Merrill v. Finberg

Opinion

FROEHLICH, J.

Appellants Ken Merrill et al. (hereinafter referred to as claimants) appeal from a judgment dismissing their action after the trial court sustained a general demurrer to their first amended complaint without leave to amend. The trial court ruled the complaint was barred by the statute of limitations under Probate Code

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section 9353, subdivision (a), because claimants failed to file their complaint within three months after the estate rejected their creditor’s claim.

On appeal, claimants contend: (1) the “notice of rejection” was ineffective because it was improperly served; (2) the notice of rejection was ineffective because it lacked certain information; and (3) even had the notice been effective, the complaint pleaded facts showing the estate was estopped to rely on the statute of limitations defense. After reviewing the facts, we will address claimants’ claims seriatim.

I.

Facts

The material facts stated in the complaint, which we accept as true for purposes of evaluating whether claimants have stated a claim for relief

(Air Quality Products, Inc.

v.

State of California

(1979) 96 Cal.App.3d 340, 347-348 [157 Cal.Rptr.791]), reflect that Fred Finberg died in early 1990. In June 1990, claimants filed a claim with the estate. The administrator of the estate promptly rejected the claim in its entirety, and mailed notice of the rejection to the claimants on June 28, 1990. Claimants’ attorney, who was listed as attorney on their initial claim, was not served with a copy of the notice rejecting the claim.

[1446]

On July 31, 1990, claimants’ attorney contacted the attorney for the estate and was orally informed the claim had been rejected. Claimants’ attorney asked the estate’s attorney for documentation showing the rejection had been filed, but he was never provided such documentation. Claimants’ attorney was unaware of the date the notice of rejection was filed.