Case Name: Eva Mortensen v. Eden and Paul Nesse

Case No: 18CV332025

I. Background
II.

Plaintiff Eva Mortensen (“Plaintiff”) brings this action against Eden Nesse (“Defendant”), Paul Nesse and “Paul S. Nesse A Professional Corporation” for damages associated with negligent legal representation.

According to the allegations of the first amended complaint (“FAC”), Paul Nesse was an attorney who provided legal services to Plaintiff in a child custody family law case. (FAC, ¶¶ 2, 3.) Mr. Nesse failed to act with a sufficient degree of competence and committed malpractice in representing Plaintiff. (Id. at ¶ 6.) Due to his negligence, the resulting custody orders were deficient in various ways and Plaintiff’s children were not sufficiently protected. (Ibid.) Plaintiff attributes Mr. Nesse’s negligent representation to his chronic and ultimately terminal illness which he did not disclose. (Id. at ¶ 8.)

Since his representation of Plaintiff, Mr. Nesse has died. (FAC, ¶ 2.) Kevin Nesse and Ryan Hall are the “co-executors” of the “Nesse Trust and estate of Paul S. Nesse” and Eden Nesse is the “Trustee of the Nesse Trust and estate of Paul S. Nesse.” (Id. at ¶ 2.) Though not named in the title of the FAC, Kevin Nesse and Ryan Hall are codefendants in this action. (Ibid.)

A probate order issued on November 14, 2018, named Eden Nesse as the executor of the estate of Paul Nesse. (FAC, ¶ 2.) On February 11, 2019, Plaintiff filed a creditor’s claim against the estate which was rejected. (Id. at ¶ 3.) As a result, Plaintiff filed the FAC.

Before the Court is Defendant’s demurrer.

III. Judicial Notice
IV.

In support of her demurrer, Defendant requests judicial notice of three court records pursuant to Evidence Code section 452. Judicial notice is sought of (1) the Court Order Appointing Executor in the estate of Paul Stuart Nesse; (2) the Creditor’s Claim made by Plaintiff on the estate of Paul Stuart Nesse; and (3) the Court’s order rejecting Plaintiff’s Creditor’s Claim on March 4, 2019.

A court may take judicial notice of any court record. (Evidence Code § 452, subd. (d); Lockley v. Law Office Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.) The matters for which judicial notice is sought are each court records. Therefore the Court grants the request for judicial notice.

V. Demurrer
VI.

Defendant demurs to the FAC on the ground of failure to state sufficient facts to constitute a cause of action pursuant to Code of Civil Procedure section 430.10, subdivision (e). She argues that Plaintiff’s complaint was not timely filed and Plaintiff cannot state a cause of action against her individually.

A. Legal Standard
B.

A demurrer tests the legal sufficiency of a pleading, but not the truth of a plaintiff’s allegations or the accuracy with which he or she describes the defendant’s conduct. (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958; citing Committee on Children’s Television Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213.) A demurrer reaches only to the contents of the pleading and such matters subject to judicial notice. (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, citations omitted; see also Code Civ. Proc. § 430.10, subd. (a).)

C. Timeliness
D.

Defendant argues that Plaintiff’s complaint was not timely filed once her claim against the estate was denied.

Probate Code section 9353 specifies that a claim against an estate is barred unless the creditor commences an action within three months after the executor rejects the claim. The three-month period commences on the date the executor first gives written notice of the rejection. (Merrill v. Finberg (1992) 4 Cal.App.4th 1443, 1446 fn. 3, citations omitted.) The statutory limitation “implements the long-established policy of requiring prompt presentation of claims against the estate of the decedent” to effectuate expeditious settlement. (Billups v. Tiernan (1970) 11 Cal.App.3d 372, 379.) The failure to present a timely claim against the estate in incurable. (Ibid; see Berger v. O’Hearn (1953) 41 Cal.2d 729, 734.)

Here, the rejected creditors claim was entered by the Probate Court on March 4, 2019, and the proof of service indicates that it was mailed to Plaintiff on March 5, 2019. (Def. RJN, #3.) The SAC was filed on July 1, 2019, 117 days later. Even considering the five-day period for notice by mail, the SAC was not filed in time. In her opposition fashioned in the form of a declaration, Plaintiff concedes that her claim was not filed until July but indicates that it was originally “rejected” on May 27, 2019, and then “rejected” again on June 26, 2019 as a result of a “clerical issue with the case number.” This does not change the fact that the complaint was not timely filed, and Plaintiff’s month-long delay in attempting to refile it is inexcusable, particularly given the Probate Court’s need to settle Mr. Nesse’s estate in a timely manner. The defect is not curable, thus leave to amend would not be appropriate.

Therefore, the demurrer is SUSTAINED, without leave to amend on the basis that the claim is time-barred.