Judge: Jill Feeney, Case: 19STCV28377, Date: 2023-03-28 Tentative Ruling

Case Number: 19STCV28377    Hearing Date: March 28, 2023    Dept: 30

Department 30, Spring Street Courthouse                                  ****** BOTH COUNSEL ARE ORDERED TO APPEAR ******
March 28, 2023 
Motion to Quash with Respect to the Estate of Lillian Horowitz


The voluntary dismissal of the Estate of Lillian Horowitz is vacated.

Defendant Estate of Lillian Horowitz is dismissed with prejduice based failure to comply with the applicable statute of limitations and for failure to serve within the statutory three-year period.

Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order.    
This is an action for negligence arising from a vehicle collision which took place in August 2017. Plaintiff Clive Duvall filed his Complaint against Lillian and Nathan Horwitz on August 12, 2019. 

On July 14, 2022, the Court dismissed Lilian Horwitz from this action for Plaintiff’s failure to serve within the two-year statutory period.

On February 2, 2023, Plaintiff filed a Doe Amendment naming the Estate of Lillian Horwitz as a defendant in this action.

On February 8, 2023, the parties appeared for the final status conference prior to trial.

At the final status conference, Defendant Estate of Lillian Horowitz made an oral motion to dismiss the case as to the Estate.

At that time, the Court ordered the parties to file briefing on the subject of the request for dismissal. 

Legal Standard 
Code of Civil Procedure Section 583.210 requires the summons and complaint be served upon a defendant within three years after the complaint is filed.  (Code Civ. Proc., section 583.210(a).) The court may not dismiss an action for delay in prosecution unless service has not been made within two years after the action is commenced against the defendant.  (Id., section 583.420(a)(1).)  If service of the summons and complaint has not been served upon a defendant within the three-year statutory time period, the court shall dismiss the action.  (Id., section 583.250.)  

In computing the time within which service must be made, there shall be excluded the time during which any of the following conditions existed:

(a) The defendant was not amenable to the process of the court.
(b) The prosecution of the action or proceedings in the action was stayed and the stay affected service.
(c) The validity of service was the subject of litigation by the parties.
(d) Service, for any other reason was impossible, impracticable, or futile due to causes beyond the plaintiff’s control. Failure to discover relevant facts or evidence is not a cause beyond the plaintiff’s control for the purpose of the subdivision.

(Code Civ. Proc., section 583.240.)

“Amenable to the process of the court,” for purposes of calculation the three-year period in which a defendant must be served refers to whether the defendant was subject to being served under the applicable constitutional and statutory provisions, not to defendant’s reasonable availability, as practical matter, for service of process. (Watts v. Crawford (1995) 42 Cal.Rptr.2d 81.) 

Judicial Notice

The Estate requests that the Court take judicial notice of the following:

1. Plaintiff’s Complaint;
2. Defendant Nathan Horwitz’s answer to the Complaint;
3. The Court’s July 14, 2022 order dismissing the claim against Lillian Horwitz for failure to prosecute and failure to timely serve;
4. The Court’s electronic docket; and
5. Plaintiff’s Doe Amendment naming Estate as Doe 1 to this action.

The requests are denied because they are unnecessary. The Court may always refer to the pleadings and register of actions in the matter at hand.

The Estate also requests that the Court take judicial notice of Lillian Horwitz’s informational certificate of death issued by the registrar-recorder/county clerk of Los Angeles County. The request is granted.


Preliminary Matters

Plaintiff’s attempt to render the dismissal issue moot by preemptively dismissing the Estate after the Court ordered briefing is not well taken.  

A plaintiff’s right to dismiss under Code of Civil Procedure Section 581(b) is precluded by the presence of a pending “dispositive” procedure, such as where a procedural dereliction by the dismissing plaintiff made dismissal otherwise inevitable. (Cole v Hammond (2019) 37 CA5th 912, 921–922 (citing Franklin Capital Corp. v Wilson, 148 CA4th 193, 200, 202). Cole concerned a plaintiff’s failure to bring an action to trial within five years under Code of Civil Procedure Section 583.360. (Cole v. Hammond (2019) 37 Cal.App.5th 912, 923.) Because dismissal was mandatory under section 583.360, the hearing granting the motion was a mere formality and by the time of the hearing, the Plaintiff no longer had the right to move for a voluntary dismissal of the case. (Id. at p.925-926.) The plaintiff in Cole also failed to provide any viable basis to oppose the motion for mandatory dismissal. (Id. at p.926.)

Even after a case has been voluntarily dismissed, a court retains jurisdiction to vacate the dismissal if it was entered unlawfully. (Gilman v Dalby (2021) 61 CA5th 923, 935.)

Here, this matter involves a similar statute, Code of Civil Procedure, Section 583.210, which provides that dismissal is mandatory where a plaintiff fails to serve a defendant within three years of the commencement of the action. The same argument exists with respect to the statute of limitations issued raised by the Estate. 

Lillian Horowitz passed away on September 10, 2018. (Reply, Exh. A.)

Almost a year after the death of Lillian Horowitz, on August 12, 2019, Plaintiff Clive Duvall filed his Complaint against Lillian and Nathan Horwitz.

Lillian Horowitz obviously was never served. There is also no indication that Plaintiff attempted any type of substituted service with respect to Lillian Horowitz, thinking that she was still alive.

The docket also does not reflect any proof of service with respect to Defendant Nathan Horowitz. However, Defendant Nathan Horowitz filed an answer to the complaint on March 27, 2020.
In an ex parte application filed by counsel for Defendant Nathan Horowitz on December 15, 2020, Defendant Nathan Horowitz stated that Lillian Horowitz had passed away. The filing also stated that although Defendant Nathan Horowitz had answered, he was never served with the complaint. 

On July 14, 2022, the Court dismissed Lilian Horwitz from this action without prejudice for Plaintiff’s failure to serve within the statutory two year period.

If a plaintiff only seeks to recover within the coverage and limits of a decedent’s insurance policies, as is the case here, a plaintiff must follow the procedures set forth in Probate Code Sections 550 and 552. In such an instance, the case may be filed against the estate of the decedent and the summons and complaint shall be served on the insurance carrier or carriers as required by Probate Code Section 552(a).        

Moreover, Probate Code Section 551 provides that “[n]otwithstanding Section 366.2 of the Code of Civil Procedure, if the limitations period otherwise applicable to the action has not expired at the time of the decedent’s death, an action under this chapter may be commenced within one year after the expiration of the limitations period otherwise applicable.” 

Plaintiff added the Estate of Lillian Horowitz to the case on February 2, 2023 as a Doe Amendment.

Plaintiff served one of Lillian Horwitz’s insurers, American Family Connect Property and Casualty Insurance Company, on February 14, 2023. (Kass Decl., ¶9.) Lillian Horwitz’s umbrella insurance carrier, RLI Insurance Company, has never been served. (Kass Decl., ¶10.)  

Pursuant to Code of Civil Procedure Section 335., the statute of limitations for the type of tort here (a motor vehicle accident) is two years. Probate Code Section 551 adds one more year under these circumstances. Therefore, any action against the Estate of Lillian Horowitz would had to have been filed by August 14, 2020, given that the accident at issue here occurred on August 14, 2017. Even with the additional tolling of the statute of limitations between April 6, 2020 and October 1, 2020, pursuant to Emergency Rule 9, the time to bring suit against the Estate expired around February 14, 2021 or so. Plaintiff did not add the Estate to the case until February 2023, almost two years later Therefore, the statute of limitations expired with respect to the Estate.

Code of Civil Procedure Section 474 allows a named defendant to be substituted for a fictitious defendant if, at the time of filing the complaint, the plaintiff was genuinely unaware of the named defendant’s identity or of facts giving rise to a cause of action against the named defendant who was otherwise known to the plaintiff. (San Diego Navy Broadway Complex Coalition v California Coastal Com. (2019) 40 CA5th 563, 579.) The plaintiff’s lack of knowledge must be real and not feigned, but whether the plaintiff’s ignorance was due to misinformation or negligence is irrelevant. (Balon v Drost (1993) 20 CA4th 483, 488, 25 CR2d 12.) If these requirements are met, the amendment relates back to the filing of the original petition. (General Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 589.) The relation back doctrine does not apply when a plaintiff had constructive notice of the identity of a fictitiously named defendant. (Organization Comunidad de Alviso v City of San Jose (2021) 60 CA5th 783, 795.)

Here, there is no basis for relating the Doe Amendment back to the filing date of the original complaint. Here, Plaintiff had actual knowledge of Lillian Horowitz’s death  before the statute of limitations ran around February 14, 2021. At a minimum, based on the ex parte application filed in this action, Plaintiff had knowledge of Lillian Horowitz’s death as of December 2020. 

Turning to the issue of failure to serve the insurers within the statutory three-year period, the Court must look at the issue of whether any time should be tolled.     

Plaintiff argues that the statutory time period should be tolled because the Estate was not amenable to service because Lillian Horwitz was deceased and there was no estate or personal representative who could be served. Plaintiff admits that he is only seeking recovery of Lillian Horwitz’s insurance limits.

In an action under Probate Code Section 550, et seq., either the damages sought must be within the limits and coverage of the insurance, or the recovery of damages outside the limits or coverage of the insurance shall be waived.  A judgment in favor of the plaintiff in the action is enforceable only from the insurance coverage and not against property in the estate. (Prob. Code, section 554, subd. (a).) A plaintiff may seek damages in excess of the insurance coverage only where the decedent’s personal representative is joined as a party to the action and where the plaintiff files a claim in compliance with Section 9390. (Prob. Code, section 554, subd. (b); In re Estate of Prindle (2009) 173 Cal.App.4th 119, 129 [“unless the personal representative is joined and the plaintiff files a creditor’s claim against the estate, the judgment in an action under Probate Code section 550 cannot exceed the limits of the insurance coverage”].) An action under Prob. Code, section 550 shall name the decedent’s estate as the defendant and serve the summons on the person designated in writing by the insurer or on the insurer. (Prob. Code, section 552.)

Lillian Horwitz passed away on September 10, 2018. (Reply, Exh. A.) Plaintiff became aware that she was insured in August 2019. (Panah Decl., ¶6.) There is no probate estate for Lillian Horwitz. (Panah Decl., ¶13.) 

The evidence shows that suit could have been served via the insurance companies because Plaintiff is only seeking recovery against Lillian Horwitz’s insurance policy limits and Plaintiff has been aware of her insurance coverage since at least August 2019. Because Plaintiff is only seeking recovery against the insurance policy limits, there is no requirement that Plaintiff’s personal representative be named in the Complaint. The action would have proceeded against the insurers and not the property of the estate. Therefore, the Estate was amenable to service through the insurers. 

Even if Plaintiff argues that it was impossible, impracticable, or futile to serve the insurance companies because Plaintiff’s counsel was unaware of Plaintiff’s passing, the statutory period is not tolled because of Plaintiff’s lack of diligence in this regard. At a minimum, Plaintiff had actual knowledge of Lillian Horowitz’s death in December 2020. 

Moreover, knowledge of Lillian Horowitz’s death could easily have been obtained by records searches, investigation by a private investigator, or serving discovery requests on Defendant Nathan Horowitz. As the statute says, failure to discover relevant facts or evidence is not a cause beyond Plaintiff’s control. Thus, the facts do not show that the statutory period should be tolled under Code of Civil Procedure Section 583.240. 

This action was filed more than three years ago in August 2019. Dismissal under Section 583.250 is mandatory. Additionally, because there is no valid basis for Plaintiff to defeat the Estate’s motion, Plaintiff no longer has the right to voluntary dismissal. Therefore, the dismissal entered on March 15, 2023 is set aside. 

The case as to the Estate of Lillian Horowitz is now dismissed with prejudice both due to the failure to comply with the statute of limitations and failure to timely serve within the three-year period.