Demurrer to Complaint – CONTINUED FOR FURTHER BRIEFING BY THE PARTIES
The Court continues the hearing on the demurrer to January 30, 2017 at 1:30 for several reasons.
First, Defendant has made two arguments on reply for the first time. This is improper and unfair, as it deprives Plaintiff of an opportunity to respond to them.
On Reply, for the first time, Defendant cites Probate Code § 9351 to argue that a creditor’s claim is a prerequisite to filing a lawsuit. Litigation over claims as to which no action was pending against decedent at time of death is subject to the general claim-filing requirements: i.e., an action may not be commenced against decedent's personal representative unless a claim is first timely filed pursuant to Probate Code § 9100 and the claim is rejected in whole or in part. See Prob. Code § 9351; and Prob. C. § 9350; Van Ort v. Estate of Stanewich (9th Cir. 1996) 92 F3d 831, 841 (applying California law).
Further, Defendant also argues for the first time on Reply t