Judge: Upinder S. Kalra, Case: BC687968, Date: 2022-09-14 Tentative Ruling
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Case Number: BC687968 Hearing Date: September 14, 2022 Dept: 51
Tentative Ruling
Judge Upinder S.
Kalra, Department 51
HEARING DATE: September
14, 2022
CASE NAME: Associated Materials LLC v. Arshi
Malde, et al.
CASE NO.: BC687968
DEFENDANT’S
MOTION FOR CONTINUANCE OF ACTION BY PERSONAL REPRESENTATIVE
MOVING PARTY: Defendant and Cross-Complainant Ryan Autumn M. Malde, personal
representative of Indumati and Arshi Maldi
RESPONDING PARTY(S): None
TENTATIVE RULING:
Ryan-Autumn M. Malde’s Motion for
Continuance of Action by Personal Representative of Defendants and
Cross-Complainants’ Estate is GRANTED.
STATEMENT
OF MATERIAL FACTS AND/OR PROCEEDINGS:
On December 22, 2017, Plaintiff Associated Materials, LLC dba Alside Supply
(“Alside Supply”) filed a complaint against Defendants Arshi Malde (“Arshi”);
Indumati A. Malde (“Indumati”); Triple M Windows, LLC (“Triple M”); GDCV
Pasadena 173 LLC (“GDCV”); BMO Harris Bank N.A. (“BMO”); and Does 1 through 50
for (1) breach of contract, (2) for goods, labor and services rendered, (30
open book account, (4) quantum meruit, and (5) foreclosure of mechanic’s lien.
On March 5, 2018, pursuant to Alside Supply’s request, dismissal of the
complaint was entered as to Triple M.
On April 24, 2018, Defendants/Cross-Complainants Arshi and Indumati filed a
cross-complaint against Plaintiff/Cross-Defendant Alside Supply;
Defendant/Cross-Defendant GDCV; and Cross-Defendants Crane Development
Corporation (“Crane”), Central Cal Windows (“Central Cal”), and Roes 1 to 20
for (1) indemnification, (2) apportionment of fault, (3) declaratory relief,
(4) breach of contract, (5) breach of contract, and (6) common counts – open
book account; for work, labor and services rendered; for goods, wares, and
merchandise sold and delivered; and for money paid, laid out, and
expended.
On June 21, 2018, Cross-Defendant/Cross-Complainant Crane filed a
cross-complaint against Moes 1 to 50 for (1) equitable indemnity, (2)
contribution, and (3) declaratory relief.
On July 23, 2018, Crane filed a First Amended Cross-Complaint against
Alside Supply, Arshi, Indumati, Central Cal, and Moes 1 to 50 for (1) equitable
indemnity, (2) express contractual indemnity, (3) implied contractual
indemnity, (4) breach of contract, (5) breach of express warranty, (6) breach
of implied warranty of merchantability, (7) strict liability, (8) negligence,
(9) negligent interference with prospective economic advantage, (10)
contribution, (11) apportionment, and (12) declaratory relief.
On November 13, 2019, GDCV filed a cross-complaint against Crane and Roes 1
through 100 for (1) breach of contract, (2) negligence, (3) negligence per se,
(4) breach of the implied warranty of workmanlike performance, (5) breach of
the implied warranty of fitness, (6) breach of express warranties, (7) express
contractual indemnity, and (8) equitable indemnity.
On July 23, 2020, pursuant to GDCV’s request, GDCV’s cross-complaint was
dismissed.
On June 16, 2021, Crane filed a Second Amended Cross-Complaint against
Alside Supply, Arshi, Indumati, Central Cal, and Moes 1 to 50 for (1) breach of
contract, (2) express contractual indemnity, (3) implied contractual indemnity,
(4) breach of express warranty, (5) breach of implied warranty of
merchantability, (6) intentional interference with contractual relations, (7)
intentional interference with prospective economic advantage, (8) negligent
interference with prospective economic advantage, (9) strict liability, (10)
negligence, (11) fraud – misrepresentation, (12) equitable indemnity, (13)
contribution, (14) apportionment, and (15) declaratory relief.
On November 23, 2021, Crane filed a Third Amended Cross-Complaint against
Alside Supply, Arshi, Indumati, Central Cal, and Moes 1 to 50 for (1) breach of
contract, (2) express contractual indemnity, (3) implied contractual indemnity,
(4) breach of express warranty, (5) breach of implied warranty of
merchantability, (6) breach of implied warranty of fitness, (7) breach of
contract – third party beneficiary, (8) breach of contract – third party
beneficiary, (9) negligent interference with prospective economic advantage,
(10) negligent interference with prospective economic advantage, and (11) fraud
– misrepresentation and concealment.
On May 9, 2022, Crane filed an amendment to cross-complaint correcting
Central Cal Windows, Inc. to Central Cal Windows.
On June 9, 2022, Ryan-Autumn M. Malde (aka Destinee Malde-Sanchez) filed a
motion for continuance of action by personal representative. No opposition has been filed.
LEGAL STANDARD
Upon motion after the death of a person who commenced an
action or proceeding, the court must allow a pending action or proceeding that
does not abate to be continued by the decedent’s personal representative. (Code Civ. Proc., § 377.31.)
CCP section 377.32 provides the following:
(a)
The
person who seeks to commence an action or proceeding or to continue a pending
action or proceeding as the decedent’s successor in interest under this
article, shall execute and file an affidavit or a declaration under penalty of
perjury under the laws of this state stating all of the following:
·
The
decedent’s name.
·
The
date and place of the decedent’s death.
·
“No
proceeding is now pending in California for administration of the decedent’s
estate.”
·
If
the decedent’s estate was administered, a copy of the final order showing the
distribution of the decedent’s cause of action to the successor in interest.
·
Either
of the following, as appropriate, with facts in support thereof:
(A)
“The
affiant or declarant is the decedent’s successor in interest (as defined in
Section 377.11 of the California Code of Civil Procedure) and succeeds to the
decedent’s interest in the action or proceeding.”
(B)
“The
affiant or declarant is authorized to act on behalf of the decedent’s successor
in interest (as defined in Section 377.11 of the California Code of Civil
Procedure) with respect to the decedent’s interest in the action or
proceeding.”
·
“No
other person has a superior right to commence the action or proceeding or to be
substituted for the decedent in the pending action or proceeding.”
·
“The
affiant or declarant affirms or declares under penalty of perjury under the
laws of the State of California that the foregoing is true and correct.”
(b)
Where
more than one person executes the affidavit or declaration under this section,
the statements required by subdivision (a) shall be modified as appropriate to
reflect that fact.
(c)
A
certified copy of the decedent’s death certificate shall be attached to the
affidavit or declaration.
(Code Civ. Proc., § 377.32.)
CCP section 377.41 provides that “[o]n 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.” (Code
Civ. Proc., § 377.41.)
Probate Code section 9370 provides the following:
(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.
(b)
No
recovery shall be allowed in the action against property in the decedent’s
estate unless proof is made of compliance with this section.
ANALYSIS:
Personal
representative Ryan-Autumn M. Malde moves for continuance of action by personal
representative of the Defendant/Cross-complainant’s estate.
CCP § 337.32:
Here, both
the original Declaration and Supplemental Declaration of Ryan-Autumn provides
the following information as required by CCP § 337.32:
·
The decedent’s name: The descendants’ names are
Indumati Malde and Arshi Malde. (Dec. Malde ¶ 1.)
·
The date and place of the decedent’s death: Arshi Malde
passed away on February 28, 2022, in Visalia, California; Indumati Malde passed
away on November 16, 2020, in Visalia, California.
·
“No
proceeding is now pending in California for administration of the decedent’s
estate:” The original declaration indicates that a probate matter was
opened in the Tulare County Superior Court for the re: the Malde estates. Letters
of Testamentary were issued appointing Ryan-Autumn as personal representative. (Dec.
Malde ¶ 3, filed 6/8/2022.)
·
If the decedent’s estate was administered, a copy of
the final order showing the distribution of the decedent’s cause of action to
the successor in interest. Letters of Testamentary were issued appointing
Ryan-Autumn as personal representative. (Dec. Malde ¶ 3, filed 6/8/2022.)
·
Either of the following, as appropriate, with facts in
support thereof: Letters
of Testamentary were issued appointing Ryan-Autumn as personal representatives.
(A)
“The affiant or
declarant is the decedent’s successor in interest (as defined in Section 377.11
of the California Code of Civil Procedure) and succeeds to the decedent’s
interest in the action or proceeding.”
(B)
“The affiant or
declarant is authorized to act on behalf of the decedent’s successor in
interest (as defined in Section 377.11 of the California Code of Civil
Procedure) with respect to the decedent’s interest in the action or
proceeding.”
·
“No other person has a superior right to commence the
action or proceeding or to be substituted for the decedent in the pending
action or proceeding:” Paragraph 4 of the original declaration filed on June
8, 2022, indicates that no other person has a superior right to continue the
proceeding. (Dec. Malde ¶ 4.)
·
“The affiant or declarant affirms or declares under penalty
of perjury under the laws of the State of California that the foregoing is true
and correct:” Both
Declarations indicate that Ryan-Autumn declared under penalty of perjury.
·
“A certified copy of the decedent’s death certificate
shall be attached to the affidavit or declaration.” The certified
death certificates of Indumati A. Maldi and Arshi Malde are attached as
exhibits tot the 7-25-22 Supplemental Declaration of Malde.
Probate Code § 9370
Plaintiff
Associated Materials and Cross-Defendant both filed a joinder to the Motion for
Order to Substitute Personal Representative and for Continuance of Action.
Under
Probate Code § 9370, to continue an action against a decedent’s personal
representative, a party must (1) file a claim, (2) have the claim rejected, and
(3) file a motion with the court, within three months of the rejection, to
substitute the personal representative. Both Associated Material and Crane
Development filed joinders to the motion. These motions indicate that the
requirements under Probate Code § 9370 has been met.
1.
On August 9, 2022, both Associated
Material and Crane Development served a Creditor’s claim on the Personal
Representatives of the Estates of both decedents. (Dec. Moreau, ¶ 8, Ex. A-D;
Dec. Greenleaf ¶ 3, Ex. 1-2.)
2.
On August 26, 2022, the rejection of the
Plaintiff Associate Metal’s claims was filed by Ryan-Autumn Malde. (Dec.
Greenleaf ¶ 4 – 5, Ex. 3-4.) On September 2, 2022, Crane Development received a
rejection from both estates. (Supp. Dec. Moreau, ¶ 3-4, Ex. E-H.)
3.
Both Associate Material and Crane
Development have filed joinders within the requisite time periods: Associate
Material filed joinder on September 7, 2022, and Crane Development filed
joinder on September 6, 2022.
Conclusion
For the foregoing reasons, the
Court decides the pending motion as follows:
Ryan-Autumn M. Malde’s Motion for
Continuance of Action by Personal Representative of Defendants and
Cross-Complainants’ Estate is GRANTED.
The Court also finds that under CCP § 583.340, trial was
impossible from the date of Arshi Malde’s death on February 28, 2022 to September
14, 2022 for a total of 168 days.
Moving party to give notice.
IT IS SO ORDERED.
Dated: September 14, 2022 ___________________________________
Upinder
S. Kalra
Judge
of the Superior Court