2012-00129304-CU-PA

Steven Paul Palacios vs. Rodney Clayton Logan

Nature of Proceeding:   Hearing on Demurrer

Filed By:  Koyama, Julie K.

Defendant the Estate of Rodney Logan, Deceased (“Estate”) demurrer to Plaintiff
Steven Palacios’ First Amended Complaint (“FAC”) is ruled upon as follows.

The Estate’s request for judicial notice is ruled upon as follows.  The Estate requests
that the Court take judicial notice of Plaintiff’s original complaint filed on August 2,
2012, the FAC, an affidavit of reasonable diligence filed on January 7, 2013, and
Rodney Logan’s death certificate which reflects that Rodney Logan’s date of death
was March 30, 2012.  The Estate failed to provide the court with a copy of the material
as required by CRC Rule 3.1306(c).  Despite such failure, the Court can locate the
pleadings filed in this action and thus the motion is granted as to requests 1-3.
Further, as there is no objection by Plaintiff regarding the date of Rodney Logan’s
death, the Court will also grant the motion as to request #4 despite the failure to
comply with CRC 3.1306(c).  (See, also People v. Terry (1974) 38 C.A.3d 432, 439;
Ellenberger v. City of Oakland, (1946) 76 Cal.App.2d 828, 835.)

The Estate demurs to the FAC on the basis that the statute of limitations in this
personal injury action has run against it because the lawsuit was not brought against it
within one year of Rodney Logan’s death as required by CCP § 366.2 or Probate Code
§ 551.

In addition, the Estate argues that Plaintiff is not entitled to rely upon the relation back
doctrine because he was not truly ignorant of the Estate’s existence given the fact that
a declaration of diligence filed on January 17, 2013 contains a statement from the
process server indicating that Rodney Logan could not be served with the summons
and complaint because he was deceased.

Pursuant to CCP § 366.2, where a person against whom an action may be brought
“dies before 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.”  Pursuant to
CCP § 377.50, an “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 as provided in Chapter 1 (commencing with section 550) of Part 13 of Division 2
of the Probate Code.”  Probate Code § 551 provides that “[n]otwithstanding section
366.2 of the Code of Civil Prcoedure, if the limitations period otherwise applicable to
the action had not expired at the time of the decedent’s death, an action under this
chapter may be commenced within one year after the expiration of the limitations
periods otherwise applicable.”  Actions pursuant to Probate Code § 550 et seq., are
limited to damages within  the coverage limits of any insurance, unless the decedent’s
personal representative is joined in the action and a timely creditor’s claim against the
estate has been filed.  (Probate Code § 554.)

Here, the FAC added the Estate and only seeks recovery against the Estate up to
Rodney Logan’s policy of insurance as provided by Probate Code § 554.  There is no
dispute that the FAC was not filed within one year of the statute of limitations that
would otherwise be applicable as provided in Probate Code § 551.  Here the
applicable statute of limitations for the personal injury action is the two year statute set
forth in CCP § 335.1.  The subject accident occurred on August 5, 2010.  Plaintiff does
not dispute that Rodney Logan passed away on March 30, 2012.  Thus, according to
CCP § 551, any action against the Estate was required to be filed one year after the
statute of limitations expired, e.g. August 5, 2013.  The Complaint was filed on August
2, 2012, but the FAC naming the Estate was filed on May 15, 2014.  However, as
explained below, Plaintiff is entitled, at least for pleading purposes, to the benefit of the
relation back doctrine.

“A plaintiff ignorant of the identity of a party responsible for damages may name that
person in a fictitious capacity, a Doe Defendant, and that time limit prescribed by the
applicable statute of limitations is extended to the unknown defendant.”  (Munoz v.
Purdy (1979) 91 Cal.App.3d 942, 946.)  “[i]t is settled that a defendant sued by a
fictitious name and later brought into the case by an amendment substituting his true
name is considered a party to the action from its commencement for purposes of the
statute of limitations.”  (Austin v. Massachusetts Bonding & Insurance Co . (1961) 56
Cal.2d 596, 602.)  Plaintiff essentially substituted the Estate for a Doe defendant and
therefore the FAC relates back to the original complaint and the Estate is considered a
party from the date the complaint was filed, here, August 2, 2012.  Thus the FAC is
timely as to the Estate, at least for pleading purposes.

The Court rejects the Estate’s arguments that Plaintiff is not entitled to rely upon the
relation back doctrine.  The argument relies upon a reference to the    declaration of
diligence filed on January 17, 2013 which contains a statement from the process
server indicating that Rodney Logan could not be served with the summons and
complaint because he was deceased.  However, the complaint had already been filed
in August 2012, and there is no argument that Plaintiff was somehow aware of Rodney
Logan’s death at the time the complaint was filed.  In order to relate an amended
complaint back to the original complaint to avoid the statute of limitations, the plaintiff
must be genuinely ignorant of the defendant’s identity or the facts rendering the
defendant liable when the original complaint was filed.  (§ 474; Austin, supra, at p. 602
)   Simply stated, the alleged defect, specifically, the Estate’s claim that Plaintiff was not
truly ignorant of its identity, is not revealed from the face of the FAC.  Section 474 is
restricted to the knowledge of the plaintiff at the time of the filing of the complaint.
(See, e.g. Balon v. Drost (1993) 20 Cal. App. 4th 483, 487.)

Further, the authority cited by the Estate is inapplicable.  (Von Gibson v. Estate of
Lynch (1988) 197 Cal.App.3d 725.)  Critically, while Von Gibson dealt with the issue of
whether a plaintiff was truly ignorant of a decedent’s estate for purposes of the relation
back doctrine, where the plaintiff added the decedent’s estate more than two years
after the decedent passed away, that case was decided on a motion for summary
judgment, not at the pleading stage.  (Id. at 729-730.)  Indeed, the determination of the
plaintiff’s ignorance, or lack thereof, in Von Gibson was based on evidence and factual
concessions, for example, that the plaintiff knew that the decedent died at the scene of
the accident.  (Id. at 730.)  Resolution of whether Plaintiff here was truly ignorant of the
Estate is not appropriately resolved on this pleading motion.

The demurrer is overruled.

The Estate shall file and serve its answer to the FAC no later than July 8, 2014.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.