contract was void. A majority of the Court of Appeal agreed. Justice Johnson dissented, arguing that the complaint clearly alleged two separate promises made for two separate considerations.

Justice Zelon wrote the opinion. Justice Woods concurred. Acting Presiding Judge Johnson wrote a dissenting opinion.