Nunez

Real parties in interest are the heirs of Sylvia Montoya and are plaintiffs in a wrongful death action brought against the estate of Sylvia’s deceased spouse, Jerry Montoya. Their complaint alleged he negligently piloted a light aircraft causing it to crash, resulting in his death followed by Sylvia’s death. Petitioner answered, asserting the action was barred for failure to file a claim with the estate. Petitioner’s motion on this ground for summary judgment, which we treat as a motion for judgment on the pleadings, was denied. We issued an alternative writ to consider whether the requirement a claim be filed with the estate turns on the happenstance of the order of the spouses’ deaths. We will conclude the claim must be filed with the estate as a prerequisite to maintenance of the action.

Facts

The pertinent allegations are few. The aircraft crashed on May 25, 1980. Real parties allege Jerry Montoya died a short time after the accident and Sylvia Montoya died three days later. On May 27, 1981, real parties filed their first amended complaint seeking recovery from the estate of Jerry Montoya. They did not file a probate claim with the estate.

Discussion

At issue is…