Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. C555889 Thomas Stoever, Temporary Judge, (pursuant to Cal. Const., art. VI, § 21) and Aviva K. Bobb, Judge.
Katherine Butts Warwick for Petitioners and Appellants Alan B. Cherman, Judith Potter, Donald P. Murphy, Robert Grill, Tanya Flanzbaum, Lloyd Vinnik, Gary Leary, Robert Hammond, Jerome Silverman, Miriam Silverman, Robert Davis, Harriet Katz Rodman, and Doris Yoshikane.
Ervin, Cohen & Jessup LLP, Barry MacNaughton, Randall S. Leff, and Eric W. Cheung for Objector and Respondent.
TURNER, P. J.
I. INTRODUCTION
Plaintiffs appeal from a judgment entered after a demurrer to a creditors’ claim action against defendant, Michael D. Miller, the personal representative of the Estate of Jay C. Miller (“the estate”) was sustained without leave to amend. The decedent, Jay C. Miller, is defendant’s father. The demurrer was sustained on the ground the action against the estate was time barred under Code of Civil Procedure section 366.2 because the complaint was filed on February 27, 2007, more than one year after the decedent’s death, on May 24, 2005. We affirm.
Plaintiffs are: Alan Cherman, Judith Potter, executor for the Estate of Thomas Potter; Donald P. Murphy; Robert Grill, executor for the Estate of Clifford E. Grill; Tanya Flanzbaum; executor for the Estate of Joel E. Glass; Lloyd Vinnik; Gary Leary, trustee of In God We Trust; Robert Hammond; Jerome Silverman; Miriam Silverman; Robert Davis; Harriet Katz Rodman; and Doris Yoshikane.
II. BACKGROUND
A. The Partnership Action
The complaint in this action was filed to enforce claims which arose from a lawsuit that began in 1985 entitled Grill v. Fulton Associates consolidated with Cherman v. Fulton Associates et al., case Nos. C555888 and C555889. The Grill litigation concerned investments in eight real estate limited partnerships in which Fulton Associates was the general partnership. Fulton Associates was owned by Cordary, Inc. Cordary, Inc. was in turn owned by the decedent and defendant who, according to the complaint, is the executor and personal representative of the decedent’s estate pursuant to letters testamentary issued by the probate court on May 10, 2006, in case No. BP096587.
Plaintiffs filed the consolidated Grill litigation which arose from the sale of assets of 8025 Reseda Ltd. and 8039 Reseda Ltd. In this case, plaintiffs sought to collect from the estate based on a January 1989 jury verdict and subsequent orders of the court in the Grill action including a determination that decedent was the alter ego of Fulton Associates. The alter ego determination was made by now Retired Judge Carlos E. Velarde in a tentative ruling stating that the acts of Corday, Inc., the decedent, and Fulton Associates were “one and the same.” On April 28, 1989, Retired Judge Robert A. Wenke was appointed as a special master for an accounting. Judge Wenke’s report was adopted in part in November 1992. On October 4, 1993, former Judge Robert M. Mallano dismissed the Grill action for failure to bring it to trial or conditionally settle it within two years pursuant to sections 583.410, subdivision (a), 583.420, subdivision (a)(2)(A), and 583.420, subdivision (a)(2)(B) and former rule 372(a) (now rule 3.1340(a)) of the California Rules of Court.
On October 20, 2006, notwithstanding the October 4, 1993 dismissal order, plaintiffs filed a Motion for Entry of Final Judgment in the Grill action. On February 2, 2007, Judge William F. Highberger denied the motion to enter a final judgment. Mr. Cherman appealed from Judge Highberger’s order denying the motion to enter a final judgment. None of the other plaintiffs in this action appealed that order. On November 9, 2007, in a consolidated appeal, we affirmed the trial court’s order denying the motion to enter a final judgment as to Mr. Cherman. (Schultz v. Fulton Associates, (Nov. 9, 2007, B197266, B197270) [nonpub. opn.].)
B. The Current Action Against The Estate
The complaint in this case was filed on February 27, 2007. It alleged that decedent died on May 24, 2005. Plaintiffs sought to enforce their alleged creditors’ claims against defendant in his capacity as the executor and personal representative of his father’s estate. The complaint alleged that defendant did not serve notice of administration on any plaintiffs. However, plaintiffs alleged that, on May 18, 2006, defendant served a notice of administration on Martin M. Schultz. Exhibit 15 to the complaint shows that the notice was served on Katherine Butts Warwick, Esq. Plaintiffs allege they first learned of decedent’s death on October 2, 2006, when Ms. Warwick informed Alan and Verla Cherman of that fact. Plaintiffs subsequently retained Ms. Warwick to represent them. Ms. Warwick then filed separate claims with the estate on plaintiffs’ behalf between November 1, 2006, through January 22, 2007. Defendant rejected the claims. Mr. Cherman alleged that he filed a creditor’s claim against the estate on November 1, 2006. Defendant rejected Mr. Cherman’s claim on November 30, 2006. Ten plaintiffs each filed separate claims against the estate on December 13, 2006. Defendant rejected these claims on January 26, 2007. Ms. Yoshikane filed a claim against the estate on January 22, 2007. Defendant rejected Ms. Yoshikane’s claim on February 13, 2007. Plaintiffs sought a declaration their claims had been improperly disallowed. Plaintiffs also sought payment from the estate in the amount of their respective rejected claims.
C. The Demurrer
On April 5, 2007, defendant demurred on the ground the action was time barred by Code of Civil Procedure section 366.2. Defendant reasoned the probate court lacked jurisdiction over the complaint as it arose from an action that was dismissed in 1993 for failure to prosecute. Citing Levine v. Levine (2002) 102 Cal.App.4th 1256, 1259-1265, defendant argued that actual notice to plaintiffs was not required to trigger the Code of Civil Procedure section 366.2 statute of limitations. Defendant requested judicial notice of documents showing the Grill action had been dismissed in 1993.
Plaintiffs argued Code of Civil Procedure section 366.2 did not bar the action because they had no notice of decedent’s death or the issuance of letters of administration. Plaintiffs argued that: defendant knew they were the decedent’s creditors; defendant delayed opening the estate for almost a year after the decedent’s death; the court delayed the damages determination; actual notice to creditors is required pursuant to Tulsa Professional Collection Services, Inc. v. Pope (1988) 485 U.S. 478, 491; Levine v. Levine, supra, 102 Cal.App.4th at pages 1259-1265, was distinguishable because the creditors’ knowledge was presumed in that case; and a final judgment in the Grill action is not required to establish a valid creditor’s claim. In reply, defendant argued the Tulsa Professional Collection Services, Inc. case involved an Oklahoma statutory scheme which only required publication to trigger the statutory claim period against an estate. Defendant asserted that Tulsa Professional Collection Services, Inc. was, thus, distinguishable because the California statutory scheme required actual creditor notice for short-term statutes of limitations.
Retired Judge Thomas Stoever conducted a hearing on the demurrer on May 15, 2007. At the hearing, Judge Stoever announced that his tentative ruling was to sustain the demurrer with leave to amend. But Judge Stoever explained that plaintiffs had a “major problem” with Code of Civil Procedure section 366.2. However, Judge Stoever asked Ms. Warwick, plaintiffs’ counsel, if the complaint could be amended. The following colloquy occurred: “Ms. Warwick: No, your honor, I cannot amend around it. I have stated that there was no actual notice…. [¶] The court: Just answer my question. [¶] Ms. Warwick: The answer is no. [¶] The Court: If I give you an opportunity to amend, can you make any allegations which would at least keep you in court so far as 366.2 is concerned?’ [¶] Ms. Warwick: Your honor, I have pled and I recite in the opposing papers that there was no actual notice; that the estate was finally opened a few days before the end of the one-year limitations. [¶] The Court: Is your answer to my question, no, that you cannot improve your pleadings? [¶] Ms. Warwick: I cannot improve them. But there was no actual notice to these clients. And these persons were known creditors of Jay C. Miller’s estate. All of that is in the pleadings. And I cannot improve upon it. The claims were filed outside of the one-year period. [¶] The Court: Do you want an opportunity to contemplate whether or not you can file a different amended pleading? [¶] Ms. Warwick: Your honor, the claims were filed outside the period, and I have averred the notice of entry -- [¶] The Court: Is your answer yes or no? Is your answer yes or no? [¶] Ms. Warwick: My answer is no.”
Judge Stoever subsequently sustained the demurrer without leave to amend explaining, “[T]he claim is barred by [Code of Civil Procedure section] 366.2, and counsel has advised that no further amendment would be productive or effective.” Judgment was entered after the notice of appeal was filed. We construe the premature notice of appeal to have been filed after entry of the judgment. (Cal. Rules of Court, rule 8.104(e); Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219 fn. 6; Margolin v. Shemaria (2000) 85 Cal.App.4th 891, 893, fn. 1.)
III. DISCUSSION
A. Standard of Review
The Supreme Court has defined our task as follows, “‘Our only task in reviewing a ruling on a demurrer is to determine whether the complaint states a cause of action.’” (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300; Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) We assume the truth of allegations in the complaint which have been properly pleaded and gives it a reasonable interpretation by reading it as a whole and with all its parts in their context. (Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 558; People ex rel. Lungren v. Superior Court, supra, 14 Cal.4th at p. 300; Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) Our Supreme Court has held: “On appeal from a judgment of dismissal entered after a demurrer has been sustained without leave to amend, unless failure to grant leave to amend was an abuse of discretion, the appellate court must affirm the judgment if it is correct on any theory. [Citations.] If there is a reasonable possibility that the defect in a complaint can be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend. [Citation.] The burden is on the plaintiff, however, to demonstrate the manner in which the complaint might be amended. [Citation.]” (Hendy v. Losse (1991) 54 Cal.3d 723, 742; Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)
A general demurrer for failure to state a cause of action will lie where a complaint shows on its face that the action is barred by the statute of limitations. (Hawkins v. Pacific Coast Bldg. Products, Inc. (2004) 124 Cal.App.4th 1497, 1502; Kendrick v. City of Eureka (2000) 82 Cal.App.4th 364, 367.) However, the general demurrer must be overruled where the action may be but is not necessarily barred. (Geneva Towers Ltd. Partnership v. City and County of San Francisco (2003) 29 Cal.4th 769, 781; Leasequip, Inc. v. Dapeer (2002) 103 Cal.App.4th 394, 400; Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972; Lockley v. Law Office of Cantrell, Green, Pekich, Cruz, & McCort (2001) 91 Cal.App.4th 875, 881.) In Geneva Towers Ltd. Partnership v. City and County of San Francisco, supra, 29 Cal.4th at page 781, our Supreme Court explained the rule as follows: “‘A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. [Citation.]’ (Marshall v. Gibson, Dunn, & Crutcher (1995) 37 Cal.App.4th 1397, 1403.)”
B. The Untimely Action Against the Estate
Code of Civil Procedure section 366.2 provides: “(a) If a person against whom an action may be brought on a liability of the person, whether arising in contract, tort, or otherwise, and whether accrued or not accrued, dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply. [¶] (b) The limitations period provided in this section for commencement of an action shall not be tolled or extended for any reason except as provided in any of the following, where applicable: [¶] (2) Part 4 (commencing with Section 9000) of Division 7 of the Probate Code (creditor claims in administration of estates of decedents). [¶] (3) Part 8 (commencing with Section 19000) of Division 9 of the Probate Code (payment of claims, debts, and expenses from revocable trust of deceased settlor). [¶] (4) Part 3 (commencing with Section 21300) of Division 11 of the Probate Code (no contest clauses). [¶] (c) This section applies to actions brought on liabilities of persons dying on or after January 1, 1993.”
“Code of Civil Procedure section 366.2 provides for an outside time limit of one year for filing any type of claim against a decedent.” (Dobler v. Arluk Medical Center Industrial Group, Inc. (2001) 89 Cal.App.4th 530, 535.) The one-year limitation in Code of Civil Procedure section 366.2 “applies to actions on all claims against the decedent” which survive his or her death. (Dobler v. Arluk Medical Center Industrial Group, Inc., supra, 89 Cal.App.4th at p. 535; see Levine v. Levine, supra, 102 Cal.App.4th at p. 1261.) The one-year statutory period in Code of Civil Procedure section 366.2 promotes two policies. The first policy is the expeditious estate administration and security of title for heirs, beneficiaries, and devisees. The second policy that is promoted is the concept that a creditor must keep informed of the status of the debtor. (Collection Bureau of San Jose v. Rumsey (2000) 24 Cal.4th 301, 308 citing Recommendation Relating to Notice of Creditors in Estate Administration (Dec.1989) 20 Cal. Law Revision Com. Rep. (1990) pp. 512-513; accord Dobler v. Arluk Medical Center Industrial Group, Inc., supra, 89 Cal.App.4th at p. 536; Bradley v. Breen (1999) 73 Cal.App.4th 798, 801-802.)
The complaint alleged that the decedent died on May 24, 2005. The current action was not filed until February 27, 2007, which was one year and nine months after the decedent’s death. The complaint was, thus, not filed within one year of decedent’s death as required by Code of Civil Procedure section 366.2. Unless a basis exists for not imposing the statutory time limit, Judge Stoever correctly sustained the demurrer to the complaint based upon Code of Civil Procedure section 366.2.
C. The Tulsa Professional Collection Services, Inc.Decision
Relying on Tulsa Professional Collection Services, Inc. v. Pope, supra, 485 U.S. at page 491, plaintiffs assert Judge Stoever should not have sustained the demurrer to the complaint under Code of Civil Procedure section 366.2. Plaintiffs argue they did not receive actual notice of the decedent’s death until sometime on or around October 2006. According to plaintiffs, defendant was required to give plaintiffs actual notice of the decedent’s death because they were known or reasonably ascertainable creditors in order to satisfy the due process requirement imposed by the Tulsa Professional Collection Services, Inc. holding.
In Tulsa Professional Collection Services, Inc., the United States Supreme Court considered a due process challenge to a provision of the Oklahoma Probate Code which barred creditors’ claims against an estate which were not presented to a representative within two months of publication of notice of the commencement of probate proceedings. (Tulsa Professional Collection Services, Inc. v. Pope, supra 485 U.S. at pp. 479-480.) The issue in Tulsa was whether the Oklahoma statute violated due process principles set forth in Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 319-320, and Mennonite Board of Missions v. Adams (1983) 462 U.S. 791, 798-799. The Oklahoma statute contained a short-term period which provided for: commencement of a probate proceeding; appointment of an executor or executrix; issuance of letters testamentary; and notice to creditors of the deceased. (Tulsa Professional Collection Services, Inc. v. Pope, supra 485 U.S. at p. 481.) The only required notice was publication in a newspaper for two consecutive weeks. (Ibid.) The failure to file a claim within a two-month period following the completion of publication, forever barred the claim. (Ibid.) Tulsa Professional Collection Services, Inc., thus, decided whether the statute, which required no more than publication notice to trigger the two-month short-term statutory period, violated due process principles requiring actual notice to an affected party whose name and address were reasonably ascertainable. (Id. at pp. 479-480.) The Supreme Court held that the due process clause requires that actual notice be given to creditors when their identities were known or reasonably ascertainable under the circumstances of the case. (Id. at p. 490; see Dusenbery v. United States (2002) 534 U.S. 161, 177.)
D. California’s 1990 Amendments to the Probate Code
The Tulsa Professional Collection Services, Inc. decision however, noted that some states such as California already provided for actual notice in connection with short nonclaim statutes. (Tulsa Professional Collection Services, Inc. v. Pope, supra, 485 U.S. at p. 490.) Nevertheless, in 1990 the California Legislature amended the Probate Code to more fully address the Tulsa Professional Collection Services, Inc. requirements by: providing for creditor notice (§ 9050); giving creditors more latitude to file late claims (§ 9103); granting creditor rights against distributees (§§ 9352, 11429), and expanding on creditor rights against personal representatives. (§§ 9053, 11429.) (See Interinsurance Exchange v. Narula (1995) 33 Cal.App.4th 1140, 1145; Clark v. Kerby (1992) 4 Cal.App.4th 1505, 1511-1512.)
All further statutory references are to the California Probate Code unless otherwise indicated.
In accord with Tulsa Professional Collection Services, Inc., section 9050 currently provides: “(a) Subject to Section 9054, the personal representative shall give notice of administration of the estate to the known or reasonably ascertainable creditors of the decedent. The notice shall be given as provided in Section 1215. For purpose of this subdivision, a personal representative has knowledge of a creditor of the decedent if the personal representative is aware that the creditor has demanded payment from the decedent of the estate. [¶] (b) The giving of notice under this chapter is in addition to the publication of the notice under section 8120.” Thus, a personal representative is required to give constitutionally sufficient notice to all known or reasonably ascertainable creditors when the estate is administered by the probate court. (§ 9050; Gertner v. Superior Court (1993) 20 Cal.App.4th 927, 932.) Creditors who receive notice are required to file a claim in the probate court within 4 months after the court appoints a personal representative or within 60 days after notice of the probate action. (§ 9100.)
Section 9100 provides: “(a) A creditor shall file a claim before expiration of the later of the following times: [¶] (1) Four months after the date letters are first issued to a general personal representative. [¶] (2) Sixty days after the date notice of administration is mailed or personally delivered to the creditor. Nothing in this paragraph extends the time provided in Section 366.2 of the Code of Civil Procedure. [¶] (b) A reference in another statute to the time for filing a claim means the time provided in paragraph (1) of subdivision (a). [¶] (c) Nothing in this section shall be interpreted to extend or toll any other statute of limitations or to revive a claim that is barred by any statute of limitations. The reference in this subdivision to a ‘statute of limitations’ includes Section 366.2 of the Code of Civil Procedure.”
In addition to revisions to section 9050, the Legislature also amended section 9103 which allows creditors, who do not have actual knowledge of the administration of the estate during the four-month claim period, the right to petition to file a late claim. (See Interinsurance Exchange v. Narula, supra, 33 Cal.App.4th at p. 1145; Clark v. Kerby, supra, 4 Cal.App.4th at pp. 1511-1512.) The Law Revision Commission Comment to section 9103 explains that the 1990 amendment was intended to protect omitted creditors who lacked knowledge of the administration of the estate. “It should be noted that a creditor who is omitted because the creditor had no knowledge of the administration is not limited to the remedy provided in this section. If assets have been distributed, a remedy may be available against distributees under Section 9392 (liability of distributee). If the creditor can establish that the lack of knowledge is a result of the personal representative’s bad faith failure to notify known creditors under Chapter 2 (commencing with Section 9050) (notice to creditors), recovery may be available against the personal representative personally or on the bond, if any. See Section 11429 (unpaid creditor). See also Section 9053 (immunity of personal representative). [¶] The 1990 amendment renumbered former subdivision (c) to be subdivision (b) and revised new subdivision (b)(2) to make clear that a late claim should not be permitted if the statute of limitations has run on the claim. This is the consequence of the rule stated in Section 9253 that a claim barred by the statute of limitations may not be allowed by the personal representative or approved by the court or judge. Under Code of Civil Procedure [Section 366.2], the statute of limitations runs one year after the decedent’s death.” (Cal. law Revision Com. com., 53A West’s Ann. Prob. Code (1991 ed.) Foll. § 9103, p. 406.)
Section 9103 states: “(a) Upon petition by a creditor or the personal representative, the court may allow a claim to be filed after expiration of the time for filing a claim provided in Section 9100 if either of the following conditions is satisfied: [¶] (1) The personal representative failed to send proper and timely notice of administration of the estate to the creditor, and that petition is filed within 60 days after the creditor has actual knowledge of the administration of the estate. [¶] (2) The creditor had no knowledge of the facts reasonably giving rise to the existence of the claim more than 30 days prior to the time for filing a claim as provided in Section 9100, and the petition is filed within 60 days after the creditor has actual knowledge of both of the following: [¶] (A) The existence of the facts reasonably giving rise to the existence of the claim. [¶] (B) The administration of the estate. [¶] (b) Notwithstanding subdivision (a), the court shall not allow a claim to be filed under this section after the court makes an order for final distribution of the estate. [¶] (c) The court may condition the claim on terms that are just and equitable, and may require the appointment or reappointment of a personal representative if necessary. The court may deny the creditor’s petition if a payment to general creditors has been made and it appears that the filing or establishment of the claim would cause or tend to cause unequal treatment among creditors. [¶] (d) Regardless of whether the claim is later established in whole or in part, payments otherwise properly made before a claim is filed under this section are not subject to the claim. Except to the extent provided in Section 9392 and subject to Section 9053, the personal representative or payee is not liable on account of the prior payment. Nothing in this subdivision limits the liability of a person who receives a preliminary distribution of property to restore to the estate an amount sufficient for payment of the distributee’s proper share of the claim, not exceeding the amount distributed. [¶] (e) Notice of hearing on the petition shall be given as provided in Section 1220. [¶] (f) Nothing in this section authorizes allowance or approval of a claim barred by, or extends the time provided in, Section 366.2 of the Code of Civil Procedure.”
Also in 1990, to ensure compliance with Tulsa Professional Collection Services, Inc., the Legislature enacted section 9392 which provides for remedies against the distributees of the estate where no actual notice has been given. The Law Revision Commission Comments to section 9392 explains the 1990 Amendment was enacted to implement the Tulsa Professional Collection Services, Inc. standards when dealing with known or reasonably known creditors under short term claim filing statutes. “Section 9392 is new. It implements the rule of Tulsa Professional Collection Services, Inc. v. Pope, [supra, 485 U.S. 478], that the claim of a known or reasonably ascertainable creditor whose claim is not merely conjectural but who is not given actual notice of administration may not be cut off by a short claim filing requirement. [¶] Section 9392 is intended as a limited remedy to cure due process failures only, and is not intended as a general provision applicable to all creditors. [¶] A creditor who has knowledge of estate administration must file a claim or, if the claim filing period has expired, must petition for leave to file a late claim. See Sections 9100 (time for filing claims) and 9103 (late claims). This rule applies whether the creditor’s knowledge is acquired through notification under Section 9050 (notice required), by virtue of publication under Section 8120 (publication required), or otherwise. [¶] Under Section 9392, a creditor who has no knowledge of estate administration before an order is made for distribution of property has a remedy against distributees to the extent payment cannot be obtained from the estate. There is a one year statute of limitations, commencing with the date of the decedent’s death, for an action under this section by the creditor. [Code Civ. Proc., § 366.2] Subdivision (c) is a specific application of the general purpose of this section to subject a distributee to personal liability but not to require rescission of a distribution already made. [¶] An omitted creditor may also have a cause of action against a personal representative who in bad faith fails to give notice to a known creditor. See Sections 9053 (immunity of personal representative) and Section 11429 (unpaid creditor).” (Cal. Law Revision Com. com., 53A, West’s Ann. Prob. Code (1991) foll. § 9392, p. 506.) Further, the 1990 Tulsa Professional Collection Services, Inc. amendments also provided remedies against the personal representative for failure to give notice to known or reasonably ascertainable creditors in section 9053 and 11429.
Section 9392 states: “(a) Subject to subdivision (b), a person to whom property is distributed is personally liable for the claim of a creditor, without a claim first having been filed, if all of the following conditions are satisfied: [¶] (1) The identity of the creditor was known to, or reasonably ascertainable by, a general personal representative within four months after the date letters were first issued to the personal representative, and the claim of the creditor was not merely conjectural. (2) Notice of administration of the estate was not given to the creditor under Chapter 2 (commencing with Section 9050) and neither the creditor nor the attorney representing the creditor in the matter has actual knowledge of the administration of the estate before the time the court made an order for final distribution of the property. [¶] (3) The statute of limitations applicable to the claim under Section 366.2 of the Code of Civil Procedure has not expired at the time of commencement of an action under this section. [¶] (b) Personal liability under this section is applicable only to the extent the claim of the creditor cannot be satisfied out of the estate of the decedent and is limited to a pro rata portion of the claim of the creditor, based on the proportion that the value of the property distributed to the person out of the estate bears to the total value of all property distributed to all persons out of the estate. Personal liability under this section for all claims of all creditors shall not exceed the value of the property distributed to the person out of the estate. As used in this section, the value of property is the fair market value of the property on the date of the order for distribution, less the amount of any liens and encumbrances on the property at that time. [¶] (c) Nothing in this section affects the rights of a purchaser or encumbrancer of property in good faith and for value from a person who is personally liable under this section.”
Section 9053 states: “(a) If the personal representative believes that notice to a particular creditor is or may be required by this chapter and gives notice based on that belief, the personal representative is not liable to any person for giving the notice, whether or not required by this chapter. [¶] (b) If the personal representative fails to give notice required by this chapter, the personal representative is not liable to any person for the failure, unless a creditor establishes all of the following: [¶] (1) The failure was in bad faith. [¶] (2) The creditor had no actual knowledge of the administration of the estate before expiration of the time for filing a claim, and payment would have been made on the creditor's claim in the course of administration if the claim had been properly filed. [¶] (3) Within 16 months after letters were first issued to a general personal representative, the creditor did both of the following: [¶] (A) Filed a petition requesting that the court in which the estate was administered make an order determining the liability of the personal representative under this subdivision. [¶] (B) At least 30 days before the hearing on the petition, caused notice of the hearing and a copy of the petition to be served on the personal representative in the manner provided in Chapter 4 (commencing with Section 413.10) of Title 5 of Part 2 of the Code of Civil Procedure. [¶] (c) Nothing in this section affects the liability of the estate, if any, for the claim of a creditor, and the personal representative is not liable for the claim to the extent it is paid out of the estate or could be paid out of the estate pursuant to Section 9103. [¶] (d) A personal representative has a duty to make reasonably diligent efforts to identify reasonably ascertainable creditors of the decedent.”
As a result of the 1990 amendments to the Tulsa Professional Collection Services, Inc. decision a creditor, without actual knowledge of the four-month short term period (§ 9100), may be entitled to file a late claim (§ 9103) or seek remedies against distributees (§ 9352) and the personal representative. (§§ 9053, 11429.) Creditors who have been given notice have four months to file a claim. (§ 9100.) However, the one-year period of Code of Civil Procedure section 366.2 is not tolled nor extended for untimely claims. (Levine v. Levine, supra, 102 Cal.App.4th at p. 1261; Dobler v. Arluk Medical Center Industrial Group, Inc., supra, 89 Cal.App.4th at pp. 535-536) Furthermore, the late claims provisions do not apply when the one-year statutory time limit in Code of Civil Procedure section 366.2 has expired. (§ 9103, subd. (f); Interinsurance Exchange v. Narula, supra, 33 Cal.App.4th at p. 1146.) Therefore, as the Court of Appeal has held, “[I]f a claim is not filed in a probate proceeding within either the claims filing period of … section 9100 or within the one-year limitation period of Code of Civil Procedure section 366.2, a creditor will be forever barred from asserting a claim against the decedent.” (Dobler v. Arluk Medical Center Industrial Group, Inc., supra, 89 Cal.App.4th at pp. 535-536, fn. omitted; see also Bradley v. Breen, supra, 73 Cal.App.4th at pp. 804, 806.) The one-year statutory limit in Code of Civil Procedure section 366.2 applies even if assets have been distributed and without or without notice to creditors. (§ 9100; Embree v. Embree (2004) 125 Cal.App.4th 487, 494-495; Levine v. Levine, supra, 102 Cal.App.4th at pp. 1263-1265.) The California probate claims procedure which provides concrete protections for claimants when there is a failure to provide notice bears no material relationship to the Oklahoma process invalidated by the United States Supreme Court.
E. Application Of The Present Case
The complaint alleged that decedent died on May 24, 2005. Defendant was appointed as the personal representative of the estate on May 10, 2006. Defendant is alleged to have served a notice of administration on Mr. Schultz on May 18, 2006. Exhibit 15 to the complaint shows that notice was also served on Ms. Warwick on May 18, 2006. Ms. Warwick informed Mr. Cherman of the decedent’s death on October 2, 2006. Ms. Warwick was retained to represent the various plaintiffs between October 11 and November 26, 2006. Claims were filed with defendant between November 1, 2006, and January 22, 2007. The one-year period for creditors to bring an action against the estate had previously expired on May 24, 2006. The complaint seeking payments from the estate was not filed until February 27, 2007. The complaint against the estate, which was filed one year and nine months after the decedent’s death, was time barred under the statutory time period contained in Code of Civil Procedure section 366.2.
Under the tolling standards set forth above, it is clear that defendant’s failure to give notice pursuant to did not toll or extend the statutory period in Code of Civil Procedure 366.2 for bringing an action against the estate. No tolling or extensions occurred because the record clearly shows that none of the claims filed with defendant were timely filed under section 9100. In addition, there is no allegation that plaintiffs sought leave to file late claims pursuant to section 9103. If the one-year period had not expired, the issue of defendant’s conduct in failing to give notice could have been addressed: by a timely late claim petition (§ 9103); suing defendant as the personal representative (§§ 9053, 9392; Venturi v. Taylor (1995) 35 Cal.App.4th 16, 25); or suing the distributees of the estate. (§ 9352; see Embree v. Embree, supra, 125 Cal.App.4th at pp. 494-496.) Thus, contrary to plaintiffs’ assertion to the contrary, the one year statutory time limit bars their claims when the complaint showed: the claims were untimely; no late claim petition was filed; and the action was commenced well over a year after the decedent’s death.
F. The Estoppel Theory
Plaintiffs assert defendant is equitably estopped in asserting the time bar of Code of Civil Procedure section 366.2. The Court of Appeal has explained, “[W]hen the decedent’s representative has induced a claimant not to file suit within the limitations period of [Code of Civil Procedure] section 366.2, the doctrine of equitable estoppel may be applied to toll the statute.” (Bradley v. Breen, supra, 73 Cal.App.4th at p. 803; Battuello v. Battuello (1998) 64 Cal.App.4th 842, 847-848.) The facts supporting an equitable estoppel must be pled with specificity. (Sofranek v. Merced County (2007) 146 Cal.App.4th 1238, 1250; see Rylaarrsdam et al, Cal Practice Guide: Civil Procedure Before Trial Statutes of Limitation (2007) § 7:22, p. 7-3.)
Plaintiffs argue defendant is equitably estopped to assert the Code of Civil Procedure section 366.2 statute of limitations claim because: section 9050 required defendant to give them notice; defendant knew of the decedent’s death; defendant knew the estate was open; defendant knew that the one-year limitation period was imminent; he did not give notice as required by statute; plaintiffs lacked knowledge of decedent’s death; the estate was opened; their claims were barred; and defendant was silent as to the true facts. But the complaint contains no factual allegations which would support an estoppel claim. In addition, plaintiffs never raised the estoppel theory in the probate court but conceded that no further amendments could be made to cure the defects in the complaint. In any event, the complaint does not establish that, during the statutory period, defendant induced plaintiffs not to file a claim or petition for relief or file an action against the estate. The complaint alleged that defendant was appointed as the personal representative of the estate on May 10, 2006, a short time before the expiration of the one-year period in May 2006. Exhibit 15 to the complaint shows that defendant then served notice on Ms. Warwick on or around May 18, 2006. The limitations period of Code of Civil Procedure section 366.2 expired on May 24, 2006. There are no facts supporting an equitable outcome. Given our analysis, we need not address plaintiff’s remaining contentions.
IV. DISPOSITION
The judgment is affirmed. Defendant, Michael D. Miller, as the personal representative of the Estate of Jay C. Miller, is awarded his costs on appeal from plaintiffs Alan B. Cherman, Judith Potter, Donald P. Murphy, Robert Grill, Tanya Flanzbaum, Lloyd Vinnik, Gary Leary, Robert Hammond, Jerome Silverman, Miriam Silverman, Robert Davis, Harriet Katz Rodman, and Doris Yoshikane.
We concur: ARMSTRONG, J. MOSK, J.