Estate of Starkweather

Arthur A. Park, Lisa R. McLean, Ottenweller, Solan & Park, LLP, San Francisco, for United States Fidelity and Guaranty Company.

Daniel E. Lungren, Attorney General, Charlton G. Holland, III, Senior Assistant Attorney General, for Kimberly Belshe, Director, Department of Health Services.

KLINE, Presiding Justice.

The appeals in these consolidated cases present the question of what remedy is available to the Director of the Department of Health Services (Department) when the personal representative of a decedent's estate falsely represents to the probate court that the decedent did not receive Medi-Cal benefits and notice to the Department is not required, thereby depriving the Department of its opportunity to file a claim against the estate. The Department contends it is entitled to recover from the personal representative or the surety that posted the bond guaranteeing her faithful performance of her duties to the estate, as her perpetration of extrinsic fraud upon the court constituted a failure to faithfully discharge her duties. The surety maintains the Department is limited to a statutorily provided remedy of recovery from the distributees of the estate. The two trial…