Ramsbacher Prokey Leonard LLP v. Barry Vanderkelen

Ramsbacher Prokey Leonard LLP v. Barry Vanderkelen, 25CV-0391

Hearing: Motion for Leave to File Second Amended Petition

Date: August 19, 2026

On January 30, 2025, Ramsbacher Prokey Leonard LLP (Petitioner) filed a Creditor’s Claim in the Estate of: Janice Tannehill (24PR-0379). 1 The claim seeks legal fees incurred from February 2023 through December 2024. The personal representative, who was issued Testamentary Letters on March 11, 2025, has not taken any action on the claim.

On June 12, 2025, Petitioner filed a petition to compel arbitration against Barry Vanderkelen as Executor of the Estate of Janice Pankey Tannehill (Respondent). Petitioner filed an amended petition to compel arbitration on September 3, 2025. The initial petition sought to compel arbitration pursuant to a clause in a fee agreement between Petitioner and decedent dated January 17, 2012. The amended petition sought to compel arbitration pursuant to the January 2012 fee agreement and a similar arbitration provision in a fee agreement dated May 11, 2023. Both petitions were limited to requests to compel arbitration and for costs.

Prior to the hearings on November 12, 2025, and March 18, 2026,2 the Court issued a tentative ruling indicating its intent to deny the motion to compel arbitration pursuant to Code of Civil Procedure section 1281.2(c). (Respondent’s Exs. A, B.)

Currently on calendar is Petitioner’s motion to file a “Second Amended Petition to Compel Arbitration and Complaint.” The proposed civil complaint seeks to add two causes of action for breach of written contract. In addition to seeking to compel arbitration, the proposed complaint seeks an award of damages for unpaid fees under the two fee agreements. Petitioner reports the amendment is needed due to “the Court’s repeated tentative rulings indicating that the petition to compel arbitration will be denied ....” (Reply, p. 1, ll. 25-27.)

The Court denies the motion to amend.

I. LEGAL STANDARD

The Court may allow a party to amend “any pleading or proceeding” at any time in the furtherance of justice, and upon such terms as may be proper. (Code Civ. Proc., §§ 473(a)(1).) The Court’s discretion is to be exercised liberally to permit amendment of pleadings. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) “ ‘[A]bsent a showing of prejudice to the adverse party, the rule of great

1 The Court grants Petitioner’s request for judicial notice of its Creditor’s Claim and any other court records referenced in this ruling. (Evid. Code, § 452(d).) 2 This hearing was continued at the parties’ request to March 25, 2026 to be heard with Respondent’s demurrer. 1

liberality in allowing amendment of pleadings will prevail.’ [Citation.]” (S.C. v. Doe 1 (2025) 115 Cal.App.5th 365, 376, see also p. 383 [denial due to delay or lack of diligence is unwarranted absent prejudice to the opposing party].)

The Court may also deny a motion to amend when the proposed amendment fails to state a cause of action. (Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 230; Yee v. Mobilehome Park Rental Review Bd. (City of Escondido) (1998) 62 Cal.App.4th 1409, 1429 [proposed amendment properly rejected when subject to statute of limitations].)

II. DISCUSSION

Both parties agree that under its broad discretion, the Court may permit amendment of the petition to compel arbitration to include the breach of contract claims when appropriate. (Amalgamated Transit Union Local 1277 v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal.App.4th 673, 688.)

The parties dispute, however, whether the proposed breach of contract claims are barred by the statute of limitations set forth in Code of Civil Procedure section 366.2 (Section 366.2). That section establishes a one-year statute of limitations for all claims against a deceased person. The one-year limitations period may be tolled “as provided in” Probate Code sections 9000 through 9399. (Code Civ. Proc., § 366.2(b)(1).)

Probate Code section 9100 provides the time limits for filing a Creditor’s Claim. Those time limits do not toll statute of limitations. (Prob. Code, § 9100(c); see also Prob. Code, § 9253 [“A claim barred by the statute of limitations may not be allowed by the personal representative”].) If, however, a claim is timely filed, “[t]he filing of a claim ... tolls the statute of limitations otherwise applicable to the claim until allowance, approval, or rejection.” (Prob. Code, § 9352.)

Probate Code section 9351 prohibits commencement of an action against a personal representative on a cause of action against the decedent “unless a claim is first filed ... and the claim is rejected in whole or part.”

Probate Code section 9353 sets a 90-day deadline to commence an action after the personal representative issues a notice of rejection. 3 Failure to comply with the 90-day deadline bars the action regardless of whether the applicable statute of limitations expired before or after the 90-day deadline. (Prob. Code, § 9353(a).) Thus, “the filing of a claim tolls the underlying statute of limitations until the creditor’s claim has been rejected, and after rejection, ‘ “the creditor has three months within which to bring an action, regardless of the time otherwise remaining on the statute of limitations.” ’ [Citation.]” (Estate of Holdway (2019) 40 Cal.App.5th 1049, 1056.)

3 The 90-day deadline is measured from the time of the notice of rejection if the underlying claim is due at that time. If not, then the 90-days run after the claim becomes due. (Prob. Code, § 9353(a).) The time during which there is a vacancy in the office of the personal representative is excluded from the time calculation. (Prob. Code, § 9353(b).)

If the personal representative refuses or neglects to act on the Creditor’s Claim within 30 days after the claim has been filed (and provided a personal representative has been appointed), the creditor may deem the personal representative’s inaction a rejection. (Prob. Code, § 9256.) Petitioner did so here by seeking to compel arbitration of the fee dispute. 4 (Mix v. Yoakum (1927) 200 Cal. 681, 686 (Mix) [filing of complaint constituted an election by the creditor to deem the claim rejected].) Petitioner has not provided any authority that once a creditor opts under Probate Code section 9256 to treat its Creditor’s Claim as rejected, the statute of limitations continues to be tolled. 5

Janice Tannehill passed away on October 18, 2024. The one-year limitations period expired on October 18, 2025. Providing for tolling of the statute of limitations between the time Petitioner filed its Creditor’s Claim on January 30, 2025, and the date Petitioner deemed the claim rejected by filing a petition to compel arbitration on June 12, 2025, the statute of limitations expired in early March 2026. Petitioner filed this motion to amend on April 3, 2026. Therefore, to state a cause of action for breach of contract, the two new claims must relate back to either the original or amended petition.

“The relation-back doctrine requires that the amended complaint must (1) rest on the same general set of facts, (2) involve the same injury, and (3) refer to the same instrumentality, as the original one. [Citations.]” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 408-409.) “ ‘[I]t is the sameness of the facts rather than the rights or obligations arising from those facts that is determinative.’ [Citation.]” (Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1199, disapproved on other grounds in Cohen v. Superior Court (2024) 102 Cal.App.5th 706, 727, fn. 11.)

Petitioner argues the breach of contract claims relate back to the request to compel arbitration because they are based on the same fee agreements and because Petitioner sought to compel arbitration to pursue the breach of contract claims. The Court disagrees that the breach of contract claims relate back because they are not based on the same set of facts.

When determining whether to compel arbitration, the Court is limited to determining whether an agreement to arbitrate exists, and if so, whether there are any defenses to enforcement of that agreement (e.g., waiver). (Code Civ. Proc., § 1281.2.) A petition to compel arbitration is to “be

4 Prior to receiving Testamentary Letters, Respondent had no authority to act on Petitioner’s Creditor’s Claim. Petitioner did not file the present proceeding until 30 days after Respondent had been issued letters, served with the Creditor’s Claim, and failed to take any action on the claim. 5 Although the language is somewhat confusing, the court in Bank of Ukiah v. Shoemake (1885) 67 Cal. 147 held only that the lapse of the ten days in Code of Civil Procedure section 1496 (now thirty days under Probate Code section 9256) did not require the creditor to act to within the time set out in Code of Civil Procedure section 1498 (now Probate Code 9353) to protect its claim. (See Cowgill v.

Dinwiddie (1983) 98 Cal. 481, 486; see also Smith v. San Mateo County (1943) 57 Cal.App.2d 820, 822-823 [in both Bank of Ukiah and Cowgill, the court drew a distinction between actual rejection and deemed rejection and assumes that the deemed rejection took place at the date when the claimant exercised his option”].) 3

heard in a summary way in the manner ... for the making and hearing of motions.” (Code Civ. Proc., § 1290.2.) The Court cannot refuse to order arbitration “on the ground that the petitioner’s contentions lack substantive merit.” (Code Civ. Proc., § 1281.(d).) Thus, neither the underlying claims nor the defenses thereto are at issue when a court determines a petition to compel arbitration.

The injury pleaded in both the initial petition and amended petition was Respondent’s refusal to submit the dispute to arbitration. (Pet., ¶ 11; Amd. Pet., ¶ 12.) Neither iteration of the petition sought judicial enforcement of the obligation to pay fees under the two fee agreements. “A change in the form or type of contractual obligation alleged may be only a change in legal theory, not affecting the cause of action for breach of the obligation. [Citations.]” (Overholser v. Glynn (1968) 267 Cal.App.2d 800, 806; 5 Witkin, Cal. Procedure (6th ed. 2026) Pleading § 1275 [same].)

Importantly, nothing prevented Petitioner from setting forth its breach of contract claims in the initial or amended petitions as an alternative to seeking arbitration. As Petitioner notes, “the Arbitration Act ‘recognizes that a party to an arbitration agreement may elect to initiate a civil action, rather than an arbitration proceeding, and it specifically protects the party’s right to do so.’ ....” (Reply, p. 5, ll. 5-12, citing Sargon Enterprises, Inc. v. Browne George Ross LLP (2017) 15 Cal.App.5th 749, 767 [discussing the legislative history for Code Civ. Proc., § 1281.12 and stating “there are many legitimate reasons why a party might file a lawsuit in court, rather than demanding or pursuing arbitration”].)6

While the right to compel arbitration and the right to damages may involve the same parties and contracts, the two claims are based on a very different set of facts. As such, the proposed breach of contract causes of action do not relate back to either the initial or amended petition and are therefore barred by Section 366.2.

Finally, Petitioner argues the statute of limitations should be tolled from the time Petitioner filed its Creditor’s Claim on January 30, 2025 to the date the Court rules on its petition to compel arbitration. In support, Petitioner cites Probate Code section 9353. In particular, the language in section 9353 which bars a claim unless “the creditor commences an action on the claim or the matter is referred to a referee or to arbitration” within 90 days after the formal rejection. (See Prob. Code, § 9621 [personal representative and third party may agree to submit a dispute to arbitration, but the agreement is not effective until first approved by the court].)

6 Code of Civil Procedure section 1281.12 provides, “If an arbitration agreement requires that arbitration of a controversy be demanded or initiated by a party to the arbitration agreement within a period of time, the commencement of a civil action by that party based upon that controversy, within that period of time, shall toll the applicable time limitations contained in the arbitration agreement with respect to that controversy, from the date the civil action is commenced until 30 days after a final determination by the court that the party is required to arbitrate the controversy, or 30 days after the final termination of the civil action that was commenced and initiated the tolling, whichever date occurs first.”

Petitioner agues if Probate Code section 9353 treats “the filing of an action on the claim [] on equal footing with an order referring the matter to an arbitrator, then it is the yet-to-occur order granting this petition to compel arbitration which constitutes an exercise of the option to deem the creditor’s claim denied, not the mere petition itself.” (Reply, pp. 8-9.)

Absent direct authority, the Court will not infer an extension of a statute of limitations. Probate Code section 9352 tolls the statute of limitations until the claim is rejected. The petition to compel arbitration was filed upon Petitioner’s option to deem its Creditor’s Claim rejected. Although Section 366.2 may be tolled, it is only “as provided” for in Probate Code sections 9000 through 9399. Petitioner has not offered any specific statutory authority tolling the statute of limitations once a creditor deems its Creditor’s Claim rejected under Probate Code section 9256.

ORDER

Petitioner’s motion to amend is denied.

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