Judge Kerry Bensinger, Case BC673996 2023-04-25 Tentative Ruling

On August 28, 2017, Plaintiff Cecilia Romero filed a complaint against defendant Sydney T. Spice and DOES 1 to 100 for injuries arising from a September 2015 motor vehicle-pedestrian accident. Plaintiff named Derek Spice as Doe 1. On March 20, 2022, Derek Spice passed away. Brian Egan was appointed administrator of Derek Spice’s estate on October 20, 2022.

On February 1, 2023, the Court ordered Plaintiff and Brian Egan (hereinafter, “Administrator”) to brief the applicability of the five-year rule and tolling on the trial date in this action. Plaintiff and Defendant Egan filed initial briefs on April 4, 2023. Administrator argues that the deadline to bring this action to trial is September 6, 2023. Plaintiff contends the five-year period is still tolling and further, that the applicable deadline is no earlier than December 28, 2023.

On August 28, 2017, Plaintiff initiated this action. On November 20, 2017, counsel for Plaintiff and counsel for deceased Defendant Sydney Spice entered into a “Stipulation for Litigation Involving Decedent, Defendant, Sydney T. Spice Probate Code Section 550, Et Seq.” (the “Stipulation”). Pursuant to the Stipulation, litigation of the Complaint proceeded against the Estate of Sydney Spice pursuant to Probate Code section 550.

On May 23, 2019, Plaintiff named Defendant Derek Spice as Doe 1. Defendant Derek Spice answered the Complaint on May 26, 2019.

On July 6, 2021, Donovan Henry (“Henry”) was appointed as the Temporary Conservator of the Person and Estate of Derek Keith Spice in the matter of The Conservatorship of Derek Keith Spice (LASC Case No. 21STPB06699) (the “Conservatorship matter”). Letters of Temporary Conservatorship of the Person and Estate of Derek Keith Spice were issued to Henry on August 2, 2021.

On October 4, 2021, Henry filed an “Ex Parte Application to Amend Letters of Temporary Conservatorship to Substitute as Defendant in Pending Lawsuit and in the Alternative to be Appointed GAL for Temporary Conservatee for the Lawsuit; Possible Necessity to Hire Cumis Counsel; and Necessity to Commence a Probate Proceeding on Behalf of Sydney Spice; Declaration of Leslie Barnett” (the “Ex Parte Application”) in the Conservatorship Matter.

On October 14, 2021, the Court issued a Minute Order granting the Ex Parte Application and amending Mr. Henry’s Letters of Temporary Conservatorship of the Person and Estate (issued on August 2, 2021) to include the following additional powers:

The Court authorizes Temporary Conservator Donovan Henry, in his capacity as Temporary Conservator of Derek Keith Spice:

1. To request that the civil court in Romero v. Spice, LASC Case No. BC673996, either (a) substitute him in as defendant on behalf of Conservatee Derek Keith Spice, or (b) appoint him as Guardian ad Litem for Derek Keith Spice;

2. To advocate for conservatee’s insurer to retain Cumis counsel in the event of a conflict between Sydney Spice and Derek Spice; and

3. To file and pursue a petition for letters of administration (general or special) for Sydney Spice.

On January 25, 2022, the Court appointed Aileen Federizo as the Temporary Conservator of the Person and Estate of Derek Keith Spice and transferred Temporary Conservator Mr. Henry’s existing authority to Ms. Federizo as the current Temporary Conservator. Letters of Temporary Conservatorship of the Person and Estate of Derek Keith Spice were issued to Ms. Federizo on March 17, 2022.

On October 6, 2022, Egan was appointed Administrator of the Estate of Derek Spice, (LASC Case No. 22STPB04113) (the “Probate Matter”). On October 20, 2022, Letters of Administration for the Estate of Derek Spice were issued to Egan.

On February 21, 2023, Plaintiff filed a creditor’s claim in the Probate Matter based on the allegations in the Complaint, along with a Statement of Damages.

An action shall be brought to trial within five years after the action is commenced against the defendant. (Code Civ. Proc., § 583.310.) Failure to proceed to trial requires dismissal by the court on its own motion or motion by any party. (Code Civ. Proc., § 583.360.) Dismissal is mandatory and is not subject to extension, excuse, or exception, except as expressly provided by statute. (Id.)

The five-year period is not extended for either an amended complaint or a complaint in intervention that asserts the same cause of action as the original complaint. (Bosworth v. Superior Court (1956) 143 Cal.App.2d 775; Douglas v. Superior Court (1949) 94 Cal.App.2d 395; see also Bright v. American Termite Control Co. (1990) 220 Cal.App.3d 1464 (intervenor’s complaint dismissed five years after original complaint filed; causes of action “essentially the same”).) If an amended complaint alleges a new cause of action based on different operative facts, the action is considered commenced on the date the amended complaint was filed. (Brumley v. FDCC Cal., Inc. (2007) 156 Cal.App.4th 312.) When a non-Doe defendant is added by amended complaint, the five-year period commences on filing of the amendment, but for “Doe” defendants, the period begins with the original complaint. (Gray v. Firthe (1987) 194 Cal.App.3d 202, 207.)

Dismissal is mandatory if the action is not brought to trial within five years and is not subject to extension, excuse, or exception, except as expressly provided by statue. (Code Civ. Proc., § 583.360.) The statutory exceptions include:

(2) Oral agreement made in open court, if entered in the minutes of the court or a transcript is made. (Code Civ. Proc., § 583.330, subd. (b).)

(3) The jurisdiction off the court to try the action was suspended, or prosecution or trial of the action is stayed or enjoined. (Code Civ. Proc., § 583.340, subds. (a), (b).)

(4) Bringing action to trial, for any other reason, was impossible, impracticable, or futile. (Code Civ. Proc., § 583.340, subd. (c).)

Additionally, Emergency Rule 10, subdivision (a), extends the time in which to bring a civil action to trial by six months, notwithstanding any other law. (Emergency Rules Related to COVID-19, Emergency rule 10.) If fewer than 6 months remain to bring the action to trial at the end of a statutory period of tolling or extension, the action may not be dismissed if it is brought to trial within 6 months after that period has ended. (Code Civ. Proc., § 583.350; Him v. Superior Court (1986) 184 Cal.App.3d 35.) However, the six-month grace period under Code of Civil Procedure section 583.350 does not apply in addition to the six-month extension of time to bring a civil action to trial provided by Emergency Rule 10, subdivision (a). (Ables v. A. Ghazale Bros. (2022) 74 Cal.App.5th 823.)

Code of Civil Procedure section 366.2 also sets forth the following basis for tolling of an action: “If a person against whom an action may be brought on a liability of the person, whether arising in contract, tort, or otherwise, and whether accrued or not accrued, dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply. (Code Civ. Proc., § 366.2, subd. (a).) The limitations period provided in this section for commencement of an action shall not be tolled or extended for any reason except as provided in Part 4 (commencing with Section 9000) of Division 7 of the Probate Code (creditor claims in administration of estates of decedents). (Code Civ. Proc., § 366.2, subd. (b)(2).)

The filing of a claim or a petition under Section 9103 to file a claim tolls the statute of limitations otherwise applicable to the claim until allowance, approval, or rejection. (Prob. Code § 9352, subd. (a).) If within 30 days after a claim is filed the personal representative or the court or judge has refused or neglected to act on the claim, the refusal or neglect may, at the option of the creditor, be deemed equivalent to giving a notice of rejection on the 30th day. (Prob. Code § 9256.)

(a) Regardless of whether the statute of limitations otherwise applicable to a claim will expire before or after the following times, a claim rejected in whole or in part is barred as to the part rejected unless, within the following times, the creditor commences an action on the claim or the matter is referred to a referee or to arbitration:

(1) If the claim is due at the time the notice of rejection is given, 90 days after
the notice is given.

(2) If the claim is not due at the time the notice of rejection is given, 90 days
after the claim becomes due.

(b) The time during which there is a vacancy in the office of the personal representative shall be excluded from the period determined under subdivision (a).

Egan’s unopposed requests for judicial notice are GRANTED. (Evid. Code § 452, subd. (d).)

Based on Egan’s calculations, the deadline to bring this action is September 6, 2023. However, a review of Egan’s calculations results in a September 16, 2023 deadline. The Court arrives at the September 16, 2023 date as follows.

1. Applying the five year rule (CCP § 583.310) to the Complaint (filed August 28, 2017) and considering that it has not been amended with any new causes of action or non-Doe defendants, the initial deadline is August 28, 2022.

2. Applying Emergency Rule 10, the deadline moves to February 28, 2023. There has been no written stipulations or oral agreements to extend time of trial.

3. Applying the suspension of the Court’s jurisdiction (CCP § 583.340) due to Derek Spice’s death on March 20, 2022, and Egan’s appointment as administrator of Derek Spice’s estate on October 6, 2022, the deadline to commence trial is tolled an additional 200 days to September 16, 2023.

Plaintiff takes issue with the following omissions from Egan’s trial date calculation:

1. The action was tolled during the pendency of Derek Spice’s Petition for appointment of conservatorship because the Petition was based on Derek Spice’s lack of capacity. As Henry did not seek appointment until July 7, 2021, and the letters which effectuated the appointment did not authorize Henry to appear in the matter until October 14, 2021, the deadline to commence trial is tolled an additional 99 days to December 24, 2023.

2. The action was tolling due to Derek Spice’s death by an additional 14 days, representing the period of time between Egan’s appointment as administrator (October 6, 2022) and when Egan’s appointment became effective (October 20, 2022). The deadline to commence trial is tolled an additional 14 days to January 7, 2024.

3. Plaintiff argues that the five year period is still tolling because the creditor’s claim procedure has not yet been exhausted.

As to tolling during the Henry’s appointment as temporary conservator, the probate court did not amend Henry’s appointment letters authorizing him to appear in this case until October 14, 2021. (See Request for Judice Notice (“RJN”), Ex. C.) “Unless a court orders otherwise, a temporary conservator over the person and estate of someone is authorized by law to marshal assets and establish accounts at financial institutions, and to consent to emergency medical treatment for the conservatee, all without the conservatee’s consent. (Prob.Code, §§ 2252, subds.(b)(2), (3); 2354, subd. (c).) The trial court may also grant the conservator any additional powers it deems necessary to protect the conservatee’s interests. (Prob.Code, § 2252, subds.(c), (d), (e).).” (Young v. CBS Broadcasting, Inc. (2012) 212 Cal.App.4th 551, 561-562.) This action does not concern emergency medical treatment for Derek Spice nor marshalling his assets or establishing financial accounts. Accordingly, the Court finds the action was tolled between July 7, 2021 and October 14, 2021. As to Egan’s appointment as administrator, the Court also finds that the action was tolled an additional 14 days because Egan’s appointment did not become effective until October 20, 2022. (See RJN, Ex. I.)

As to Plaintiff’s third argument for exhaustion of the creditor’s claim procedure, the Court is not persuaded. The filing of a claim or a petition under Section 9103 to file a claim tolls the statute of limitations otherwise applicable to the claim until allowance, approval, or rejection. (Prob. Code § 9352, subd. (a), emphasis added.) If within 30 days after a claim is filed the personal representative or the court or judge has refused or neglected to act on the claim, the refusal or neglect may, at the option of the creditor, be deemed equivalent to giving a notice of rejection on the 30th day. (Prob. Code § 9256.) Under the Probate Code, the filing of a creditor’s claim tolls the statute of limitations applicable to a claim for thirty days at most; it does not provide that the time to commence trial is tolled or extended by such a filing.

Based on the foregoing, the Court finds that the deadline to commence trial in this action is December 24, 2023.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Kerry Bensinger

Judge of the Superior Court