Bartman v. Estate of Bartman

• Decision Date: 14 August 1978
• Citation: 83 Cal.App.3d 780,148 Cal.Rptr. 207
• Court: California Court of Appeals Court of Appeals
• Parties: Lenore Elizabeth BARTMAN, a minor, by Eugenie Lois Bartman, her guardian ad litem, Plaintiff and Appellant, v. ESTATE of Richard Edward BARTMAN, Deceased, Defendant and Respondent. Civ. 43083.

Page 207

148 Cal.Rptr. 207

83 Cal.App.3d 780

Lenore Elizabeth BARTMAN, a minor, by Eugenie Lois Bartman, her guardian ad litem, Plaintiff and Appellant, v. ESTATE of Richard Edward BARTMAN, Deceased, Defendant and Respondent.

Civ. 43083.

Court of Appeal, First District, Division 4, California.

Aug. 14, 1978.

Hearing Denied Oct. 25, 1978.

Paul C. Jess, Sonoma, for plaintiff and appellant.

Bennett, Van De Poel, Campbell & Strickland by Herbert M. Rowland, Jr., Santa Rosa, for defendant and respondent.

COOK, ^* Associate Justice.

Plaintiff-appellant Lenore Elizabeth Bartman (hereafter appellant), through her guardian ad litem Eugenie Lois Bartman, appeals from a judgment of dismissal following an order sustaining, without leave to amend, the demurrer of defendant-respondent Estate of Richard Edward Bartman (hereafter the Estate) to appellant's complaint for damages filed pursuant to Probate Code section 721.

The issue on appeal is whether appellant's cause of action against the Estate, under Probate Code section 721 which became effective in 1972, is barred by the statute of limitations, where the decedent died in 1967 and appellant failed to file a creditor's claim within the statutory time limits.

On October 8, 1967, appellant, a minor, was a passenger riding in a car driven by her father, Richard Edward Bartman (hereafter decedent). As the result of a collision with another automobile, decedent was killed and appellant suffered personal injuries. At the time of the accident, Vehicle Code section 17158 deprived an injured automobile guest of any recovery for the careless driving of his host in the absence of willful misconduct or intoxication.

On November 30, 1967, decedent's personal representatives first published a notice to creditors. The time for filing or presenting claims expired on May 30, 1968 (former Prob.Code, § 700) ¹ without any claim having been filed or presented by appellant.

In 1971, the Legislature enacted section 721, providing that the presentation of a claim need not be made and an independent civil action may be maintained by a claimant to establish, to the limits of insurance protection only, the liability of a decedent for which the decedent was protected by liability insurance. Section 721 became effective on March 4, 1972. (Vol. 53, 1978 Cum. Pocket Part, West's Annot.Prob.Code.) ² In 1973, the Supreme Court held in Brown v. Merlo (1973) 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212, that section 17158 of the Vehicle Code (the automobile "guest" statute) was unconstitutional. In Cummings v. Morez (1974) 42 Cal.App.3d 66, 116 Cal.Rptr. 586, the Court of Appeal declared that Brown v. Merlo, supra, should be given retroactive effect. A petition for hearing in Cummings was denied by the Supreme Court on November 21, 1974. (Id., at p. 75, 116 Cal.Rptr. 586.)

On November 17, 1976, while estate proceedings were ongoing, appellant, through her guardian ad litem, filed the instant action for damages as the result of decedent's negligence to the limits of decedent's insurance protection only, pursuant to section 721. The Estate demurred to the complaint on grounds that appellant had not filed a creditor's claim against it within the time required by the Probate Code and was therefore barred by the statute of limitations. The trial court agreed with the Estate and sustained the demurrer without leave to amend. Appellant appeals from the ensuing order of dismissal.

Do the subsequent developments of Brown v. Merlo and/or Probate Code section 721 permit an action to be maintained against the estate of a deceased where the plaintiff did not file or present a claim against his estate as was then provided by law?

Probate Code section 707 provides, in pertinent part: "(A)ll claims for damages for injuries to . . . a person . . . must be filed or presented within the time limited in the notice or as extended by the provisions of Sections 702 and 709 of this code; and Any claim not so filed or presented is Barred forever . . . ." (Emphasis added.) The period of limitations established by this section is not tolled during minority. (Glass v. Benkert (1971) 18 Cal.App.3d 322, 327-328, 95 Cal.Rptr. 735.)

It is undisputed that appellant did not file or present a claim for injuries resulting from decedent's negligence within the time period prescribed by section 707. In fact, the instant suit was not commenced until some eight years after the period in which to file a claim against the estate had expired. Appellant contends, however, that since she was then barred from asserting a claim under Vehicle Code section 17158, her cause of action did not arise until the Supreme Court declared the statute unconstitutional in 1973. She then argues that she was not required to file a creditor's claim as provided for in section 700 et seq. since her cause of action arose after the decedent's death and the suit does not seek a judgment payable out of the decedent's estate, but only from his insurance policy.

Appellant cannot successfully argue that her cause of action did not "arise" until the Supreme Court struck down the validity of Vehicle Code section 17158. A cause of action normally "accrues" when the wrongful act is done and liability arises. (2 Witkin, Cal.Procedure (2d ed. 1970) Actions, § 263, p. 1116.) The applicable limitations period within which to file a claim against the estate for personal injuries during the time period in question was six months following the first publication of the notice to creditors. (Former Prob.Code, § 702.) At that time appellant had the opportunity to pursue her claim for damages and, if necessary, to challenge the constitutionality of Vehicle Code section 17158. The fact that in 1973 Brown v. Merlo upheld the right of a guest passenger to maintain an action against his driver for negligence did not have the effect of reviving all claims by injured guests which had since been barred by the statute of limitations. ³ Such claims would be barred unless filed within the limitations periods applicable at that time. (Monroe v. Trustees of the California State Colleges (1971) 6 Cal.3d 399, 407, 99 Cal.Rptr. 129, 491 P.2d 1105.) Thus, the Supreme Court in rejecting a contention by estate claimants that it would have been futile to present their claims in court until case authority denying their inheritance rights had been overruled, commented: "Under claimants' tolling theory, whenever a precedent was overturned recognizing a right of action theretofore denied by case law, all persons who had been aggrieved between the decision of the precedent case and the decision of the overruling case could then file suit, no matter how many years had elapsed between. Such a proposition cannot be sustained." (Estate of Horman (1971) 5 Cal.3d 62, 71, 95 Cal.Rptr. 433, 440, 485 P.2d 785, 792.) The same reasoning applies where it is a statute rather than case authority, that is overturned.

The fact that Brown v. Merlo, supra, has been held to have retroactive application does not alter this result. Retroactive application of a judicial decision means only that the new rule of law "governs events occurring prior to the date of decision, When such events are at issue in timely filed actions." (Monroe v. Trustees of the California State Colleges, supra, 6 Cal.3d 399, 407, 99 Cal.Rptr. 129, 134, 491 P.2d 1105, 1110, emphasis in original.) In Monroe, a teacher who was dismissed for failure to take a loyalty oath in 1950, declined to challenge the dismissal in the courts after the Supreme Court had upheld the constitutionality of the oath in Pockman v. Leonard (1952) 39 Cal.2d 676, 249 P.2d 267. Sixteen years later the court expressly overruled Pockman and declared the oath unconstitutional. (Vogel v. County of Los Angeles (1967) 68 Cal.2d 18, 64 Cal.Rptr. 409, 434 P.2d 961.) The teacher then challenged his dismissal in the courts, arguing that since Vogel was retroactive, the statute of limitations had not yet run. The Supreme Court, though agreeing that Vogel should be given normal retroactive effect, stated nonetheless that the teacher's action for wrongful discharge was barred by the statute of limitations: "The normal 'retroactivity' of most civil decisions has never been thought to supersede the operation of the statute of limitations so as to revive old claims which were not pursued because of a previously prevailing contrary rule of law, or to reincarnate dead causes which had fallen to the sword of the statute." (Monroe, supra, 6 Cal.3d at pp. 406-407, 99 Cal.Rptr. at pp. 133-134, 491 P.2d at pp. 1109-1110, fn. omitted.)

This rule is applicable to the case at bar. Appellant's claim for personal injuries having been barred by the statute of limitations set forth in the Probate Code (Div. 3, Ch. 12, § 700 et seq.), cannot be resurrected by a subsequent appellate decision creating precedent in her favor. A contrary rule would clearly give new life to causes of action long since dead and would frustrate the entire purpose behind statutes of limitations.

Appellant insists, however, that she was not a creditor within the terms of Probate Code section 700 et seq. because her cause of action is not one which could have been enforced during decedent's lifetime (see Newberger v. Rifkind (1972) 28 Cal.App.3d 1070, 1077, 104 Cal.Rptr. 663) and does not seek a judgment payable out of the assets of the estate. (See Satterfield v. Garmire (1967) 65 Cal.2d 638, 645, 56 Cal.Rptr. 102, 422 P.2d 990.) The first assertion is based upon appellant's conclusion, previously shown to be erroneous, that Brown v. Merlo conferred upon her some right of action which she did not theretofore possess. The second is dependent upon the fact that appellant's action is derived purely from section 721, which was enacted in 1971, or some three years following expiration of the period for filing or presentation of creditors' claims against the estate herein. That section provides for an independent action to...