     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                         DIVISION ONE

ANNA PASCUA,                                     No. 74336-8-1

                     Respondent,



SCOTT COLLINS and JOHN
GREENWAY, Co-Personal                            UNPUBLISHED OPINION
Representatives of the Estate of
Donald Sirkin,                                   FILED: October 31, 2016

                    Appellant.


       Verellen, C.J. — A personal representative who reasonably reviews the

decedent's correspondence and financial records is presumed to have exercised due

diligence, and any creditor not revealed in the review is presumed not to be reasonably

ascertainable. Those presumptions may be rebutted by clear, cogent and convincing

evidence, but a creditor's vague, general, and immaterial statements to a personal

representative do not satisfy that standard. As a result, a four-month claim period

applies.

       Pascua argues that her statements to the personal representative soon after her

father's death gave the personal representative reason to know of, or inquire further

about, her sexual abuse and infliction of emotional distress claims against her father's
No. 74336-8-1/2


estate. But she made no direct or indirect mention of facts giving notice of such claims.

As a consequence, she did not rebut the statutory presumptions, and her claims are

barred as untimely.

      We affirm the summary judgment dismissing Pascua's complaint.

                                         FACTS


       Donald Sirkin died testate on May 2, 2014. His will includes a bequest to his

daughter, Anna Pascua.

      A King County Superior Court commissioner signed an order admitting Sirkin's

will to probate and appointing Scott Collins and John Greenway as co-personal

representatives of the estate. Collins mailed the notice of appointment and pendency of

probate to Pascua on May 19, 2014.

       Collins reviewed Sirkin's correspondence, including correspondence received

after death, personal financial statements, loan documents, bank statements, and

income tax returns. Collins published a notice to creditors in the Daily Journal of

Commerce on May 12, 2014, May 19, 2014, and May 27, 2014.

       Pascua submitted her creditor's claim in the amount of $5,000,000 on April 16,

2015. Pascua alleged Sirkin "sexually, physically, and emotionally abused [Pascua]

since the age of four throughout [Pascua's] adolescent years."1 Collins informed

Pascua that the period for filing claims expired on September 13, 2014.




       1 Clerk's Papers (CP) at 66.
No. 74336-8-1/3


       On May 18, 2015, Pascua filed a complaint alleging child sexual abuse,

intentional infliction of emotional distress, negligent infliction of emotional distress, and

equitable estoppel.2

       Collins moved for summary judgment. Collins argued Pascua's claim was barred

because Pascua was not a reasonably ascertainable creditor and she did not file her

claim within four months after the notice to creditors had been published.

       In her declaration opposing summary judgment, Pascua recounted several

meetings with Collins within three months after Sirkin died. Pascua mentioned five

incidents to Collins:


       2.1    My father was cruel and abusive to my mother, my brother and me,
              and I remember discussing him hitting all of us mercilessly on a
              number of occasions;

       2.2    My father told me that I was worthless the day I was born because I
              was a girl;

       2.3    When Eric was 6 years old and I was 4 years old, my father
              appeared at our house and forced my brother and me to fly to New
              York City with him. My father flew first class, but we were left in
              coach. While in New York City, we were left in the care of the hotel
              babysitting service and put on city tour buses by ourselves;

       2.4    I refused to allow my child to spend time around my father because
              of the abuse I had suffered. When my son was three or four years
              old, my brother went behind my back to take my son to lunch with
              my father. At that lunch, my father became upset at my son for
              playing with his silverware and as a punishment would not let him
              eat;

       2.5    When I was between 5 and 6 years old, my father hit me in the
              nose so hard I thought that he had broken my nose.[3]


      2 The equitable estoppel claim alleges Sirkin's estate should be equitably
estopped from asserting any statute of limitations, laches, or the Dead Man's Statute
because his conduct was calculated to intimidate Pascua into silence.
       3CPat91.
No. 74336-8-1/4



Pascua's declaration did not include any mention of sexual abuse. Pascua testified that

she wanted to let Collins know "just how awful" her father was and that she had a

"standing invitation" to take Collins out to dinner to "tell him the complete story."4

Pascua said, "The complete story would have included the years of sexual and

emotional abuse [she] endured."5 Collins never accepted Pascua's invitation.

       The trial court granted Collins's summary judgment motion. The court concluded

there was no evidence that the personal representatives had any knowledge of

Pascua's alleged sexual abuse claim. The court also concluded Pascua's statements to

Collins did not establish a reasonably ascertainable claim.

       Pascua appeals.

                                         ANALYSIS


       We must decide whether Pascua's declaration provided clear, cogent, and

convincing evidence that she was a reasonably ascertainable creditor, resulting in a

24-month claim period. Because Pascua failed to present such evidence, we affirm.

       We engage in the same inquiry as the trial court when reviewing an order of

summary judgment.6 The facts and all reasonable inferences are viewed in the light

most favorable to the nonmoving party.7 Where there are no genuine issues of material

fact, summary judgment is proper and the moving party is entitled to judgment as a

matter of law.8 Mere allegations or conclusory statements unsupported by evidence are



       414


       6 Rucker v. Novastar Mortq.. Inc., 177 Wn. App. 1, 10,311 P.3d 31 (2013).
       7\j±
       8 Id.
No. 74336-8-1/5



not sufficient to establish a genuine issue of material fact.9 The nonmoving party may

not rely on speculation or argumentative assertions that unresolved issues remain.10

      When reviewing a summary judgment in a civil case in which the standard of

proof is clear, cogent, and convincing evidence, we "'must view the evidence presented

through the prism of the substantive evidentiary burden.'"11

       Creditors must be provided notice of the appointment of a personal

representative of an estate and an opportunity to file claims against the estate.12

      A personal representative may give notice to creditors of the decedent by

(i) actual notice personally served upon the creditor or mailed to creditor's last known

address,13 or (ii) publication once each week for three successive weeks in a legal

newspaper in the county in which the estate is administered.14 Persons that have

claims against the decedent must present their claims within the time specified in

RCW 11.40.052 or be "forever barred" from asserting those claims against the

decedent's assets.15

       If the creditor was not given actual notice under RCW 11.40.020, two different

deadlines apply for presenting a claim:




       9ld
       10 \± (quoting Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721
P.2d 1 (1986)).
       11 Woody v. Stapp, 146 Wn. App. 16, 22, 189 P.3d 807 (2008) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S. Ct. 2505, 91 L. Ed. 2d. 202 (1986)).
       12 RCW 11.40.020.
       13RCW11.40.020(1)(c).
       14 RCW 11.40.020(1 )(b).
       15 RCW 11.40.020(1).
No. 74336-8-1/6


              (i) If the creditor was not reasonably ascertainable, as defined in
      RCW 11.40.040, the creditor must present the claim within four months
      after the date of first publication of notice;

            (ii) If the creditor was reasonably ascertainable, as defined in
       RCW 11.40.040, the creditor must present the claim within twenty-four
      months after the decedent's date of death.1161

A reasonably ascertainable creditor is one that "the personal representative would

discover upon exercise of reasonable diligence."17 The personal representative

      is deemed to have exercised reasonable diligence upon conducting a
      reasonable review of the decedent's correspondence, including
      correspondence received after the date of death, and financial records,
      including personal financial statements, loan documents, checkbooks,
      bank statements, and income tax returns, that are in the possession or
      reasonably available to the personal representative.1181

RCW 11.40.040(2) provides:

      If the personal representative conducts the review, the personal
      representative is presumed to have exercised reasonable diligence to
      ascertain creditors of the decedent and any creditor not ascertained in the
      review is presumed not reasonably ascertainable within the meaning of
      RCW 11.40.051. These presumptions may be rebutted only by clear,
      cogent, and convincing evidence.'191

A creditor seeking to rebut the presumptions must produce evidence indicating the

creditor was reasonably ascertainable.20




      16 RCW 11.40.051 (1 )(b) (emphasis added).
      17 RCW 11.40.040(1).
      18 RCW 11.40.040(1) (emphasis added).
      19 RCW 11.40.040(2).
       20 Estate of Fitzgerald v. Mountain-West Resources, Inc., 172 Wn. App. 437,
450-51, 294 P.3d 720 (2012) (superior court properly concluded there "'really is no
evidence to speak of here that indicates that [the creditor] was reasonably
ascertainable'").
No. 74336-8-1/7


       This court must determine whether, viewing the evidence in the light most

favorable to Pascua, a rational trier of fact could find that she supported her claim with

clear, cogent, and convincing evidence.21

        Pascua contends she was a reasonably ascertainable creditor entitled to the 24-

month claim filing period.

       First, she argues Collins was required to examine "a// evidence 'reasonably

available'" to him.22 Her argument fails. The legislature did not include the term "all" in

RCW 11.40.040. There is no provision in the statute supporting such an expansive

obligation. More importantly, Collins satisfied the express statutory standard by

reviewing Sirkin's "correspondence, including correspondence received after death,

personal financial statements, loan documents, bank statement, and income tax

returns," and the review did not reveal Pascua as a potential creditor.23 Because the

review complied with RCW 11.40.040(1), Collins is presumed to have exercised

reasonable diligence and Pascua is presumed not to be a reasonably ascertainable

creditor.24

       Second, Pascua argues her disclosures to Collins constitute clear, cogent, and

convincing evidence rebutting the statutory presumptions. Her disclosures to Collins

were vague, general, and immaterial, not supportive of her ultimate causes of action.

Pascua never directly told Collins that Sirkin sexually abused her. She did not make

any indirect references to sexual abuse. Pascua contends, if Collins had gone to dinner


       21 Woody. 146 Wn. App. at 22.
       22 Appellant's Br. at 12 (emphasis added).
       23 CP at 39.
       24 RCW 11.40.040(2).
No. 74336-8-1/8


with her, she would have told him "the complete story" about the years of sexual and

emotional abuse she endured.25 But there is no authority for such an expansive view of

the personal representative's investigative role.

       Pascua told Collins about instances of physical hitting, but she did not provide

context suggesting sexual abuse or infliction of emotional distress.26 Furthermore, the

complaint before the trial court made no claim for physical battery.27

       Several of Pascua's disclosures related to poor parenting. She told Collins about

instances in which Sirkin was cruel and abusive, that he flew Pascua and her brother to

New York in coach while he was in first class, and that he used hotel babysitting

services and put the two children on tour buses. Based on his parenting, she did not

want her son to interact with Sirkin. These examples of poor parenting are immaterial

because they do not reveal claims of sexual abuse or infliction of emotional distress.

       We reject Pascua's contention that her disclosures triggered a personal

representative's duty to pry into undisclosed claims. The two cases from other




       25 CP at 91.
       26SeeSaldivarv.Momah. 145 Wn. App. 365, 390, 186 P.3d 1117 (2008) ("The
elements of the tort of outrage are (1) extreme and outrageous conduct, (2) intentional
or reckless infliction of emotional distress, and (3) the plaintiff actually suffers emotional
distress."); Kumar v. Gate Gourmet Inc., 180 Wn.2d 481, 505, 325 P.3d 193 (2014) ("A
plaintiff may recover for negligent infliction of emotional distress if she proves duty,
breach, proximate cause, damage, and 'objective symptomatology.'") (quoting Strong v.
Terrell, 147 Wn. App. 376, 387, 195 P.3d 977 (2008)).
       27 Contrary to Collins's expansive view of the parental immunity doctrine, we note
parental immunity does not apply where (i) parental conduct rises to the level of willful
or wanton misconduct, or (ii) where the parent is not acting in a parental capacity. See
Zellmer v. Zellmer. 164 Wn.2d 147, 188 P.3d 497 (2008); Jenkins v. Snohomish County
Public Utility Dist. No. 1. 105 Wn.2d 99, 713 P.2d 79 (1986).


                                               8
No. 74336-8-1/9


jurisdictions cited by the parties are not helpful in applying the Washington statutes.2829

          Finally, Pascua argues that because RCW 11.40.040(1) emphasizes the review

of financial records, creditors with nonfinancial claims are placed at an unfair

disadvantage. But RCW 11.40.040(1) expressly requires a review of the decedent's

correspondence, a likely source of information related to both financial and nonfinancial

claims.


       We conclude the four-month statutory time limit applied to Pascua's claim.

Collins complied with RCW 11.40.040(1). Pascua failed to present clear, cogent, and

convincing evidence rebutting the statutory presumptions. Pascua's claims for sexual

abuse and infliction of emotional distress are barred.

      Therefore, we affirm.




WE CONCUR:




  •W*fi/\^J.                                             &€Uce^;


      28 Pascua relies on Washington statutes and makes no constitutional argument.
      29 In re Estate of Austin, 389 S.W.3d 168 (Mo. 2013) (victims of sexual abuse
were reasonably ascertainable creditors because the personal representative was
aware of the sexual abuse allegations made by the minor children but failed to notify the
children when the estate opened); American Home Assurance Co. v. Gaylor, 894 So.2d
656 (Ala. 2004) (personal representative had a duty to inquire into possibility of a claim
against the estate because she was aware of the car accident that caused three deaths
and approximately $14,000 in damage).
