Judge Peter A. Hernandez, Case Number: 23PSCV01092, Date: 2023-11-07 Tentative Ruling

Defendant Susan Copenhaver, as Administrator of the Estate of Jeffrey L. Albrecht’s Motion for Judgment on the Pleadings is GRANTED. The court will hear from counsel for Plaintiff as to whether leave to amend is requested, and as to which cause(s) of action, and will require an offer of proof if so.

Plaintiff Sally Mack (“Plaintiff”) sustained injuries after she was physically beaten by her then-boyfriend, Jeffrey Lee Albrecht.

On April 14, 2023, Plaintiff filed a complaint, asserting causes of action against the Estate of Jeffrey Lee Albrecht and Does 1-50 for:

The rules governing demurrers are generally applicable to a motion for judgment on the pleadings. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999; Code Civ. Proc., § 438, subd. (d) [“The grounds for motion. . . shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Where the motion is based on a matter of which the court may take judicial notice. . ., the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit”].)

A motion by a plaintiff may only be made on the grounds “that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.” (Code Civ. Proc., § 438, subd. (c)(1)(A).) A motion by a defendant may only be made on the grounds that (1) “[t]he court has no jurisdiction of the subject of the cause of action alleged in the complaint” or (2) “[t]he complaint does not state facts sufficient to constitute a cause of action against that defendant.” (Code Civ. Proc., § 438, subd. (c).)

Although a nonstatutory motion “may be made at any time either prior to the trial or at the trial itself” (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650 [quotation marks and citation omitted]), a statutory motion cannot be made after entry of a pretrial conference order or 30 days before the initial trial date, whichever is later, unless the court otherwise permits. (Code Civ. Proc., § 438, subd. (e).)

Susan Copenhaver, as Administrator of the Estate of Jeffery L. Albrecht (“Defendant”), moves the court for judgment on the pleadings as to Plaintiff’s complaint. [1]

The court rules on Defendant’s Request for Judicial Notice (“RJN”) as follows: Granted as to Exhibit A (i.e., register of actions in case styled Estate of Jeffrey L. Albrecht, Case No. 23STPB00497 [“Probate Action”]); Granted as to Exhibit B (i.e., Letters of Administration filed March 15, 2023 in the Probate Action); Granted as to Exhibit C (i.e., Creditor’s Claim filed by Plaintiff on July 18, 2023 in the Probate Action) and Granted as to Exhibit D (i.e., Rejection of Creditor’s Claim filed September 21, 2023 in the Probate Action).

Defendant first asserts that the motion must be granted because Plaintiff has failed to allege that she timely filed a claim and had it rejected prior to filing the complaint. On April 14, 2023, Plaintiff filed the instant complaint, acknowledging therein that Jeffrey Albrecht had “recently passed away” and that she intended to “bring[] this action against his estate.” (Complaint, ¶ 21).

Probate Code § 9351 provides that “[a]n action may not be commenced against a decedent's personal representative on a cause of action against the decedent unless a claim[2] is first filed as provided in this part and the claim is rejected in whole or in part.” “Section 9351 precludes suit against an estate unless a claim has first been filed with the estate and the claim has been rejected in whole or part.” (Allen v. Stoddard (2013) 212 Cal.App.4^th 807, 813.) “An allegation of the filing of a claim [against the estate of decedent] and the rejection thereof is necessary in an action against an estate.” (Roach v. Hostetter (1941) 48 Cal.App.2d 375, 378.)

Plaintiff’s complaint is devoid of any allegations that a claim was filed and rejected prior to filing the complaint. Defendant’s motion, then, is granted on this basis.

Defendant next asserts that the motion must be granted because Plaintiff failed to timely file a claim in the Probate Action or timely petition the court for leave to file a late claim. Probate Code § 9100 provides, in relevant part, as follows:

(a) A creditor shall file a claim before expiration of the later of the following

Judicially noticeable documents reflect that Letters of Administration were issued to the personal representative (i.e., Defendant) on March 15, 2023 in the Probate Action. (RJN, Exh. B.) On July 18, 2023, Plaintiff filed a creditor’s claim in the Probate Action. (Id., Exh. C). Plaintiff was required to file her claim by July 15, 2023 to comply with Probate Code § 9100. Plaintiff’s creditor’s claim was rejected on September 21, 2023. (RJN, Exh. D).

Probate Code § 9100, subdivision (a)(2) is not applicable here, inasmuch as Exhibit D reflects that no Notice of Administration was ever served on Plaintiff; however, “a potential creditor with actual notice of the pendency of estate proceedings cannot excuse the untimely filing of a creditor’s claim on the ground that the administrator failed to send a formal notice of administration of the estate, as required by Probate Code section 9050.” (Venturi v. Taylor (1995) 35 Cal.App.4^th 16, 18).

In Venturi, plaintiff creditor sued defendant estate administrators for breach of contract after they rejected his creditor’s claim. Defendant filed a motion for summary judgment, which the trial court granted on the ground that plaintiff failed to file a timely claim against the estate, or to file a timely petition for leave to file a late claim, even though plaintiff had actual knowledge that the estate proceeding was pending. The trial court ruled that defendants’ failure to give plaintiff and/or his counsel statutory notice of the administration of the estate did not extend plaintiff’s time to file his creditor’s claim beyond the time periods set forth in Probate Code § 9100, subdivision (a) or § 9103, subdivision (a).[3] The court of appeal affirmed:

issued to the personal representative or 2) thirty days after the date notice of administration is given to the creditor. (§§ 9051,

subds. (a), (b); 9100, subd. (a)(1) & (2).)

If, however, a personal representative first has knowledge of a creditor after

thirty days after receipt of said knowledge. (§ 9051, subd. (c).) If, as here, the

file a claim against the estate. The creditor's remedy, when its claim is denied

as untimely, is to petition the court to file a late claim under section 9103. . .

Here, Plaintiff had actual notice of the Probate Action no later than July 18, 2023, the date she filed her creditor’s claim. Plaintiff’s remedy, when the claim was denied, was to petition the court to file a later claim under Probate Code § 9103, which she has not done. (RJN, Exh. A).

As an aside, the court addresses Plaintiff’s contention that she is permitted to apply the later of the creditor’s claim filing deadline of Probate Code § 9100 et seq. or the one-year statute of limitations in Code of Civil Procedure § 366.2. This contention is incorrect:

Stanewich (9th Cir. 1996) 92 F.3d 831, 841—filing suit against estate is not

Applicable statutes of limitations on filing suit are separate and distinct from

generally applicable statute of limitations may not be allowed by the personal representative or approved by the court. [Prob. C. §§ 9253, 9103(f)].

Further, Plaintiff’s citation to Embree v. Embree (2004) 125 Cal.App.4th 487 actually supports Defendant’s position. In Embree, a decedent’s ex-wife sought to enforce the terms of a marital settlement agreement that obligated decedent to pay $1,800.00 in monthly spousal support until ex-wife remarried or ex-wife or decedent died and further provided that, in the event decedent predeceased ex-wife, a trust or annuity would be established to provide ex-wife $1,800.00/month for as long as ex-wife lived. After decedent died, all of his known property was distributed pursuant to the terms of his revocable living trust without the creation of a trust or annuity for ex-wife; thus, there was no probate proceeding. Ex-wife thereafter sought to recover against decedent’s trust beneficiaries, filing a lawsuit against them more than a year after decedent’s death. The trial court dismissed the action as time barred, and the court of appeal affirmed, finding that the action as time-barred by Code of Civil Procedure § 366.3. The court of appeal further determined that:

[e]ven if we were to agree with [ex-wife] that she is seeking to enforce a spousal

support judgment, for all practical purposes the result is the same: The property distributed to the beneficiaries of Alvin's revocable living trust is not available to

satisfy her support judgment because she failed to file her claim within one year of Alvin's death. . .

Except with respect to liens that have already been executed, any judgment creditor seeking to satisfy its money judgment with property of the decedent must file a

timely claim in the probate proceeding (Prob. Code, § 9100) or in connection with

a trust claims procedure (Prob. Code, § 19103), if one has been initiated. . . If both

the estate and trust are insufficient to satisfy the judgment, a judgment creditor that

has preserved its claim by filing a timely claim may pursue trust property distributed

to the beneficiaries of the decedent's revocable living trust to the same extent the

settlor's lifetime. . . Failure to file a timely claim in the probate or trust claims

proceeding forever bars the creditor from recovering against the property of the

If no probate or trust claims procedure has been initiated, however, as in the case

at bar, the short limitations periods applicable to claims filed in probate or trust

creditor of the deceased settlor ‘shall be as otherwise provided by law.’ (Prob. Code, 19008). Probate Code section 19400, in turn, permits a creditor to proceed against property distributed to the beneficiaries of the judgment debtor’s revocable living

While acknowledging that, upon Alvin's death, her right to reach property in Alvin's revocable living trust to enforce the spousal support judgment would have been contingent on filing a timely claim in a probate or trust claims proceeding if either

had been initiated, Joanne contends that, in the absence of those proceedings, she

can satisfy her judgment against property left by Alvin to his heirs at any time. . .

[ex-wife’s] argument reads far too much into Family Code section 4502. . . nothing

property pursuant to the terms of a living revocable trust in instances when there

Embree, then, reflects that the filing of a creditor’s claim in a probate action is mandatory and that, in the absence of a probate proceeding, claims are still subject to the one-year statute of limitations set forth in Probate Code § 366.2.

Plaintiff’s reliance on Levine v. Levine (2002) 102 Cal.App.4th 1256, moreover, is misplaced. In Levine, a decedent had established UTMA accounts for his grandchildren, but subsequently withdrew the money from those funds approximately four years before his death. The grandchildren sued decedent’s widow in her capacity as beneficiary of the irrevocable trust which held title to the bulk of decedent’s estate. There had been no proceeding to administer decedent’s estate and no notice to creditors. The trial court sustained widow’s demurrer without leave to amend on statute of limitations grounds. The grandchildren then attempted to recoup the funds from the trust and filed an amended complaint naming it and widow in her capacity as trustee, but the court granted a motion to quash and ordered the case dismissed on the basis that “a demurrer was sustained without leave to amend on May 18, 2001 as to the same parties.” The court of appeal affirmed. Levine confirmed that the timely filing of a claim in the probate case tolls Probate Code § 366.2. (Id. at 1261).

Finally, Defendant asserts that the motion must be granted because Plaintiff has failed to name the proper party. Indeed, “[t]he ‘estate’ of a decedent is not an entity known to the law. It is neither a natural nor an artificial person. It is merely a name to indicate the sum total of the assets and liabilities of a decedent, or of an incompetent, or of a bankrupt. In order for a civil action to be prosecuted, there must be some existing entity aimed at by the processes of the law, and against whom the court's judgment will operate.” (Tanner v. Best’s Estate (1940) 40 Cal.App.2d 442, 445.)

[1] Plaintiff’s opposition is untimely (due October 25, 2023, filed and electronically served October 27, 2023). The court has elected to consider the substance of the opposition, particularly since counsel has provided the court with a copy of an October 25, 2023 email communication between counsel wherein Defendant’s counsel agreed to accept Plaintiff’s untimely filing and service of the opposition. The court admonishes counsel for the untimely filing and cautions him that any future untimely filings may not be considered by the court.

[2] A “claim” is defined in Probate Code § 9000 as a demand for payment for any of the following, whether due, not due, accrued or not accrued, or contingent, and whether liquidated or unliquidated: (1) Liability of the decedent, whether arising in contract, tort, or otherwise. (2) Liability for taxes incurred before the decedent's death, whether assessed before or after the decedent's death, other than property taxes and assessments secured by real property liens. (3) Liability of the estate for funeral expenses of the decedent.”

[3] Probate Code § 9103, subdivision (a) provides as follows: “(a) Upon petition by a creditor or the personal representative, the court may allow a claim to be filed after expiration of the time for filing a claim provided in Section 9100 if either of the following conditions is satisfied:

(1) The personal representative failed to send proper and timely notice of administration of the estate to the creditor, and that petition is filed within 60 days after the creditor has actual knowledge of the administration of the estate.

(2) The creditor had no knowledge of the facts reasonably giving rise to the existence of the claim more than 30 days prior to the time for filing a claim as provided in Section 9100, and the petition is filed within 60 days after the creditor has actual knowledge of both of the following:

(A) The existence of the facts reasonably giving rise to the existence of the claim.

(B) The administration of the estate.