Judge: Lee W. Tsao, Case: 22NWCV00352, Date: 2024-11-07 Tentative Ruling

Case Number: 22NWCV00352    Hearing Date: November 7, 2024    Dept: C

National Commercial Recovery, Inc. v. Navpeak, Inc. 22NWCV00352

This collections action was filed by Plaintiff NATIONAL COMMERCIAL RECOVERY, INC., dba Blair Smith and Associates (“Plaintiff”) against Defendants NAVPEAK, INC.; BILL LI; SEBASTIAN SCHILDHORN; and KENNETH REDDING (collectively “Defendants”) on May 5, 2022.

Default Judgement against all defendants was entered on April 6, 2023.

On January 4, 2024, Defendant Kenneth Redding’s Motions to Set Aside Default and Default Judgment and Quash Service of the Summons and Complaint were GRANTED. On February 8, 2024, Defendant Redding’s Answer was filed.

On July 29, 2024, Counsel for Defendant Redding filed a Notice of Death Certificate, with Defendant Redding’s death certificate attached.

On August 6, 2024, Counsel for Defendant Redding obtained an Order relieving them as counsel of record for Kenneth Redding. This Court’s August 6, 2024 Order states: “The attorney declaration demonstrates good cause of withdrawal based on the death of the Defendant and the estate’s apparent unwillingness to participate in the current litigation. On July 29, 2024, Counsel for Defendant filed [a] Notice of Defendant Redding’s Death Certificate.” (08/06/24 Order)

On November 5, 2024, Plaintiffs' Motion to Continue Trial and Related Dates was denied without prejudice due to Plaintiff's failure to show compliance with California's Probate Code pertaining to the continuation of claims against the Decedent's estate. (See CCP 377.41.) 

Trial is scheduled to begin on December 11, 2024. Plaintiff's Motion to Deem Request for Admissions Admitted against Defendant Kenneth Redding is scheduled to be heard after trial on March 13, 2025. 

Plaintiff now moves ex parte to advance Plaintiff's Motion to Deem RFA's Admitted against Defendant Kenneth Redding to be heard on a date prior to the December 11, 2024 trial date. 

Defendant Kenneth Redding died on April 1, 2024. A defendant is not amenable to service after death, and an action cannot proceed against a deceased defendant in the absence of appointment of a representative or service of process on the defendant's insurer. (See CCP  377.21; 377.31; 377.41.) When an action is pending at the time of the defendant's death, the Court, on motion, shall allow the action to continue against the personal representative of the defendant's estate provided that the plaintiff has complied with the claims requirements of the Probate Code. (CCP 377.41.) The claims requirements are set forth in Probate Code 9370. If a claim is not filed in the probate proceedings and the personal representative of the estate is not joined in the civil action, the damages sought against the decedent are generally limited to any insurance coverage that is available to the decedent. (See Prob. Code 554.) Here, no motion has been filed to demonstrate that Plaintiff has complied or attempted to comply with the creditor’s claim procedures to continue any claims against Defendant Redding’s estate. Plaintiff's Ex Parte Application to Advance Plaintiff's Motion to Deem RFA's Admitted against Defendant Kenneth Redding to be heard on a date prior to the December 11, 2024 trial date is DENIED without prejudice. 

Moving Party to give notice.