Judge: Anne Hwang, Case: 21STCV47242, Date: 2023-11-27 Tentative Ruling

Case Number: 21STCV47242    Hearing Date: November 27, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

On December 28, 2021, Plaintiff Jose Macias (Plaintiff) filed a complaint against Defendants Erwin Blum, Elaine Blum, and Does 1 to 50 for injuries resulting from an alleged motor vehicle accident. The incident occurred on January 9, 2020 (Complaint ¶ 9.) On July 7, 2021, Defendant Erwin Blum (Decedent) passed away.

On March 20, 2023, Decedent’s Notice of Death was filed with the Court. On July 20, 2023, Plaintiff added “Estate of Erwin Blum” as Doe 1 to the complaint. Erwin Blum was dismissed from the action on September 27, 2023.

Estate of Erwin Blum (Estate), appearing specially, now moves to dismiss the action against Estate on the basis that Plaintiff failed to timely serve it under Code of Civil Procedure section 377.50 and Probate Code section 550 et seq. No opposition has been filed.

LEGAL STANDARD

 “A pending action or proceeding does not abate by the death of a party if the cause of action survives.”  (Code Civ. Proc., § 377.21.)  Death of a party occurring before judgment, makes it improper to render judgment for or against the deceased party without first taking the procedural step of substituting the executor or administrator.  (See Grappo v. McMills (2017) 11 Cal.App.5th 996, 1007.)   To wit, “[o]n motion, the court shall allow a pending action or proceeding against the decedent that does not abate to be continued against the decedent's personal representative or, to the extent provided by statute, against the decedent's successor in interest.”  (Code Civ. Proc., § 377.41.) 

Code of Civil Procedure section 377.50 states in relevant part: “An action to establish the decedent's liability for which the decedent was protected by insurance may be commenced or continued against the decedent's estate as provided in Chapter 1 (commencing with Section 550) of Part 13 of Division 2 of the Probate Code.”

Probate Code section 550(a) provides: “Subject to the provisions of this chapter, an action to establish the decedent's liability for which the decedent was protected by insurance may be commenced or continued against the decedent's estate without the need to join as a party the decedent's personal representative or successor in interest.” Probate Code section 552, subdivision (a) states, “An action under this chapter shall name as the defendant, ‘Estate of (name of decedent), Deceased.’ Summons shall be served on a person designated in writing by the insurer or, if none, on the insurer. Further proceedings shall be in the name of the estate, but otherwise shall be conducted in the same manner as if the action were against the personal representative.” 

Probate Code section 551 states: “Notwithstanding Section 366.2 of the Code of Civil Procedure, if the limitations period otherwise applicable to the action has not expired at the time of the decedent's death, an action under this chapter may be commenced within one year after the expiration of the limitations period otherwise applicable.” Code of Civil Procedure section 366.2(a) provides: “If a person against whom an action may be brought on a liability of the person, whether arising in contract, tort, or otherwise, and whether accrued or not accrued, dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply.”

JUDICIAL NOTICE

Estate requests judicial notice of: (1) Plaintiff’s Complaint; (2) Decedent’s Certificate of Death; (3) the Court’s electronic docket; and (4) the Doe Amendment filed on July 20, 2023 in this case. The requests are granted pursuant to Evidence Code section 452(c), (d). (See People v. Terry (1974) 38 Cal.App.3d 432, 439 [judicial notice may be taken of a death certificate].)

DISCUSSION

Estate argues that Plaintiff failed to timely serve it with the summons and complaint. Here, the subject motor vehicle incident occurred on January 9, 2020. The statute of limitations for a personal injury action is two years. (Code Civ. Proc. § 335.1.) In 2020, the California Rules of Court enacted Emergency Rule 9, which tolled the statute of limitations for civil actions from April 6, 2020, until October 1, 2020, or 178 days. (CRC Emergency Rule 9.) Therefore, the statute of limitations for this case expired on July 6, 2022 (two years from January 9, 2020 plus 178 days).

Decedent died on July 7, 2021, which was before the complaint was filed on December 28, 2021. Therefore, because Decedent died before the statute of limitations period had expired, Probate Code section 551 applies. As a result, Plaintiff had to commence his action against Decedent’s estate within one year after the statute of limitations expired: July 6, 2023. Here, Plaintiff did not serve Estate until July 21, 2023. Therefore, the action against the Estate is barred.[1]

However, Estate fails to cite a code section or case authority that allows the Court to grant a motion to dismiss under these circumstances. In essence, Estate’s motion is a demurrer. (See, e.g., Saliter v. Pierce Brothers Mortuaries (1978) 81 Cal.App.3d 292.) Although Estate did not comply with the procedural requirements of a demurrer, including the meet and confer requirement (see Code of Civil Procedure section 430.41), “[a] determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc. § 430.41 (a)(4).) Accordingly, the Court considers the motion to dismiss to be a demurrer to the complaint against Estate, and sustains the demurrer on statute of limitations grounds.

CONCLUSION AND ORDER

Therefore, Estate of Erwin Blum’s demurrer is sustained without leave to amend.

Estate shall provide notice of the Court’s ruling and file a proof of service of such.