Judge: William A. Crowfoot, Case: 19STCV38795, Date: 2022-08-24 Tentative Ruling

Case Number: 19STCV38795    Hearing Date: August 24, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On October 29, 2019, plaintiff Guy L. Pearson (“Plaintiff”) filed this action against defendant Gordon Alan Webb (“Defendant”) arising from a November 27, 2018, motor vehicle collision.

On April 15, 2022, Plaintiff filed this motion for an order substituting Defendant’s personal representative as a defendant because Defendant passed away on December 26, 2020. Plaintiff also seeks leave to file a “supplemental” complaint.

On June 20, 2022, the Court continued the hearing on Plaintiff’s motion and stated: “Defendant is invited to provide supplemental briefing on the issues of whether the amended complaint is premature prior to Plaintiff following the procedures to making a creditor’s claim.” (See June 20, 2022, Minute Order.)

Thereafter, on July 21, 2022, having been shown proof of the filing of Plaintiff’s creditor’s claim, the Court continued the hearing on Plaintiff’s motion to show proof of rejection or brief how the claim has been rejected. (See July 21, 2022.)

II.          LEGAL STANDARD

Under Code of Civil Procedure § 377.40, “a cause of action against a decedent that survives may be asserted against the decedent’s personal representative.” 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” so long as Plaintiff shows “proof of compliance with Part 4 (commencing with Section 9000) of Division 7 of the Probate Code governing creditor claims is first made.”  

Probate Code § 9370 provides that an action against a decedent’s personal representative cannot be maintained unless: “(1) A [creditor’s] claim is first filed was provided in this part [against the Estate;] (2) The claim is rejected in whole or in part[; and] (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.”  

“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.” (Probate Code § 9256.)

III.        DISCUSSION

Based on the supplemental briefing filed on July 26, 2022, Plaintiff has shown that his creditor’s claim was neither affirmed nor denied within 30 days of its filings. On June 2, 2022, Plaintiff served his creditor’s claim on Defendant’s estate’s personal representative, Irwin Miller. (Supplemental Brief, Exh. A.) Upon review of the Court’s records, no response has been made to this claim within 30 days. As a result, this refusal or neglect to respond to Plaintiff’s creditor claim is deemed rejected. (Probate Code § 9256.) Thus, Plaintiff has sufficiently complied with Probate Code § 377.41 to warrant the requested substitution.

Accordingly, Plaintiff’s motion is GRANTED.

IV.         CONCLUSION

Plaintiff’s Motion for Order Substituting Personal Representative for Deceased Defendant and Granting Leave to File Supplemental Complaint is GRANTED. Plaintiff shall file a supplemental complaint within five (5) days of this Order.

Moving party to give notice.

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.