(Super. Ct. No. 30-2008-00224841 Appeal from a judgment of the Superior Court of Orange County, Mary Fingal Schulte, Judge. Affirmed in part and reversed in part.
The opinion of the court was delivered by: Bedsworth, Acting P. J.
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This appeal concerns a life insurance policy that may or may not exist. Appellant's ex-husband was required to obtain and maintain a $200,000 policy naming her as beneficiary as part of a divorce settlement. After the ex-husband died, appellant demanded the policy proceeds from the trustee of his trust. By the time she got around to filing a court proceeding regarding the policy, however, over a year had passed since her ex-husband's death. The trial court, assuming that the petition was based on a time-barred breach of contract, sustained the trustee's demurrer without leave to amend and entered judgment against appellant.
The appellant's claim based on a breach of contract theory is indeed time-barred. She has, however, stated claims based on constructive trust and resulting trust that were not time-barred. We therefore reverse in part.
John and Monika Mohler were married in 1984 and divorced in 1992. A "Marital Termination Agreement" (agreement) incorporated into the divorce judgment required John to maintain a life insurance policy, with Monika as beneficiary, in the amount of at least $200,000. John died on October 5, 2007.
On February 4, 2008, Monika's counsel wrote to Elizabeth Renshaw, successor trustee to John's trust. Monika's counsel identified her as a creditor of John's estate with respect to a life insurance policy "and/or business valuation for Laguna Medical Systems, Inc." The letter announced Monika's intention to file a creditor's claim in the estate and asked for the name of Renshaw's counsel. On February 29, 2008, Monika's counsel wrote again, this time to Renshaw's counsel. This letter reflects some prior communications between counsel; it also alludes to Renshaw's decision not to open probate for John's estate. Monika's counsel again referred to filing a creditor's claim if Renshaw did not pay Monika's claim.
Further correspondence between counsel ensued during March and April, culminating in an e-mail from Renshaw's counsel to Monika's counsel dated April 9, 2008, stating that her claim was probably going to be denied, although they were still looking into it. The record contains no further indication of any communications between counsel until October 21, 2008, when Renshaw's counsel sent an e-mail informing Monika's counsel that the claim was now time-barred under Code of Civil Procedure section 366.2.*fn1
Monika filed a petition for the imposition of a constructive trust, for determination of the title to insurance policy proceeds, and for demand for specific property on November 25, 2008. Her petition included a request to be permitted to file a late creditor's claim. Renshaw demurred on April 7, 2009, and the court sustained the demurrer with leave to amend. Monika filed her first amended petition on May 27, 2009. She added a claim for a resulting trust to her previous requests for relief. Renshaw demurred again, and this time the court sustained the demurrer without leave to amend. Judgment was entered on September 3, 2009. Although the minute order itself did not explain the grounds for sustaining the demurrer, the reporter's transcript reveals that the trial court assumed the entire petition to be founded on a ...