Judge Gail Killefer, Case Number: 22STCV15202, Date: 2024-01-18 Tentative Ruling

CASE NAME: David Gibson, Executor for and on Behalf off, The Estate of William Henry Braun, Jr.

OPPOSING PARTY: Plaintiff David Gibson, Executor for and on behalf of The Estate of William Henry Braun Jr.

TENTATIVE: The demurrer is sustained without leave to amend only as to Defendant Robert Barnhill, Defendant Estate of Robert Barnhill and Defendant Estate of Stratton Clarence Lindenmeyer. Defendant Mary Kay Barnhill to give notice.

On May 6, 2022, David Gibson, as executor for and on behalf of the Estate of William Henry Braun, Jr. (“Plaintiff”) filed a Complaint against Robert Barnhill; Estate of Robert Barnhill;

Mary Kay Barnhill; Steven Barnhill; Estate of Stratton Clarence Lindenmeyer; Stephen

The operative First Amended Complaint (“FAC”), filed December 23, 2022, alleges eleven causes of action: (1) Negligence; (2) Breach of Fiduciary Duty; (3) Constructive Fraud; (4) Unjust Enrichment and Imposition of Constructive Trust; (5) Conversion; (6) Conspiracy to Commit Conversion; (7) Aiding and Abetting Conversion; (8) Accounting; (9) Quiet Title; (10) Release of Bound; and (11) Waste.

On January 10, 2023, Steven Barnhill was dismissed as a Defendant. On April 11, 2023, American Contractors Indemnity Company was also dismissed as a Defendant.

On August 14, 2023, Steven Rumph filed a Cross-Complaint against David Gibson as Executor of the State of Willaim Henry Braun, Jr. and Robert Barnhill, et al. for Breach of Contract, Common Counts, and Fraud.

On December 20, 2023, Defendant Mary Kay Barnhill filed a Demurrer to the FAC. Plaintiff opposes the Motion. The matter is now before the court.

The Court may take judicial notice of records of any court of record of the United States. (Evid. Code, § 452(d)(2).) However, the court may only judicially notice the existence of the record, not that its contents are the truth. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.)

1) Minute Order from the Probate Court attached hereto as Exhibit A showing that Plaintiff was appointed Executor of William Henry Braun Jr. on May 20, 2022

2) Letters Testamentary issued to Plaintiff on July 6, 2022, attached hereinto as Exhibit B.

Discussion

Where pleadings are defective, a party may raise the defect by way of a demurrer. (Coyne v. Krempels (1950) 36 Cal.2d 257, 262.) A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.¿ (CCP, § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In evaluating a demurrer, the court accepts the complainant’s properly pled facts as true and ignores contentions, deductions, and conclusory statements. (Daar v. Yellow Cab Co. (1976) 67 Cal.2d 695, 713; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) Moreover, the court does not consider whether a plaintiff will be able to prove the allegations or the possible difficulty in making such proof. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿ The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Defendant Mary Kay Barnhill (“Mary”) demurrers to the FAC on the grounds that Plaintiff failed to comply with the creditor’s claim procedures of Probate Code § 9000 et seq. and that the FAC is time barred by CCP § 366.2.

A. Claims Against Deceased Persons Must Comply with the Mandatory Creditor’s Claims Procedures

Claims against deceased persons must comply with the mandatory creditor’s claim procedures. (Prob. Code §§ 9000, et seq.) The court agrees with Defendant Mary that the underlying lawsuit on the face of the FAC is a “claim” because it “is predicated on monetary damages for tort claims against Decedents for actions prior to death. (FAC ¶ 2.)” (Demurrer, 6.)

Here, the FAC lacks allegations of compliance with the requisite statute for Robert Barnhill or Stratton Clarence Lindenmeyer. The demurrer is sustained on this basis as to Defendants Robert Barnhill, the Estate of Robert Barnhill and the Estate of Stratton Clarence Lindenmeyer.

Defendant Robert Barnhill died on May 10, 2021. (FAC ¶ 2.) Defendant Stratton Clarence Lindenmeyer died in 2017. All other Defendants are presumed to be alive.

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.

Plaintiff does not dispute that the statute of limitations in section 366.2 applies but instead asserts that the action was timely filed because Robert Barnhill died on May 10, 2021, and this action was filed on May 6, 2022.

Defendant Mary, however, presents evidence that Plaintiff was not appointed Executor of the Estate until May 20, 2022. (RJN Ex. A.)

“’A probate or trust estate is not a legal entity; it is simply a collection of assets and liabilities. As such, it has no capacity to sue or be sued, or to defend an action. Any litigation must be maintained by, or against, the executor [or personal representative] of the estate.’ [Citation.] It is the personal representative of a probate estate that may ‘[c]ommence and maintain actions and proceedings for the benefit of the estate.’ (Prob.Code, § 9820 subd. (a).)” (Smith v. Cimmet (2011) 199 Cal.App.4th 1381, 1390–1391 [internal quotations omitted].)

The court agrees that when the Complaint was originally filed, Plaintiff did not have the legal capacity to commence this action until the Probate Court appointed him as Executor of the Estate of William Henry Braun, Jr. (RJN Ex. A, B.)

Accordingly, pursuant to Prob. Code § 366.2(a), Plaintiff’s claims against the deceased Defendants are time-barred. Plaintiff also fails to show that the statute of limitations against the deceased Defendants is tolled for reasons permitted under section 366.2(b). The court, therefore, sustains the demurrer without leave to amend as to Defendants Estate of Robert Barnhill and Estate of Stratton Clarence Lindenmeyer.

After Plaintiff was appointed Executor of the Estate of William Henry Braun, Jr., Plaintiff filed the operative FAC on December 23, 2022. An amended pleading supersedes the original pleading, which ceases to perform any function as a pleading. (See People ex rel. Strathmann v. Acacia Research Corp. (2012) 210 Cal.App.4th 487, 506; LAOSD Asbestos Cases (2018) 28 Cal.App.5th 862, 875, fn. 5.)

Defendant Mary has not brought the demurrer to the FAC on her own behalf. The action may continue against Defendant Mary and all other Defendants who are not deceased. However, the demurrer is sustained without leave to amend as to Defendant Robert Barnhill, Defendant Estate of Robert Barnhill, and Defendant Estate of Stratton Clarence Lindenmeyer.

The demurrer is sustained without leave to amend only as to Defendant Robert Barnhill, Defendant Estate of Robert Barnhill and Defendant Estate of Stratton Clarence Lindenmeyer.

[1] Pursuant to CCP § 430.41, the meet and confer requirement has been met. Although no meet and confer declaration has been filed, the meet and confer requirement has been met. (See Mot. Ex. E.)