Judge: H. Jay Ford, III, Case: BC643080, Date: 2022-11-14 Tentative Ruling

Case Number: BC643080    Hearing Date: November 14, 2022    Dept: O

Case Name:               S.B. v. Fichman, et al.

SUBJECT:                 MOTION TO DISMISS FOR FAILURE TO BRING MATTER TO TRIAL WITHIN FIVE YEARS

MOVING PARTY:   Defendant Marshal P. Fichman, MD

RESP. PARTY:         Plaintiff S.B.

TENTATIVE RULING

             Defendant Marshal P. Fichman, MD’s Motion to Dismiss for Failure to Bring Matter to Trial Within Five Years is DENIED. 

            The trial court lacks jurisdiction to dismiss this case in response to a motion to dismiss filed by Fichman's counsel.  “The defendant here having died, the court could have allowed the action to continue against her personal representative or her insurer, but it could take no action without someone to defend the case.  The record shows neither the appointment of a personal representative for defendant nor the service of process upon her insurance company.”  Herring v. Peterson (1981) 116 Cal.App.3d 608, 612. 

The motion to dismiss was filed by Fichman's counsel, not decedent Fichman.  Fichman's counsel lacks any standing to move to dismiss at this time.  Counsel does not purport to represent either Fichman's personal representative or Fichman's insurer, nor have either been served or appeared in this action.  In fact, parties agree that there is currently no personal representative. 

Fichman's counsel argues on reply that Plaintiff knows the insurance company's identity, but she has failed to serve them per Probate Code 550.  The fact that Plaintiff could have served the insurer per Probate Code 550 is irrelevant to the undisputed fact that there is currently no defendant in this action, and the Court lacks jurisdiction to dismiss this action at the request of decedent's counsel.  “Power and authority of an attorney dies with the client.  Since defendant's attorneys were neither joined as parties nor appeared on behalf of defendant's substituted representative or insurer, they acted without authority and cannot be deemed to have taken the place of defendant.”  Herring, supra, 116 Cal.App.3d at 612.  There being no defendant in the case, the trial court's order to dismiss was in excess of its jurisdiction and void. 

In addition, the five-year statutory deadline has been tolled in this action based on lack of jurisdiction pursuant to CCP 583.340(a) since Fichman’s death.  Id.  “We have already held that the court's jurisdiction to try the case was suspended upon defendant's death and it never regained jurisdiction because no personal representative was appointed and defendant's insurer was never served with process.” Id.; see also Wills v. Williams (1975) 47 Cal.App.3d 941, 946 (“We conclude that the five-year statutory period for bringing the action to trial was tolled from the date of ]defendant’s] death…to the date of servie of the complaint on the insurer“).  Examples of situations in which the court’s jurisdiction is suspended include...the time between the death of a party and the appointment of a personal representative (Herring v. Peterson, 116 Cal.App.3d 608, 612, 172 Cal.Rptr.240 (3d Dist. 1981) [defendant’s death]); Pham v. Wagner Litho Machinery Co., 172 Cal. App. 3d 966, 973, 218 Cal. Rptr. 476 (4th Dist. 1985) [plaintiff’s death]).” Cal. Civ. Ctrm. Hbook. & Desktop Ref. §20:32 (2022 ed.) See also,

The five-year statutory deadline has also been tolled in this action based on impracticabilty, impossibility and futility pursuant to CCP 583.340(c).  There is no defendant in this case.  It has been impracticable, impossible and futile to try and bring the case to trial since Fichman died and no personal representative has been named, nor has the insurer been served.  “Since the authority of retained counsel generally does not survive the death of his client, plaintiff's death here left no person or entity to prosecute the underlying action on her behalf, and any proceedings taken in the absence of her personal representative would have been subject to being declared void.  It was during this period of temporary impracticability and futility that subdivision (f) operated to toll the five-year statute.”  Pham v. Wagner Litho Machinery Co. (1985) 172 Cal.App.3d 966, 972–973 (interpreting predecessor statute to CCP 583.340 and applying it to situation where plaintiff died while action was pending). 

Based on the Law Revision Committee Comments, subdivision (c) “must be interpreted liberally, consistent with the policy favoring trial on the merits.”  17 Cal.L.Rev.Comm. Reports 905 (1984).  The Comments also contrast the requirement that CCP §583.420 governing failure to serve be strictly construed.  “This difference in treatment recognizes that bringing an action to trial, unlike service, may be impossible, impracticable, or futile due to factors not reasonably within the control of the plaintiff.”  Id. 

Defendant argues there should be no tolling based on Fichman's death because Plaintiff could have cured the issue by serving Fichman's insurer.  Defense counsel argues that any delay due to Fichman's death is the result of Plaintiff's own lack of diligence. However, nothing in CCP 583.340 makes dependent based on loss of jurisdiction dependent on the plaintiff's diligence in curing the jurisdictional issue.  See Herring, supra, 116 Cal.App.3d at 615-616 (“But section 583, subdivision (f), does not supply a time limit; nor does it impose upon plaintiff a duty to expedite matters by seeking appointment of defendant's personal representative, proceeding against defendant's insurer or probating defendant's estate as a creditor.”)(interpreting predecessor statutes to CCP 583.310 and 583.340); Will v. Williams(1975) 47 Cal.App.3d 941, 945-946 (“It is true [plaintiff] could have expedited the matter by probating the estate as a creditor…the statute does not define a duty nor impose an obligation, it merely deals with a defined state of facts and declares the legal consequence that flows therefrom…If the Legislature had intended a limitation or an exception to such consequence it could easily have so provided. Having failed to create such limitation or exception we are not at liberty to write our own.”)(interpreting CCP §583(f), predecessor statute of CCP §583.340).

Defendant also argues that Will was decided under the predecessor statute of current CCP §583.340.  However, Defendant fails to identify how the former statute differs from CCP §583.340 in such a way that the analyses in Herring, Pham and Will of CCP §583(f) no longer applies.  In fact, the Law Revision Commission Comments to former CCP §583 state, “The substance of subdivision (f) is continued in Section 583.340 (computation of time.)  17 Cal.L.Rev.Comm.Reports 905 (1984).  The Law Revision Commission Comments to CCP §583.340 indicates, “Subdivision (a) of Section 583.340 continues the substance of the last portion of subdivision (f) of former Section 583.”  Id. 

CCP §583.340(a) states, “In computing the time within which an action must be brought to trial pursuant to this article, there shall be excluded the time during which any of the following conditions existed:…(a) The jurisdiction of the court to try the action was suspended.”  Defendant does not provide the version of CCP §583(f)  that was interpreted in Wills or in Herring, but as characterized in both cases, former CCP §583(f) exempted from calculation of the five-year deadline, “the period of time when the defendant is not amenable to service of process and the jurisdiction of the court is suspended.”  If anything, the current version of CCP §583.340(a) is less onerous, because it eliminates the requirement regarding amenability of the defendant to service.  So long as the Court lacks jurisdiction under CCP §583.340(a), the five-year deadline is tolled for that time.

Based on CCP §583.340, the reasoning of Wills, Herring and Pham regarding the Court’s loss of jurisdiction to enter judgment upon the death of a party tolls computation of the five-year deadline.  The Court orders this action stayed pending Plaintiff’s compliance with CCP §377.41 or election to proceed against the estate of  defendant under CCP §550.