David L. SATTERFIELD et al., Plaintiffs and Appellants, v. Albert F. GARMIRE, Executor of the Estate of Robert P. Garmire, Deceased, Defendant and Respondent.
Zora Lee Satterfield died as the result of a collision between an automobile in which she was riding and another automobile driven by Robert P. Garmire, who also was killed in the accident. Plaintiffs, as heirs of Satterfield, brought this wrongful death action against defendant as executor of the estate of Garmire. The issues on appeal arise out of an order sustaining defendant's demurrer to plaintiffs' amended complaint upon the ground the action was barred because of plaintiffs' failure to file or present a claim as required by § 707 of the Probate Code, and the latter's contention that defendant is estopped to assert such failure.
The filing or presentation of a claim against an estate is a condition precedent to commencement of an action thereon against the personal representative. (Morse v. Steele, 149 Cal. 303, 304, 86 P. 693; Preston v. Knapp, 85 Cal. 559, 561, 24 P. 811.) This condition is imposed by the statutory mandate:
‘All claims * * * for damages for * * * death * * * must be filed or presented within the time limited in the notice [to creditors] * * *; and any claim not so filed or presented is barred forever * * *’ (Prob.Code, § 707.)
As a consequence, a complaint in a wrongful death action against the personal representative of the estate of a deceased person, predicted upon the latter's negligence, that fails to allege the filing or presentation of a claim against the estate for the damages sought to be recovered, within the statutorily prescribed time, does not state a cause of action, and is subject to general demurrer. (Morrison v. Land, 169 Cal. 580, 585, 147 P. 259; Burke v. Maguire, 154 Cal. 456, 462, 98 P. 21; Morse v. Steele, supra, 149 Cal. 303, 304, 86 P. 693; Morrow v. Barker, 119 Cal. 65, 66, 51 P. 12; McGrath v. Carroll, 110 Cal. 79, 83, 42 P. 466; Harp v. Calahan, 46 Cal. 222, 233; Chahon v. Schneider, 117 Cal.App.2d 334, 346, 256 P.2d 54; People v. Osgood, 104 Cal.App. 133, 137, 285 P. 753.)
Garmire's estate was insured under an insurance policy issued to him indemnifying against any loss resulting from the subject accident. Following defendant's appointment as executor, plaintiffs' attorney and agents of the insurance company entered into negotiations to effect a settlement of plaintiffs' wrongful death claim against Garmire's estate. During these negotiations, i. e., on September 11, 1963, defendant caused a notice to creditors to be published as required by law. (See Prob.Code, §§ 700–702.) As a result of this publication and the law in the premises, the time for filing or presentation of any claim against the estate expired on March 11, 1964. Approximately four months before the expiration date, i. e., on November 15, 1963, plaintiffs filed this action; had not filed or presented a claim against the estate as required by law; and did not allege such filing or presentation in their complaint. Defendant answered. When the matter came on for a pre-trial hearing, which was after expiration of the time to file or present a claim, defendant for the first time raised the issue respecting plaintiffs' noncompliance with Probate Code, § 707. Subsequently, i. e., on April 2, 1964, plaintiffs filed their claim, and it was rejected. Thereafter, with court permission, they filed an amended complaint in which they alleged facts which they contend estop the defendant from asserting, as a defense to the action, their failure to file or present a claim within the period prescribed. The estoppel allegations in substance aver the existence of the indemnity insurance policy heretofore referred to; the policy limits are in excess of the amounts prayed for by plaintiffs in the instant action; the insurance company, through its agents, entered into negotiations with the attorney for plaintiffs to effect a settlement of their claim; the insurance company, in negotiating for settlement, ‘was acting as the real party in interest with reference to the causes of action herein alleged’; to the event judgment were rendered in favor of plaintiffs against defendant such judgment would be paid by the insurance company; in the course of the aforesaid negotiations the insurance company offered to settle the action for $9000; this amount was not acceptable to plaintiffs; if then was mutually agreed between the attorney for plaintiffs and the insurance company, ‘in order to permit the said case to approach trial.’ the attorney for plaintiffs would file the subject action and after service thereof upon defendant negotiations for settlement would continue; during the negotiations prior to suit the insurance company ‘readily admitted and agreed that the case was one of liability and that any defense’ by it ‘would either be non-existent in the sense that liability would be admitted or, in the alternative, would be of a cursory nature only’; the attorney1 , in accordance with the aforesaid agreement, filed the original complaint herein and effected service upon defendant; defendant answered the complaint through attorneys selected by the insurance company; thereafter settlement negotiations continued but the offer of $9000 was not increased; following expiration of the time within which the claim was required to be filed against the estate under the Probate Code the offer of settlement theretofore made was summarily withdrawn, and plaintiffs' attorney was informed that as the time for filing a claim had expired, no further negotiations for settlement would be had and the defense of failure to file such a claim would be interposed; the defendant, as executor of the Garmire estate ‘is a nominal party only’; and defendant should be estopped to claim plaintiffs' claim against the Garmire estate was not filed within the time allowed by law.
Plaintiffs' claim of estoppel is predicated upon the premise that the conduct of the insurance company was the conduct of the defendant executor whom it represented. (See Carruth v. Fritch, 36 Cal.2d 426, 431–434, 224 P.2d 702, 24 A.L.R.2d 1403; Regus v. Schartkoff, 156 Cal.App.2d 382, 385, 319 P.2d 721.)
Defendant demurred to the amended complaint upon the ground the purported cause of action therein was barred by the provisions of § 707 of the Probate Code. The trial court, by an order in the form of a letter filed in the case, sustained the demurrer ‘on the strength of the opinion in Hurlimann v. Bank of America, 141 Cal.App.2d 801, 297 P.2d 682,’ and stated: ‘This is without leave to amend unless plaintiffs conceive that a cause of action may be stated against the insurance company.’ No amendment was filed. Judgment dismissing the action followed.
In support of the judgment defendant contends (1) an executor-defendant in a wrongful death action may not be estopped to assert plaintiffs' failure to file or present a claim against the estate for damages as required by § 707 of the Probate Code; and (2) the allegations in plaintiffs' complaint did not set forth grounds for an estoppel.
The personal representative of an estate may not waive the bar resulting from either a total failure to file or present a claim as required by the statute (Burke v. Maguire, supra, 154 Cal. 456, 463, 98 P. 21; Harp v. Calahan, supra, 46 Cal. 222, 233; Estate of Heigho, 186 Cal.App.2d 360, 367, 9 Cal.Rptr. 196; Estate of Smith, 122 Cal.App.2d 216, 217, 264 P.2d 638; Estate of Erwin, 117 Cal.App.2d 203, 204, 255 P.2d 97; People v. Osgood, supra, 104 Cal.App. 133, 137, 285 P. 735), or from a failure to file or present if within the time prescribed. (Estate of Heigho, supra, 186 Cal.App.2d 360, 366–367, 9 Cal.Rptr. 196; Estate of Smith, supra, 122 Cal.App.2d 216, 217–218, 264 P.2d 638; Estate of Erwin, supra, 117 Cal.App.2d 203, 204, 255 P.2d 97.)
The scope of this rule has been expressed in terms indicating the limitation upon the authority of the executor to waive the requirements of the statute following expiration of the time within which to file or present claims also includes a limitation upon his authority to do so prior to that time. (Harp v. Calahan, supra, 46 Cal. 222, 233.)
In Hurlimann v. Bank of America, supra, 141 Cal.App.2d 801, 806, 297 P.2d 682, being the decision relied upon by the trial court in support of its order sustaining defendant's demurrer, the rationale of the cases stating the rule heretofore noted was used to rule out any basis for estoppel of the personal representative ‘predicated upon the conduct of the decedent.’ However, whether a personal representative may be estopped to assert the bar arising from failure to file or present a claim within the time prescribed by statute because his conduct was the cause of such failure has not been determined.
The object of the statute requiring the filing or presentation of a claim against an estate within a fixed period as a condition precedent to suit thereon is to avoid the expense of unnecessary litigation and to expedite the settlement of estates. (Radar v. Rogers, 49 Cal.2d 243, 248–249, 317 P.2d 17; Burke v. Maguire, supra, 154 Cal. 456, 463, 98 P. 21; Preston v. Knapp, supra, 85 Cal. 559, 561, 24 P. 811; Harp v. Calahan, supra, 46 Cal. 222, 231.) The rule that a personal representative may not waive this requirement, or the bar attaching upon noncompliance therewith, is premised upon the limited scope of his authority (See Claude T. Lindsay, Inc. v. Crocker-Anglo Nat. Bank, 207 Cal.App.2d 199, 202, 24 Cal.Rptr. 384); upon the fact that the benefits attendant upon compliance are not personal to him and it is not his personal privilege to waive them (Burke v. Maguire, supra, 154 Cal. 456, 463, 98 P. 21); and upon his fiduciary duty to preserve the estate for the heirs and creditors of the defendant which requires him to protect it against a claim that is barred. (Larrabee v. Tracy, 21 Cal.2d 645, 650, 134 P.2d 265; Hurlimann v. Bank of America, supra, 141 Cal.App.2d 801, 806, 297 P.2d 682; Estate of Smith, supra, 122 Cal.App.2d 216, 218, 264 P.2d 638; Estate of Erwin, supra, 117 Cal.App.2d 203, 204–205, 255 P.2d 97.)
In the case at bench the conduct upon which plaintiffs predicate an estoppel occurred before expiration of the time within which their claim might have been filed or presented. Thus the question for determination is whether the conduct of the personal representative in reliance upon which a claimant did not file or present his claim within the time required by the statute may be urged to estop assertion of such failure to defeat an action upon the claim. To apply the doctrine of estoppel to such a situation is not tantamount to approval of a waiver by the personal representative of the statutory bar to an action upon a claim for failure to file or present it within the prescribed period. Pertinent distinctions exist between an action upon a claim barred because of the claimant's conduct in failing to file or present the same within time and an action upon a claim barred by the conduct of the personal representative resulting in such a failure. In the latter, the bar would not have arisen except for the conduct of the personal representative. The reasons for the rule foreclosing reliance upon a waiver of claim requirements by a personal representative do not apply to such a situation. His duty to protect and preserve the estate for the benefit of heirs and creditors does not encompass conduct effecting a bar to an otherwise authorized claim. The lack of authority in a personal representative to personally waive the time requirement within which a claim must be filed or presented should not shield the estate against the effect of his ostensibly authorized conduct which results in noncompliance with this requirement and the consequent bar to recovery. Equitable considerations should not permit the estate of a decedent, his heirs, or his creditors to benefit from a wrong attributable to the personal representative, and dictate application of the doctrine of estoppel to prevent such.
This conclusion is supported analogously by the decisions allowing an estoppel, predicated upon the conduct of the representative of a public agency, to be urged against assertion by the agency of the failure of a claimant to file his claim against it within the time prescribed by the statute requiring the filing of such as a condition precedent to an action thereon. (Farrell v. County of Placer, 23 Cal.2d 624, 630, 145 P.2d 570, 153 A.L.R. 323; Kirchmann v. City of Anaheim, 137 Cal.App.2d 216, 220, 289 P.2d 817.) These decisions distinguish between the failure to file a claim and a failure to file the same within the time designated; consider the object of the claims statute; and conclude that this object is not defeated by failure to make the presentation within the time designated. It is noteworthy that the object of the public agency claim statute is the same as the object of the estate claim statute, viz, ‘to give a public entity timely notice of the nature of the claims against it so that it may investigate and settle those of merit without litigation.’ (Dias v. Eden Township Hospital Dist., 57 Cal.2d 502, 503, 20 Cal.Rptr. 630, 370 P.2d 334; Holm v. City of San Diego, 35 Cal.2d 399, 400–401, 217 P.2d 972.) The rationale of these decisions supports the conclusion here reached that the doctrine of estoppel predicated upon the conduct of the personal representative of an estate may be applied in an action upon a claim as a defense to the bar of the statute for failure to file such within the time prescribed. In the case at bench the object of the claim statute would not be defeated by an estoppel because the executor knew of the claim; intended to deny it if filed or presented; and did not expect to settle it until after suit. (Gen. see Radar v. Rogers, supra, 49 Cal.2d 243, 249, 317 P.2d 17.)2
The conclusion of the trial court that the doctrine of estoppel did not apply to the situation described in the amended complaint was error. Nevertheless, its order sustaining the demurrer thereto was proper because, as contended by defendant, the facts upon which plaintiffs relied in support of the doctrine do not establish an estoppel.
In Burke v. Maguire, supra, 154 Cal. 456, 461, 98 P. 21, 23, in ruling upon a similar situation, it is stated:
‘If the complaint is insufficient upon any ground properly specified in the demurrer, the order must be sustained, although the lower court may have considered it sufficient in that respect, and may in its order have declared it defective only in some particular in which we hold it to be good. The defendant is entitled to the decision of this court on all questions presented by the demurrer and necessary to the decision made.’
As applied to the case at bench, conduct invoking an estoppel must be such as induced the plaintiffs not to file their claim within the time prescribed. (Carruth v. Fritch, supra, 36 Cal.2d 426, 433, 224 P.2d 702, 24 A.L.R.2d 1403; Regus v. Schartkoff, supra, 156 Cal.App.2d 382, 386–387, 319 P.2d 721; Industrial Indem. Co. v. Ind. Acc. Com., 115 Cal.App.2d 684, 689, 252 P.2d 649; gen. see Estate of Pieper, 224 Cal.App.2d 670, 690–691, 37 Cal.Rptr. 46.) The conduct upon which plaintiffs relied to support their claim of estoppel, interpreting their allegations respecting such most favorably in support of their position, is that the insurance company admitted the case was one of liability; told plaintiffs to file their action; and stated that any defense on the issue of liability would be nonexistent in that liability would be admitted or only a cursory defense would be presented. There was no representation that plaintiffs need not file a claim within the time required by the statute, nor that they might refrain from compliance with any other condition precedent to the maintenance of an action against the executor. The plaintiffs did not assert they, or the attorney through whom they were acting, knew a claim should be filed but did not file such in reliance upon a representation by the insurance company the case was one of liability and only a cursory defense on that issue would be presented. Termination of the initial negotiations for settlement because of plaintiffs' refusal to accept the offer made and the coincident instruction to bring an action occurred well within the period for the filing or presentation of a claim. Nothing occurred in the course of these negotiations which might have led plaintiffs to conclude therefrom that in bringing an action upon their claim they would not be required to comply with all conditions precedent to its maintenance. In the situation here there was no misrepresentation (See Carruth v. Fritch, supra, 36 Cal.2d 426, 431, 224 P.2d 702); plaintiffs were not misled respecting the necessity of filing a claim within the required time (see Estate of Pieper, supra, 224 Cal.App.2d 670, 690, 37 Cal.Rptr. 46; Kirchmann v. City of Anaheim, 137 Cal.App.2d 216, 220, 289 P.2d 817); nor were they lulled ‘into a sense of security’ resulting in failure to protect their claim. (See Farrell v. County of Placer, supra, 23 Cal.2d 624, 628, 145 P.2d 570, 153 A.L.R. 323.) A feature of the instant case distinguishing it from those where a defendant has been estopped to assert the defense of delay in bringing suit by conduct excusing inaction is the fact that plaintiffs here were represented by an attorney; thus had legal advice; and were told to proceed with their action. (See Kuntzman v. Mirrizzi, 234 Cal.App.2d 753, 757, 44 Cal.Rptr. 707.) If it be assumed the attorney for plaintiffs had in mind the requirement that a wrongful death claim against an estate must be filed or presented within the time prescribed by Probate Code, § 707 as a condition precedent to the maintenance of an action thereon, in light of the rule that a personal representative may not waive this requirement, the attorney would not be entitled to rely upon conduct giving the impression that compliance with the claim statute would be unnecessary. Obviously this situation if different from that in which the persons negotiating for settlement were the claimants themselves, lay people, and not their attorney. Essential to the application of the doctrine of estoppel is reliance upon conduct of the person sought to be estopped which it is alleged resulted in the event against the assertion of which the estoppel is directed. (California Cigarette Concessions, Inc. v. City of Los Angeles, 53 Cal.2d 865, 871, 3 Cal.Rptr. 675, 350 P.2d 715; Estate of Smith, supra, 122 Cal.App.2d 216, 219, 264 P.2d 638; Estate of Jackson, 112 Cal.App.2d 16, 18, 245 P.2d 684.) If the attorney did not have in mind the filing or presentation requirements of Probate Code, § 707, the failure to comply therewith was attributable to him and not to defendant. (Mercer Casualty Co. v. Lewis, 41 Cal.App.2d 918, 922, 108 P.2d 65.)
The order sustaining the demurrer did not authorize an amendment to cure deficiencies in the statement of conduct constituting an estoppel. For this reason plaintiffs claim the order should be reversed. However, they have not indicated in what manner their pleading might be amended to establish an estoppel. Absent any such showing, the order sustaining the demurrer thereto without leave to amend should not be reversed. (Muller v. Reagh, 148 Cal.App.2d 157, 161, 306 P.2d 593; Melikian v. Truck Insurance Exchange, 133 Cal.App.2d 113, 116, 283 P.2d 269.) Furthermore, in light of the circumstances alleged in the amended complaint as a basis for an estoppel and the law in the premises heretofore considered, we perceive no way in which an amendment could add allegations supporting an estoppel.
The judgment is affirmed.
1. Plaintiffs' present attorneys did not represent them until preparation and filing of the amended complaint.
2. However, mere knowledge of the claim by the personal representative does not dispense with the filing or presentation requirements of the statute. (In re Hildebrandt, 92 Cal. 433, 436, 28 P. 486.)
GERALD BROWN, P. J., concurs.