Gertner v. SUPERIOR COURT OF ORANGE CTY.

20 Cal. App. 4th 927, 25 Cal. Rptr. 2d 47, 93 Cal. Daily Op. Serv. 8882, 1993 Cal. App. LEXIS 1206

• Court: California Court of Appeal
• Decided: November 30, 1993
• Docket: G014290
• Status: Published

Opinions

Opinion

MOORE, Acting P. J.

Petitioner Michael J. Gertner, the executor of a decedent’s estate, seeks to vacate an order of respondent superior court granting the petition of VW Credit, Inc., the real party in interest, to file a late creditor’s claim under Probate Code section 9103.¹

Facts

Gertner is the executor of the estate of Bruce Geoffrey Saville pursuant to letters issued by the superior court September 1, 1992. VW Credit asserts it is a secured creditor of Saville’s under a motor vehicle sale agreement executed by VW Credit and Saville before his death.

On January 13, 1993, Gertner mailed notice of the administration of the estate to VW Credit at the following address: Depart. 0052, Palatine, Illinois 60055-0052. VW Credit did not file a creditor’s claim with Saville’s estate within 30 days after the notice was mailed to it.

On March 9, VW Credit petitioned for an order allowing it to file a late claim. In a supporting declaration Amy Lebeau, an employee of VW Credit’s legal department, admitted VW Credit received the notice and that it had a January 13 postmark. She declared the address to which the notice was sent is a lock box bank address used to receive payments on installment accounts. Mail sent to this address not accompanied by payment or not referring to an account number is delayed a considerable length of time before being forwarded to the appropriate department. The notice was not received by VW Credit’s legal department until February 9. Upon receiving the notice, Lebeau mailed the documents to VW Credit’s attorneys and instructed them to file a claim.

After a contested hearing, the superior court granted VW Credit’s petition.

Discussion

A writ of mandate may be issued to compel the performance of an act the law specially enjoins. (Code Civ. Proc., § 1085.) It must be issued where there is no plain, speedy, and adequate remedy in the ordinary course of law. (Code Civ. Proc., § 1086.)

The absence of an adequate legal remedy clearly exists. Probate orders are generally not appealable unless expressly made so by statute.(Estate of Schechtman (1955) 45 Cal.2d 50, 54 [286 P.2d 345]; Varney v. Superior Court (1992) 10 Cal.App.4th 1092, 1098 [12 Cal.Rptr.2d 865].) No statute expressly provides for an appeal from an order granting or denying a petition to file a late creditor’s claim. Case law has held orders allowing the claim of a creditor (Estate of Cole (1951) 106 Cal.App.2d 823, 825 [236 P.2d 206]), and allowing the filing of an amended creditor’s claim (Estate of Vose (1970) 4 Cal.App.3d 454, 456 [84 Cal.Rptr. 347]) are not appealable. We conclude an order granting a petition to file a late creditor’s claim under section 9103 is also nonappealable.

The more serious question is whether the superior court may be compelled to vacate its order granting VW Credit’s petition to file a late claim. A writ of mandate will not issue to control the exercise of judicial discretion. (Robbins v. Superior Court (1985) 38 Cal.3d 199, 205 [211 Cal.Rptr. 398, 695 P.2d 695]; Nathanson v. Superior Court (1974) 12 Cal.3d 355, 361 [115 Cal.Rptr. 783, 525 P.2d 687].) But mandamus does lie where that discretion is abused (State Farm etc. Ins. Co. v. Superior Court (1956) 47 Cal.2d 428, 432 [304 P.2d 13]), or where under the facts the court’s discretion can be exercised in only one way (Nathanson v. Superior Court, supra, 12 Cal.3d at p. 361; Mannheim v. Superior Court (1970) 3 Cal.3d 678, 685 [91 Cal.Rptr. 585, 478 P.2d 17]; O’Bryan v. Superior Court (1941) 18 Cal.2d 490, 496 [116 P.2d 49, 136 A.L.R. 595]).

We conclude, based on the facts of this case, that the superior court lacked discretion to grant VW Credit’s petition to file a late claim.² Gertner asserts he used the address VW Credit provided to the decedent, and VW Credit acknowledges receiving the notice postmarked January 13 and delivering the notice to its legal department before the time limit for filing a claim expired. Thus, the facts fail to establish VW Credit is entitled to file a late claim. VW Credit argues the superior court properly allowed it to file a late claim under section 9103 since it did not receive actual knowledge of the existence of the administration of Saville’s estate until February 9, less than 15 days before expiration of the time for filing a creditor’s claim under section 9100.

Where an estate’s personal representative “has knowledge of a creditor of the decedent, the personal representative shall give notice of administration of the estate to the creditor” in the manner provided in section 1215. (§ 9050, subd. (a).) Section 1215 allows the notice to be mailed to a creditor within the United States by first class mail “addressed to the person at the person’s place of business or place of residence.” (§ 1215, subds. (b)(1), (c) & (d).)

Section 9100 requires a creditor’s claim to be filed before the later of either “Four months after the date letters are first issued to a general personal representative,” or “Thirty days after the date notice of administration is given to the creditor . . . .” (§ 9100, subd. (a).) VW Credit concedes the notice was mailed on January 13 and the address used for the lock box was accurate. Thus, the requirements for a proper mailing were satisfied. (§ 1215, subds. (b)(1) & (c).) Subdivision (e) of section 1215 provides “When the notice ... is deposited in the mail, mailing is complete and the period of notice is not extended.” Consequently, the notice was given to VW Credit on January 13.

VW Credit contends it did not obtain actual knowledge of the estate’s administration until the notice was received by its legal department on February 9. Section 9103 provides a probate court may allow the filing of a late claim under certain limited circumstances. Subdivision (a)(1) permits a late claim if the creditor establishes that “Neither the creditor nor the attorney representing the creditor in the matter had actual knowledge of the administration of the estate more than 15 days before expiration of the time provided in Section 9100, and the creditor’s petition was filed within 30 days after either the creditor or the creditor’s attorney had actual knowledge of the administration . . . .”

But VW Credit’s reliance on the date its legal department received the notice is unavailing. The Law Revision Commission Comment explains the term “actual knowledge” as follows: “A creditor has knowledge of the administration of an estate within the meaning of subdivision (a)(1) of Section 9103 if the creditor has actual knowledge of the administration through receipt of notice given under Section 9050 or otherwise, such as information from a newspaper clipping service that comes to the attention of the creditor. Constructive knowledge through publication of a notice of death or other information that does not come to the attention of the creditor is not knowledge for the purpose of subdivision (a)(1). . . .” (Recommendation Proposing New Probate Code (Dec. 1989) 20 Cal. Law Revision Com. Rep. (1990) p. 1569.) VW Credit conceded it received the notice of the administration of Saville’s estate well before February 9. Thus, contrary to VW Credit’s argument the Probate Code provides actual knowledge of the administration of a decedent’s estate arises upon proper mailing of the required notice by the estate’s personal representative.

The lock box address was established by VW Credit and its maintenance was under VW Credit’s control. The same is true of the internal mail processing system employed to direct mail to VW Credit’s separate departments. A rule justifying a delay caused by a business’s or other entity’s internal procedure in handling mail would reward inefficiency and create havoc in the administration of estates.³

Furthermore, there is no hint of bad faith on Gertner’s part in using the lock box address. Nothing in the record indicates Gertner had another address for business correspondence with VW Credit. While Gertner was obligated to give actual notice to all known or reasonably ascertainable creditors (Tulsa Professional Collection Services Inc. v. Pope (1988) 485 U.S. 478, 489-490 [99 L.Ed.2d 565, 577-578, 108 S.Ct. 1340]), he had no duty to investigate whether VW Credit had a more appropriate address to which the notice of administration should be sent. (See § 9053, subd. (d).) Thus, there does not appear to have been an attempt by the estate to take advantage of VW Credit by using the lock box address.

VW Credit had the burden of establishing the right to file a creditor’s claim after the statutory period had expired. (§ 9103, subd. (a).) It concedes Gertner mailed notice to it on January 13 using the lock box address, and that it received the notice. The delay in delivering the notice to VW Credit’s legal department was caused by its own internal mail processing system. Thus, VW Credit failed to show it was entitled to file a late creditor’s claim in this case. The superior court lacked discretion to grant its petition to file a late claim. (Nathanson v. Superior Court, supra, 12 Cal.3d at p. 362; Segovia v. Superior Court (1976) 55 Cal.App.3d 464, 470 [127 Cal.Rptr. 501].)

Disposition

The alternative writ is discharged. Let a writ of mandate issue directing the superior court to vacate its ruling granting VW Credit’s petition to file a late creditor’s claim and enter a new order denying the petition.

Sonenshine, J., concurred.

1 All statutory references are to the Probate Code unless otherwise specified.

2 Our dissenting colleague suggests we are simply disagreeing with the superior court’s factual findings in this case. But there are no facts in dispute. The undisputed evidence establishes Gertner mailed a properly addressed notice of the administration of the estate to VW Credit which received the notice in the ordinary course of the mail well before the 30-day period for filing a creditor’s claim expired. There is no basis here for concluding Gertner used an invalid or inappropriate address. Thus, the dissent’s claim we are reversing the superior court because of the manner in which the lower court exercised its discretion in this case is in error.

3 Under our dissenting colleague’s view, a creditor should be allowed to use its own inadequate internal operating procedures to claim lack of knowledge of the administration of an estate. The focus of the statutes requiring strict compliance with the time limits for filing a creditor’s claim is to promote the expeditious distribution of the assets of a decedent’s estate. (Nathanson v. Superior Court, supra, 12 Cal.3d at p. 365; Satterfield v. Garmire (1967) 65 Cal.2d 638, 641 [56 Cal.Rptr. 102, 422 P.2d 990]; Hurlimann v. Bank of America (1956) 141 Cal.App.2d 801, 805 [297 P.2d 682].) Creditors, especially those in the financial services industry, are well aware of this fact and the need to promptly respond to a notice informing them of an estate’s pending administration. The dissent ignores this statutory focus and treats the matter as if it involved an ordinary civil action.