Judge: William A. Crowfoot, Case: 20STCV41794, Date: 2022-08-23 Tentative Ruling

Case Number: 20STCV41794    Hearing Date: August 23, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.         BACKGROUND

On November 2, 2020, plaintiff Deeanna Linsmaier (“Plaintiff”) filed this action against defendants Wail Bushara (“Bushara”) and Mercury Insurance Company arising from a November 4, 2018, motor vehicle collision, wherein it is alleged that Plaintiff was the passenger in Bushara’s vehicle at the time of the collision. In the related action (20STCV41916), Plaintiff filed a complaint against defendant Matthew Muldoon (“Muldoon”) and Esurance Insurance Services (“Esurance”) on November 3, 2020 for claims arising from the same motor vehicle collision.

On January 20, 2021, Bushara filed a cross-complaint against Muldoon.

On February 17, 2021, Plaintiff voluntarily dismissed Mercury Insurance Company from the lead action.

On September 24, 2021, Plaintiff filed a First Amended Complaint in the related action naming the Estate of Matthew Muldoon (the “Estate”) as a defendant after learning about Muldoon’s death.

On July 27, 2022, Bushara filed the instant motion for order substituting parties in connection with his cross-complaint pursuant to Code of Civil Procedure § 377.41 and Probate Code § 550. Bushara seeks to substitute the Estate in for Muldoon. Esurance and Muldoon filed their opposition on August 11, 2022. Plaintiff filed an untimely opposition on August 16, 2022. Bushara filed his reply to each opposition.

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.” Code of Civil Procedure § 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.”  Code of Civil Procedure § 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 . . . 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 § 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

          As a preliminary matter, while Plaintiff’s opposition was filed untimely, Bushara was able to file his reply. Thus, he was not prejudiced. The court has broad discretion to overlook late-served papers and to resolve the matter on the merits.  (E.g., Cal. Rules of Court, rule 3.1300(d); Gonzalez v. Santa Clara County Dept. of Social Services (2017) 9 Cal.App.5th 162, 168 [“(E)ven if the service had been untimely, the trial court was vested with discretion to overlook the defect”].)

A.   Substitution under Code of Civil Procedure § 377.41

Here, Bushara claims that the Court has authority to grant his motion pursuant to Code of Civil Procedure § 377.41. However, he overlooks the procedural requirements necessary to facilitate the substitution. Bushara fails to show that he filed a timely creditor’s complaint and it was rejected. (See Probate Code § 9370.)

Therefore, the Court denies Bushara’s motion on this ground.

B.   Probate Code § 550

Next, Bushara asserts that the Court has authority to grant his motion pursuant to Probate Code § 550.

“. . . [A]n 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.” (Probate Code § 550(a).) However, in such circumstances, recovery is limited based on the insurance coverage the decedent possessed at the time of the incident. (Probate Code § 554.)

Here, Bushara concedes that Muldoon passed away on September 27, 2020. (Sullivan Decl. ¶ 3.) Because the lead and related actions were not filed until November 2020 after Muldoon’s death, any claims against the Estate must have been made within one year, i.e. September 27, 2021. (Code Civ. Proc. § 366.2; Probate Code § 550.) In response, Bushara argues that the statute of limitations is tolled because he filed his cross-complaint against Muldoon on January 20, 2021. (Reply re: Plaintiff’s Opposition at pg. 3, relying on Burgos v. Tamulonis (1994) 28 Cal.App.4th 757 and Sidney v. Superior Court (1988) 198 Cal.App.3d 710.) The Court agrees, even though Bushara has been dilatory in seeking substitution. Also, there is no showing by the opposing parties that they would be prejudiced as a result of the requested substitution.

Accordingly, the Court grants Bushara’s motion pursuant to Probate Code § 550. Thus, recovery is limited as stated under Probate Code § 554.

IV.      CONCLUSION

          Bushara’s Motion for Order Substituting Parties is GRANTED. Bushara is instructed to file an amended cross-complaint and an amended summons shall be issued. (Probate Code § 553.)

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’s 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.