Judge: David A. Rosen, Case: BC654195, Date: 2023-02-10 Tentative Ruling
Case Number: BC654195 Hearing Date: February 10, 2023 Dept: E
Hearing Date: 2/10/2023 – 10:00am
Case No: BC654195
Trial Date: 03/20/2023
Case Name: DONARA GRIGORYAN v. ENTERPRISE RENT-A-CAR COMPANY et al.
TENTATIVE
RULING ON MOTION TO STRIKE OR IN THE ALTERNATIVE MOTION FOR JUDGMENT ON THE
PLEADINGS
Moving Party: Intervenor, Empire Fire and Marine
Insurance Company (Empire or Intervenor)
Responding Party: Plaintiff, Donara Grigoryan
Moving Papers: Notice
of Motion/Motion; Proof of Service; Alex Linhardt Declaration; Request for
Judicial Notice; Proposed Order
[Notice of Joinder filed 1/20/23 by Defendant, The
Estate of Izat Murataliev, to join in the motion of Intervenor.]
Opposition Papers: Opposition.
Reply Papers: Reply; Supplemental Declaration of Alex
Linhardt
Preliminary
Procedural Matters
Proof of Service
Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Opposition argues that
the instant motion was untimely under CCP §1005(b). Plaintiff accurately points
out in Opposition that based on service by email on January 19, 2023, this
motion would be late because two calendar days must be added, and the motion should
have been served by email on January 17, 2023. However, the proof of service
for this motion states that the moving papers were also served by personal
service on January 19, 2023. January 19, 2023 was 16 Court days before the
instant hearing, and the moving papers were therefore timely. (See Board of
Trustees of Leland Stanford Junior University v. Ham (2013) 216 Cal.App.4th
330, 336 stating, “The preferred way to serve a defendant, of course, is by personal
delivery, as prescribed in section 415.10, as this is the most likely to ensure
actual notice to the defendant. [Citation omitted.] Service is deemed complete
at the time of delivery.”)
Opposition argues, “Plaintiff’s
counsel’s office did not receive the documents via the signatory on the alleged
proof of service Alex Linhardt on January 30, 2023.” (Oppo. p.3.) The Court
notes how this sentence is confusing and vague. If the Court were to assume
that Plaintiff is attempting to argue that personal service was not conducted
on January 19, 2023, the Court does not find this argument convincing. Linhardt
submitted a supplemental declaration for Intervenor which contained a proof of
service in Exhibit 1 of proof of personal service on Plaintiff.
Proper Address: Ok
RELIEF REQUESTED
Intervenor,
Empire, moves to strike or dismiss (i) Plaintiff’s Amendment to Complaint filed
on November 3, 2021, and (ii) Izat Murataliev as a party to the original
complaint.
Intervenor moves pursuant to Code of Civil Procedure
Sections 435, 436, 438, and 583.250, as well as Probate Code Section 553, and
on the grounds that Plaintiff’s Amendment to Complaint is defective because
(inter alia): (i) Plaintiff was required to obtain leave of court to amend her
complaint but did not do so; (ii) Plaintiff cannot simultaneously sue an
individual and his Estate as if he is both alive and dead; (iii) Plaintiff’s
attempted amendment effectively dismissed her claim against Defendant Izat
Murataliev; (iv) Plaintiff cannot amend her complaint in such a way as to fail
to state a viable cause of action; (v) Plaintiff cannot add a new defendant
after the statute of limitations has passed where the relation-back doctrine
does not apply; (vi) Plaintiff cannot add a new defendant or “rename” a Doe
defendant outside the applicable three-year service period; (vii) Plaintiff
cannot use Probate Code Sections 550 and 552 to add an Estate after the statute
of limitations has passed; and (viii) Plaintiff has not demonstrated that she
satisfied the requirements of Probate Code Section 552.
In
the alternative, Empire moves for judgment on the pleadings pursuant to CCP
§438(d).
BACKGROUND
This
case arises from a motor vehicle accident which occurred on July 21, 2015, on
the SR-170 Freeway in Los Angeles, California wherein Defendant, Izat Murataliev
driving a rental vehicle owned and rented by Defendant Enterprise smashed into
the back of a vehicle in which Plaintiff, Donara Grigoryan, was a passenger. As
a result of the accident, Plaintiff sustained injuries and on March 15, 2017,
brought this action to recover for the damages sustained. Plaintiff brought
suit against the driver Izat Murataliev as well as Defendants Enterprise
Rent-A-Car of Los Angeles who provided the rental vehicle to the driver, and
EAN Holdings, LLC. Empire Fire and Marine Insurance Company joined the lawsuit
as an Intervenor and filed a Complaint in Intervention. Enterprise and EAN have
been dismissed from the case by virtue of summary judgment.
The object of this motion to strike is to strike the
pleading that Plaintiff filed on November 3, 2021, the Amendment to Complaint,
wherein Plaintiff substituted Doe 1 for the Estate of Murataliev.
Meet
and Confer
Before filing a motion to strike pursuant to
this chapter, the moving party shall meet and confer in person or by telephone
with the party who filed the pleading that is subject to the motion to strike
for the purpose of determining if an agreement can be reached that resolves the
objections to be raised in the motion to strike. If an amended pleading is
filed, the responding party shall meet and confer again with the party who
filed the amended pleading before filing a motion to strike the amended
pleading. (CCP §435.5(a).)
Here, the declaration
of Linhardt states that the parties met and conferred but an agreement could
not be reached. (Decl. Linhardt ¶¶2-3.)
Legal Standard Motion to Strike
The court
may, upon a motion made pursuant to Section 435, or at any time in its
discretion, and upon terms it deems proper, strike any irrelevant, false, or
improper matter inserted in any pleading. (Code Civ. Proc. § 436(a).) The court
may also strike all or any part of any pleading not drawn or filed in
conformity with the laws of this state, a court rule, or an order of the court.
(Code Civ. Proc. § 436(b).) A motion to strike cannot be based upon the
grounds that a complaint fails to state facts sufficient to constitute a cause
of action, but instead is properly based on grounds of superfluous or abusive
allegations, or improprieties in form or procedure. (Ferraro
v. Camarlinghi (2008) 161 Cal.App.4th 509,
528-29.)
The grounds for moving
to strike must appear on the face of the pleading or by way of judicial
notice. (Code. Civ. Proc. § 437; Turman v. Turning Point of
Central California, Inc. (2010) 191 Cal.App.4th 53, 63 [“In passing on the
correctness of a ruling on a motion to strike, judges read allegations of a
pleading subject to a motion to strike as a whole, all parts in their context,
and assume their truth.”].)
ANALYSIS
Untimely Motion to Strike
Plaintiff’s
Opposition argues that this motion to strike is untimely based on 435(b)(1)
because it wasn’t filed within the time allowed to respond to a pleading. Plaintiff’s
argument is not convincing in light of the Reply and CCP §436. “The court may,
upon a motion made pursuant to Section 435, or at any time in its discretion,
and upon terms it deems proper: (a) Strike out any irrelevant, false, or
improper matter inserted in any pleading. (b) Strike out all or any part
of any pleading not drawn or filed in conformity with the laws of this state, a
court rule, or an order of the court.” (CCP §436, emph. added.)
Service of Murataliev
Intervenor
argues that there is substantial evidence in the record indicating that
Murataliev was never properly served and was never aware of this lawsuit.
The Court finds this argument unavailing.
Murataliev was served by substitute service on December
26, 2017, and competent proof thereof was filed on December 27, 2017. On March
14, 2018, Murataliev Answered the complaint.
September and November Final Status
Conference
Although
Intervenor accurately points out that Plaintiff did not file a statement
informing the Court that Murataliev had died or provide any proof of his death after
the September 28, 2021, Final Status Conference, this does not take
jurisdiction away from this Court. Plaintiff simply did not abide by the
September 28, 2021, Minute Order.
Leave of Court to Amend Complaint
Intervenor
argues that Plaintiff was required to obtain leave of court to amend the
pleading to add the Estate of Murataliev, and since leave to amend was not
obtained, the Estate should be stricken.
The Court does not find Intervenor’s argument
convincing.
Intervenor cites CCP §473(a), but Intervenor’s
argument ignores the fact that Plaintiff is appearing to add the Estate as a
Defendant in the context of Probate Code 550 et seq.
Nothing in Prob. Code 550 et seq. or Prob. Code 9390(a)
requires Plaintiff to obtain leave of court, in contrast to CCP §377.41, which
requires a noticed motion, but is inapplicable to this matter.
Plaintiff cannot simultaneously sue an
individual and his Estate as if he is both alive and dead
Intervenor
argues on page 2 of its Notice of Motion that Plaintiff cannot simultaneously
sue an individual and his Estate as if he is both alive and dead.
As a preliminary matter, Intervenor did not address
this issue in its motion; it only addressed it on page 2 of its Notice of
Motion. However, the Court finds Intervenor’s argument in the instant context
unavailing. Here, the Plaintiff brought in the Estate of Murataliev after
Murataliev died.
Plaintiff’s attempted amendment
effectively dismissed her claim against Defendant Izat Murataliev
Intervenor
argues that Plaintiff’s attempted amendment effectively dismissed her claim against
Defendant Izat Murataliev. Intervenor argues how if Murataliev is not
dismissed, there could potentially be a judgment against an individual that is
deceased.
Here, the Court agrees with Intervenor’s argument that
Izat Murataliev is dismissed because a judgment cannot be obtained against a deceased
person.
Plaintiff cannot amend her complaint in
such a way as to fail to state a viable cause of action
On
page 2 of Intervenor’s Notice of Motion, Intervenor argues that Plaintiff
cannot amend her complaint in such a way as to fail to state a viable cause of
action. This argument is not addressed in the motion, and the Court is entirely
unclear as to the argument that Intervenor is making on this issue.
Plaintiff cannot add a new defendant after
the statute of limitations has passed where the relation-back doctrine does not
apply
Intervenor
argues that Plaintiff’s claims against the Estate are time barred. In
particular, Intervenor argues that Plaintiff cannot rely on the relation-back
doctrine to add the Estate as a defendant because the statute of limitations
already ran.
Here, the Court finds that Intervenor’s arguments are
nonsensical, defying common sense, and supported only by inapposite cases and
statutes.
In the instant scenario, the accident at issue
occurred on July 21, 2015, and Intervenor concedes that the statute of
limitations on the cause of action ran to July 21, 2017. Further, Intervenor
concedes that Plaintiff’s original complaint was timely filed against the
original defendants in March of 2017. However, Intervenor attempts to argue
that because the claims against the Estate were asserted after the statute ran,
the attempted amendment must be stricken.
Intervenor’s argument is misplaced. In Litwin v.
Estate of Fomela (2010) 186 Cal.App.4th 607, cited by Intervenor, an
automobile collision occurred in 2004, and a complaint was filed on May 22, 2008,
against the defendant and an amended complaint naming the estate was filed on
September 17, 2008. In Litwin, the court held that the original
complaint filed against Defendant was untimely and the claims against the
estate were also untimely.
Here, the facts at hand are entirely different. The
initial complaint against the Defendant, who was alive at the time the
complaint was filed, was timely. Intervenor’s attempt to argue that even though
the action was timely filed against the decedent, the action must also be filed
within the statute of limitations for the Estate defies common sense and law. As
a matter of common sense, the estate of a decedent would not be added to the
action if there is not yet a decedent. As a matter of law, a Plaintiff does not
simply lose their claim because the Defendant died. “Except as otherwise
provided by statute, a cause of action for or against a person is not lost by
reason of the person’s death but survives subject to the applicable limitations
period.” (CCP §377.20(a).)
Here, Murataliev was timely sued within the statute of
limitations, and died while this action, at issue as to him, was still pending.
Further, Intervenor’s arguments on pages 17-19 on
Section 474 and the relation back doctrine are inapposite in the instant
context.
Intervenor also argues that the Estate was not served
within the three-year period for commencement of an action.
Here, again, Intervenor’s argument is misplaced and
out of context in attempting to argue that the Estate must have been added
within three years based on the time for filing the original complaint.
Probate Code Sections 550 et seq.
Intervenor
argues that Plaintiff failed to follow proper procedures of the probate code to
substitute the estate or personal representative.
Intervenor makes arguments on this issue on pages 20-22
of its motion.
As a preliminary matter, the Court is not clear why
Intervenor cites to CCP §377.40 and 377.50 because here, Plaintiff proceeded
under Probate Code 550 et seq. See, Meleski v. Estate of Hotlen (2018-3d
Dist.) 29 Cal. App. 5th 616, 620-621.
“An action to establish the decedent’s liability for
which the decedent was protected by insurance may be commenced or continued
under Section 550, and a judgment in the action may be enforced against the
insurer, without first filing a claim as provided in this part.” (Prob. Code
§9390(a).) “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.” (Prob. Code §550(a).) “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.” (Prob. Code §552(a).)
Here, however, it is unclear if Plaintiff properly followed
all of the procedures of Probate Code 550 et seq. Plaintiff properly named the Estate of Izat
Murataliev, decedent, and, on November 10, 2021, Plaintiff personally served
Koy Saechao, an individual that the proof of service states was authorized to
accept service. This proof of service was filed with the Court on November 15,
2021. Insurance defense counsel filed an Answer on behalf of the Estate on
December 3, 2021.
Intervenor argues that nowhere on this last proof of
service does the name Empire or the name of the insurer appear, nor is the name
of any entity with which Koy Saechao is associated indicated, nor is the entity
for which Koy Saechao was allegedly authorized to accept service named.
Intervenor argues that because Empire’s name and/or the name of of any insurer
does not appear on any proof of service nor was any proof tendered to show that
Koy Saechao was the induvial authorized by Empire, or other insurer, to accept
service on its behalf, the record lacks the required evidence that proper
service was accomplished on an insurer or its authorized representative for
service of process as required pursuant to 550 and 552.
There is no law cited requiring Plaintiff to state on
the proof of service the facts of its selection of Koy Saechao as the
individual to serve. However, based on
the facts before the Court, the court is uncertain if Plaintiff fully complied
with 552, specifically, Probate Code 552(a), because the Court doesn’t know how
the Plaintiff decided to serve Koy or what basis existed for Plaintiff to claim
Koy was authorized by the Insurer to accept service.
In addition, neither party makes clear whether there
is a time limit/statute of limitations with which Plaintiff is to comply when
proceeding Probate Code 550 et seq. and 9390.
CCP 366.2 is inapplicable on its face.
The Court has found no such statute or time limit, and is prepared to
conclude that where, as here, Defendant dies while a case, at issue as to that
Defendant, is still pending, and Plaintiff elects to proceed under the special
Probate Code 550, et seq., 9390 procedures, the Estate may be substituted in
for its decedent at any time before Trial.
Further, the Court is unclear as to how Intervenor has
standing to bring this motion based on Intervenor’s reference to Probate Code
553. Intervenor’s statement of standing
in footnote 11 of the moving papers is an ipse dixit.
TENTATIVE RULING
Empire’s
request that Plaintiff’s November 3, 2021, filing entitled “Amendment to
Complaint (Fictitious/Incorrect Name)” be stricken is Moot.
The Court GRANTS the motion to strike in so far as
dismissing the individual person, Izat Murataliev, from the complaint since he
is deceased.
The Court requests further briefing as to whether there
is a statute of limitations or time period in which an Estate must be named and
served under Probate Code 550 et seq., 9390 when a Defendant dies while the
case is already pending and at issue as to Defendant.
The Court requests further briefing as to whether or
not Plaintiff complied with 552(a). Specifically, what was the basis for
Plaintiff serving Koy Saechao?
Parties are to efile and eserve their further
briefing, limited to five (5) pages per party, on or before February 21,
2023. No opposition or reply briefing
will be accepted.
Intervenor’s requests for judicial notice of Exhibits
A-Q were unopposed. The requests for judicial notice are granted.