Moss v. Moss
139 Cal. Rptr. 3d 94
Cal. Ct. App.2012Background
- Barry Moss filed a postprobate contest to the 2006 Will after Oliver and Blackwell had filed preprobate contests to Lorraine’s petition to probate that will; Lorraine sought to demur Barry’s postprobate contest as barred by 8270 and as untimely; the trial court sustained Lorraine’s demurrer without leave to amend, effectively dismissing Barry’s petition; Barry had personally served Lorraine’s attorney of record, which Lorraine’s attorney later claimed to be improper; the court’s order admitted the 2006 Will to probate without addressing the preprobate contests; the court ultimately held that service on the attorney could be valid under CCP 416.90, and that 8270 did not bar Barry’s postprobate contest because no adjudication of the preprobate contests occurred; the appellate court reversed the demurrer and remanded for consideration of Barry’s postprobate contest on the merits
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service on Lorraine via her attorney of record was valid service of process | Barry argued CCP 416.90 allows service on an ostensible agent | Lorraine argued service on her attorney was insufficient unless authorized | Service on attorney was valid; demurrer untimely was incorrect |
| Whether the demurrer was timely and proper | Barry claimed timely response under 8271; Lorraine’s demurrer was untimely | Lorraine contends timely demurrer supported by service date | Demurrer timely under proper service; reversal of dismissal on timeliness and merits |
| Whether section 8270 barred Barry’s postprobate contest because preprobate contest existed | Barry maintained court never adjudicated preprobate contests; 8270 not applicable | Lorraine argued bar applies if preprobate contest existed | 8270 does not bar where court did not adjudicate preprobate contests; remand for merits examination |
Key Cases Cited
- Warner Bros. Records, Inc. v. Golden West Music Sales, 36 Cal.App.3d 1012 (Cal. App. 1974) (service on ostensible agent can be valid under 416.90)
- Summers v. McClanahan, 140 Cal.App.4th 403 (Cal. App. 2006) (ostensible authority to accept service; practical notice considerations)
- Pasadena Med.-Ctr. Assocs. v. Superior Court, 9 Cal.3d 773 (Cal. 1973) (service on corporate agent with ostensible authority)
- Estate of Hoover, 139 Cal.App.2d 753 (Cal. App. 1934) (postprobate bar for two trials of same issues; preprobate dismissal affects bar)
- Estate of Meyer, 116 Cal.App.2d 498 (Cal. App. 1953) (legislative intent to discourage delaying postprobate filing after pending preprobate)
- Estate of Horn, 219 Cal.App.3d 67 (Cal. App. 1990) (preprobate vs postprobate contest treatment when not litigated)