Judge: Cherol J. Nellon, Case: 20STCV48417, Date: 2023-05-09 Tentative Ruling

Case Number: 20STCV48417    Hearing Date: May 9, 2023    Dept: 28

Defendant Heidi Lucille Russell’s Demurrer

Having considered the moving papers, the Court rules as follows.

BACKGROUND

On December 18, 2020, Plaintiffs Angie Marie Elie (“Angie”) and Robert Wayne Elie III (“Robert”) filed this action against Defendant William Berger (“Berger”) for negligence, negligence per se and statutory liability. Plaintiff later amended the complaint to include Defendants Estate of William Berger, Deceased (“Estate”) and Heidi Lucille Russell (“Russell”).

On December 16, 2022, Plaintiffs filed the FAC.

On February 3, 2023, the Estate filed an answer.

On March 17, 2023, Plaintiffs filed the SAC.

On April 7, 2023, Russell filed a Demurrer to be heard on May 9, 2023.

Trial is scheduled for June 16, 2023.

PARTY’S REQUESTS

Russell requests the Court sustain the demurrer on the basis that Plaintiffs did not comply with the probate code requirements.

LEGAL STANDARD

CCP § 430.10 states: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the

cause of action alleged in the pleading; (b) The person who filed the pleading does not have the legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible; and (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (CCP § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, 147 Cal.App.4th at 747.)

An action to establish a decedent's liability for which the decedent was protected by insurance may be commenced against the decedent's estate without the need to join as a party the decedent's personal representative. (Prob. Code, § 550(a).) Accordingly, such an action shall name as the defendant “Estate of (name of decedent), Deceased” and summons shall be served on the insurer or a person designated in writing by the insurer. (Prob. Code, § 552(a).) Typically, the damages sought in such an action shall be within the limits and coverage of the insurance and a judgment in favor of the plaintiff(s) is enforceable only from the insurance coverage and not against property in the estate. (Prob. Code, § 554(a).) However, where the amount of damages sought purportedly exceeds the insurance coverage, subdivision (a) of Probate Code section 554 does not apply if (1) the personal representative is joined as a party to the action and (2) the plaintiff files a claim in compliance with Probate Code section 9390. (Prob. Code, § 554(b).)

DISCUSSION

The Court first notes that the Court’s system indicates that all Defendants other than Berger have been removed as of March 17, 2023. However, the SAC, also filed on March 17, 2023, includes reference to the Estate and Russell as Defendants. The Court therefore rules on this demurrer on the assumption that the Estate and Russell are intended to be included as Defendants. If the intent is that Estate and Russell are not to be included as Defendants, the demurrer would be moot. Should that be the case, Plaintiff should appear at the hearing and indicate as such to the Court.

Plaintiffs’ complaint alleges that Berger negligently drove his vehicle in such a way resulting in injury to Plaintiff. Berger passed away prior to the filing of this case. Russell was included as the administrator of the estate—Plaintiffs allege she failed to provide all creditors, including Plaintiffs, with notice of administration of the estate.

Under the Probate Code, unless a personal representative of a decedent’s estate is joined and the plaintiff files a creditor’s claim against the estate, “the judgment in an action under Probate Code section 550 cannot exceed the limits of the insurance coverage.” (Estate of Prindle (2009) 173 Cal.App.4th 119, 129.) An action cannot be commenced against a decedent’s personal representative unless a claim against decedent is first filed and rejected in whole or in part. Prob. Code § 9351. There is no evidence to indicate that Plaintiffs complied with the necessary steps prior to naming Russell as a party to the action, meaning Russell is an inappropriate defendant to which the Court lacks jurisdiction. Mere mention that Russell failed to give notice of the administration of the estate as required by Prob. Code § 9050, does not allow Plaintiffs to file directly against Russell as administrator. Plaintiffs have identified the Estate as a defendant, preserving their rights to pursue litigation against the appropriate party. If Plaintiffs would like to also include Russell as the specific personal representative, they must abide by probate requirements.

The Court sustains the demurrer.

CONCLUSION

Defendant Heidi Lucille Russell’s Demurrer is SUSTAINED, with 30 days leave to amend.

Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.