Neuland v. Russell

• Decision Date: 07 July 1975
• Citation: 50 Cal.App.3d 1,123 Cal.Rptr. 230
• Parties: Dorothy Elizabeth NEULAND et al., Plaintiffs and Appellants, v. Lorraine E. RUSSELL, etc., Defendant and Respondent. Civ. 12912.
• Court: California Court of Appeals Court of Appeals

Page 230

123 Cal.Rptr. 230

50 Cal.App.3d 1

Dorothy Elizabeth NEULAND et al., Plaintiffs and Appellants, v. Lorraine E. RUSSELL, etc., Defendant and Respondent.

Civ. 12912.

Court of Appeal, Fourth District, Division 1, California.

July 7, 1975.

Ned Good, Ian Herzog and Al Schallau by Al Schallau, Los Angeles, for plaintiffs-appellants

Rutan & Tucker, Garvin F. Shallenberger and Alec J. Glasser by Garvin F. Shallenberger, Santa Ana, for defendant-respondent.

OPINION

AULT, Associate Justice.

This case, a wrongful death action, results from a private airplane crash which occurred on December 13, 1971. The plaintiffs, Dorothy Neuland, Richard Neuland, Paul Neuland, Timothy Neuland, Mary Anne Neuland and Anne Marie Neuland, are the widow and surviving children of Joseph Neuland, who is alleged to have been a passenger in the airplane and who died in the crash. William Russell is alleged to have piloted the airplane; he was also killed in the crash.

In the original complaint (filed November 17, 1972) and in the first amended complaint (filed December 12, 1972), the plaintiffs sought to recover $2,000,000 from Lorraine E. Russell, Executrix of the Estate of William Russell, and others not involved in this appeal.

Mrs. Neuland, on behalf of herself and her children, had filed a timely creditor's claim in that amount against the Russell Estate on July 12, 1972. The claim was rejected on July 20, 1972, and notice of rejection was mailed to Mrs. Neuland at the address she had listed on the claim. No notice of rejection was sent to the attorney known to be representing the Neuland Estate, and his name did not appear on the claim which had been filed. The original complaint, filed November 17, 1972, was thus filed more than 3 months after service of notice of rejection of the claim. ¹

Mrs. Russell, as executrix of her husband's estate, demurred to the complaint on the ground the action was barred by Probate Code section 714, but since the defect (failure to file the complaint within 3 months after the claim was rejected) did not show on the face of the complaint, her demurrer was overruled. In July 1973 Mrs. Russell moved for summary judgment on the same ground. The hearing on the motion was continued to August 17.

In the interim, the Neulands, represented by new counsel, filed two motions: (1) for relief under Code of Civil Procedure section 473 from their failure to file the original complaint within the 3 months time period prescribed by Probate Code section 714, and (2) for permission to file a second amended complaint against the Russell Estate based upon Probate Code section 721. That section permits an action against a decedent's estate without filing a prior creditor's claim provided the recovery sought is limited to the decedent's liability insurance coverage. ² The proposed pleading which accompanied the motion to permit the filing of a second amended complaint named 'The Estate of Russell' as an additional defendant and clearly and unequivocally reduced the amount of the recovery sought against the estate and its executrix to the amount of the insurance coverage ($50,000).

On August 10, 1973, after denying the Neulands' motion under Code of Civil Procedure section 473, the superior court granted them leave to file the proposed second amended complaint, and the pleading was in fact filed that day. Nevertheless, on August 17, 1973, the same court granted the motion for summary judgment as to Lorraine E. Russell, Executrix of the Estate of William Russell, apparently on the ground the action was barred by Probate Code section 714 since the complaint had not been filed within 3 months after notice of rejection of the creditor's claim.

Appealing from the judgment the Neulands raise issues which fall into two categories. In the first group are issues which relate to compliance with Probate Code section 714, including a challenge to its constitutionality, a claim of waiver and estoppel, an assertion of substantial compliance with its requirements, and the contention the request for relief from default should have been granted under Code of Civil Procedure section 473. The second group of issues raised relates to the propriety of the summary judgment granted in favor of Lorraine E. Russell, as Executrix of the Russell Estate.

It is unnecessary to consider any of the issues in the first category relating to Probate Code section 714. By proposing, requesting to file, and filing the second amended complaint based upon Probate Code section 721, appellants not only limited their right of recovery against the estate and its executrix to the amount of decedent's liability insurance coverage ($50,000), but they also effectively removed from consideration any requirement of filing a claim against the estate and any need to comply with the time requirements of Probate Code section 714 in filing their complaint. With a few minor exceptions not applicable here, an amended pleading furnishes the sole basis of the cause of action. The prior pleadings are superseded, cease to perform any function as pleadings, and cannot be looked to as defining any of the issues to be tried. (Epstein v. Stahl, 176 Cal.App.2d 53, 65, 1 Cal.Rptr. 143; Wright v. Rogers, 172 Cal.App.2d 349, 360--361, 342 P.2d 447; Terry v. Bender, 143 Cal.App.2d 198, 205, 300 P.2d 119.)

Although the second amended complaint is based upon the same acts giving rise to liability as were alleged in the former pleadings, and thus states no new cause of action against the estate and its executrix, it was obviously framed to bring the action against them within the ambit of Probate Code section 721. Issues concerning compliance with claim statutes, including Probate Code section 714, which might have been raised under the former pleadings, are not applicable to the second amended complaint. That pleading now stands as the sole basis upon which appellants seek recovery against the...