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.

Defendant filed a demurrer that was original heard by the Court on November 19, 2019. Following oral argument and submission by all parties, on January 6, 2020, the Court vacated the submission and ordered Plaintiff to submit further briefing on the timeliness of the FAC and also allowed Defendant to file a reply brief.

Thus, the Court reconsiders the demurrer based on the papers and authorities submitted in response to its order.

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. (Code Civ. Proc., § 430.10, subd. (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. § 430.30, subd. (a).)

C. Timeliness
D.

In support of the original demurrer, Defendant argued 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 an estate in incurable. (Ibid; see Nathanson v. Superior Court (1974) 12 Cal.3d 355; see also 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.) It is undisputed that the FAC was ultimately filed on July 1, 2019, 117 days later. However, Plaintiff seeks excuse for her mistake, and the Court considers her supplemental argument.

In response to the Court’s order to file a memorandum of points and authorities in compliance with the Code of Civil Procedure and the California Rules of Court, Plaintiff again submits a “declaration” setting forth facts upon which she relies to demonstrate her mistake, and her papers are not in compliance with the applicable Rule of Court. (See Cal. Rules of Ct., rule 3.1113, subd. (a) & (b) [A memorandum of points and authorities shall contain a statement of facts, a concise statement of the law, evidence and arguments relied on and a discussion of the statutes, cases, and textbooks cited in support of the position advanced. The court may construe the absence of a memorandum in support of a demurrer as a waiver of grounds not supported].) Likewise, the arguments she advances are not persuasive.

First of all, while Plaintiff acknowledges receipt of the notice of rejection of her creditors claim on March 4, 2019, she also states that she first attempted to file her complaint on May 27, 2019, which was six days before the limitation period deadline. She then received electronic email notice (attached to her declaration) on May 31, 2019, that the filing was rejected by the clerks’ office because she filed it under the probate case number, rather than the civil case number. Nonetheless, Plaintiff delayed in attempting to re-file until June 6, 2019 – which was after the 90-day deadline to file. Aside from stating she attempted to re-file “3 work days” after receiving the rejection, she offers no excuse for this delay, or an explanation of why she did not file on June 3 or 4, 2019, both of which were business days, and would have put her second attempted filing within the limitations period.

Furthermore, her “Legal Points and Authorities” begins by pleading her case as a pro per litigant who cannot afford representation. She then seeks excuse from her filing error, citing Code of Civil Procedure section 473 based on her mistake and not any “willful disregard of the court’s processes.” Otherwise, she fails to cite any legal authority in support of excuse for her mistake or inadvertence, or facts to justify her mistakes aside from her status as a litigant without counsel.

As Defendant argues, a pro per litigant is held to the same restrictive rules of procedure as an attorney, and when she “accepts the risks of proceeding without counsel she has … no greater opportunity to cast off an unfavorable judgement than she would if represented by counsel.” (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267.) Furthermore, “[a]lthough section 473 may afford parties relief from the consequences of a wide variety of procedural errors [.] ‘it does not offer relief from mandatory deadlines deemed jurisdictional in nature.’” (Jackson v. Doe (2011) 192 Cal.App.4th 742, 755, citation omitted “Jackson”.) In Jackson, a demurrer was sustained when a pro per litigant alleging causes of action based on sexual abuse failed to file a timely “certificate of merit” as required in such litigation. The Jackson court held that the mistake was not excusable, particularly given the stringent, jurisdictional requirement that the certificate be filed within 60 days of the filing of the complaint. (Jackson v. Doe, supra, 192 Cal.App.4th 742, 755.)

Here, having waited 84 days to initially file her claim, which was rejected by the clerk on May 31, 2019, Plaintiff failed to re-file on either June 3, 2019, or June 4, 2019, and delayed in attempting to re-file until June 6, 2019, after the limitations period expired. This delay is not explained by Plaintiff. Furthermore, her subsequent error in her June 6, 2019, filing of incorrectly using the probate case number on her complaint document is not excusable, regardless of her status as a pro per litigant. This is true because the probate timelines are stringent, and the policy in favor of the timely disposition of an estate must be effectuated.

Therefore, the demurrer to the FAC on the ground of failure to state sufficient facts is SUSTAINED, without leave to amend on the basis that the claim is time-barred.