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This case was last updated from Los Angeles County Superior Courts on 06/01/2019 at 19:29:15 (UTC).

HAMID OUHANE ET AL VS HERMAN HUNTER

Case Summary

On 05/09/2016 HAMID OUHANE filed a Personal Injury - Motor Vehicle lawsuit against HERMAN HUNTER. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GEORGINA T. RIZK. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9884

  • Filing Date:

    05/09/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Motor Vehicle

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

GEORGINA T. RIZK

 

Party Details

Plaintiffs and Petitioners

OUHANE HAMID

SUNSET VIP LLC

Defendants and Respondents

DOES 1 TO 20

HUNTER HERNAN

ESTATE OF HERMAN HUNTER

HUNTER HERMAN

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

LAW OFFICES OF HENRY SACK

YAZDANPANAH HESAM DEAN ESQ.

MCELFISH RAYMOND DAVID ESQ.

Defendant Attorney

MCCLAUGHERTY JAY S ESQ.

 

Court Documents

AMENDMENT TO COMPLAINT

1/2/2018: AMENDMENT TO COMPLAINT

ORDER AND STIPULATION TO CONTINUE TRIAL, FSC [AND RELATED MOTION/DISCOVERY DATES]

1/30/2018: ORDER AND STIPULATION TO CONTINUE TRIAL, FSC [AND RELATED MOTION/DISCOVERY DATES]

Minute Order

3/23/2018: Minute Order

PLAINTIFFS EX PARTE APPLICATION TO CONTINUE THE TRIAL DATE;MEMORANDUM OF POINTS AND AUTHORITIES;AND ETC.

3/23/2018: PLAINTIFFS EX PARTE APPLICATION TO CONTINUE THE TRIAL DATE;MEMORANDUM OF POINTS AND AUTHORITIES;AND ETC.

ORDER ON EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL DISCOVERY AND MOTION CUT-OFF DATES BASED UPON THE NEW TRIAL DATE

8/27/2018: ORDER ON EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL DISCOVERY AND MOTION CUT-OFF DATES BASED UPON THE NEW TRIAL DATE

Notice

1/10/2019: Notice

Minute Order

1/14/2019: Minute Order

Notice of Ruling

1/23/2019: Notice of Ruling

Notice of Ruling

1/23/2019: Notice of Ruling

Ex Parte Application

4/12/2019: Ex Parte Application

Minute Order

4/12/2019: Minute Order

Unknown

6/1/2016: Unknown

SUBSTITUTION OF ATTORNEY

3/30/2017: SUBSTITUTION OF ATTORNEY

SUBSTITUTION OF ATTORNEY

3/30/2017: SUBSTITUTION OF ATTORNEY

NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING PLAINTIFF HAMID OUHANE TO RESPOND TO DEMAND FOR PRODUCTION AND INSPECTION OF DOCUMENTS; ETC

4/26/2017: NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING PLAINTIFF HAMID OUHANE TO RESPOND TO DEMAND FOR PRODUCTION AND INSPECTION OF DOCUMENTS; ETC

NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING PLAINTIFF SUNSET VIP LLC TO ANSWER FORM INTERROGATORIES; REQUEST FOR SANCTIONS; ETC

4/26/2017: NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING PLAINTIFF SUNSET VIP LLC TO ANSWER FORM INTERROGATORIES; REQUEST FOR SANCTIONS; ETC

RULING RE: DEFENDANT'S TWO (2) MOTIONS FOR ORDER COMPELLING PLAINTIFF, HAMID OUHANE, TO RESPOND TO FORM INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS, REQUEST FOR SANCTIONS; ETC

6/26/2017: RULING RE: DEFENDANT'S TWO (2) MOTIONS FOR ORDER COMPELLING PLAINTIFF, HAMID OUHANE, TO RESPOND TO FORM INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS, REQUEST FOR SANCTIONS; ETC

NOTICE OF ASSOCIATION OF COUNSEL

6/28/2017: NOTICE OF ASSOCIATION OF COUNSEL

23 More Documents Available

 

Docket Entries

  • 05/09/2019
  • at 08:30 AM in Department 2, Georgina T. Rizk, Presiding; Order to Show Cause Re: Dismissal - Not Held - Vacated by Court

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  • 05/02/2019
  • Notice (Notice of Change of Address); Filed by Herman Hunter (Defendant)

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  • 04/30/2019
  • at 08:30 AM in Department 2, Georgina T. Rizk, Presiding; Jury Trial - Not Held - Continued - Stipulation

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  • 04/16/2019
  • at 10:00 AM in Department 2, Georgina T. Rizk, Presiding; Final Status Conference - Not Held - Continued - Stipulation

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  • 04/12/2019
  • at 08:30 AM in Department 2, Georgina T. Rizk, Presiding; Hearing on Ex Parte Application (for Stipulated Continuance of Trial) - Held - Motion Granted

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  • 04/12/2019
  • Minute Order ( (Hearing on Plaintiffs' Ex Parte Application for Stipulated Co...)); Filed by Clerk

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  • 04/12/2019
  • Ex Parte Application (for Stipulated Continuance of Trial); Filed by Hamid Ouhane (Plaintiff)

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  • 03/08/2019
  • Substitution of Attorney; Filed by Herman Hunter (Defendant)

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  • 02/19/2019
  • at 08:30 AM in Department 2, Georgina T. Rizk, Presiding; Jury Trial - Not Held - Continued - Party's Motion

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  • 02/06/2019
  • at 10:00 AM in Department 2, Georgina T. Rizk, Presiding; Final Status Conference - Not Held - Continued - Party's Motion

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53 More Docket Entries
  • 03/30/2017
  • SUBSTITUTION OF ATTORNEY

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  • 06/01/2016
  • DEMAND FOR JURY

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  • 06/01/2016
  • CIVIL DEPOSIT

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  • 06/01/2016
  • Demand for Jury Trial; Filed by Herman Hunter (Defendant)

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  • 06/01/2016
  • Receipt; Filed by Herman Hunter (Defendant)

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  • 06/01/2016
  • Answer; Filed by Herman Hunter (Defendant)

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  • 06/01/2016
  • ANSWER TO COMPLAINT

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  • 05/09/2016
  • Complaint; Filed by Hamid Ouhane (Plaintiff); Sunset Vip LLC (Plaintiff)

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  • 05/09/2016
  • SUMMONS

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  • 05/09/2016
  • COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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Tentative Rulings

Case Number: BC619884    Hearing Date: February 17, 2021    Dept: 29

Hamid Ouhane, et al v. Herman HunterMotion for Summary Judgment by Defendants

TENTATIVE:

Motion for Summary Judgment by Defendants, Herman Hunter and the Estate of Herman Hunter is DENIED. Defendants have not established that they are entitled to judgment in their favor based on the undisputed material facts proffered. Code Civ. Proc. § 437c(p)(2).

ANALYSIS:

This action arises from a motor vehicle accident that is alleged to have occurred on May 10, 2014. The complaint alleges that Defendant, Herman Hunter, negligently operated his vehicle, causing a collision with Plaintiff’s vehicle. Plaintiff alleges claims for negligence and motor vehicle negligence.

On January 2, 2018, Plaintiff filed an Amendment to Complaint substituting the Estate of Herman Hunter for Doe one.

Defendant argues that Plaintiff’s complaint is barred by the one-year statute of limitations set forth at Probate Code section 551. Defendant contends that Plaintiff had one year from the date of Defendant Hunter’s death to respond to Defendant’s request to limit damages to the insurance policy, and therefore, summary judgment should be granted in its favor.

In opposition, Plaintiff argues that Plaintiff timely amended the complaint to include the Estate of Herman Hunter once Plaintiff learned of his death. Defendant did not disclose the death of Herman Hunter until September 26, 2017, more than one year after Hunter died on July 6, 2016. Plaintiff contends that failure to allege damages up to the policy limits is of no consequence since Plaintiff is statutorily limited once Plaintiff adds the Estate to the complaint, as Plaintiff did. Plaintiff alleges that triable issues of fact exist to warrant denying the motion.

Discussion

In considering a motion for summary judgment, the Court applies a three-step analysis:

First, it identifies the issues framed by the pleading; second, it determines whether the moving party established facts negating Plaintiff’s claim, third, it determines whether Plaintiff has controverted those facts with admissible evidence.

“This court exercises its independent judgment as to the legal effect of the undisputed facts disclosed by the parties' papers. (Citations.) In so doing, we apply the same three-step analysis required of the trial court: We first identify the issues framed by the pleadings, since it is these allegations to which the motion must respond. Secondly, we determine whether the moving party has established facts which negate the opponents' claim and justify a judgment in the movant's favor. Finally, if the summary judgment motion prima facie justifies a judgment, we determine whether the opposition demonstrates the existence of a triable, material factual issue.” (Torres v. Reardon (1992) 3 Cal.App.4th 831, 836.)

The defense based upon assertion of the statute of limitations must be expressly pled as an affirmative defense in the answer or it is waived. Defendant must allege the section and subdivision of the Cal Code Civil Procedure on which Defendant relies, showing that the claim is barred. (Cal Code Civil Proc. § 458.)

“In pleading the Statute of Limitations it is not necessary to state the facts showing the defense, but it may be stated generally that the cause of action is barred by the provisions of Section . . . of the Code of Civil Procedure; and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing that the cause of action is so barred.” (Code Civ. Proc., § 458.)

Defendant’s Answer filed on June 1, 2016 asserts in its first affirmative defense that the complaint is barred by Code Civil Procedure section 335.1. That section requires that an action alleging injury based on the wrongful act or neglect of another be filed within two-years of the date of accrual, “[w]ithin two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.” (Code Civ Proc. § 335.1.)

Defendant’s motion relies on provisions of the Probate Code, which are not identified in the Answer filed on June 1, 2016 or referred to in its separate statement. (Motion Exhibit B, 1:23-27.)

On February 4, 2021, the same day that Defendant filed its Reply, the Estate of Herman Hunter filed its Answer, which asserts a twelfth affirmative defense, stating that “… the complaint is barred by the applicable statute of limitations, including, but not limited to, and/or all of the provisions of the California Code of Civil Procedure.” (Estate’s Answer 4:2-5.) This Answer does not identify any provisions of the Probate Code either.

The statute of limitations is a “personal privilege” to be asserted by demurrer or by answer, or it is waived. “Since the statute of limitations is a personal privilege to be asserted or waived at the option of the one entitled to assert it, the statute must be affirmatively pleaded, either by demurrer or by answer, or its benefits are waived.” (Prussing v. Prussing (1939) 35 Cal.App.2d 508, 515.)

The Estate does not address this procedural defect. Defendant relies on provisions of the Probate Code, specifically sections 550, 551, 552, and 554, however notwithstanding any procedural defects, the motion fails on the merits.

First, Section 550 permits an action to be continued against a decedent’s estate without joining the decedent’s personal representative. Here, plaintiff amended the complaint on January 2, 2018 to substitute the Estate for Doe one without objection by the Estate.

If Defendant Hunter had passed away before the two-year statute of limitations period had expired, Plaintiff would have had one year to commence an action after the date of death, and the limitations period otherwise applicable would not apply. “(a) Subject to the provisions of this chapter, 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 without the need to join as a party the decedent's personal representative or successor in interest. (b) The remedy provided in this chapter is cumulative and may be pursued concurrently with other remedies.” (Prob. Code, § 550.) However, the foregoing section does not apply here because this action was commenced against Defendant before he died within the two-year limitations period and later continued against the Estate after he died.

Similarly, Probate Code section 551, upon which Defendant also relies, is equally inapplicable. That section governs the time limit to commence an action, not to continue an existing action. “Notwithstanding Section 366.2, if the limitations period otherwise applicable to the action has 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 period otherwise applicable.” (Prob. Code, § 551.)

Here, the accident occurred on May 10, 2014. The two-year statute of limitations expired on May 10, 2016. Plaintiff filed the action on May 9, 2016, the day before the statute of limitations expired. "(a) Except as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person's death but survives subject to the applicable limitations period.” (Cal Code Civ Proc. § 377.20.)

Next, Probate Code section 552 permits the estate to be named as the Defendant. “(a) 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. (b) On motion of an interested person, or on its own motion, the court in which the action is pending may, for good cause, order the appointment and substitution of a personal representative as the defendant. (c) An action against the estate of the decedent under this chapter may be consolidated with an action against the personal representative.” (Prob. Code, § 552.)

Probate Code section 554 limits Plaintiff’s damages to the amount of insurance coverage, and damages outside that limit are waived unless Plaintiff filed a creditor’s claim against the estate and joins the personal representative as a party to the action. “(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. A judgment in favor of the plaintiff in the action is enforceable only from the insurance coverage and not against property in the estate. (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.” (Prob. Code, § 554.)

None of these provisions taken together bar Plaintiff’s complaint for damages entirely. Rather, they limit Plaintiff’s damages to the amount of insurance coverage. Defendant argues without authority that Plaintiff was required to file “necessary documentation” with the Court to limit recovery to insurance proceeds in order to “proceed with this action.” (Motion 4:16-19.) Moreover, Defendant contends that Plaintiff was required to submit a waiver for damages in excess coverage one year from the date of death, or Plaintiff’s entire complaint is barred. However, there is no authority for this proposition. 

Accordingly, the motion is DENIED.

Moving party is ordered to give notice.

 

Case Number: BC619884    Hearing Date: February 11, 2021    Dept: 29

Ouhane, et al  vs.  Hunter

Court Order Re: Continuance of the February 11, 2021 Hearings To February 17, 2021;

On the Court's own motion, the Hearing on Motion for Summary Judgment as to Plaintiffs' Complaint Filed by the Defendant (CCP Section 437c) scheduled for 02/11/2021 is CONTINUED to 02/17/2021 at 01:30 PM in Department 29 at Spring Street Courthouse.

Judicial Assistant is directed to give notice.

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