Judge: H. Jay Ford, III, Case: 22SMCV01044, Date: 2023-01-24 Tentative Ruling

Case Number: 22SMCV01044    Hearing Date: January 24, 2023    Dept: O

  Case Name:  Horner v. Wibben, Administrator of the Estate of Charles R. Nauert, et al.

SUBJECT:               MOTION TO QUASH SERVICE OF SUMMONS

MOVING PARTY:  Defendant Michael Wibben, Administrator of the Estate of Charles R. Nauert, specially appearing

RESP. PARTY:        None as of 1-19-23

TENTATIVE RULING

            Defendant Michael Wibben, Administrator of the Estate of Charles R. Nauert’s Motion to Quash Service of Summons is GRANTED. 

            Plaintiff sued Defendant Michael Wibben in his representative capacity as administrator of the Estate of Charles R. Nauert.  See Summons on Complaint filed on 11-8-22.  Wibben was discharged as the administrator of the Estate on 6-13-22.  See Motion, RJN, Ex. F.  Wibben argues the Court must grant this motion to quash and dismiss the action, because he is no longer administrator of the estate and based on Toledo v. Supr. Ct. (1971) 19 Cal.App.3d 450, 456-457. 

            Toledo is distinguishable based on a crucial fact.  In Toledo, the defendant was named as administrator of an estate and the alleged causes of action were based on the negligence of the decedent, not any act of the former administrator while carrying out her duties as administrator of the estate.  Id. at 452 (real party in interest “who seeks to recover damages for injuries allegedly suffered as a proximate result of the negligence of defendant”)(emphasis added). 

            Toledo expressly distinguished situations where the former administrator was being sued for failures in carrying out her duties as administrator of the estate.  “It is clear from the facts that petitioner was served solely in her representative capacity, and that there was no attempt to hold her personally because of some default in the performance of her duties as a representative of the estate.  Since she was not a representative it was proper to quash the service of summons on her in that capacity.”  Toledo, supra, 19 Cal.App.3d at 454 (emphasis added).  “In this case the administratrix had been discharged.  The principal action is not an action to hold petitioner personally liable for failure to pay a claim which she knew was the subject of a pending lawsuit against the estate at the time she was discharged.”  Id. at 456.

            Here, Plaintiff’s complaint seeks to hold Wibben liable for his personal acts as administrator of the estate, not the acts of decedent.  Defendant acknowledges this in his brief:  "Horner's claim against [Defendant] arises out of a judgment of unlawful detainer in [the UD action] entered April 19, 2021 and Wibben's carrying out his duties in enforcing that judgment."  Motion, 4:2-6.  Thus, unlike the Toledo case, where the Court of Appeals repeatedly stated that there was no indication that the defendant was being sued personally for her actions as administrator, Plaintiff is seeking to hold Wibben personally liable for his actions as administrator of the estate of Nauert. 

            “Generally, the liability of a representative may be enforced, after his or her account has been surcharged and finally settled, by an action on the representative's bond, against both the representative in the representative capacity and the sureties.  This liability also may be enforced by an action against the representative alone in an individual capacity.  For example, a representative may be held personally liable, in an action brought against him or her in an individual capacity after discharge from office, for failure to pay a claim that he or she knew to be the subject of a lawsuit pending against the estate at the time of discharge.  However, after an estate has been distributed and its representative discharged, the representative, regardless of whether he or she is an executor or an administrator, can no longer be sued in a representative capacity. At that time, the representative no longer has any assets of the estate under his or her control.”  25 Cal. Jur. 3d Decedents' Estates, §856,

            However, while the causes of action are based on Defendant’s acts as an administrator, the summons does not name Wibben and is directed to “Administrator of the Estate of Charles R. Nauert.”  The complaint only names Defendant in his representative capacity.  Ultimately, Plaintiff is naming Defendant as the estate’s representative and not in his individual capacity. 

            As such, “[i]n this case the administratrix had been discharged.  The principal action is not an action to hold petitioner personally liable for failure to pay a claim which she knew was the subject of a pending lawsuit against the estate at the time she was discharged…The fact remains that at the time petitioner was served she was no longer representative of the estate of the alleged tortfeasor.  She had no authority to receive summons on behalf of the estate and has no authority to file an answer on its behalf.  Until her discharge is set aside, or until a successor is appointed, there is no one to be served or to appear on behalf of the estate."  Id. at 456-457. 

            In addition, Plaintiff did not file any opposition.  It is always the plaintiff's burden to establish jurisdiction.  See Strathvale Holdings v. E.B.H. (2005) 126 Cl.App.4th 1241, 1249.  On that ground alone, the motion to quash is GRANTED.