Case Number: BC520945    Hearing Date: August 08, 2014    Dept: 46

Case Number: BC520945
FRANK GRIFFITH ET AL VS DIANE SIMS ET AL
Filing Date: 09/11/2013
Case Type: Contractual Fraud (General Jurisdiction)

This tentative ruling is posted at 2:20 p.m. on 8-7-2014 and the matter is set for hearing on 8-8-2014 at 8:30 a.m.

If there are no parties other than Plaintiff/Petitioner, then Plaintiff/Petitioner may submit to the tentative without appearance by telephonic notification to the clerk of Dept. 46 between 8:00 a.m. and 4:30 p.m. on a date prior to the hearing or morning prior to the hearing by calling (213) 974-5665, and the court will issue the tentative ruling as the final ruling. If the other parties have appeared in the action, then the parties must first confer and all agree that the tentative ruling will be the final ruling on the matter. If the parties to the matter before the court all agree, a representative of the parties may call the clerk and submit without an appearance, and the court will issue the tentative ruling as the final ruling. If an order is required, it should be lodged directly in Dept. 46 with a copy to adverse/other parties, if any.

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08/08/2014
DEMURRER TO FAC

TENTATIVE RULING: Diana Sims and Denram Corporation’s DEMURRERS filed 5/13/2014 are OVERRULED. Diana Sims and Denram Corporation to Answer within 10 days.

Procedural history related to moving parties.

On 3/21/14, Plaintiffs [P] filed their First Amended Complaint [FAC] for (1) Breach of Contract [K]; (2) Breach of Implied Covenant of Good Faith and Fair Dealing; (3) Breach of Fiduciary Duty; (4) Fraud and (5) Damages for Injury Based on Conspiracy and Imposition of Constructive Trust against Diane Sims aka Diana Sims (hereinafter, “Diana”); Denram Corporation (hereinafter, “Denram”) and DOES 1-20.

Plaintiffs allege that on/about 9/30/05, Ps and Dominic A. Sims (hereinafter, “Dominic”), Diana and Denram entered into three agreements: (1) a written “Asset Purchase Agreement,” in which Ps agreed to sell certain assets to Dominic, Diana and Denram; (2) a 10/1/05 lease agreement for the rental of the premises located at 236 West Maple Avenue in Monrovia and (3) a promissory note. Dominic died in 12/12. Ps claim that Defendants have breached these agreements.

The allegations on the face of the FAC do not establish that this action is time-barred by 366.2.

CCP § 366.2 states, in relevant part, as follows:

“(a) If a person against whom an action may be brought on a
liability of the person, whether arising in contract, tort, or otherwise,
and whether accrued or not accrued, dies before the expiration of
the applicable limitations period, and the cause of action survives,
an action may be commenced within one year after the date of
death, and the limitations period that would have been applicable
does not apply.
(b) The limitations period provided in this section for commencement
of an action shall not be tolled or extended for any reason except as
provided in any of the following, where applicable:
(1) Sections 12, 12a, and 12b of this code.
(2) Part 4 (commencing with Section 9000) of Division 7 of the Probate
Code (creditor claims in administration of estates of decedents).
(3) Part 8 (commencing with Section 19000) of Division 9 of the
Probate Code (payment of claims, debts, and expenses from revocable
trust of deceased settlor).
(4) Former Part 3 (commencing with Section 21300) of Division 11 of
the Probate Code (no contest clauses), as that part read prior to its
repeal by Chapter 174 of the Statutes of 2008.
(c) This section applies to actions brought on liabilities of persons
dying on or after January 1, 1993.”

The “Law Revision Commission Comments” thereto state, in pertinent part, as follows:

“This section applies a one-year statute of limitations on all actions
against a decedent on which the statute of limitations otherwise
applicable has not run at the time of death. This one-year limitations
period applies regardless of whether the statute otherwise applicable
would have expired before or after the one-year period.
If a general personal representative is appointed during the one-year
period, the personal representative must notify known creditors, and
the filing of a claim tolls the statute of limitations. See Prob. Code §§
9050 (notice required), 9352 (tolling of statute of limitations). If the
creditor is concerned that the decedent’s beneficiaries may not have
a general personal representative appointed during the one-year
period, the creditor may petition for appointment during that time.
See Prob. Code §§ 8000 (petition), 8461 (priority for appointment);
see also Prob. Code § 48 (‘interested person’ defined)…

The one-year limitation of Section 366.2 applies in any action on a
liability of the decedent, whether against a personal representative
under Probate Code Sections 9350-9354 or against another person,
such as a distributee under Probate Code Section 9392, a person
who takes the decedent’s property and is liable for the decedent’s
debts under Probate Code Sections 13109 (affidavit procedure for
collection or transfer of personal property), 13156 (court order
determining succession to real property), 13204 (affidavit procedure
for real property of small value), or 13554 (passage of property to
surviving spouse without administration), or a trustee…”

Probate Code § 13554 states as follows:

(a) Except as otherwise provided in this chapter, any debt described
in Section 13550 may be enforced against the surviving spouse in the
same manner as it could have been enforced against the deceased
spouse if the deceased spouse had not died.
(b) In any action or proceeding based upon the debt, the surviving
spouse may assert any defense, cross-complaint, or setoff which
would have been available to the deceased spouse if the deceased
spouse had not died.
(c) Section 366.2 of the Code of Civil Procedure applies in an action
under this section.”

“Generally, a surviving spouse is personally liable for the debts of the deceased spouse chargeable against property that passes to the survivor without administration. [Prob. Code, §§ 13550, 13551…]. Such property includes [Prob. Code, § 13551]: (1) the portion of the one-half of the community and quasi-community property belonging to the surviving spouse [Prob. Code, §§ 100, 101] that is not exempt from enforcement of a money judgment and is not administered in the estate of the deceased spouse; (2) the portion of the one-half of the community and quasi-community property belonging to the decedent [see Prob. Code, §§ 100, 101] that passes to the surviving spouse without administration; (3) the separate property of the decedent that passes to the surviving spouse without administration. The surviving spouse is not liable under these provisions if all such property is administered. [Prob. Code, § 13553]… A debt may be enforced against the surviving spouse in the same manner as it could have been enforced against the deceased spouse if the deceased spouse had not died. [Prob. Code, § 13554, subd. (a)…]” Gold, Dell’osso and Gillick, Cal. Civ. Prac. Probate and Trust Proceedings (2014) § 7:25.

Plaintiffs have alleged that “Dominic A. Sims passed away in December 2012, and we were informed that there is no current probate estate and there will not be one nor a trust.” (FAC, ¶ 3). It appears, then, based upon the foregoing authority, that Ps had one year from the date of Dominic’s death to sue Diana, Dominic’s wife “for the debts of the deceased spouse chargeable against property that passes to the survivor without administration,” which Ps did by filing their lawsuit on 9/11/13.

Diana’s argument regarding creditor’s claims is misleading and inapposite inasmuch as there apparently was no probate administration.

Therefore, demurrer is overruled. Defendants Diana Sims and Denram Corporation are ordered to file and serve an Answer to the FAC within 10 days.
Case Number: BC520945
FRANK GRIFFITH ET AL VS DIANE SIMS ET AL
Filing Date: 09/11/2013
Case Type: Contractual Fraud (General Jurisdiction)

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8/8/2014
Conference-Case Management

Jury fees were posted on 2/28/2014. Matter to be set for jury trial on 07/15/2015 at 9:30 a.m. and a final status conference on 6/30/2015 at 8:30 a.m.

If the parties agree to mediation: The court orders the parties to select a mutually agreeable mediator by 1/9/2015, complete mediation by 5/15/2015 and then return to court for post-mediation conference on 5/18/2015 at 8:30 a.m. in Dept. 46.

The parties are to comply with the CMC order which is issued separately.

This ruling and the CMC order are posted on-line. No appearance is necessary if, after meeting and conferring regarding the tentative ruling, the parties both agree to the dates and times set for trial, the parties waive further notice of this trial, and one party calls the court and informs the court that the parties agree and that both parties waive notice.

IT IS SO ORDERED:

______________________________
Frederick C. Shaller, Judge

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CASE MANAGEMENT ORDER

Case Number: BC520945
FRANK GRIFFITH ET AL VS DIANE SIMS ET AL
Filing Date: 09/11/2013
Case Type: Contractual Fraud (General Jurisdiction)

Trial and Final Status Conference

Jury trial is set for 07/15/2015 at 9:30 a.m.

Final status conference is set for 6/30/2015 at 8:30 a.m.

Jury Instructions and Verdict Form

The Court settles jury instruction and the verdict form at the Final Status Conference. A jury panel will not be ordered until the instructions and verdict form are settled.
Counsel and self-represented parties with authority to agree on jury instructions and the verdict form shall meet and confer in person within thirty (30) days of the Final Status Conference regarding jury instructions and a special verdict form with interrogatories. All counsel and self-represented parties shall bring to that meeting their requested jury instructions and special verdict form with interrogatories.
As required by LASC Local Rule 3.25(g)(7), counsel and self-represented parties shall present at the Final Status Conference one joint set of agreed jury instructions, one joint set of disputed jury instructions and one joint agreed special verdict with interrogatories. Jury instructions must be formatted as required by Cal. Rules of Court (CRC) 2.1055.
Any disputed jury instructions that is not a form instruction as approved by BAJI or CACI shall contain a citation to the case in support of the instruction with a page citation to the portion of the case that supports the instruction. If federal or out-of-state citations are included, a copy of the entire case must be lodged with the court in accordance with CRC 3.1113(i).

Motions in Limine

Motions in limine shall be noticed pursuant to CCP §1005(b) to be hear at the Final Status Conference and shall comply with LASC Rules 3.25(g)(2) and 3.57.

Counsel shall seek and obtain from the Court an alternate briefing schedule if it is not possible to notice a motion in limine for the Final Status Conference on 16 days notice, such as motions in limine regarding expert witnesses.

Witness and Exhibit Lists

Witness and exhibits lists shall be filed and served in compliance with LASC Local Rule 3.25(f)(1).

Alternative Dispute Resolution

If the parties agree to mediation: The court orders the parties to select a mutually agreeable mediator by 1/9/2015, complete mediation by 5/15/2015 and then return to court for post-mediation conference on 5/18/2015 at 8:30 a.m. in Dept. 46.
All parties including persons with authority to settle, and lead trial counsel shall be physically present at the mediation. Insurance claims representatives assigned to the file and located in California shall be physically present. Insurance claims representatives assigned to the file and located outside California shall be available by telephone during the entire mediation.
Counsel participating in any form of alternative dispute resolution shall comply with CRC 3.1380(b). The mediator has no authority to make any exceptions to this order.

Motions

Objections to evidence filed in connection with any motion shall be in the format required by CRC 3.1354(b). Counsel shall lodge a proposed order on objections in the format specified in CRC 3.1354(c). Objections must be filed and proposed orders lodged at the time of the opposition or reply brief or objections will be waived.
All citations to federal or out of state authorities shall be accompanied by lodged out of state authorities in the format specified by CRC 3.1113(i).
No more than one (1) summary judgment/adjudication to be filed per party.

Trial

On the first date of trial, all counsel and self-represented parties will bring to court five sets of three ring binders containing exhibits. Exhibits must be sequentially numbered, starting from the number 1, on the lower right side of each page.
Counsel and self-represented parties are to assign trial exhibit numbers so there are no duplicate exhibit numbers.
Counsel and self-represented parties are ordered to meet and confer so that exhibits not in dispute can be admitted at the beginning of each party’s case.
Counsel and, where applicable, parties and witnesses, shall comply with LASC Local Rules 3.70 – 3.193.

IT IS SO ORDERED:

Dated: _______________________________
FREDERICK C. SHALLER
Judge of the Superior Court

IT IS SO ORDERED:

Frederick C. Shaller,Judge