Judge: Maurice A. Leiter, Case: 19STCV23321, Date: 2022-09-13 Tentative Ruling

Case Number: 19STCV23321    Hearing Date: September 13, 2022    Dept: 54

Hearing Date: September 13, 2022

Department 54, Judge Maurice A. Leiter

Motion for Summary Judgment

Moving Party: Defendant Gerald M. Friedman

Responding Party: Plaintiff Randy Chew

T/R:    DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IS DENIED.

           DEFENDANTS TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

           The Court considers the moving papers, opposition, and reply.

BACKGROUND

On July 2, 2019, Plaintiff Randy Chew sued Defendants Gerald Friedman and Bianca Fairchild, asserting causes of action for breach of contract, conversion, trespass, waste and negligence. The action arises from Defendant Friedman’s tenancy at a property owned by Plaintiff.

Defendant Friedman passed away on May 13, 2020.

REQUEST FOR JUDICIAL NOTICE

Plaintiff’s request for judicial notice is GRANTED.

ANALYSIS

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Trial judges are required “to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2).) Once the defendant has met that burden, “the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (Id.)  To establish a triable issue of material fact, the party opposing the motion must produce “substantial responsive evidence.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

           Defendant Friedman’s estate moves for summary judgment of Plaintiff’s complaint on the ground that it is barred by the statute of limitations in Code of Civil Procedure § 366.2(a) and Probate Code § 9370.

A. Code of Civil Procedure § 366.2

CCP § 366.2(a) provides, “[i]f 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.”

           Defendant asserts that Plaintiff was required to file a creditor’s claim or add Defendant’s estate or personal representative to this action within one year of Defendant’s death. In opposition, Plaintiff argues that CCP § 366.2(a) is inapplicable because this action was filed before Defendant’s death.

           The term “action” in CCP § 366.2(a) “relates to the statutory definition of ‘action’: ‘An action is an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.’ ” (Estate of Yool (2007) 151 Cal.App.4th 867, 872.) The action between Plaintiff and Defendant commenced on July 2, 2019, and Defendant passed after the commencement of the suit. CCP § 366.2(a) is inapplicable.

B. Probate Code § 9370

Probate Code § 9370 provides,

(a) 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.

(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.

           Defendant asserts that Plaintiff has failed to comply with Probate Code § 9370 because Plaintiff has not filed a creditor claim or attempted to substitute Defendant’s personal representative into the action. In opposition, Plaintiff argues that the time to file a creditor claim has not yet expired under Probate Code § 9100(a), which states,

(a) A creditor shall file a claim before expiration of the later of the following times:

(1) Four months after the date letters are first issued to a general personal representative.

(2) Sixty days after the date notice of administration is mailed or personally delivered to the creditor. Nothing in this paragraph extends the time provided in Section 366.2 of the Code of Civil Procedure.

           Plaintiff presents evidence showing the letters of administration for Defendant’s estate were issued to a personal representative on July 28, 2022. (Pl. RJN, Exh. 1.) This is sufficient to establish a triable issue of fact as to timeliness of any creditor claims.

           Defendant’s motion for summary judgment is DENIED.