Judge: Jill Feeney, Case: 21STCV04450, Date: 2022-08-09 Tentative Ruling
Case Number: 21STCV04450 Hearing Date: August 9, 2022 Dept: 30
Department 30, Spring Street Courthouse
August 9, 2022
21STCV04450
Motion for Leave to File First Amended Complaint filed by Plaintiff Mykola Rotar
DECISION
The motion is granted.
The FAC must be filed separately and served within 10 days after the date of this order.
Defendants have 30 days from the date of service to file answers or other responsive pleadings.
Moving party is ordered to provide notice and to file proof of service of such notice within five court days after the date of this order.
Background
On February 4, 2021, Plaintiff Mycola Rotar filed his complaint against Jorge Alberto Duran, Just in Time Cargo Transportation Inc., and Does 1 to 50 for motor vehicle negligence. Plaintiff alleged Defendants were responsible for the crash in some manner, whether by negligence, negligence per se, breach of warranty, strict liability, or otherwise.
On May 18, 2022, Plaintiff filed the instant Motion for Leave to File First Amended Complaint.
Summary
Moving Arguments
Plaintiff is seeking leave to amend his Complaint pursuant to Probate Code section 550, et seq., to designate defendant Jorge Alberto Duran, now deceased, as Defendant Estate of Jorge Alberto Duran.
Opposing Arguments
No opposition is filed.
Legal Standard
Code of Civil Procedure section 473, subdivision (a)(1) provides in relevant part that the Court “…may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” “This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.)
Under California Rule of Court 3.1324, subdivision (a), a motion to amend a pleading shall (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.
Further, under California Rule of Court 3.1324, subdivision (b), a separate declaration must accompany the motion and must specify (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier.
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, § 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, § 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 to obtain the insurance proceeds only “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, § 554, subd. (a).)
Discussion
Plaintiff seeks leave to amend his Complaint to substitute Defendant Jorge Alberto Duran to the Estate of Jorge Alberto Duran pursuant to Probate Code section 550, et seq. A declaration from Plaintiff’s counsel explains the amendment is necessary because Duran passed away in around September 2020. (Jaramillo Decl., ¶3.) Plaintiff first discovered Duran’s passing on February 22, 2022 after Duran’s counsel informed Plaintiff via email. (Id., ¶4.) Plaintiff notes in his motion that proceeding under Probate Code section 550, et seq., would limit the damages sought to the limits and coverage of Duran’s insurance, or recovery of damages outside those covered by insurance shall be waived. (Motion, p. 5.) Defendants do not oppose this motion and have signed a stipulation agreeing to allow Plaintiff to amend his complaint. (Motion, Exhibit A.) An amended complaint is attached as Exhibit A.
The Court finds that Plaintiff complied with Code of Civil Procedure section 473 and California Rule of Court 3.1324. Plaintiff has included a copy of the amended pleading, stated the amendment was necessary due to Duran’s passing in a separate declaration, and stated he first discovered Duran’s passing on February 22, 2022. Accordingly, Plaintiff’s motion is granted.
