Judge Michelle C. Kim, Case 22STCV00505 2023-04-20 Tentative Ruling

Plaintiff Daniel Kuhn (“Plaintiff”) filed this action against defendant Frederick William Roberts, Jr. (“Decedent”) for damages arising from a motor vehicle accident. Decedent passed away on or about May 10, 2022. On November 16, 2022, Plaintiff filed Amendments to Complaint naming Joan Roberts (“Joan”) and the Estate of Frederick William Roberts Jr., Deceased (the “Estate”), as Does 1 and 2, respectively.

On February 17, 2023, Plaintiff filed the instant Motion to Continue Proceeding Against Defendant’s Successors In Interest. Defendants Joan and the Estate (collectively, “Defendants”) oppose the motion, and Plaintiff filed a reply.

Plaintiff moves pursuant to CCP § 377.41 for an order allowing this action to proceed against Joan and the Estate, and an order designating Allstate Insurance Company (“Allstate”) as the agent of the Estate. Plaintiff contends that this action can be continued against Joan, as Decedent’s surviving spouse, and the Estate as Decedent’s successors in interest. Plaintiff further asserts that he has complied with Probate Code § 550 such that Plaintiff can recover insurance proceeds from Decedent’s liability coverage insurer.

In opposition, Defendants assert that a successor in interest has not been appointed for Decedent, and that Plaintiff has not complied with the Probate Code’s provisions governing creditor claims. Further, Defendants argue that Plaintiff is improperly attempting to use Probate Code § 13550 to avoid the limitations set forth in CCP § 377.41 and Probate Code § 550 through this motion.

In reply, Plaintiff argues that a creditor’s claim is not required to continue this proceeding against a surviving spouse, and that Defendants incorrectly interpret Probate Code § 13550.

CCP § 377.40 provides: “Subject to Part 4 (commencing with Section 9000) of Division 7 of the Probate Code governing creditor claims, a cause of action against a decedent that survives may be asserted against the decedent's personal representative or, to the extent provided by statute, against the decedent's successor in interest.”

Further, CCP § 377.41 states: “On motion, the court shall allow a pending action or proceeding against the decedent that does not abate to be continued against the decedent's personal representative or, to the extent provided by statute, against the decedent's successor in interest, except that the court may not permit an action or proceeding to be continued against the personal representative unless proof of compliance with Part 4 (commencing with Section 9000) of Division 7 of the Probate Code governing creditor claims is first made.”

“An action may not be commenced against a decedent's personal representative on a cause of action against the decedent unless a claim is first filed as provided in this part and the claim is rejected in whole or in part.” (Prob. Code § 9351.) Thus, in general, a claim may not be pled against a decedent’s estate, and a pending lawsuit against a decedent at time of death cannot be continued against the estate, unless the plaintiff has filed a claim creditor's claim in the probate proceedings. (Prob. Code § 9000 et seq.)

Compliance with the applicable claim-filing requirements is an essential element of the cause of action, and therefore, timely and proper filing must be affirmatively pleaded in the complaint; failure to do so is ground for demurrer and dismissal. (See Prob. Code § 9002(b); cf. AQ Consulting WLL v. Branca (S.D. NY 2011) 2011 WL 240812, *2 [applying California Law].)

Additionally, Probate Code § 550(a) states: “Subject to the provisions of this chapter, an action to establish the decedent's liability for which the decedent was protected by insurance 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.” An action to establish the decedent's liability for which the decedent was protected by insurance may be commenced or continued under Section 550, and a judgment in the action may be enforced against the insurer, without first filing a claim. (Prob. Code § 9390(a).) Unless a claim is first made, an action to establish the decedent's liability for damages outside the limits or coverage of the insurance may not be commenced under Section 550. (Prob. Code § 9390(b).)

An action maintained under Probate Code section 550 may be filed against the “Estate of (name of decedent), Deceased” and summons shall be served on a person designated in writing by the insurer or, if none, on the insurer. Further proceedings shall be in the name of the estate, but otherwise shall be conducted in the same manner as if the action were against the personal representative. (Prob. Code § 552(a).) On motion of an interested person, or on its own motion, the court in which the action is pending may, for good cause, order the appointment and substitution of a personal representative as the defendant. (Prob. Code § 552(b).) If the action is pursued against an estate, the Plaintiff waives any claims not covered by insurance or in excess of the policy limits. (Prob. Code § 554(a).)

Lastly, Probate Code § 13550 states, “[e]xcept as provided in Sections 11446, 13552, 13553, and 13554, upon the death of a married person, the surviving spouse is personally liable for the debts of the deceased spouse chargeable against the property described in Section 13551 to the extent provided in Section 13551.”

Subject to certain exceptions and limitations, Probate Code sections 13550 and 13551 make a surviving spouse personally liable for the debts of the deceased spouse, but only to the extent such debts are chargeable against the community property of both spouses and the separate property of the deceased spouse passing to the surviving spouse without formal probate administration. (See Collection Bureau of San Jose v. Rumsey (2000) 24 Cal.4th 301, 306.) “[A] surviving spouse who receives a decedent's property without administration becomes personally liable for decedent's debts chargeable against such property, within limits. (Estate of Bonanno (2008) 165 Cal.App.4th 7, 20 [citing Prob. Code §§ 13550 et seq.].)

Here, as to Plaintiff’s request for an order permitting Plaintiff to continue this action against the Estate, as Plaintiff acknowledges, Plaintiff has already named the Estate as a defendant in this matter. Plaintiff may seek the limits of Decedent’s insurance policy by simply maintaining or continuing the action against the Estate. (See Probate Code § 550(a) and Probate Code § 9390(a).) However, to the extent that Plaintiff is seeking an order to continue the proceeding against the personal representative of the Estate, Plaintiff does not dispute that that Plaintiff has not followed the procedures specified in CCP § 377.40. If Plaintiff does not seek to name a personal representative of the Estate, Plaintiff would as a matter of law be limited to the insurance limitations. (Prob. Code § § 550, 554; see Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 957 [“Unless the decedent's personal representative is made a party, a judgment should not be rendered for or against a decedent, nor for or against the representative.”].)

As to Plaintiff’s request for an order designating Allstate as the Estate’s agent, Plaintiff does not cite any authority holding that this Court is authorized to issue such an order. Under Probate Code § 552(a), a plaintiff who wishes to bring an action for recovery against the insurance of a decedent must file a complaint naming the estate as a defendant and serve a person designated in writing by the insurer or, if none, on the insurer, in order to proceed against the decedent's insurance policy.

As to Plaintiff’s request for an order permitting Plaintiff to continue this action against Joan, Plaintiff argues that Joan is potentially liable for Decedent’s debts, so this action should be continued under CCP § 377.41 against Joan. As stated above, Plaintiff does not dispute that Plaintiff has not followed the procedures specified in CCP § 377.40. Rather, Plaintiff argues he is permitted to continue the action against Joan as Decedent’s surviving spouse under Probate Code § 13550 et seq.

However, as Defendants contend in opposition, Probate Code § 13550 makes the surviving spouse personally liable for the debts of the deceased spouse. The complaint here does not contain any allegations to suggest this action was brought by Plaintiff against Decedent to recover a debt. The action concerns solely a claim for damages arising from a motor vehicle accident. Plaintiff provides no authority suggesting that debt as used in Probate Code § 13550 is intended to include disputed and unliquidated claims for tort damages. “The fact that an action is begun to recover an alleged debt does not establish the existence of the debt, either as a matter of pleading or as a matter of evidence.” (Lyden v. Spohn-Patrick Co. (1909) 155 Cal. 177, 184.) Furthermore, a debt is defined as, “Liability on a claim; a specific sum of money due by agreement or otherwise.” (Black’s Law Dictionary, 11th ed. 2019.) Plaintiff has not established liability for damages and is admittedly not suing for a specific sum of money due to Plaintiff pursuant to an agreement or for goods or services received.

Plaintiff cites to Collection Bureau of San Jose v. Rumsey (2000) 24 Cal.4th 301 (“Rumsey”), in arguing that Plaintiff may use Probate Code § 13550 to pursue an action against Joan. The Rumsey Court, however, did not hold that a party could use Probate Code § 13550 to recover damages for personal injuries in a pending action. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 614 [“Cases are not authority for propositions not considered therein.”].) While the Rumsey Court noted that the surviving spouse in that action “was ‘personally liable’[1] (Prob. Code, § 13550) for the debts left behind by his deceased spouse, including the hospital and medical bills here in issue …”, (Collection Bureau of San Jose v. Rumsey, 24 Cal.4th 308-09), the Court therein did not address any dispute regarding whether the relevant bills for specific sums of money constituted debts under Probate Code § 13550. The Rumsey Court addressed only “whether the one-year limitations period of Code of Civil Procedure former section 353, specifically applicable to surviving causes of action on the liabilities of decedents, or the four-year limitations period of Code of Civil Procedure section 337, generally applicable to open book accounts, controls on these facts.” (Id. at 306.) Plaintiff does not otherwise cite to any authority holding that naming a deceased defendant’s surviving spouse as a defendant to a pending personal injury action is a proper means to continue the action.

Therefore, Plaintiff does not establish that Probate Code § 13550 et seq. is a basis for Plaintiff to continue this pending personal injury action against Decedent’s surviving spouse, Joan. Code of Civil Procedure § 377.41 permits an action to be continued against a decedent's personal representative or, to the extent provided by statute, against the decedent's successor in interest. Plaintiff does not identify any CCP or Probate Code sections that permit Plaintiff to continue this personal injury action against a deceased defendant’s spouse.

Based on the foregoing, Plaintiff’s motion is denied. To be clear, the Court is holding only that Plaintiff has not met Plaintiff’s burden of establishing Plaintiff is entitled to the requested relief.

Hon. Michelle C. Kim

Judge of the Superior Court

[1] It is noted that under California Family Code Section 1000, “A married person is not liable for any injury or damage caused by the other spouse except in cases where the married person would be liable therefor if the marriage did not exist.”