Dolan v. Eastwood

Opinion

CALDECOTT, P. J. Pamela Jean Dolan1 appeals from the order of dismissal2 entered following the sustaining of a general demurrer with[896]out leave to amend, The sole issue presented on this appeal is whether Probate Code section 709 governs, to the exclusion of Probate Code section 707, in the case of a creditor’s claim filed by a nonresident while an action is pending against the decedent at the time of his death. We hold that section 709 governs, and affirm the judgment.

Pamela Jean Dolan, individually and as representative of Pacific States Steel Corporation (hereinafter appellant), filed a complaint on rejected claim for damages for breach of fiduciary duty and fraud in the Alameda County Superior Court against Joseph Eastwood III (hereinafter respondent), as executor of the estate of Joseph Eastwood, Jr.

Respondent filed a general demurrer and a motion to strike the complaint. The motion was granted and an order of dismissal and judgment were filed.

Appellant, a resident of the State of Nevada, filed a shareholder’s derivative suit on behalf of Pacific States Steel Corporation in the United States District Court, Northern District of California, on May 15, 1975. Included as a defendant was Joseph Eastwood, Jr., who in 1975, was chairman of the board of directors of Pacific States Steel Corporation.

Joseph Eastwood, Jr., died April 26, 1977, during the pendency of the federal court action. His will was admitted to probate and on May 31, 1977, respondent was appointed executor of the estate. Notice to creditors of the decedent was first published on June 2, 1977.

On December 20, 1977, appellant filed two separate creditor’s claims3 based upon the federal court action. Each claim was rejected by respondent on the ground that neither claim was filed nor presented within the statutory period prescribed by Probate Code section 709.

On April 25, 1978, appellant filed a motion in the federal court action to substitute the estate of Joseph Eastwood, Jr., for the decedent. The motion was denied on the ground that appellant failed to comply with Probate Code section 709.

[897]