Judge: David A. Rosen, Case: BC654195, Date: 2023-05-05 Tentative Ruling
Case Number: BC654195 Hearing Date: May 5, 2023 Dept: E
Hearing Date: 05/05/2023 – 8:30am
Case No: BC654195
Trial Date: 06/20/2023
Case Name: DONARA GRIGORYAN v. ENTERPRISE RENT-A-CAR COMPANY et al.
2
- TENTATIVE RULINGS- (1) MOTION TO STRIKE OR IN THE ALTERNATIVE MOTION FOR
JUDGMENT ON THE PLEADINGS – (2) MOTION TO DISMISS
MOTION 1
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
Additional
Papers: Supplemental Brief submitted by Intervenor on 4/24/2023
Additional
Papers: Further Briefing submitted by Plaintiff on 4/24/2023
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 would be 16 Court days before the instant hearing, and the moving
papers would therefore be 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.
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 was filed on December 27, 2017. Contrary to what
Intervenor alleges, Murataliev was competently subserved consistent with
Murataliev’s March 14, 2018 Answer to 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 that if Murataliev is not
dismissed, there could potentially be a judgment against a deceased individual.
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 ran on July 21, 2017. Further, Intervenor concedes that Plaintiff’s
original complaint was timely filed against the original Defendants, including
decedent Murataliev, 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, 620-21.)
“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).)
Did Plaintiff comply with the procedures
of CA Probate Code, sec’s. 550, et seq.?
It was initially unclear whether Plaintiff followed
the proper procedures. However, after this motion was initially heard on
02/10/2023, the Court requested
supplemental briefing on this issue. Based on the supplemental briefing
submitted by both parties on 4/24/2023, the Court finds that Plaintiff followed
the proper procedures of 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 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. Prior to the supplemental briefing, the Court didn’t know how
the Plaintiff decided to serve Koy, nor on what basis Plaintiff claimed Koy was
authorized by the Insurer to accept service. However, Plaintiff cleared up this
issue in its supplemental briefing with respect to how Plaintiff brought
Murataliev’s estate, and therefore his insurance carrier, into the case pursuant
to Probate code 552(a).
While there appears to be no case law directly on
point, in Plaintiff’s further briefing in support of its opposition to the
motion to strike/MJOP, Plaintiff for the first time explains specifically,
accompanied by documentary proof, how Plaintiff complied with Probate Code 552(a).
The Plaintiff named as the Defendant, the Estate of Murataliev,
deceased, and then served that newly named Defendant by serving the summons and
complaint on a person designated in writing by the insurer. There is no
requirement that the insurer be named as a defendant nor is there any
requirement that the insurer be named on the proof of service. With respect to
the basis for Plaintiff’s claim, that Koy Saechao was a person designated in
writing by the insurer, to receive the summons and the Complaint under this Probate
Code procedure, Plaintiff provides documentation from the California Secretary
of State to the effect that Koy Saechao is a registered corporate agent
authorized to receive service of process. Empire may argue at the hearing that Plaintiff
has not presented a designation of Saechao in writing by the insurer, but
instead has presented a written designation of Saechao from the California Secretary
of State. This Court finds that would be a distinction without a difference.
Plaintiff thus complied with Probate Code 552(a).
Intervenor submitted a Declaration of Kelsie
Featherstone, to which Plaintiff objected.
That objection is sustained.
Additionally, the Court notes that it strains credulity to argue that
Plaintiff, as of 11/10/21 when she properly served the DOE amendment under CA
Probate Code, sec. 552(a), somehow knew the name of Koy Saechao if Koy was not
then listed as a designated agent for service of process of Intervenor.
Is there a time limit applicable these
special Probate Code procedures on the facts and procedural posture of this
case?
The Court requested further briefing at the 2/10/2023
hearing with respect 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., and Probate Code 9390, when a Defendant dies while the case is already
pending and at issue as to Defendant.
Here, the Court rejects the time limit-based argument
that Intervenor submitted in its supplemental briefing.
Intervenor could not point to any statute or case law that
required the decedent’s estate, and therefore the insurance coverage in place,
to be brought in within a year of his death under the Probate Code procedure of
which Plaintiff is attempting to avail herself. Intervenor’s attempt to argue
by analogy is not persuasive because the analogies Intervenor presents all
derive from situations where the deceased defendant died before the subject
lawsuit was filed, or before the lawsuit was at issue as to the subsequently
deceased defendant, or from cases to which the special provisions of Probate
Code sec. 550, et seq. relating to insured deceased Defendants do not
apply. This Court continues to hold that Mr. Murataliev was properly served by
substitute service while alive and the documents in the file reflect that his
insurance carrier then filed and served an Answer to the Complaint for Mr. Murataliev. After Murataliev died, with this action still
pending and at issue, and being defended by his insurance carrier as per usual,
Plaintiff elected to proceed under the applicable Probate Code provisions, and
did so properly.
TENTATIVE RULING ON MOTION 1
Empire’s
request that Plaintiff’s November 3, 2021, filing entitled “Amendment to
Complaint (Fictitious/Incorrect Name) be stricken is DENIED.
The Court GRANTS the motion to strike in so far as
dismissing Murataliev from the complaint since Murataliev is deceased.
The Court DENIES Intervenor’s motion in the
alternative as to judgment on the pleadings..
Intervenor’s requests for judicial notice of Exhibits
A-Q were unopposed. All requests for judicial notice are granted.
MOTION 2
Moving Party: Intervenor, Empire Fire and Marine
Insurance Company (Empire or Intervenor)
Responding Party: Plaintiff, Donara Grigoryan
Moving Papers: Notice
of Motion/Motion; Linhardt Declaration; Dzhundubaev Declaration; Featherstone
Declaration; O’Carroll Declaration; Request for Judicial Notice; Larsen
Declaration;
[Notice of Joinder filed 2/10/2023 by Defendant, The
Estate of Izat Murataliev, to join in the motion to dismiss of Intervenor.]
Opposition Papers: Opposition; Objection to
Intervenor’s Request for Judicial Notice; Plaintiff’s Request for Judicial
Notice; Plaintiff’s Objection to Intervenor’s Evidence; Boyadzhyan Declaration;
Reply Papers: Reply; Supplemental Larsen Declaration; Response
to Plaintiff’s objection to Intervenor’s Evidence
Proof of Service
Timely Filed (CRC Rule 3.1300) : Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok.
Proper Address: Ok
RELIEF REQUESTED
Intervenor,
Empire Fire and Marine Insurance Company, moves to dismiss Plaintiff’s
Complaint, filed on March 15, 2017, and “Amendment to Complaint,” filed on
November 3, 2021 pursuant to CCP §583.250 and 583.420.
Plaintiff brings this motion on the grounds that (i)
Plaintiff cannot simultaneously sue both Defendant Izat Murataliev, a decedent,
and his Estate; (ii) no evidence shows Murataliev was ever properly served with
a summons in this action, and thus all claims against him must be dismissed for
failure to timely serve under Section 583.250 and failure to prosecute under
Section 583.420; (iii) Plaintiff’s claims against the Estate must also be
dismissed because she failed to substitute a personal representative for the
Estate or properly serve the Estate; (iv) the two-year statute of limitations
for a motor vehicle case expired on July 21, 2017, and thus any amendment to add
the Estate was and is futile; and, although it need not be proven, (v) Empire
and its insureds have been significantly prejudiced by Plaintiff’s failure to
timely serve Murataliev or his Estate and her failure to prosecute this action.
TENTATIVE RULING
Intervenor’s
motion to dismiss is DENIED.
Intervenor argues that Murataliev was never properly
served. As discussed in the Court’s Motion to Strike/MJOP, the Court found that
Murataliev was properly served by substitute service. Further, Murataliev waived
the right to challenge service by Answering the Complaint. The cases Intervenor
cites in support of its argument that Murataliev did not waive the right to
challenge service by Answering the Complaint are factually distinguishable as
Defendants in the cases cited by Empire did not Answer the Complaint or where
the Defendant later proceeded under CCP §583.250, inapplicable here. Empire
then attempts to make a jurisprudential leap from a challenge to service that
Murataliev waived to a challenge to the subsequent service on Murataliev’s
carrier, but this leap and the argument made in an attempt to support it ignore
the distinctive procedure established by the Legislature in Probate Code
sections 550, et seq., and 9390. Although
Empire titles this motion as a motion to dismiss under CCP 583.250, Empire is
bootstrapping its unsupported argument that Murataliev was never served to
begin with and that his estate was served beyond a time limit which does not
exist in the law. Moreover, Murataliev never claimed while he was alive that
the attorney who Answered the Complaint on his behalf, having been retained by
Murataliev’s carrier to do so, was not in fact his attorney. This makes the
case at bar distinguishable from the cases cited by Empire in footnotes 9-12 of
its Reply.
Whether Empire’s claims about fraud with respect to
the traffic collision that led to this case have any merit or not does not make
either of these motions meritorious.
Intervenor’s request for judicial notice is DENIED as
superfluous.
Plaintiff’s request for judicial notice is DENIED as
superfluous.
The Court rules on Plaintiff’s Objections to the
Declarations Intervenor presents as part of its moving papers as follows:
Sustained.