Judge Holly J. Fujie, Case 21STCV06450 2023-01-09 Tentative Ruling

MOVING PARTY: Deceased Defendant George E. Gutierrez (“Moving Defendant” or “Decedent”)

This action arises out of a landlord/tenant relationship. On February 17, 2021, Plaintiffs filed a complaint (the “Complaint”) alleging: (1) breach of implied warranty of habitability; (2) breach of statutory warranty of habitability; (3) breach of the covenant of quiet enjoyment; (4) negligence; (5) violation of Civil Code section 1942.4; and (6) private nuisance.

On December 14, 2022, Moving Defendant filed a motion to dismiss the Complaint (the “Motion”) on the ground that Plaintiffs may not prosecute their case against a deceased party.

Moving Defendant’s Request for Judicial Notice is GRANTED. With respect to Exhibits 1 and 3, the Court takes judicial notice of the existence of the documents but not to the truth of the matters asserted therein. (See Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113.)

Under California Code of Civil Procedure (“CCP”) section 377.21, a pending action does not abate by reason of the death of a party if the cause of action survives. (CCP § 377.21.) Subject to the statutory provisions governing creditor claims in probate, a cause of action against a decedent that survives may be asserted against the decedent's personal representative or, to the extent provided by statute, against the decedent's successor in interest. (See CCP § 377.40.) On motion, the court shall allow a pending action or proceeding against the decedent that does not abate to be continued against the decedent's personal representative or, to the extent provided by statute, against the decedent's successor in interest, provided that proof of compliance with the provisions of the Probate Code governing creditor’s claims is first made. (See CCP § 377.41.)

Under Probate Code section 9370, an action or proceeding pending against the decedent at the time of death may not be continued against the decedent's personal representative unless all of the following conditions are satisfied: (1) a claim is first filed as provided in this part; (2) the claim is rejected in whole or in part; and (3) within three months after the notice of rejection is given, the plaintiff applies to the court in which the action or proceeding is pending for an order to substitute the personal representative in the action or proceeding. This paragraph applies only if the notice of rejection contains a statement that the plaintiff has three months within which to apply for an order for substitution. (Prob. Code § 9370, subd. (a)(1)-(a)(3).)[1]

The Motion provides evidence that Decedent died on December 23, 2021. (Declaration of Edwin Schwartz (“Schwartz Decl.”) ¶ 2; RJN Exhibit 2.) The Motion argues that the Complaint should be dismissed against Decedent because a cause of action may not be maintained against a deceased defendant and Plaintiffs have not properly substituted Decedent’s estate or personal representative as a party. (See CCP §§ 377.40, 377.41; Prob. Code § 950.)

The opposition (the “Opposition”) provides evidence that Plaintiffs plan to maintain this action against both Decedent’s estate pursuant to Probate Code section 550 and Decedent’s personal representative (after filing a creditor’s claim). (See Declaration of Paul Christensen (“Christensen Decl.”) ¶ 2, 6, 8.)[2] In June 2022, Plaintiffs filed a petition to administer Decedent’s estate and to appoint an administrator with the probate court (the “Probate Petition”). (Christensen Decl. ¶ 2.) Plaintiffs initiated the Probate Petition after learning from defense counsel that there were no plans to open probate proceedings on Decedent’s behalf. (Christensen Decl. ¶ 4.) The probate court continued the hearing on the Probate Petition to January 18, 2023 as a result of Decedent’s family’s delay in filing necessary documentation. (See Christensen Decl. ¶¶ 4-5.) Plaintiffs filed their creditor’s claim against Decedent’s probate estate on July 13, 2022. (Christensen Decl. ¶ 6, Exhibit A.) Pending the appointment of an administrator and the denial of the creditor’s claim, Plaintiffs plan to substitute the administrator as a defendant in this action in Decedent’s stead. (See Christensen Decl. ¶¶ 7-8.)

As Plaintiffs have provided evidence of their intent to properly substitute the appointed probate administrator as a defendant in lieu of Decedent and have provided a general timeline for their plans to move for such substitution, the Court DENIES the Motion without prejudice. The Court sets a status conference regarding the status of the appointment of a probate administrator and the pendency of Plaintiffs’ creditor’s claim on March 1, 2023 at 8:30 a.m. in this department.

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

[1] The Court notes that although it was misnumbered in the Motion, Moving Defendant filed the Motion pursuant to CCP section 581, subdivision (m), which provides that the grounds for dismissal enumerated in that section are not exclusive and do not strictly constrain a judge’s authority to dismiss an action or complaint as to a defendant. (See CCP § 581, subd. (m).)

[2] On January 3, 2023, the Court granted a motion to quash service of summons filed by specially appearing Defendant Estate of George E. Gutierrez on the ground that Plaintiffs failed to serve Decedent’s insurance company in compliance with Probate Code section 552.