Judge: Deborah C. Servino, Case: 30-2021-01195708, Date: 2023-08-04 Tentative Ruling

Defendant/Cross-Complainant Michael Bakkers, as Trustee of the Bakkers' Living Trust filed a motion to dismiss Plaintiff John Belcher’s Complaint for failure to join a necessary and indispensable party.  Michael Bakkers has been removed as trustee of the Bakkers' Living Trust.  On July 28, 2023, Plaintiff and Michael Bakkers agreed that Defendant Michael Bakkers, as an individual ("Defendant"), could join the motion and would be permitted to file a timely reply brief on the merits.  (7/28/2023 Minute Order.)  The motion to dismiss is granted.

Defendant's request for judicial notice of the second amended complaint filed in Bakkers v. Bakkers (Orange County Superior Court case no. 30-2015-00768210) and the death certificates of Joan and Paul Bakkers, is granted.  (Evid. Code, § 452.)  Plaintiff will be given an opportunity to address the second amended complaint and the death certificates at the hearing.

Defendant contends that the personal representative of the Estate of Paul Bakkers is a necessary and indispensable party.  As no personal representative of the Estate of Paul Bakkers has been appointed, the Complaint must be dismissed.  Code of Civil Procedure section 389 provides in part:

(a)  A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party.

(b)  If a person as described in paragraph (1) or (2) of subdivision (a) cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed without prejudice, the absent person being thus regarded as indispensable. The factors to be considered by the court include: (1) to what extent a judgment rendered in the person's absence might be prejudicial to him or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person's absence will be adequate; (4) whether the plaintiff or cross-complainant will have an adequate remedy if the action is dismissed for nonjoinder.

In this matter, Plaintiff seeks declaratory relief and an injunction with respect to money he contends he is owed for legal services provided to Decedent Paul Bakkers.  In order to litigate his claims against Decedent, Plaintiff as a creditor, must follow the statutory scheme set forth in Probate Code, section 9000, et seq. 

“Generally, anyone who demands payment from an estate, based on a debt or the liability of the decedent, must file a claim against the estate in accordance with the requirements of the Probate Code . . . . All claims must be filed in the manner and within the time provided under . . . §§ 9000 et seq., and any claim that is not so filed is barred. [Prob. Code, § 9002]  However, the creditor’s duty to file a claim is not triggered unless the personal representative gives proper notice of administration. [See Prob. Code, § 9100]" (Gold, et al., Cal. Civil Practice Probate and Trust Proceedings (2023) § 13.1.)

Plaintiff contends that he does not have to submit a creditor's claim, because the retainer agreement was signed by Paul Bakkers and Joan Bakkers as Trustees (and individually) and because Probate Code section 18004 states that certain claims may be asserted against a trust by proceeding against the trustee in its representative capacity.

However, Plaintiff cites to no legal authority applying section 18004 in a situation like this, where the trustee with whom the contract was entered, has died. Moreover, the underlying lawsuit was brought in Paul Bakkers’ capacity as an individual, not a trustee, and the underlying judgment was in favor of only Paul Bakkers, as an individual.

Unlike Probate Code section 18004, Probate Code section 9000, et seq. clearly applies to claims against a decedent’s estate for the liability of decedent.  For Plaintiff to obtain the relief he seeks regarding Decedent’s liability for his attorney fees in the underlying action, he must file a creditor’s claim with the Estate’s personal representative.  Thus, because the personal representative is an indispensable party, the motion is granted.  This action is dismissed without prejudice. (Code Civ. Proc., § 389, subd. (b).)

Defendant shall give notice of the ruling.