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Richard Allen v. Edith Marlynne Stoddard

January 9, 2013

RICHARD ALLEN, PLAINTIFF AND APPELLANT,
v.
EDITH MARLYNNE STODDARD, AS ADMINISTRATOR, ETC., DEFENDANT AND RESPONDENT.



Appeal from a judgment of the Superior Court of Orange County, David I. Hood, Temporary Judge. (Super. Ct. No. 30-2011-00501331)

The opinion of the court was delivered by: Bedsworth, J.

CERTIFIED FOR PUBLICATION

OPINION

(Pursuant to Cal. Const., art. VI, § 21.) Reversed.

This case of first impression requires us to directly confront the issue of whether Probate Code section 9353 irreconcilably conflicts with Code of Civil Procedure section 366.3.*fn1 We determine they do conflict on the very narrow point of how much time a claimant against an estate has to file suit based on a promise to make a distribution from the estate, such as a contract to make a will. Section 9353 gives claimants 90 days from rejection of the claim by the estate to file suit; section 366.3 gives them a year from decedent's death to file suit. Under the longstanding rule of construction that newer and more specific statutes take precedence over older and more general statutes, we conclude it is section 366.3's time limit that controls.

The practical effect of our determination is that plaintiff Richard Allen's suit for breach of contract to make a will, filed 91 days after rejection by the estate of his creditor's claim but within a year of the decedent's death, is not time-barred. The judgment of dismissal in favor of the estate, predicated solely on the application of section 9353's 90-day time frame to file suit, must therefore be reversed.

FACTS

This case comes to us on a judgment of dismissal after the defendant's demurrer was sustained without leave to amend, so we accept as true all facts pled in the complaint. (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 894; Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.) We also accept as true other relevant, judicially-noticeable facts outside the complaint. (Jocer Enterprises, Inc. v. Price (2010) 183 Cal.App.4th 559.) In this case, the relevant, judicially-noticeable facts we accept as true concern the nature, presentation and ultimate rejection of a creditor's claim presented by plaintiff Richard Allen.

James Humpert died October 29, 2010. Humpert had been in a stable, long-term committed relationship with plaintiff Richard Allen, and during that relationship Humpert had promised Allen he "would be taken care of" should "anything happen" to Humpert. It is undisputed Humpert died intestate, and there is no evidence Allen and Humpert ever registered as domestic partners, or married during that brief period in 2008 when same-sex couples could marry.*fn2

Allen filed a petition with the probate court to be appointed administrator of Humpert's estate, but Humpert's sister, Edith Marlynne Stoddard, filed an opposing petition, and she prevailed. Hence, as administrator of Humpert's estate she is the named defendant in this case.

In April 2011, a little more than five months after Humpert died, Allen filed a creditor's claim against Humpert's estate based on the "would be taken care of" promise made by Humpert. (There is no issue of late notice in making this claim on the estate.) The next month, on May 19, 2011, the estate sent a formal notice of rejection of Allen's claim.

Allen filed this action on August 18, 2011, which, given the 31 days that hath both May and July, ended up being exactly 91 days from May 19, 2011.*fn3 Stoddard,

as estate administrator, successfully demurred to the complaint based on it being untimely under section 9353, subdivision (a)(1). A judgment of dismissal ...


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