Estate of Barrett

Filed 12/9/09 Estate of Barrett CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

I.       Introduction

Appellant Patricia Hewlett (Hewlett) appeals from an order sustaining a demurrer without leave to amend to her petition to set aside a final distribution of the estate of Vivian Barrett. The court found her petition time-barred, as do we. Accordingly, we affirm.

II.    Background

We set forth the procedural and factual background of the case to the extent necessary to address the issue on appeal. Vivian Barrett died on January 3, 2007. On January 18, 2007, Steven Kremer (respondent) filed a petition for letters of administration. The court issued letters of special administration, and notice to creditors was published and filed on May 31, 2007. The final distribution of the estate was ordered on February 6, 2009, and entered February 9, 2009.

Two days before final distribution was ordered, Hewlett filed a creditors claim against the estate in the amount of $150,000. She claimed she was a third party beneficiary of an alleged promise by Barrett to give one Regulo Sierra (Sierra) $2 million worth of bonds. Sierra had filed a timely creditors claim on August 31, 2007.

Two days after final distribution was entered, she filed a petition to set aside the final distribution. Respondent demurred to Hewletts petition. The trial court sustained the demurrer without leave to amend on April 2, 2009, on the ground Hewletts claim was time-barred. Hewlett filed a notice of appeal from the order on April 3, 2009. Notice of entry of judgment of dismissal was filed on April 16, 2009.

III. Discussion

A. Standard of Review

On appeal from an order of dismissal after an order sustaining a demurrer, the standard of review is de novo: we exercise our independent judgment about whether the complaint states a cause of action as a matter of law. [Citation.] First, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. Next, we treat the demurrer as admitting all material facts properly pleaded. Then we determine whether the complaint states facts sufficient to constitute a cause of action. [Citations.] [] We do not, however, assume the truth of contentions, deductions, or conclusions of law. [Citation.] If a complaint is insufficient on any ground specified in a demurrer, the order sustaining the demurrer must be upheld even though the particular ground upon which the court sustained it may be untenable. (Stearn v. County of San Bernardino (2009) 170 Cal.App.4th 434, 439-440.)

Hewlett prematurely appealed from the order sustaining the demurrer without leave to amend, rather than the judgment of dismissal entered two weeks later. We construe Hewletts notice of appeal as being from the judgment of dismissal. (See Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 202-203.)

B. Statute of Limitations

Hewletts opening brief on appeal is incomprehensible, and we could affirm the judgment on that basis alone.[1] We have gone on, however, to review the merits of the dismissal, and agree with respondent that Hewletts claim is barred under the applicable statutes of limitation. As respondent explains in his respondents brief, Hewletts creditors claim was untimely filed under Probate Code section 9100, and is time-barred under Code of Civil Procedure[2] sections 366.2 and 366.3.

Probate Code section 9100 governs the timing of creditor claims, providing in pertinent part: A creditor shall file a claim before expiration of the later of the following times: [] (1) Four months after the date letters are first issued to a general personal representative. [] (2) Sixty days after the date notice of administration is mailed or personally delivered to the creditor. . . . (Prob. Code,  9100, subd. (a)(1)-(2).) This notice need only be given to known or reasonably ascertainable creditors of the decedent. (Prob. Code,  9050, subd. (a).) Nothing in this section shall be interpreted to extend or toll any other statute of limitations or to revive a claim that is barred by any statutes of limitations. . . . (Prob. Code,  9100, subd. (c).) While the court may allow a late claim to be filed under certain conditions under Probate Code section 9103, [n]othing in this section authorizes allowance or approval of a claim time-barred under Code of Civil Procedure section 366.2. (Prob. Code,  9103, subd. (f).)

As respondent points out, Hewletts third party beneficiary claim was predicated on a claim filed by Sierra. Sierra timely filed a creditors claim on August 31, 2007, and it certainly can be presumed Hewlett could have, and should have, done so, as well. Hewletts claim filed February 4, 2009, is far outside the time periods set forth in Probate Code section 9100.

In any event, sections 366.2 and 366.3 provide a one-year statute of limitations.[3] Section 366.2 provides in relevant part: 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. ( 366.2, subd. (a).) Section 366.3 similarly provides in part: If a person has a claim that arises from a promise or agreement with a decedent to distribution from an estate or trust or under another instrument, whether the promise or agreement was made orally or in writing, an action to enforce the claim to distribution may be commenced within one year after the date of death . . . . ( 366.3, subd. (a).)

The court in Farb v. Superior Court (2009) 174 Cal.App.4th 678 recently discussed the interplay between the claim provisions and the statutes of limitation. It noted the California Law Revision Commission, in recommending changes to what is now section 366.2, indicated  notwithstanding the four-month claim filing requirement, a known or reasonably ascertainable creditor who does not have actual knowledge of the administration of the estate during the four-month claim period should be permitted to petition for leave to file a late claim. . . . [] Although known or reasonably ascertainable creditors who have no knowledge of administration would be given remedies beyond the four-month claim period, these remedies must be exercised within one year after the decedents death. The Commission believes that a new long term statute of limitations of one year commencing with the decedents death will best effectuate the strong public policies of expeditious estate administration and security of title for distributees, and is consistent with the concept that a creditor has some obligation to keep informed of the status of the debtor. . . . [The one-year statute] allows a reasonable time for the creditor to discover the decedents death, and it is an appropriate period to afford repose and provide a reasonable cutoff for claims that soon would become stale.  (Farb v. Superior Court, supra, at pp. 684-685, quoting Recommendation Relating to Notice to Creditors in Estate Administration (Dec.1989) 20 Cal. Law Revision Com. Rep. (1990) pp. 512-513, fns. omitted, italics added; accord, Stoltenberg v. Newman (2009) 179 Cal.App.4th 287, 296-297.)

Accordingly, regardless of the precise nature of Hewletts claim, and even had she sought leave to file a late claim under the Probate Code, her creditors claim is time-barred since it was filed more than one year (indeed, more than two years) after Barretts death.

IV. Disposition

The judgment is affirmed.

_________________________

Banke, J.

We concur:

_________________________

Margulies, Acting P. J.

_________________________

Dondero, J.

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[1] Not only is her writing unintelligible, she provides no citations to the record, thereby violating California Rules of Court, rule 8.204(a)(1)(B)-(C) and (a)(2)(A)-(C).

[2] All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

[3] Both statutes specify certain exceptions resulting in the tolling or extension of the one-year period, but none are asserted by Hewlett.