Independent Bankers Trust Co. v. Superior Court

On September 30, 1980, Independent Bankers Trust Company (petitioner) was discharged as executor of the estate of John F. Erlwein, M.D. Over 15 months later, on January 12, 1982, it was served, as executor, with summons and complaint in an action for malpractice which real parties in interest had filed in January 1979 during the pendency of the probate proceedings. American Mutual Liability Insurance Company, the liability insurance carrier for Dr. Erlwein, moved to quash service of the summons and complaint on the ground that petitioner could not properly be served as executor after discharge; petitioner joined in the motion, but the motion was denied. This petition for writ of prohibition or mandate followed. We conclude that the trial court erred in refusing to quash service of the summons and complaint, and that petitioner is entitled to relief in the form of a writ of mandate.

We first summarize the relevant procedural background. Dr. Erlwein died in January 1978 and petitioner promptly qualified as executor pursuant to Dr. Erlwein’s will. On May 19, 1978, Jose Lopez and his mother and guardian Fae J. Lopez (real parties in interest) filed a claim against the estate…