2017-00211812-CU-PO

Greg Parker vs. Estate of Jason Christopher Keating

Nature of Proceeding: Motion to Quash Service of Summons

Filed By: Stern, Max H.

The motion of defendant Estate of Jason Christopher Keating, Deceased, erroneously sued as Estate of Jason Christopher Keating (“Defendant”) to quash pursuant to Probate Code §552(a) plaintiffs’ service of summons and complaint on Tamara Keating (“Tamara”) is GRANTED, as follows.

Factual Background

This action arises from a motor vehicle accident which resulted in the death of two people, Jason Christopher Keating and Judy Ann Townsend. The latter’s adult children and heirs commenced on 5/1/2017 this wrongful death action against the “Estate of Jason Christopher Keating” and the employer of Mr. Keating, PDQ Automatic Transmission Parts, Inc.

Plaintiffs filed on 7/27/2017 a proof of service indicating that the “Estate of Jason Christopher Keating” was served by delivery of the summons and complaint to Tamara, the surviving spouse of Mr. Keating.

Plaintiffs recently amended the complaint, naming as Doe 1 “Estate of Jason Christopher Keating, Deceased” but no proof of service of this Doe defendant has yet been filed.

Moving Papers. Defendant seeks to quash the service of summons on the ground that the Estate of Jason Christopher Keating, Deceased was not properly served pursuant to Probate Code §552(a), which provides in its entirety:

An action under this chapter shall name as the defendant, “Estate of (name of decedent), Deceased.” 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.

In short, Defendant maintains that it was not properly served in conformity with §552(a) since service must be made on the insurer or its designee rather than the decedent’s spouse. Among other things, Defendant cites a 2016 decision by the Third District Court of Appeal which explained in a footnote that “An ‘estate’ is not a legal entity and is neither a natural nor artificial person” but rather “merely a name to indicate the sum total of the assets and liabilities of a decedent” and that “An ‘estate’ can neither sue nor be sued. (Estate of Bright v. Western Air Lines (1951) 104 Cal.App.2d 827, 828-829…)” (Gee v. Greyhound Lines, Inc. (2016 (Rev. denied) 6 Cal.App.5th 477, 481, Fn. 2.) Thus, the Court of Appeal concluded the “Estate of James Charles Jewett” was not a proper party to the underlying personal injury action and listed a different defendant in the caption of the opinion.

Opposition. Plaintiffs oppose, arguing first that “[p]urported defendant Estate of Jason Christopher Keating[,] Deceased” lacks standing to bring this motion which depends entirely on the application of Probate Code §552(a) but this provision is inapplicable because (1) it is part of a statutory scheme relating to relief against a deceased defendant when the plaintiff intends to restrict recovery to the limits of the decedent’s insurance policy and (2) plaintiffs in the case at bar do not so intend to limit their recovery. Additionally, the opposition contends the “purported defendant” and its attorneys represent neither the Estate of Jason Christopher Keating, the defendant named in the complaint, nor Tamara, the spouse of decedent Keating, but rather moving counsel (Duane Morris, LLP) merely represents a third party insurer which has not been named as a defendant in this action and which has “no independent legal standing to quash a subpoena [sic] served on a completely separate defendant.”

Plaintiffs further assert that the moving papers fail to establish the decedent was actually covered under any “personal policy of insurance at the time of the subject collision” and that the fact Mr. Keating may be covered as a “permissive user” of his employer’s vehicle does not implicate Probate Code §552(a) inasmuch as such insurance is not “personal” to Mr. Keating. The opposition also insists that Gee’s suggestion about an “estate” not being a legal entity which can sue or be sued is mere dicta unnecessary to the ultimate holding and that none of the authorities cited in the moving papers hold that §552 is the sole method by which a decedent may be sued. Indeed, Gee itself indicates in Footnote 3 that “when a defendant is sued in a representative capacity as an executor, administrator, or trustee, the proper venue is the county which has jurisdiction of the estate which the defendant represents” (Gee, at 481, Fn. 3) and plaintiffs have here served decedent Keating’s spouse as the representative of his estate.

Finally, the opposition notes that to the extent plaintiffs’ designation of the Estate of Jason Christopher Keating as a defendant may be flawed, this cannot be resolved here but rather only upon challenge by the estate itself or by Tamara in her representative capacity.

Analysis

At the outset the court will reject plaintiffs’ suggestion that the moving Defendant lacks the standing to seek to quash the service of summons and complaint for the following reasons: (1) The complaint explicitly names as one of the defendants the “Estate of Jason Christopher Keating,” (2) the proof of service which plaintiffs filed on 7/27/2017 indicates service was being effected on the “Estate of Jason Christopher Keating” via Tamara, and (3) the present motion is brought on behalf of the “Estate of Jason Christopher Keating, Deceased, erroneously sued as Estate of Jason Christopher Keating.” (Underline added for emphasis.) Thus, the moving papers by their own terms represent an appearance, albeit a special appearance, on behalf of the defendant identified in the complaint as the “Estate of Jason Christopher Keating.”

While the opposition may insist the plaintiffs in this action do not intend and have not agreed to limit their recovery to the limits of the insurance applicable to the deceased Mr. Keating, the court finds that the only “estate” of Mr. Keating which could under the circumstances be construed as a viable defendant in this action is pursuant to Probate Code §552(a) [specifying that such an action “shall name as the defendant, ‘Estate of (name of decedent), Deceased’” and that service shall be on the deceased’s insurer or

designated agent]. This conclusion is reinforced by the recent Third District Court of Appeal in Gee v. Greyhound Lines, Inc., explaining albeit in a footnote that an ‘estate’ is not a legal entity and can neither sue nor be sued. Although this footnote may be fairly characterized as nonbinding dicta, the fact remains this same point of law was the primary holding in Estate of Bright v. Western Air Lines (1951) 104 Cal.App.2d 827, 828-829. As this decision still appears to be good law and in the absence of contrary law remains binding precedent, this court is unable to discern any justification for refusing to follow the Third District’s recent guidance on the issue.

It is worth noting here that Probate Code §554 states in pertinent part:

(a) Except as provided in subdivision (b), either the damages sought in an action under this chapter shall be within the limits and coverage of the insurance, or recovery of damages outside the limits or coverage of the insurance shall be waived. …

(b) Where the amount of damages sought in the action exceeds the coverage of the insurance, subdivision (a) does not apply if both of the following conditions are satisfied:

(1) The personal representative is joined as a party to the action.

(2) The plaintiff files a claim in compliance with Section 9390 [governing creditor claims against estates of decedents].
(Underline added for emphasis.)

The 1990 Law Revision Commission Comments relating to Probate Code §552 provide additional clarity:

“Subdivision (c) makes clear that an action directed toward collecting from the insurance proceeds under this chapter may be consolidated with an action against the decedent’s personal representative for the excess. Consolidation may be appropriate since the issues relating to liability are the same. See also Sections 550(b) (remedies cumulative), 553 (defenses).” (Underline added for emphasis.)

(See also, Estate of Prindle (2009 (Rev. denied)) 173 Cal.App.4th 119, 131-132 [because action not brought against decedent’s estate under Probate §550 et seq. but rather against administrator of estate pursuant to Code of Civil Procedure §377.40 “as a common law negligence action against the decedent…that survived her death,” §554 (a)’s limitation on damages to policy limits did not apply].)

Conclusion

For the reasons explained above, the present motion to quash plaintiffs’ purported service on “Estate of Jason Christopher Keating” is hereby granted. Defendant need not respond to the summons and complaint unless and until duly served.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)