Judge: Gregory Keosian, Case: 20STCV22971, Date: 2022-12-08 Tentative Ruling
Case Number: 20STCV22971 Hearing Date: December 8, 2022 Dept: 61
I.
MOTION FOR JUDGMENT ON THE PLEADINGS
A party may move for a judgment on the pleadings as to an
entire complaint or as to a particular cause of action in a complaint. (Code
Civ. Proc. § 438 subd. (c)(2)(A).) If a defendant moves for a judgment on
the pleadings and argues that a complaint does not state facts sufficient to
constitute a cause of action against that defendant, then the court should grant
a defendant’s motion only if the court finds as a matter of law that the
complaint fails to allege facts sufficient to constitute the cause of action. (See id., § 438 subd. (c)(1)(B)(ii);
see also Mechanical Contractors Assn. v. Greater Bay Area Assn.
(1998) 66 Cal.App.4th 672, 677.)
“The standard for granting a motion for judgment on the pleadings is
essentially the same as that applicable to a general demurrer, that is, under
the state of the pleadings, together with matters that may be judicially noticed,
it appears that a party is entitled to judgment as a matter of law.” (Bezirdjian v. O’Reilly (2010) 183
Cal.App.4th 316, 321.) When considering a motion for judgment on the pleadings,
the court not only should assume that all facts alleged in the SAC are true but
also should give those alleged facts a liberal construction. (See Gerawan Farming, Inc. v.
Lyons (2000) 24 Cal.4th 468, 515–516, 101 Cal.Rptr.2d 470, 12 P.3d 720.) In
particular, the court should liberally construe the alleged facts “‘with a view
to attaining substantial justice among the parties.’ [Citation.]” (See Alliance
Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1232, 44
Cal.Rptr.2d 352, 900 P.2d 601.)
Defendants NewRez LLC dba Shellpoint Mortgage Servicing and The
Bank of New York Mellon fka The Bank of New York, as Trustee for the
Certificate holders of CWALT, Inc., Alternative Loan Trust 2007-6, Mortgage
Pass-Through Certificates, Series 2007-6 (Defendants) move for judgment on the
Second Amended Complaint (SAC) on the grounds that Plaintiff Kristi Courtois’
(Plaintiff’s) remaining claims for elder abuse, violation of the Homeowners
Bill of Rights (HBOR), Business & Professions Code § 17200 (UCL), and
negligence are barred by her lack of standing and the applicable statutes of
limitations.
These arguments center on Plaintiff’s status, or lack of
status, as executor of the estate of Decedent Austeene G. Cooper (Decedent), as
the present action is brought by Plaintiff “as executrix, beneficiary, and heir
of the estate” of Decedent. (SAC at p. 1.) Defendants argue that Plaintiff is
not a successor in interest under Code of Civil Procedure § 377.32, because
Plaintiff claims to be the inheritor of the causes of action at issue under a
will, which has not been probated. (Motion at p. 5, fn. 3; Code Civ. Proc. §
377.32, subd. (a)(3)(4) [requiring testimony that no proceeding is pending for
administration of estate that final order showing distribution of causes of
action].) And although Plaintiff alleges herself to be the executrix of the
estate (SAC ¶ 15), she is only named as executrix in Decedent’s will, and has
not been appointed same by the court. (RJN Exh. C [10/13/22 probate order
denying Plaintiff’s motion for appointment without prejudice for failure to
appear].)
Plaintiff argues that she has power to bring the present
lawsuit as the executor named in the will, under Probate Code § 8400, subd.
(b). (Opposition at p. 6.) This argument is unpersuasive, however. Ordinarily,
“[a] person has no power to administer the estate until the person is appointed
personal representative and the appointment becomes effective.” (Prob. Code §
8400, subd. (a).) One who is named executor in the will has only limited power,
and may, “before the appointment is made or becomes
effective, pay funeral expenses and take necessary measures for the maintenance
and preservation of the estate. (Prob. Code, § 8400, subd. (b).) This is
distinct from the power to bring and defend lawsuits on behalf of the estate,
which is a power that may be exercised, prior to the appointment of a personal
representative, by an appointed special administrator under Probate Code §
8540. (See Prob. Code § 8540 Law Revision Commission Comment
[identifying “appointment is necessary to maintain a lawsuit on the
decedent's cause of action” as circumstance justifying appointment].) Such
power is expressly granted to special administrators by statute under Probate
Code § 8544, subd. (a)(3).) One federal court has held that this specific
statutory authority forecloses the ability of non-appointed executors, named
only in the will, to bring suits on behalf of the estate under Probate Code §
8400, subd. (b). (See
Frank v. Wells Fargo Bank, N.A. (C.D. Cal., Aug. 8,
2022, No. CV2109916TJHPDX) 2022 WL 3221578, at *2.) Accordingly, Defendants
argument that Plaintiff lacks standing to proceed on these claims absent an
appointment is persuasive.
Plaintiff argues that a probate hearing is set for December
5, 2022, to decide her application to be made personal representative.
(Opposition at p. 11.) Defendant argues that such a belated appointment would
not cure Plaintiff’s standing issues, as her claims at that point would be
barred by the statute of limitations. (Reply at pp. 5–7.)
Defendant is incorrect. "[C]ourts
have permitted plaintiffs who have been determined to lack standing, or
who have lost standing after the complaint was filed, to substitute
as plaintiffs the true parties in interest.” (Branick v. Downey Savings
& Loan Assn. (2006) 39 Cal.4th 235, 243.) In the case Lopstock
v. Superior Court (1941) 17 Cal.2d 13, the California Supreme Court held
that after one plaintiff in a stock derivative suit was dismissed for lack of
standing, a new plaintiff appointed as executor could be substituted in to
continue prosecuting the claims. (Id. at p. 21.) In doing so, the court
relied on authority stating that the substitution of a personal representative
for someone without standing could occur even after the statute of limitations
had run, reasoning “that the substantive cause of action counted on in the
amended complaint has not been changed. It remains precisely the same as that
stated in the original pleading. No new facts are alleged as a ground of
recovery, the only change being in the name of the plaintiff and the capacity
in which he sues.” (Id. at p. 22.) Thus if the defect in standing is
cured by Plaintiff’s appointment at the December 5, 2022 hearing, then she may
continue to prosecute the case without the statute of limitations as a bar.
Defendant cites the case Coats
v. K-Mart Corporation (1989) 215 Cal.App.3d 961, in which the court
affirmed a grant of judgment for a defendant against a plaintiff acting on
behalf of a decedent estate, on the grounds that plaintiff has prosecuted the
action alleging that they were the executor of the estate, when in fact they
had been appointed five years after the case was filed, and after a court order
was entered compelling them to furnish proof of appointment as the executor. (Id.
at p. 965.) The court held that the action was “deemed filed” as of the date on
which the Plaintiff finally qualified as executor, and therefore dismissed the
claims as untimely. (Id. at p. 965.) The appellate court embraced this
reasoning, holding that the “relation back” doctrine cannot “be applied
to confer standing on a plaintiff who knowingly lacked it when suit initially
was filed.” (Id. at p. 967.)
While the Coats holding is favorable to Defendant,
there is good reason to doubt its continued validity. The court in the later
case Cloud v. Northrop Grumma Corp. (1998) 67 Cal.App.4th
995, held that the Coats holding was out of step with prior authority
and properly limited to its facts:
Although Klopstock had involved a
situation similar to Coats, in
which an action should have been filed by an administratrix but instead was
filed by a party who lacked standing, Klopstock was not cited in Coats. Against the backdrop of the Klopstock
line of authority, which holds that Code of Civil Procedure section 473 must be
liberally applied to permit amendment to substitute a plaintiff with standing
for one who lacks standing, the result in Coats
can only be explained by the lack of citation to Klopstock and the
peculiar facts of Coats.
(Cloud
v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1008–1009.)
The present case is unlike Coats. In that case, the
court faced a plaintiff who “did not actually become the administratrix until
the litigation was nearly five years old, and then only as a belated response
to two years' worth of motions to compel production of decedent's medical
records (which required the authorization of a duly appointed administratrix),
and two years' worth of court orders to provide that authorization and,
eventually, to furnish proof of appointment as administratrix.” (Cloud, supra,
67 Cal.App.4th at p. 1009.) Here, there is little evidence of bad faith.
Plaintiff claims status as executor because the will names her as such, and she
opened probate proceedings three months after filing the instant lawsuit. If
the December 5, 2022 hearing secures her standing, there is little reason she
should not be permitted to proceed.
This authority likewise addresses Defendants’ other statute
of limitations arguments. This case was filed on June 17, 2020. Defendants do
not contend that Plaintiff’s claims are untimely by reference to that date, but
only argue that she should not be permitted to claim the advantage of a belated
appointment to the position of personal representative. (Motion at pp. 7–10.)
But the authority for this position is unsound, and the authority for the
contrary is clear, as described in the Cloud decision.
Accordingly, the motion for judgment on the pleadings is
therefore GRANTED as to all causes of action, with leave to amend to allege
Plaintiff’s appointment as the personal representative of Decedent’s estate.