Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. A244155, Marjorie Laird Carter, Judge.
Richard A. Higbie for Plaintiff and Appellant.
McCormick, Kidman & Behrens, Suzanne M. Tague and John Paul Glowacki for Defendants and Respondents.
OPINION
IKOLA, J.
Plaintiff Mary Anne Green appeals from the court’s dismissal of a “Creditor’s Claim” she filed in probate court seeking compensation from the Harold S. and Winifred L. Voegelin Trust of June 1, 1971 (the trust). Defendants are the cotrustees of the trust. Because the court abused its discretion by denying plaintiff’s request to amend her Creditor’s Claim, we reverse the judgment.
FACTS
On June 28, 2007, within one year of Winifred Voegelin’s death, plaintiff filed with the probate court a document entitled “Creditor’s Claim,” seeking $682,780 from the trust as compensation for services she allegedly rendered Voegelin. Plaintiff filed the claim “as an ‘on demand’ proceeding against the Trust” because defendants had not “served notice to creditors for a trust claims procedure, nor did they file a probate administration, so creditors had no forum and venue in which to make claims pursuant to the notice provisions of the Probate Code.”
In her Creditor’s Claim, plaintiff alleged she agreed in 1998 to stay with 80-year-old Voegelin, and be her companion, caregiver and house-sitter, available “24/7,” in return for Voegelin’s promise to direct her children (who managed Voegelin’s trusts) to “‘well take care of’” plaintiff after Voegelin passed away. Plaintiff further alleged the following. In the eight years she lived with Voegelin (up until Voegelin’s death on June 29, 2006), plaintiff took one single night off. Voegelin “was blind,” “lacked balance,” had numerous small strokes, and “became bedridden in the sixth year....” Voegelin dropped burning cigarettes; caught her sleeves on fire while trying to heat food on the stove; choked from “‘smokers’ hack’”; had incontinence “‘accidents’”; needed “her nightly ‘nip’” prepared every evening; needed help preparing her meals; became stuck in the elevator if the elevator jammed between floors; became disoriented at night; dropped items; took daily medications; needed transportation to doctor’s appointments; had “numerous... episodes” requiring 911 calls; needed help shopping; and needed help managing the household, grounds, boat, house maintenance, and health care. For all these needs, plaintiff cared for and “monitored” Voegelin. Plaintiff claimed she was owed $682,780, calculated at $12 per hour for 24-hour days over five years and $12 per hour for 12-hour days over three years. She averred she had received no payments other than $500.
Plaintiff acknowledges that, starting in February 2002, Voegelin had outside caregivers as well. Defendants assert Voegelin “was attended [24] hours a day by a professional, live-in nurse.”
In a July 2007 letter, defense counsel advised plaintiff’s attorney that defendants had rejected plaintiff’s claim as being barred by the statute of limitations in Code of Civil Procedure section 366.3. Defense counsel further stated that if plaintiff’s claim resulted in a court hearing, the claim would violate the trust’s no contest clause and plaintiff would forfeit her $15,000 bequest under the trust document.
On appeal, defendants do not assert plaintiff’s Creditor’s Claim was time barred. Code of Civil Procedure section 366.3 is the statute of limitations for claims arising from a promise or agreement relating to distribution from an estate or trust and requires such claims to “be commenced within one year after the date of [the decedent’s] death.” As stated, plaintiff filed her Creditor’s Claim within one year of Voegelin’s death.
At an August 2007 hearing on plaintiff’s Creditor’s Claim, the court continued the matter to October 2007 to allow plaintiff “to submit points and authorities.” According to defendants, the court granted plaintiff the “continuance to allow her to submit Points and Authorities on why the matter should not be dismissed and also to supplement the ‘Creditor’s Claim’ to clear notes regarding service and venue.” According to plaintiff, “the probate attorney[]... request[ed] citation of jurisdiction under the code to hear the ‘petition.’”
In October 2007, plaintiff filed a supplement to her Creditor’s Claim, alleging (1) the probate court had jurisdiction under Probate Code section 19000 et seq. (governing claims against a deceased settlor’s revocable trust), and (2) plaintiff had standing to file a claim as a creditor of Voegelin.
All statutory references are to the Probate Code unless otherwise stated.
At an October 2007 hearing, the court ordered defendants to file a written response to plaintiff’s supplement regarding the probate court’s jurisdiction over the Creditor’s Claim. The matter was continued to January 2008.
On October 17, 2007 (over one year after Voegelin’s death), plaintiff filed a complaint against defendants for breach of contract and quantum meruit based on defendants’ rejection of her Creditor’s Claim. Plaintiff filed her complaint with the probate court under the case number assigned to her Creditor’s Claim. Plaintiff alleged she and Voegelin had entered into a contract. In describing the terms of the contract, plaintiff repeated verbatim the allegations made in her Creditor’s Claim. She sought an award of $682,780 plus costs and attorney fees.
In November 2007, defendants demurred to the complaint on the basis the action was barred by the statute of limitations set forth in Code of Civil Procedure section 366.3 (governing claims for distribution from a trust) or “even” Code of Civil Procedure section 366.2 (governing claims against a decedent). Both statutes require an action to be filed within one year of the decedent’s death, although the limitations period under Code of Civil Procedure section 366.2 may be tolled, inter alia, as provided in section 9000 et seq. (creditor’s claims in probate administration) or section 19000 et seq. (creditor’s claims against revocable trust). (§ 366.2, subd. (b)(2) & (3).) Plaintiff opposed the demurrer.
On December 13, 2007, the court sustained defendants’ demurrer to plaintiff’s complaint with leave to amend the complaint by January 15, 2008.
On January 4, 2008, plaintiff filed an application to amend her supplement to the Creditor’s Claim to allege jurisdiction under section 850, subdivisions (a)(3)(C) and (b). Section 850, subdivision (a)(3)(C) (section 850(a)(3)(C)) permits an “interested person” to petition for a court order “[w]here the property of the trust is claimed to be subject to a creditor of the settlor of the trust.” Section 850, subdivision (b) states: “The petition shall set forth facts upon which the claim is based.” Plaintiff explained that once “the court sustained the demurrer [to the complaint] with leave to amend, [her] counsel realized that a proceeding was already underway because the creditor claim he filed was a Petition and the Court always had jurisdiction to hear it under” section 850(a)(3)(C) and (b). Therefore, her complaint was “superfluous.”
Alternatively, plaintiff asked that her Creditor’s Claim be treated as “a complaint for quantum meruit relief,” but did not offer any basis for the probate court’s jurisdiction over such a document. On appeal, plaintiff does not request this alternative treatment for her Creditor’s Claim.
On January 7, 2008, defendants’ attorneys were present in court for a hearing on the complaint, as well as for a continued hearing on plaintiff’s supplement to the Creditor’s Claim (regarding the probate court’s jurisdiction). Plaintiff and her counsel did not appear at the hearing. (On appeal, plaintiff asserts her counsel did not appear because (1) defendants never filed a written response to the supplement as ordered by the court in October 2007, and (2) therefore, her counsel believed “the continued hearing [on the supplement] was off calendar because it was unopposed.”) Both matters were taken off calendar.
On January 17, 2008, defendants filed a written opposition to plaintiff’s application to amend the Creditor’s Claim, arguing that plaintiff’s application sought to split her cause of action and that section 850(a)(3)(C) did not apply because plaintiff had not first brought a civil action to establish her status as a creditor of Voegelin.
At a January 31, 2008 hearing, plaintiff confirmed she wished to withdraw her complaint and instead proceed on her initial claim. She requested leave to amend the caption “Creditor’s Claim” on her initial claim to convert it into a petition under section 850. Defendants argued plaintiff needed “to file a civil lawsuit” “to establish that she has a claim,” but that a lawsuit was now time barred. Without explanation, the court denied plaintiff’s application to amend the Creditor’s Claim and denied her request to put the matter back on calendar.
In February 2008, defendants filed a motion asking the court to dismiss both the Creditor’s Claim and the complaint. At a March 27, 2008 hearing on the motion, the court took the matter under submission.
On March 19, 2008, plaintiff filed a motion “to reset her petition to the calendar” for hearing.
At an April 24, 2008 hearing on plaintiff’s motion, the court took the matter under submission. The next day, the court (1) denied plaintiff’s motion to reset her petition to the court calendar for hearing, and (2) granted defendants’ motion to dismiss the Creditor’s Claim and the complaint. According to the written order, the court found the Creditor’s Claim “was superceded by the Complaint....”
DISCUSSION
Plaintiff’s “position is that the Creditor Claim states facts upon which the Probate Court could grant relief against the Trust’s assets; it was filed within the applicable statute of limitations, [Code of Civil Procedure section] 366.3; and the Probate Court should have heard the common count quantum meruit claim stated in it....” She contends “her ‘Creditor’s Claim’ is, for all intents and purposes, a timely Petition under [section 850(a)(3)(C) and (b)] for quantum meruit against the assets of the Trust.” She claims her subsequent complaint was “filed in error” and also that her supplement to the Creditor’s Claim “erroneously cit[ed]... jurisdiction under” section 19000 et seq. She concludes the court erred by dismissing the Creditor’s Claim instead of permitting her to amend the document to allege jurisdiction under section 850. She asserts the Creditor’s Claim “was not subject to the demurrer and [she] had not abandoned it.” She asks us to direct the probate court “to restore her Creditor’s Claim under [section] 850(a)(3)(C) and (b)... to the Probate Court’s calendar for hearing on the merits, so she may have her due process... hearing on her quantum meruit remedy.”
“‘There is a policy of great liberality in permitting amendments to the pleadings at any stage of the proceeding. [Citations.] An application to amend a pleading is addressed to the trial judge’s sound discretion. [Citation.] On appeal the trial court’s ruling will be upheld unless a manifest or gross abuse of discretion is shown. [Citations.] The burden is on the plaintiff to demonstrate that the trial court abused its discretion.’ [Citation.] ‘“When a request to amend has been denied, an appellate court is confronted by two conflicting policies. On the one hand, the trial court’s discretion should not be disturbed unless it has been clearly abused; on the other, there is a strong policy in favor of liberal allowance of amendments. This conflict ‘is often resolved in favor of the privilege of amending, and reversals are common where the appellant makes a reasonable showing of prejudice from the ruling.’” [Citation.] If the original pleading has not framed the issues in an articulate and precise manner, a plaintiff should not be precluded from having a trial on the merits.’ [Citation.] ‘[I]t is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.... Moreover, it is irrelevant that new legal theories are introduced as long as the proposed amendments “relate to the same general set of facts.”’ [Citation.] Thus, under this state’s liberal rules of pleading, ‘the right of a party to amend to correct inadvertent misstatements of facts or erroneous allegations of terms cannot be denied.’” (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945.)
Defendants argue the court properly denied plaintiff’s request to amend her initial pleading because such an amendment would have split her cause of action. They contend plaintiff’s complaint “superseded” the Creditor’s Claim, without offering any legal authority to support this conclusion. Defendants further contend the Creditor’s Claim was “void ab initio, such that the Complaint was the initial action in this matter,” arguing that plaintiff’s only viable options to press her claim from the outset were to file a civil lawsuit or to open a probate administration under section 8000. They conclude the complaint abated any subsequent pleading on the same cause of action.
Under California Rules of Court, rule 7.3(3), “‘[a]mended pleading’ means a pleading that completely restates and supersedes the pleading it amends for all purposes.” Plaintiff’s complaint did not amend her Creditor’s Claim, but rather alleged that defendants had rejected the Creditor’s Claim. Plaintiff purported to file her complaint pursuant to section 19255 (governing actions on rejected claims under section 19000 et seq.) — again erroneously, since defendants had not filed a notice to creditors of the trust under section 19003.
Plaintiff replies that, because a “first action may be pleaded in abatement of any subsequent suit on the same claim,” her Creditor’s Claim abated her later complaint and therefore the probate court should have stricken her complaint as improperly splitting the cause of action. She points out she filed the complaint under the same case number as the Creditor’s Claim. She concludes the court’s dismissal of both her Creditor’s Claim and her complaint “can only be a terminating sanction, in excess of less severe sanctions that could be imposed on her counsel for following the wrong procedure [filing the superfluous complaint], or for not appearing at the continued hearing on her petition believing it was unopposed by [defendants].”
On this issue of abatement, both plaintiff and defendants contend their opposing stances are supported by Code of Civil Procedure section 430.10 and Wulfjen v. Dolton (1944) 24 Cal.2d 891 (Wulfjen). Under Code of Civil Procedure section 430.10, subdivision (c), the “party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer..., to the pleading on any one or more of the following grounds: [¶]... [¶] There is another action pending between the same parties on the same cause of action.”
In Wulfjen, the plaintiff had filed a prior action on which a court had entered judgment and from which the plaintiff had appealed. (Wulfjen, supra, 24 Cal.2d at pp. 892-893.) The plaintiff then commenced a second action (the current action in Wulfjen) against, inter alia, some of the same individual defendants she had named in her prior suit. (Id. at p. 893.) The trial court in the second action found that the allegations in both suits were “‘substantially identical’” and the cause of action in both “‘arose out of the same facts and transactions, and was based on the same subject matter....” (Id. at p. 894.) The Court of Appeal held the trial court properly concluded that the plaintiff’s maintenance of the “prior action was ground for abatement of” the second one. (Id. at p. 892; see also id. at p. 897.) The appellate court explained: “It is clearly established that a party may not split up a single cause of action and make it the basis of separate suits, and in such case the first action may be pleaded in abatement of any subsequent suit on the same claim.” (Id. at p. 894.)
Here, plaintiff has not tried to bring two separate actions against defendants. Rather, all of her filings have been made under the same case number and in the same court. By filing her complaint, she attempted to prosecute her Creditor’s Claim, not to abandon or supersede it. Defendants’ argument that the original Creditor’s Claim should be disregarded as a legal nullity is tantamount to saying that any pleading containing a defective statement of jurisdiction is void ab initio and can never be amended. But “any jurisdictional conflicts affecting probate code proceedings within a single superior court are between the superior court sitting in probate and the superior court sitting in a separate civil action. The Probate Code resolves these jurisdictional conflicts by specifying when the departments have concurrent jurisdiction and when the probate department has exclusive jurisdiction.... If a party brings litigation in the wrong department, the other party can demur to have the suit moved to its proper place.” (Cal. Trust and Probate Litigation (Cont.Ed.Bar 2008) § 9.1, p. 218.) Here, defendants never demurred to have the suit moved to the civil department. And, as discussed below, “title controversies over assets claimed to belong to the decedent or another person are subject to the concurrent jurisdiction of both departments.” (Id. at § 9.4, p. 220.) We conclude plaintiff’s application to amend her Creditor’s Claim did not seek to split her cause of action within the meaning of Code of Civil Procedure section 430.10 or Wulfjen, supra, 24 Cal.2d 891.
We arrive, then, at the basic question in this case: Is there a reasonable possibility plaintiff can cure the jurisdictional defect in her Creditor’s Claim by recasting it as a petition under section 850(a)(3)(C)? “Section 850 is found within part 19 of division two of the Probate Code, which deals with the ‘Conveyance or Transfer of Property Claimed to Belong to Decedent or Other Person.’” (Mota v. Superior Court (2007) 156 Cal.App.4th 351.) Under section 850(a)(3)(C), “any interested person” in a case where trust property “is claimed to be subject to a creditor of the settlor of the trust,” may petition for a probate court order. Thus, we must evaluate (1) whether plaintiff is an interested person and a creditor of Voegelin within the meaning of section 850, and (2) if so, whether trust property is asserted to be subject to her claim.
The terms “interested person” and “creditor” are not defined in section 850 et seq. But under the definitions governing construction of the Probate Code in general (§ 20), the term “‘interested person’” includes a “creditor... and any other person having a property right in or claim against a trust estate or the estate of a decedent which may be affected by the proceeding.” (§ 48, subd. (a)(1).) In In re Estate of Myers (2006) 139 Cal.App.4th 434, this court stated that the plaintiff qualified presumptively “to initiate a proceeding under section 850” because she was a creditor of the estate. (Id. at p. 441.) (A distinguishing factor from the case at hand is that in Myers, the plaintiff was a judgment creditor of the deceased.) (Id. at p. 437.) Myers cautioned that “[s]ubdivision (b) of section 48 does allow the probate court a certain amount of leeway in determining whether, in a given situation, the degree of interest possessed is too remote to be significant. (Id. at p. 441, fn. 2.) The Myers plaintiff was a sufficiently “‘“interested person”’” because he was the “major creditor” of the estate. (Ibid.) So too, plaintiff here claims to be a significant creditor of Voegelin and the trust.
The term “creditor” is not defined for purposes of construction of the Probate Code in general. For purposes of creditor claims against a decedent’s revocable trust pursuant to section 19000 et seq., the term “‘[c]reditor’” is defined as “a person who may have a claim against the trust property.” (§ 19000, subd. (c).) For purposes of creditor claims against an estate in a probate administration pursuant to section 9000 et seq., “‘[c]reditor’” means “a person who may have a claim against estate property.” (§ 9000, subd. (c).)
Plaintiff argues she is a creditor of Voegelin under a quantum meruit theory. “Quantum meruit refers to the well-established principle that ‘the law implies a promise to pay for services performed under circumstances disclosing that they were not gratuitously rendered.’ [Citation.] To recover in quantum meruit, a party need not prove the existence of a contract [citations], but it must show the circumstances were such that ‘the services were rendered under some understanding or expectation of both parties that compensation therefor was to be made.’” (Huskinson & Brown v. Wolf (2004) 32 Cal.4th 453, 458.) Court decisions have treated “the ‘existence of an implied contract’ as ‘a question of fact for the trial court.’” (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 1036, p. 1127.)
Defendants do not directly refute plaintiff’s assertion she alleged facts stating a quantum meruit cause of action. Instead, they appear to challenge plaintiff’s standing as a section 850 creditor on grounds she is not a judgment creditor. In the proceedings below, they contended plaintiff could only establish standing as Voegelin’s creditor by first bringing a civil action on the matter. In a letter brief submitted after oral argument on appeal, defendants assert plaintiff was required to do more. They specify six steps plaintiff should have followed in order ultimately to seek redress from trust assets: Plaintiff should have (1) initiated a probate administration of Voegelin’s estate; (2) petitioned to serve as probate administrator under section 8461, subdivision (q); (3) filed a creditor’s claim under section 9000 et seq.; (4) brought a civil suit against the estate’s personal representative or executor for quantum meruit (assuming the personal representative or executor rejected her creditor’s claim); (5) tried to enforce any money judgment from her quantum meruit lawsuit against the estate’s assets; and (6) petitioned under section 850(a)(3)(C) to enforce her quantum meruit judgment (only if the estate were insolvent).
Defendants offer several technical, and unmeritorious, objections to plaintiff’s reliance on a quantum meruit theory. First, they argue that plaintiff in her Creditor’s Claim stated she was a creditor of the trust, not of Voegelin directly. Plaintiff replies that both Voegelin and the trust are her debtors — Voegelin under a quantum meruit theory, and the trust because Voegelin obligated the trust to pay plaintiff. That plaintiff initially claimed to be the trust’s creditor does not, in and of itself, preclude her from amending her initial pleading to allege standing as Voegelin’s creditor under a quantum meruit theory.
Under this procedure, apparently plaintiff (in her capacity as probate administrator) should have rejected her own section 9000 creditor’s claim against the empty estate (discussed below) in order to proceed to the final two steps.
The first five steps of the foregoing process would be futile here because there are allegedly no assets in Voegelin’s estate. Plaintiff alleges (on information and belief) that defendant trustees are Voegelin’s heirs and that Voegelin, at the time of her death, “left no property other than her beneficial interest in the trust....” Defendants do not dispute these allegations. In fact, they acknowledge the estate has no personal representative or executor and that they themselves did not petition to serve as probate administrators because “there was no need for them to do so” (presumably because there are no assets in the estate).
Defendants contend section 9351 and Code of Civil Procedure section 377.40 mandate the six step process. They also argue that even if the six step procedure could be “collapsed” into a single section 850 action (which they strenuously argue is not permissible), plaintiff could only recover from the trust if she first “prove[d] up her quantum meruit action against the personal representative or executor, then obtain[ed] a determination that the estate is insolvent,” again citing section 9000 et seq. and Code of Civil Procedure section 377.40. Section 9351 provides: “An action may not be commenced against a decedent’s personal representative on a cause of action against the decedent unless a claim is first filed as provided in this part [creditor’s claims in probate administration] and the claim is rejected in whole or in part.” Code of Civil Procedure section 377.40 states: “Subject to [section 9000 et seq.] governing creditor claims, a cause of action against a decedent that survives may be asserted against the decedent’s personal representative or, to the extent provided by statute, against the decedent’s successor in interest.” A “‘decedent’s successor in interest’ means the beneficiary of the decedent’s estate....” (Code Civ. Proc., § 377.11) These sections presuppose the existence of a decedent’s personal representative or successor in interest, i.e. estate beneficiary. These sections are inapplicable here because Voegelin left no estate assets, and thus no personal representative or beneficiary of the estate exists.
Nor does section 850 contemplate such a lengthy and cumbersome process. It provides an alternative to civil litigation — an alternative that is available to a creditor of a deceased settlor of a trust, inter alia, where no probate administration or trust claims procedure has been initiated. (Ross et al., Cal. Practice Guide: Probate (The Rutter Group 2008) [¶] 2:116.15, p. 2-78; Cal. Trust and Probate Litigation, supra, § 22.51, p. 798.) Under those circumstances, the deceased settlor’s creditor may file a civil suit or a section 850(a)(3) petition against a trustee. (Cal. Trust and Probate Litigation, supra, § 22.51, p. 798.)
An exception to the availability of these alternatives is contained in section 856.5, under which a court may not grant a section 850 petition “if the court determines that the matter should be determined by a civil action.” For example, this exception may apply “where the issues are especially complex.” (Ross et al., Cal. Practice Guide: Probate, supra, [¶] 15:369, p. 15-104.2.)
Affirmation that a section 850 creditor need not be a judgment creditor is contained in the legislative history of section 850 et seq. Prior to the enactment of section 850, several discrete sections of the Probate Code provided for a “procedure in probate court for the conveyance of real property or transfer of personal property claimed to belong to a ward or conservatee, decedent, or trust or other third party.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 669 (2001 Reg. Sess.) as amended by the Senate on Mar. 27, 2001.) Section 850 et seq., consolidated “these separate probate court proceedings in a single procedure for the trial of all property questions within the probate court’s jurisdiction, whether the estate concerned is that of a decedent, ward or conservatee, or trust.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 669, supra,at p. 2.) The statute thus created “a single procedure for the trial of all property questions within the probate court’s jurisdiction.” (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 669 (2001 Reg. Sess.) as amended by the Senate on June 7, 2001, p. 1.) The goal was “to provide consistency and improve efficiency as to the determination of claims” “against decedents’ estates, minors and conservatees, and trusts.” (Ibid.) Under the “newly consolidated” procedure, “[i]f a civil action had already been filed as to the matter in the petition, the petition would be abated unless the court finds that the civil case was filed for the purpose of delay.” (Id. at p. 3.) “The bill would permit an action brought under the new procedure to include all claims, causes of action, or matters that are normally raised in a civil action to the extent that the matters are related factually to the subject of the petition filed. Thus, a judge sitting in probate court would not have to sever from the petition those claims that would normally be decided in a civil action, as long as the factual bases of those claims are related to the petition. The sponsor states that this will expedite the determination of property claims and minimize losses to any party.” (Ibid.) Clearly, section 850 et seq. was intended, in the interests of convenience and efficiency, to create an all-inclusive procedure in the probate court for resolving, inter alia, property claims against trusts as an alternative to civil litigation.
Under the circumstances here — where defendants (1) are allegedly Voegelin’s heirs; (2) are the trustees of the trust holding all Voegelin’s assets at the time of her death; and (3) have not opened a probate administration under section 8000 or filed a notice to creditors under section 19000 et seq. — plaintiff was not required to obtain a money judgment in a civil lawsuit before petitioning under section 850(a)(3)(C), nor was she required to follow defendants’ suggested six step process. “If there is no proceeding to administer the estate of the deceased settlor, and if the trustee does not file a proposed notice to creditors pursuant to Section 19003 and does not publish notice to creditors pursuant to Chapter 3 (commencing with Section 19040), then the liability of the trust to any creditor of the deceased settlor shall be as otherwise provided by law.” (§ 19008.) A section 850 petition is an appropriate procedure by which to assert the claim.
At oral argument, defendants contended for the first time that plaintiff brought her section 850(a)(3)(C) petition against the wrong party and should have lodged her claim against the personal representative or executor of Voegelin’s estate. Pursuant to our order, defendants and plaintiff submitted letter briefs on whether the estate’s personal representative or executor was an indispensable party to plaintiff’s section 850(a)(3)(C) petition.
Under Code of Civil Procedure section 389, subdivision (a), a “person who is subject to service of process... shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.”
In their letter brief, defendants focus solely on Code of Civil Procedure section 389, subdivision (a), asserting “the absence of the personal representative or executor precludes complete relief among the parties.” But the “‘complete relief’ clause ‘requires joinder when nonjoinder precludes the court from effecting relief not in some overall sense, but between extant parties.” (Countrywide Home Loans, Inc. v. Superior Court (1999) 69 Cal.App.4th 785, 793-794 (Countrywide).) It “‘is not invoked simply because some absentee may cause future litigation.’” (Id. at p. 794.) Here, complete relief can be accorded to plaintiff and defendants (the only extant parties to this action). Plaintiff may be awarded quantum meruit recovery from trust assets, or defendants may prevail and no award will be made; in either case, the relief is complete.
“‘Clause (2)(i) recognizes the importance of protecting the person whose joinder is in question against the practical prejudice to him which may arise through a disposition of the action in his absence.’” (Countrywide, supra, 69 Cal.App.4th at p. 793.) Here, there exists no personal representative or executor of Voegelin’s estate; nor is one likely to step up since the estate has no assets. Hence, no absentee exists whose interests might be prejudiced by nonjoinder.
“‘Clause (2)(ii) recognizes the need for considering whether a party may be left, after the adjudication, in a position where a person not joined can subject him to a double or otherwise inconsistent liability.’” (Countrywide, supra, 69 Cal.App.4th at p. 793 .) Here, no absentee person exists who might subject defendants to double or otherwise inconsistent liability. Nor are defendants incapable of defending the trust assets against plaintiff’s claim since they are Voegelin’s heirs and the trustees of her trust. (Dobler vs. Arluk Medical Center Industrial Group, Inc. (2001) 89 Cal.App.4th 530, 543 [defendants who were both the administrators of the decedent’s estate and the trustees of his trust “necessarily had actual knowledge... of every claim which could potentially have been asserted against [the decedent’s] assets.... Thus, there is no reason to question either their lack of notice or knowledge, or their incentive to vigorously defend every disputed claim, including the present one”].) We conclude plaintiff may properly bring her section 850(a)(3)(C) petition against only the defendant trustees.
We must still decide whether trust property “is claimed to be subject to” plaintiff (in her capacity as Voegelin’s creditor) within the meaning of section 850(a)(3)(C). Although plaintiff contends the trust owes her $682,780, she does not specify any particular property, account, or fund of the trust that is subject to her claim. But assuming the trust is a revocable one, “the property... that was subject to the power of revocation at the time of the settlor’s death is subject to the claims of creditors of the decedent settlor’s estate and to the expenses of administration of the estate to the extent that the deceased settlor’s estate is inadequate to satisfy those claims and expenses.” (§ 19001, subd. (a), italics added.)
Plaintiff averred below on information and belief the trust is revocable. She alleged defendants would not provide her with a copy of the trust document on the basis it was “confidential.”
Defendants contend this “case is directly analogous to the facts” of Stewart v. Seward (2007) 148 Cal.App.4th 1513 (Stewart). They argue that here, “as in Stewart, a beneficiary alleges that a decedent promised to devise property from the decedent’s estate after death;... the beneficiary gained no relief from a creditor’s claim; and... the beneficiary filed a complaint more than one year after the decedent passed away.” They conclude Stewart’s outcome — the dismissal of the plaintiff’s cause of action as time-barred (id. at p. 1515) — should be replicated here. But while factual similarities do exist between the two cases, we discern a critical distinction between them. In Stewart, a probate proceeding had been commenced. (Id. at p. 1516.) The plaintiff’s “‘creditor’s claim’ in [the decedent’s] probate proceeding” had been rejected by the probate administrator. (Ibid.) Under section 9353, subdivision (a), unless plaintiff “commence[d] an action on the claim,” the claim would be barred. But the plaintiff in Stewart missed the deadline for commencing the action under Code of Civil Procedure section 366.3. (Stewart, at p. 1517.)
Similarly, in circumstances where a trustee of a revocable trust determines to give notice to creditors under section 19003, a failure to file suit on a rejected creditor’s claim would forever bar the claim. (§ 19253, subd. (d).) Here, in contrast, no probate proceeding had been commenced, and the trustee had not given notice to creditors. As noted above, “If there is no proceeding to administer the estate of the deceased settlor, and if the trustee does not file a proposed notice to creditors pursuant to Section 19003 and does not publish notice to creditors pursuant to Chapter 3 (commencing with Section 19040), then the liability of the trust to any creditor of the deceased settlor shall be as otherwise provided by law.” (§ 19008.) The Stewart case did not address the circumstances here, where no probate proceeding had been commenced and the trustee had not given notice to creditors. The Stewart court had no reason to opine (and did not opine) as to whether plaintiff could have proceeded with a section 850 petition. “Language used in any opinion is of course to be understood in the light of the facts and the issue then before the court, and an opinion is not authority for a proposition not therein considered.” (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2.) Stewart, supra, 148 Cal.App.4th 1513,is inapposite to the case before us.
Plaintiff, whose Creditor’s Claim and complaint have both been dismissed, has been prejudiced by the court’s denial of her request to amend her supplement to the Creditor’s Claim. The original Creditor’s Claim fully apprised defendants of the plaintiff’s allegations against Voegelin and the trust; these exact same allegations underlie plaintiff’s quantum meruit petition. Defendants will not be misled or prejudiced by plaintiff’s amendment of her claim to recite section 850 as its jurisdictional basis. “‘[I]t is irrelevant that new legal theories are introduced as long as the proposed amendments “relate to the same general set of facts.”’” (Berman v. Bromberg, supra, 56 Cal.App.4th at p. 945.) Defendants have never responded to the merits of petitioner’s claim. She has never had a due process hearing on her allegations that she is a quantum meruit creditor of Voegelin. Under these circumstances, the court abused its discretion by denying plaintiff’s request to amend her initial pleading.
DISPOSITION
The judgment is reversed. Plaintiff shall recover her costs on appeal.
WE CONCUR: BEDSWORTH, ACTING P. J., ARONSON, J.
On appeal, plaintiff acknowledges section 19000 et seq. did not confer upon the probate court jurisdiction over her Creditor’s Claim. Section 19000 et seq. concerns the “payment of claims, debts, and expenses from [the] revocable trust of [a] deceased settlor.” Under section 19003, a trustee may “publish and serve notice to creditors of the deceased settlor.” Service of such notice to creditors sets in motion a statutory claims process. (§ 19004.) A trustee, however, has no duty to initiate this notice proceeding. (§ 19010.) “If there is no proceeding to administer the estate of the deceased settlor, and if the trustee does not file a [notice to creditors under section 19000 et seq.], then the liability of the trust to any creditor of the deceased settlor shall be as otherwise provided by law.” (§ 19008.) Here, defendants never served or published a notice to creditors under section 19003 nor did anyone ever commence an estate administration proceeding under sections 8000 and 9000 et seq.
Similarly, defendants contend it would be contradictory for plaintiff to allege that Voegelin (1) contracted to have the trust pay plaintiff after Voegelin’s death, and (2) also contracted that Voegelin herself would pay plaintiff during Voegelin’s lifetime. But quantum meruit, as discussed, does not presuppose an express contract.
Defendants further assert plaintiff did not allege in her proposed amendment to the supplement that she was Voegelin’s creditor. In fact, the proposed amendment alleges plaintiff has a “quantum meruit claim for the services she rendered to” Voegelin.