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Richard Allen v. Edith Marlynne Stoddard


January 9, 2013


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.



(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.


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 ensued, and Allen timely filed this appeal.


Preliminarily, we note a small matter not raised by either party. The entire battle at the trial level concerned the operation of section 9353, and specifically whether the time to file a suit might be extended for five days since the notice of rejection was served by mail. (Cf. Code Civ. Proc., § 1013.) Even though the suit was clearly filed within a year of Humpert's death, the possible application of section 366.3 rather than section 9353 was not raised at the trial level at all. However, section 366.3 is the sole issue on appeal.*fn4

Since the effect of section 366.3 on this case presents a pristine issue of law, and since the estate makes no attempt to show any prejudice, we exercise our discretion to address the section 366.3 issue. (See People v. Rosas (2010) 191 Cal.App.4th 107, 115 ["appellate courts regularly use their discretion to entertain issues not raised at the trial level when those issues involve only questions of law based on undisputed facts"].)

A. Applicability of Section 366.3

Section 366.3 gives persons who have claims against estates based on promises to make a distribution after death (such as contracts to make a will) a full year from the date of the decedent's death to file suit. If section 366.3 governed Allen's claim against Humpert's estate, his suit was timely.*fn5

The estate argues section 366.3 doesn't apply at all. That is an argument readily disposed of. The gravamen of Allen's suit is what is often called a "Marvin claim" (after Marvin v. Marvin (1976) 18 Cal.3d 660), which is an express or implied enforceable contract between two non-marital partners, usually arising out of some sort of domestic arrangements between those partners. Marvin claims sometimes manifest themselves as breaches of contracts to make a will or other disposition from an estate when one of the non-marital partners dies. (E.g., McMackin v. Ehrheart (2011) 194 Cal.App.4th 128, 131; see also Byrne v. Laura (1997) 52 Cal.App.4th 1054, 1064.)

The text of section 366.3 (". . . a promise or agreement with a decedent to distribution from an estate . . .") squarely fits claims based on contracts, including Marvin contracts, by a decedent to provide for someone after the decedent's death or make some other distribution of an estate. This point has been readily confirmed by case law. (McMackin, supra, 194 Cal.App.4th at pp. 136-139 [Marvin claim]; see also Estate of Ziegler (2010) 187 Cal.App.4th 1357, 1365 [claim to receive home on decedent's death]; Stewart v. Seward (2007) 148 Cal.App.4th 1513, 1519 [claim based on promise to execute will leaving partial interest in property to claimant]; Embree v. Embree (2004) 125 Cal.App.4th 487, 492 [claim based on provision in marital settlement agreement to establish a trust or annuity to pay spousal support after decedent's death].)

B. Applicability of Section 9353

The estate also argues that section 9353 does apply, and therefore its 90-day-from-date-of-rejection time limit bars Allen's suit. This argument is not so readily disposed of.

We first review the formidable array of Probate Code statutes bearing on the requirement imposed on persons with claims on estates to file creditor's claims with those estates. (Cf. generally Rutter Group Probate Treatise, supra, ¶¶ 8:1-8:11.2, pp. 8-1 through 8-13.)

Section 9000, subdivision (a)(1) defines claim to mean "a demand for payment for any of the following, whether due, not due, accrued or not accrued, or contingent, and whether liquidated or unliquidated: (1) Liability of the decedent, whether arising in contract, tort or otherwise." (Italics added.)

Section 9000, subdivision (c) defines creditor to mean "a person who may have a claim against an estate." Claims that are not filed with estates as provided in Part 4 of the Probate Code are "barred." (§ 9002.)

Section 9002 provides that creditors who have claims against estates must, unless otherwise excused by statute, file those claims as provided in the Probate Code.*fn6

Section 9351 precludes suit against an estate unless a claim has first been filed with the estate and the claim has been rejected in whole or part.*fn7

These requirements then culminate in section 9353. Section 9353 says, plainly, that regardless of any other statute of limitations, any claimant against an estate has 90 days after notice of rejection of the claim by the estate to file suit.

It is not surprising, then, that a claim for breach of an agreement to make a distribution from an estate has been squarely held to be a "claim" within the meaning of section 9000, and therefore a creditor's claim was required before the claimant could state a cause of action in a lawsuit on that claim. (Wilkison v. Wiederkehr (2002) 101 Cal.App.4th 822, 829, 832.*fn8

And there is no basis in the texts of sections 9000, 9002, 9051 and 9053 to say that claims against estates based on promises by decedents to make wills are not within those statutes. Allen suggests that section 9000, subdivision (b) somehow removes such claims (which include Marvin claims) from the ambit of the word "claim" as defined in subdivision (a), but that argument is unavailing. The text just doesn't fit. Subdivision (b) provides: "'Claim' does not include a dispute regarding title of the decedent to specific property alleged to be included in the decedent's estate." (Italics added.) There is nothing in a general promise to "take care" of a domestic partner after one's death which implicates "title" to "specific property."

In short, if section 9353, rather than section 366.3, controls the date of the filing of Allen's suit, affirmance is required.

C. The Anomaly

So, does or does not, section 366.3 conflict with section 9353? The answer is: It does, but section 366.3 does not necessarily conflict with the sections of the Probate Code governing claims against estates involving matters other than the statute of limitations involving contracts to make a will. But to explain why, we must confront and resolve an anomaly that has arisen in the case law. The anomaly is this: Under Wilkison, a claim based on a contract to make a will is a claim within the meaning of section 9000 and therefore section 9353 should govern the statute of limitations, but Stewart says a claim based on a contract to make a will is not a claim against the estate at all,*fn9 and thus implies section 9353 has nothing to do with the statute of limitations on suits against estates based on contracts to make a will. And here's the real problem: The conflict cannot be solved simply by saying Wilkison was decided before section 366.3 was applicable, because section 366.3 ushered in no change in the language of the Probate Code sections - particularly section 9000 which defines claims and creditors - that plainly apply to claims against estates based on contracts to make a will. And furthermore, the actual text of section 366.3 does not include any language that allows one to say suits based on contracts to make a will are not otherwise governed by the Probate Code sections. The text of section 366.3 doesn't say anything to the effect that claims against estates based on contracts to make a will are not claims within the meaning of section 9000.*fn10

The anomaly is only resolved by recognizing that Stewart's comment that the claimant there "was not a creditor of the estate" was simply dicta. The central point of the Stewart case was that the claim there fell within the meaning of section 366.3, not section 366.2. The point was important because the claimant's only hope was to fit her claim within 366.2, which has tolling provisions section 366.3 doesn't have.*fn11 Because her claim fell "squarely" within section 366.3, and section 366.3 allows for virtually no tolling at all, her suit was time-barred. (Stewart, supra, 148 Cal.App.4th at pp. 1522-1523.) The court could have reached that determination without adding the thought, contained in the introductory part of the opinion but otherwise never developed, that the plaintiff never was a "creditor" in the first place.

A statutory scheme in which "claims" within the scope of section 366.3 are not held to be "claims" within section 9000 is inconsistent with all applicable statutes and at least one prior Court of Appeal decision.*fn12 We therefore part company with the redoubtable Rutter Group Probate Treatise when, relying on Stewart, it says claims within section 366.3 are not claims "subject to the claim-filing requirements" of the Probate Code. (Cf. Rutter Group Probate Treatise, supra, ¶ 8:11:5, p. 8-13 with ¶ 8:98.3, p. 8-49.)

But we must take one more step. No case of which we are aware has applied section 366.3 to countermand the competing 90-day statute of limitations in section 9353.*fn13 We now take that step.

Insofar as section 9353 and section 366.3 provide for different times within which a claimant must file suit on a claim within section 366.3, the two statutes cannot be reconciled. Section 9353 begins with the words, "Regardless of whether the statute of limitations otherwise applicable to a claim will expire before or after the following times . . . . ," while section 366.3 affirmatively declares that an action "to enforce the claim to distribution may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply."

The precise conflict can be resolved for purposes of this case by the well-established rule that where statutes are in irreconcilable conflict, a specific and later enacted statute trumps a general and earlier one. (See Collection Bureau of San Jose v. Rumsey (2000) 24 Cal.4th 301, 310 ["If conflicting statutes cannot be reconciled, later enactments supersede earlier ones . . . and more specific provisions take precedence over more general ones"].)

Section 9353 is a general statute. It applies on its face to all claims. Section 366.3 is a specific statute, applying only to a narrow class of claims. Section 9353 was enacted in 1991, about a decade earlier than section 366.3. (Compare Stats 1990, ch. 79, p. 794 and West's Cal. Leg. Service, 2000, ch. 17, p. 54.) Thus, if they cannot be reconciled, section 366.3 prevails over section 9353. (Collection Bureau of San Jose v. Rumsey (2000) 24 Cal.4th 301, 310 ["If conflicting statutes cannot be reconciled, later enactments supersede earlier ones . . . and more specific provisions take precedence over more general ones"].)

We hold the two statutes cannot be reconciled on the narrow point of when suit must be filed. But we do not go beyond that. This case involves a claimant who filed a timely claim with the estate pursuant to sections 9002 and 9353, but who did not file a timely suit under section 9353. Since the suit was timely under section 366.3 and section 366.3 trumps section 9353 on the topic of suits, the suit here is timely.

We need not take the step in this case of trying to articulate a unified theory of the relationship between the Probate Code claim-filing requirements and section 366.3.*fn14 We only decide the case before us. (See Lawson v. Management Activities, Inc.(1999) 69 Cal.App.4th 652, 655.) And we recognize that by deciding only the case before us we may leave the relationship between sections 9351 and 366.6, to use the argot of science fiction, a bit wibbly wobbly in certain particulars. For example, we do not deal with the case where a suit might be timely under section 366.3, but there has been no claim to the estate, and thus no compliance with section 9351 at all. (Cf. Wilkison, supra, 101 Cal.App.4th 822 [no suit allowed because no creditor's claim filed with estate at all].) Nor do we deal with the obvious problem of a estate that somehow tries to run out the clock on section 366.3. (Cf. Stewart, supra, 148 Cal.App.4th at p. 1524 [rejecting argument that reliance by estate on mandatory judicial council form constituted some form of waiver of right to assert 366.3's one-year statute of limitations].) It may be there are still unexplored circumstances where section 9351 simply cannot be reconciled with section 366.3.

But those are tomorrow's cases. Sufficient unto this case are its own complexities. Perhaps the Legislature will make things clearer in the meantime. For now, this suit was timely.


The judgment is reversed. Because this court's reversal of the dismissal based on a statute of limitations is, in essence, an interlocutory determination - the estate may yet prevail on the merits of Allen's claim - we exercise our discretion to not award appellate costs to the winner of this early round. Rather, the trial judge will have the discretion, when the final judgment is entered, to accord the appellate costs in this proceeding to the ultimately prevailing party. (See Root v. American Equity Specialty Ins. Co. (2005) 130 Cal.App.4th 926, 949.)


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