Spears v. Spears

316 Cal. Rptr. 3d 451

Brian SPEARS, Plaintiff and Appellant,

v.Therese SPEARS, as Trustee, etc., Defendant and Respondent.

A164622

Court of Appeal, First District, Division 4.

Filed December 19, 2023

Trial Court: Humboldt County Superior Court, Trial Judge: Hon. Kelly L. Neel (Humboldt County Super. Ct. No. PR2100106)

Brian Spears, in pro per., for Plaintiff and Appellant.

The Harland Law Firm, John S. Lopez, Eureka, for Defendant and Respondent.

BROWN, P. J.

Brian Spears filed a petition seeking to be named as a creditor of his deceased father’s trust; to remove his step-mother, Therese Spears, from her position as trustee; and for an accounting.¹ The trial court dismissed Brian’s petition on the basis that he did not file an amended pleading after the court sustained Therese’s demurrer to the petition with leave to amend. Brian appeals, contending he did file an amended pleading, reasserting only his claim to be named as a creditor of the trust. We agree.

Therese offers several alternative rationales for upholding the order of dismissal. We agree that the statute of limitations bars recovery on one of the alleged agreements on which Brian bases his creditor’s claim, but we reject Therese’s arguments as to the other alleged agreement. We will therefore reverse the judgment and remand with instructions for further proceedings.

BACKGROUND

Brian’s father, James, created a revocable trust in 2018 and funded it with his separate property. The trust provides for a bequest to Brian of $1,000. The other beneficiaries of the trust are Therese’s and James’ other children, step-children, and grandchildren. James died in October or November 2020. It appears that no one opened a probate proceeding to administer James’ estate. Upon James’ death, Therese became the successor trustee.

In April 2021, Brian filed a petition to remove Therese from her position as trustee, for an accounting of the trust, and to be added as a creditor of the trust pursuant to Probate Code sections 19000, 19050, and 19150–19151.² Brian filed the petition from prison. Brian alleged in the petition that he had no faith that Therese would give him his bequest under the trust. As to his creditor’s claim, Brian alleged that Therese owed him a total of $40,000 based on two agreements: $30,000 after Therese failed to pay Brian and his wife certain payments received from the State of California for the care of James’ and Therese’s granddaughter, Janaea; and $10,000 after Therese bought a modular home from Brian. Brian further alleged that Therese’s debts to him and his estranged wife were community property debts and should be included in the debts of James’ trust.

Therese demurred, arguing that she paid Brian his $1,000 bequest after he filed his petition, so he no longer had standing to request an accounting or to remove her. She also argued Brian could not state a claim against the trust based on Therese’s personal debts. Additionally, Therese argued Brian had not described the agreements giving rise to her alleged debts with sufficient specificity.

In his opposition to Therese’s demurrer, Brian argued his creditor’s claim was pursuant to sections 19000, 19050, and 19150–19151 and covered by sections 18200, 19003–19005, 19008, 19040, 19053, and 19100. Brian also moved to strike the demurrer because he alleged Therese had falsely represented that she paid Brian his bequest before filing the demurrer when in reality she paid it afterwards.

At the hearing, Brian conceded that he had received his $1,000 bequest and only contested Therese’s demurrer as to his creditor’s claim. Therese argued that Brian needed to plead the creditor claim with more specificity, to make clear when the debts were incurred and that the alleged debts were chargeable to James. The trial court denied Brian’s motion to strike and sustained Therese’s demurrer with leave to amend as to his creditor claim.

A couple months later, Brian filed a document titled "Creditor’s Claim," using the same case number that was assigned to his original petition. Brian again asserted the claim was pursuant to sections 19000 and 19150–19151. Brian’s creditor’s claim rested on the same two oral agreements alleged in his original petition, although he alleged slightly different amounts owed than alleged in the original petition. As to the first agreement, he alleged that James and Therese received $60,000 from the State of California for the care of Janaea Spears—money that was intended for Brian and his estranged wife. On January 15, 2012, James orally promised to repay the money that was due in periodic payments and that if he died before paying off the debt, the debt would become due and payable in full.

Regarding the second alleged agreement, Brian alleged that sometime in 1996 or 1997, he made an oral agreement with James and Therese to sell them a modular home. James and Therese agreed to pay Brian and his wife $30,000 in monthly payments of $300. James agreed that if he died before paying the entire debt, the debt would become due and payable in full.³

Therese filed an objection to Brian’s creditor’s claim. She never argued that Brian's claim was not an amended petition. Instead, she argued the trial court should reject Brian’s petition because he needed to file his claim against James’ estate, not the trust, and his claims were barred by the statute of limitations and statute of frauds. Brian filed a written reply.

At a hearing, Brian for first time argued that section 850 permitted his claim. The trial court took the matter under submission to consider section 850. The trial court sustained Therese’s demurrer with leave to amend and then dismissed the matter with prejudice on February 14, 2022, after Brian declined to file an amended petition.

DISCUSSION

I. Jurisdiction

[1] Before turning to the merits of the case, we must first establish that we have jurisdiction over the appeal. Brian is appealing from the trial court’s February 14, 2022, order of dismissal. The trial court did not previously announce its intended decision. The trial court clerk served a notice of entry of the order on Brian on February 16, 2022. Pursuant to California Rules of Court, rule 8.104(a)(1)(A), Brian had 60 days from February 16, 2022, to file his notice of appeal.

[2] According to the clerk’s transcript that the trial court provided, Brian filed his notice of appeal on January 31, 2022. When a notice of appeal is filed before a trial court announces its intended decision, renders judgment, or enters judgment, like Brian’s was here, the notice of appeal is not timely and the appeal must be dismissed. (Silver v. Pacific American Fish Co., Inc. (2010) 190 Cal.App.4th 688, 691, 118 Cal.Rptr.3d 581; First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 960, 134 Cal.Rptr.2d 206; see Cal. Rules of Court, rule 8.104(d).)

[3] We requested supplemental briefing from the parties to address whether we should dismiss Brian’s appeal because of the premature notice of appeal. In response, Brian informed us that after he received a notice of the trial court’s ruling, he submitted a second notice of appeal to the trial court. Brian also filed requests for us to judicially notice or augment the record to include a letter to him from the trial court’s appellate clerk, stating, "The Court received your premature (CRC 8.104(d)) Notice of Appeal on January 31, 2022. Once the judge made a ruling on February 14, 2022, then your appeal was filed. There is no need to keep filing and appeal for the same cause of action."⁴ Together with this letter, the trial court returned Brian’s second notice of appeal, unfiled.

Brian argues under these circumstances we should not dismiss his appeal. We agree. He presents several different rationales, but the most straightforward one is the correct one. Because Brian’s initial notice of appeal was premature and invalid, the trial court clerk was legally obligated to file his second notice of appeal. Brian’s second notice of appeal was mailed on February 27, 2022. The clerk received it, since the clerk responded to it by letter and mailed it back. We therefore deem the second notice of appeal timely filed. (Lezama-Carino v. Miller (2007) 149 Cal. App.4th 55, 58–59, 56 Cal.Rptr.3d 671 [when clerk of court erroneously failed to file document, Court of Appeal deemed the document filed on the day received by the clerk]; Rapp v. Golden Eagle Ins. Co. (1994) 24 Cal.App.4th 1167, 1172, 30 Cal. Rptr.2d 126 [same]; see also Cal. Rules of Court, rule 8.25(b)(5) [if envelope shows document was mailed or inmate delivered document to custodial officials for mailing within the period for filing the document, document is deemed timely filed even if clerk receives it late].)

II. Amended Pleading

[4] Brian contends the trial court erred in dismissing his case for failing to file an amended petition after Therese’s demurrer. We agree.

[5] Code of Civil Procedure section 581, subdivision (f)(2) provides that a court "may dismiss the complaint as to th[e] defendant … [¶] … [¶] … after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal." (Cano v. Glover (2006) 143 Cal.App.4th 326, 329–330, 48 Cal.Rptr.3d 871 [dismissal for failure to amend following order sustaining demurrer must be with prejudice].) When the trial court sustained Therese’s demurrer to Brian’s original pleading, it granted him leave to amend his complaint to plead his creditor claim with more specificity.⁵ Brian conceded he no longer had standing to file a petition to remove Therese as trustee of the trust or for an accounting. Brian then filed a document titled "Creditor’s Claim" on Judicial Council Form DE-172, together with a notice of creditor’s claim and a declaration in support of the claim. These documents provided additional specificity regarding the oral agreements on which he based his claim to be a creditor of the trust,...