Varney v. Superior Court

• Decision Date: 30 October 1992
• Docket Number: No. G012658,G012658
• Court: California Court of Appeals Court of Appeals
• Parties: Dana VARNEY, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent. Frances ANTOLIN as Executrix, etc., Real Party in Interest.

Page 865

12 Cal.Rptr.2d 865

10 Cal.App.4th 1092

Dana VARNEY, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent.

Frances ANTOLIN as Executrix, etc., Real Party in Interest.

No. G012658.

Court of Appeal, Fourth District, Division 3, California.

Oct. 30, 1992.

Westover & Matthews, Alyssa C. Westover and Robert Matthews, Newport Beach, for petitioner.

No appearance for respondent.

Gerard J. Fane, Laguna Hills, and Marjorie G. Fuller, Santa Ana, for real party in interest.

MOORE, Acting Presiding Justice.

The superior court entered an order under Probate Code section 21320 ¹ finding petitioner Dana Varney's proposed creditor's claim (§ 9000 et seq.) and petition for the conveyance of real property and the transfer of corporate stock (§ 9860 et seq.) would violate the forfeiture clause of a decedent's will. Petitioner sought a writ of mandate in this court to vacate the superior court's order and requested a stay of the expiration of time for filing the creditor's claim. We granted a stay and issued an alternative writ. The questions presented are whether petitioner has an adequate legal remedy, whether we have jurisdiction to toll the expiration of the time for filing a creditor's claim and whether the lower court erred by finding petitioner's proposed actions would constitute contests under the decedent's will.

FACTS

Paul Magdaleno died November 7, 1991. At his death, Magdaleno held title to a home in Irvine and stock in an incorporated business named the Golden Fire Restaurant.

Magdaleno's will, dated March 7, 1977, was admitted to probate. The will bequeaths a percentage of Magdaleno's estate to his parents, two sisters, a brother, and his nephews and nieces. The will also leaves 10 percent of the estate to petitioner.

In addition, it contains the following article: "THIRD: I have intentionally omitted making provisions for all of my heirs who are not specifically mentioned herein, and I generally and specifically disinherit each, any and all persons whomsoever claiming to be or who may lawfully be determined [sic] to be my heirs at law, except such as are mentioned in this Will, and if any such persons or such heirs or any devisees or legatees, or beneficiaries under this Will shall contest in any Court any of the provisions of this instrument, or shall not defend or assist in good faith in the defense of any and all such contests, then each and all of such persons shall not be entitled to any devises, legacies, or benefits under this Will or any codicil hereto, and any and all devises, legacies and portions of the estate shall be paid, distributed and pass as though such person had died without issue of his or her body before my death."

On February 7, 1992, real party in interest Frances Antolin was issued letters testamentary in the probate action concerning Magdaleno's estate. On April 6, Petitioner filed his request for a declaration under section 21320 ² concerning the creditor's claim and petition. Copies of the proposed claim and petition were attached to his request.

The petition alleges as follows: Petitioner and Magdaleno met in 1976. In 1977, the two entered into an oral agreement to co-own a new restaurant. Under the agreement petitioner promised to provide services to the new business at a substantially reduced rate of pay for the remainder of Magdaleno's life, and Magdaleno promised he would transfer title of his Irvine property and his entire interest in the restaurant to petitioner when he died. Petitioner fully performed his part of the agreement. However, Magdaleno failed to leave his home and restaurant corporate stock to petitioner. The proposed petition seeks specific performance of the agreement. The creditor's claim seeks $504,225 as the reasonable value of petitioner's services to the restaurant and Magdaleno's other business interests less the pay previously received by him.

A hearing on petitioner's request was held May 19. The court ruled both the proposed creditor's claim and petition would violate the will's forfeiture clause. A formal order to this effect was entered May 29. On June 5, petitioner filed this proceeding and requested an immediate stay on the expiration of time to file the creditor's claim which would have otherwise expired June 8. ³

DISCUSSION

I. Absence of an Adequate Legal Remedy

The first question is whether petitioner has an adequate remedy at law. (Code Civ.Proc., § 1086.) Real party insists an adequate legal remedy exists because an order under section 21320 is directly appealable. Petitioner contends the order is not appealable, and even if it is, the delay inherent in appeals would extend beyond the time required to file a creditor's claim and would hamper the timely and orderly administration of the estate.

Section 7240 lists the probate orders from which an appeal can be taken. It does not include an order pursuant to section 21320. Generally, rulings in probate proceedings are not appealable unless expressly made so by statute. (Estate of Schechtman (1955) 45 Cal.2d 50, 54, 286 P.2d 345; Estate of Weber (1991) 229 Cal.App.3d 22, 24, 280 Cal.Rptr. 22.) The primary reason for this rule is to prevent delay in the distribution of estates. (Estate of Hearst (1977) 67 Cal.App.3d 777, 781, 136 Cal.Rptr. 821.)

We need not decide whether an order under section 21320 is appealable. In issuing the alternative writ, we impliedly determined an appeal was not an adequate remedy in this case. (Robbins v. Superior Court (1985) 38 Cal.3d 199, 205, 211 Cal.Rptr. 398, 695 P.2d 695.) This case presents an important issue concerning the ability of an appellate court to toll the time for filing a creditor's claim to permit meaningful review of a trial court's interpretation of a forfeiture clause. (Freedman v. Superior Court (1989) 214 Cal.App.3d 734, 735-736, 263 Cal.Rptr. 1; Anderson v. Superior Court (1989) 213 Cal.App.3d 1321, 1328, 262 Cal.Rptr. 405; 8 Witkin, Cal. Procedure (3d ed. 1985) Extraordinary Writs, § 118, pp. 753-757.) Thus, even if the superior court's order is appealable, given the short filing period requirements in probate matters, the need for timely and orderly administration of estates, and the importance of the issues presented in this case, we conclude an appeal would not be an adequate legal remedy.

II. Jurisdiction to Toll Expiration of the Creditor's Claim Filing Period

Petitioner's proposed creditor's claim seeks recovery for the reasonable value of the services rendered to Magdaleno. Thus, it constitutes an indebtedness for which a claim must be filed. (§ 9000, subd. (a)(1); Murdock v. Swanson (1948) 85 Cal.App.2d 380, 388, 193 P.2d 81.) Except in limited circumstances not relevant here, a creditor's claim must be filed within four months after letters are issued to the estate's representative. (§ 9100, subd. (a)(1).) Failure to comply with this time requirement bars the claim. (§ 9002, subd. (b).) Generally, the time requirement cannot be waived either by the estate's personal representative or the probate court. (Nathanson v. Superior Court (1974) 12 Cal.3d 355, 361-362, 369, 115 Cal.Rptr. 783, 525 P.2d 687; Estate of Erwin (1953) 117 Cal.App.2d 203, 204-205, 255 P.2d 97. See also Estate of Sturm (1988) 201 Cal.App.3d 14, 17-18, 246 Cal.Rptr. 852.)

Before the time for filing petitioner's claim expired, we granted a stay. The question presented is whether we had the authority to issue the stay and toll expiration of the time for filing a creditor's claim.

Petitioner argues Code of Civil Procedure sections 356 and 916, subdivision (a) give us authority to grant a stay. In addition, he relies on equitable principles to support our ruling. Real party contends the timely filing of a creditor's claim is mandatory and cannot be extended.

The reliance on sections 356 and 916 of the Code of Civil Procedure is without merit. Section 356 provides "When the commencement of an action is stayed by injunction or statutory prohibition, the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the action." Petitioner notes this statute has been construed to apply where "a plaintiff is legally prevented from taking action to protect his rights." (Hoover v. Galbraith (1972) 7 Cal.3d 519, 526, 102 Cal.Rptr. 733, 498 P.2d 981.) While section 9100 is in the nature of a statute of limitations (Eken v. Bosworth (1977) 72 Cal.App.3d 248, 252, fn. 6, 139 Cal.Rptr. 834; Hays v. Bank of America (1945) 71 Cal.App.2d 301, 306, 162 P.2d 679), nothing in the present case legally prevented petitioner from filing his creditor's claim. Our stay order was expressly requested by him.

Code of Civil Procedure section 916, subdivision (a) states that, with certain exceptions, "the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment But in some limited circumstances, the time requirement for filing a creditor's claim has been waived or the estate estopped from relying on it. In Satterfield v. Garmire (1967) 65 Cal.2d 638, 56 Cal.Rptr. 102, 422 P.2d 990, the complaint alleged plaintiffs filed suit and the parties began settlement negotiations well before the claim period expired, it was conceded decedent caused the accident and the only dispute concerned the amount of the claim, the original answer did not assert the failure to file a claim as a defense, the decedent's insurance was sufficient to cover the claim and no substantial benefit would be relinquished by his heirs. The Supreme Court reversed a dismissal of the action, holding: "[G]enerally it is not within the authority of an executor or administrator to waive formal presentation of a claim. But we conclude he may do so where this congeries of circumstances exists prior to the expiration of the period for filing a claim: he has knowledge of the claim and concedes its merit save only...