Opinion
B322104
08-21-2023
DAVID ALLEN et al., Plaintiffs and Appellants, v. ESTATE OF JOCELYN STEPHANIE GOMEZ, Defendant and Respondent.
McGee, Lerer & Associates, Dean Ogrin; Esner, Chang, Boyer &Murphy, Stuart B. Esner and Rowena J. Dizon for Plaintiffs and Appellants. Ford, Walker, Haggerty & Behar and Mark P. LaScola for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. 20STCV17474, William A. Crowfoot, Judge.
McGee, Lerer & Associates, Dean Ogrin; Esner, Chang, Boyer &Murphy, Stuart B. Esner and Rowena J. Dizon for Plaintiffs and Appellants.
Ford, Walker, Haggerty & Behar and Mark P. LaScola for Defendant and Respondent.
CURREY, P. J.
INTRODUCTION
Plaintiffs and appellants David Allen and Connie Allen appeal from a summary judgment granted in favor of defendant Estate of Jocelyn Stephanie Gomez (the Estate) based on plaintiffs' supposed failure to comply with the one-year statute of limitations in Code of Civil Procedure section 366.2 (section 366.2). As discussed in greater detail below, we conclude the trial court erred by applying section 366.2 rather than the limitations period set forth in Probate Code section 551. Because plaintiffs' complaint was timely under the latter, we reverse the judgment and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
The following facts are undisputed. On June 11, 2018, Jocelyn Gomez (Gomez) was involved in a multi-car accident. Joshua Allen (Joshua) was a passenger in Gomez's car. Both Gomez and Joshua died at the scene of the accident.
On May 7, 2020, plaintiffs (Joshua's parents) filed a wrongful death action against the Estate and Safeway Insurance Company (Safeway), alleging causes of action for motor vehicle negligence and general negligence against the Estate, and declaratory relief against Safeway. The complaint alleged Gomez negligently failed to properly maintain her vehicle, and that Safeway provided liability coverage for the vehicle driven by Gomez. Plaintiffs sought compensatory damages according to proof.
Plaintiffs also sued Gomez's mother and two other individuals involved in the accident. They are not parties to this appeal.
On May 21, 2020, Joshua's parents filed a first amended complaint (FAC). As relevant here, the FAC amended the claim for declaratory relief by adding the Estate as a defendant to the claim. It also removed plaintiffs' request for a declaration that the Safeway policy is "'open' and that defendants are responsible for plaintiffs' excess judgment above the policy limits.'" Instead, the FAC requested declaratory relief as follows: (1) a declaration that there was no settlement between plaintiffs and defendants; and (2) other and further relief as the court deems proper. The Estate filed an answer to the FAC asserting several affirmative defenses, including that the FAC was barred by "the applicable statute of limitations[.]"
Plaintiffs dismissed Safeway from the lawsuit on October 28, 2020.
The Estate then moved for summary judgment on the ground plaintiffs' complaint was untimely under the one-year statute of limitations in section 366.2. It argued that because plaintiffs did not file their action until almost two years after Gomez's death, the complaint was time-barred. Plaintiffs opposed the motion, arguing their lawsuit against the Estate is instead governed by Probate Code section 551, which provides that, "[n]otwithstanding [section 366.2] . . . an action under this chapter [Liability of Decedent Covered by Insurance] may be commenced within one year after the expiration of the limitations period otherwise applicable." In support of their opposition, plaintiffs attached evidence that Gomez was insured by Safeway at the time of her death for the automobile liability claims asserted in the action. The policy had a limit of $15,000 for any single injury and $30,000 for any one accident.
After an initial hearing on the motion, the trial court continued the hearing and ordered supplemental briefing on whether the motion should be treated as a demurrer and whether plaintiffs should be allowed to amend the complaint. The parties filed their supplemental briefs, and the court issued a tentative ruling denying summary judgment. After oral argument, however, the court changed its tentative based on its conclusion that "the plaintiff[s] [are] artfully seeking to keep open the possibility of a larger recovery than that contemplated by the statutory scheme of Probate Code section 550, et seq. That runs directly counter to the streamlining purposes of Probate Code section 550, et seq."
The trial court granted the summary judgment motion and entered judgment in favor of the Estate. Plaintiffs timely appeal from the judgment.
DISCUSSION
A. Statutory Scheme and Standard of Review
Section 366.2, subdivision (a) provides: "If a person against whom an action may be brought on a liability of the person . . . 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." The purpose of the one-year limitations period "is to expedite and 'facilitate the orderly administration of the decedent's estate.'" (Stoltenberg v. Newman (2009) 179 Cal.App.4th 287, 296.)
Ordinarily, actions for negligence and wrongful death are governed by a two-year statute of limitations. (Code Civ. Proc., § 335.1.)
Section 366.2 does not apply, however, in actions brought under Probate Code sections 550 through 555. Under that statutory scheme, if the putative defendant is covered by insurance, an action may be commenced against the putative defendant's estate without the need to join as a party the putative defendant's personal representative or successor in interest. (Prob. Code, § 550, subd. (a).) In such an action, "[n]otwithstanding [section 366.2], if the limitations period otherwise applicable to the action has not expired at the time of the [putative defendant's] death, an action under this chapter may be commenced within one year after the expiration of the limitations period otherwise applicable." (Prob. Code, § 551.) Damages under this statutory scheme are limited, however, when the personal representative is not joined as a party: A judgment in such an action in favor of plaintiffs is enforceable only from the insurance coverage proceeds and not against property in the estate and "shall be within the limits and coverage of the insurance[.]" (Id., § 554, subd. (a).)
"When there is no dispute over the decisive facts, the question of limitations is one of law, amenable to disposition by summary judgment." (Wells Fargo Bank v. Superior Court (1977) 74 Cal.App.3d 890, 895.) The relevant facts are not in dispute. The only issue presented on the motion for summary judgment was whether, based on those undisputed facts, plaintiffs' action is subject to the one-year statute of limitations in section 366.2 or the extended limitations period provided in Probate Code section 551.
B. Analysis
As discussed above, plaintiffs filed this action more than a year after Gomez's death. Plaintiffs argue their complaint is nevertheless timely under Probate Code section 551. We agree.
It is undisputed that, in compliance with Probate Code section 550, subdivision (a), plaintiffs' complaint named Gomez's estate as a defendant in the action and Gomez carried automobile insurance covering the accident. Thus, under Probate Code section 551, section 366.2's one-year statute of limitations does not apply. Rather, the action may be "commenced within one year after the expiration of the limitations period otherwise applicable." (Prob. Code, § 551.) The limitations period "otherwise applicable" to plaintiffs' claims, as previously noted, is the two-year period under Code of Civil Procedure section 335.1, which would not have expired until June 11, 2020 (two years after the accident). Plaintiffs, therefore, were required to file any action under Probate Code section 550 within one year of that date (i.e., by June 11, 2021), making this action- filed on May 7, 2020- timely.
The Estate contends the longer limitations period in Probate Code section 551 does not apply because plaintiffs did not bring the action under Probate Code section 550, et seq. They argue that because the FAC seeks damages in excess of policy limits, the lawsuit is not "under this chapter" of the Probate Code governing the liability of decedents covered by insurance, and thus Probate Code section 551 does not apply. We are unpersuaded.
Preliminarily, we note that contrary to the Estate's contentions, although the FAC neither explicitly seeks damages only within the policy limits, nor explicitly waives recovery of damages outside the limits of coverage, it also does not explicitly seek damages in excess of the policy limits. The FAC simply seeks damages "according to proof." But more importantly, irrespective of the prayer for damages in the FAC, unless the personal representative is joined as a party or the plaintiff files a creditors' claim in probate, the damages sought in the action must be within the policy limits, or recovery in excess of the limits is waived by operation of law. (See Prob. Code, § 554; see also Meleski v. Estate of Albert Hotlen (2018) 29 Cal.App.5th 616, 624 ["[B]y naming the estate as the defendant without joining the estate's personal representative or filing a creditors' claim with the estate, [the plaintiff] agreed to limit her recovery of damages against the estate to the policy limits"].)
We acknowledge that at the second hearing on the Estate's motion, plaintiffs' counsel appeared to be evasive in responding to the trial court's questioning regarding whether, in plaintiffs' view, they are entitled to a recovery in excess of the policy limits. Ultimately, however, the following exchange occurred between the court and plaintiffs' counsel:
"The Court: So the insurance coverage for the Estate is up to $15,000 on this issue.
"[Plaintiffs' counsel]: Yes.
"The Court: Is it your assertion that you are entitled, if you prevail with respect to the Estate, to get more than $15,000?
"[Plaintiffs' counsel]: No, we're entitled to ask the jury to award a just amount.
"The Court: That's not my question. Let's say you ask the jury for a million dollars and the jury says a million dollars, and you come back to me and I say, well, okay, $15,000 is the policy limit pursuant to Probate Code section 554.
"[Plaintiffs' counsel]: Yes. Yes.
"The Court: Yes. I can see why the defense here is very wary of the approach that you are taking to this because it's taken me 15 minutes to get you to tell me that you would live with the policy limits."
We sympathize with the trial court's frustrations. But by naming the Estate as the defendant without joining the Estate's personal representative, plaintiffs are limited in their recovery of damages against the Estate to the policy limits as a matter of law. (Prob. Code, § 554.) Thus, even if plaintiffs are "artfully seeking to keep open the possibility of a larger recovery[,]" as the trial court found, under Probate Code section 554, they are barred from doing so. It does not mean, however, that the statute of limitations in Probate Code section 551 is inapplicable because plaintiffs' complaint is not an "action under this chapter[.]" (Id., § 551.) To the contrary, because plaintiffs concede the complaint was brought "under this chapter" (acknowledging it would be untimely based on section 366.2's statute of limitations), plaintiffs have waived "recovery of damages outside the limits or coverage of the insurance[.]" (Id., § 554, subd. (a).)
We likewise reject the Estate's arguments that Probate Code section 551 does not apply to plaintiffs' action because plaintiffs failed to (1) serve the Estate's liability insurer, as required by Probate Code section 552 ; and (2) file a probate claim under Probate Code section 9390. These points have no bearing on whether the longer limitations period in Probate Code section 551 applies to plaintiffs' claims against the Estate.
Probate Code section 552, subdivision (a), provides, in relevant part: "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."
With respect to its first point, the Estate cites no authority for its position that defective service makes the complaint untimely under Probate Code section 551. And, in any event, the Estate made a general appearance by answering the complaint. Thus, it forfeited any objection to service of process. (See Code Civ. Proc., § 410.50, subd. (a) ["A general appearance by a party is equivalent to personal service of summons on such party"]; ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 210 ["A defendant submits to the court's jurisdiction by making a general appearance in an action and thereby waives the defense of lack of personal jurisdiction"].)
The Estate's second point is also irrelevant to the statute of limitations issue. If plaintiffs filed a claim under Probate Code section 9390 (and joined the personal representative as a party), Probate Code section 554, subdivision (a), would not apply (i.e., plaintiffs could recover damages in excess of the policy limits). (Prob. Code, § 554, subd. (b).) That plaintiffs failed to do so does not mean the limitations period in Probate Code section 551 is inapplicable. It simply means "recovery of damages outside the limits or coverage of the insurance shall be waived." (Id., § 554, subd. (a).)
In sum, we conclude the trial court erred by concluding plaintiffs' complaint was time-barred based on section 366.2's one-year statute of limitations. This does not mean plaintiffs can recover amounts in excess of the $15,000 policy limit, however. (Prob. Code, § 554.) A claim against the Estate for amounts in excess of the insurance policy limit is barred by the statute of limitations for claims not covered by insurance, which expired one year after Gomez's death (i.e., June 11, 2019). (Code Civ. Proc., § 366.2, subd. (a).)
DISPOSITION
The judgment is reversed and the matter is remanded for further proceedings consistent with this opinion. Plaintiffs are awarded their costs on appeal.
We concur: COLLINS, J., MORI, J.