CASE NAME: GONZALEZ  vs.  LISA WEST, TRUSTEE

HEARING ON DEMURRER TO 1st Amended COMPLAINT

FILED BY LISA WEST, TRUSTEE

* TENTATIVE RULING: *

Defendant’s demurrer to the First Amended Complaint (“FAC”) is OVERRULED.  Code of Civil Procedure section 366.2 provides a one-year-from-date-of-death statute of limitations only for a “liability of the person” of the decedent and if there is an existing cause of action on the date of death which survives.  CCP § 366.2 (a); Dacey v. Taraday (2011) 196 Cal.App.4th 962, 983-986.  Paragraph 4 of the FAC alleges that “[Decedent] agreed that all of Plaintiff’s payments would become due for reimbursement by the Trust’s successor trustee after her death, from Trust assets, upon Plaintiff’s claim as creditor.”  Under this contract, re-payment was not due, and the contract was not breached, before decedent died.  Where the time for a decedent to pay or re-pay any money under a contract has not yet arrived before the decedent dies, and the decedent has not in any other respect breached or repudiated her contract with the plaintiff, CCP § 366.2 does not apply because there is no existing cause of action on the date of death.  Dacey v. Taraday (2011) 196 Cal.App.4th 962, 986; see also Ferraro v. Camarlinghi (2008) 161 Cal. App. 4th 509, 553-554.  Further, as alleged, the contract is not a “liability of the person” of the decedent.  It was either a liability of a different person, the successor trustee, or a liability of a res, the trust corpus.   See Estate of Yool (2004) 151 Cal.App.4th 867; see also Prob. C. §§ 18000 (a), 18001, 18004.

Defendant shall file and serve her answer on or before June 26, 2015.