16-CIV-00175 JOSPEH GIARRUSSO, ET AL. VS. ESTATE OF DOROTHY DIEGELMAN, ET AL

JOSPEH GIARRUSSO ESTATE OF DOROTHY DIEGELMAN
JOSEPH W. CARCIONE PHAIDRA M. GARCIA

MOTION TO SANCTION TENTATIVE RULING:

As to all three asserted causes of action, Defendant Estate of Dorothy Diegelman’s Demurrer to Plaintiffs’ 5-10-18 Second Amended Complaint (SAC) is SUSTAINED WITH LEAVE TO AMEND. Plaintiffs contend the SAC complies with the Court’s 5-2-18 Minute Order by clarifying that Plaintiffs seek damages/recovery only from the insurance carrier(s), and not from the Estate. First, the SAC makes that distinction clear only with respect to the First Cause of Action for “general negligence.” See SAC, Attachment GN-1, § 6. Similar language is not included in the attachments pertaining to the Second and Third Causes of Action, which allege “premises liability” and “negligent infliction of emotional distress.” Further, the SAC does not allege/state that all claims are asserted pursuant to Probate Code § 550 et. seq., which would necessarily render them subject to the damages limitations set forth in Probate Code § 554(a). As discussed in the context of the prior Demurrer, Plaintiffs appear to be proceeding under Probate Code § 550 et. seq. to avoid Defendants’ Code Civ. Proc. § 366.2 statute of limitations defense. To state a cause of action that is not time-barred by § 366.2, the Complaint should make clear that all claims are being asserted under Probate Code § 550 et. seq. By failing to make that clear in the pleading (and by arguing, at the 5-2-18 hearing, that Plaintiffs intend to seek damages at trial beyond the policy limits, which § 550(a) expressly disallows), Plaintiffs are tacitly suggesting they are pursuing claims other than under Probate Code § 550 et. seq., and in so doing, are inviting the argument that the claims are time-barred by Code Civ. Proc. § 366.2.

Further, to comply with Probate Code § 552, any further amended Complaint should name as the defendants, “Estate of Dorothy Diegelman, Deceased.”

Defendant’s Request for Judicial Notice accompanying its Demurrer is GRANTED as the death certificate (Evid. Code § 452(c)) and GRANTED as to the SAC. Evid. Code § 452(d).

Plaintiffs’ Request for Judicial Notice as to Exhibits 1-5 is GRANTED. Evid. Code § 452(d).