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This case was last updated from Los Angeles County Superior Courts on 06/29/2019 at 01:43:19 (UTC).

ROBERTO ALCARAZ ET AL VS JEE SOOK CHUNG ET AL

Case Summary

On 04/07/2015 ROBERTO ALCARAZ filed a Personal Injury - Motor Vehicle lawsuit against JEE SOOK CHUNG. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is STEPHEN I. GOORVITCH. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8011

  • Filing Date:

    04/07/2015

  • 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

STEPHEN I. GOORVITCH

 

Party Details

Plaintiffs and Petitioners

ALCARAZ LETICIA

ALCARAZ ROBERTO

Defendants and Respondents

CHUNG JEE SOOK

DOES 1 TO 50

WOO CHRISTOPHER

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

THE LAW FIRM OF JOSEPH H. LOW IV

Defendant and Respondent Attorney

ZINDER JEFFREY E. ESQ.

 

Court Documents

EX PARTE APPLICATION OF DEFENDANTS JEE SOOK CHUNG AND CHRISTOPHER WOO TO CONTINUE TRIAL PURSUANT TO THE STIPULATION ENTERED INTO BY THE PARTIES; DECLARATION OF JEFFREY E. ZINDER

1/16/2018: EX PARTE APPLICATION OF DEFENDANTS JEE SOOK CHUNG AND CHRISTOPHER WOO TO CONTINUE TRIAL PURSUANT TO THE STIPULATION ENTERED INTO BY THE PARTIES; DECLARATION OF JEFFREY E. ZINDER

NOTICE OF RULING ON EX PARTE APPLICATION TO CONTINUE TRIAL

1/18/2018: NOTICE OF RULING ON EX PARTE APPLICATION TO CONTINUE TRIAL

DECLARATION OF JOSEPH H. LOW IV IN SUPPORT OF PLAINTIFFS' MOTION TO BIFURCATE

6/12/2018: DECLARATION OF JOSEPH H. LOW IV IN SUPPORT OF PLAINTIFFS' MOTION TO BIFURCATE

PLAINTIFFS' NOTICE OF MOTION AND MOTION TO BIFURCATE

6/12/2018: PLAINTIFFS' NOTICE OF MOTION AND MOTION TO BIFURCATE

EX PARTE APPLICATION OF DEFENDANTS JEE SOOK CHUNG AND CHRISTOPHER WOO TO CONTINUE TRIAL AND ETC.

6/22/2018: EX PARTE APPLICATION OF DEFENDANTS JEE SOOK CHUNG AND CHRISTOPHER WOO TO CONTINUE TRIAL AND ETC.

Minute Order

6/22/2018: Minute Order

OPPOSITION TO THE MOTION TO BIFURCATE

6/25/2018: OPPOSITION TO THE MOTION TO BIFURCATE

NOTICE OF TRIAL DATE AND FINAL STATUS CONFERENCE

6/26/2018: NOTICE OF TRIAL DATE AND FINAL STATUS CONFERENCE

NOTICE OF RULING ON PLAINTIFF'S MOTION TO BIFURCATE

7/11/2018: NOTICE OF RULING ON PLAINTIFF'S MOTION TO BIFURCATE

PROOF OF SERVICE SUMMONS

4/14/2015: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE SUMMONS

4/14/2015: PROOF OF SERVICE SUMMONS

NOTICE OF STAY; BANKRUPTCY FILING

8/18/2016: NOTICE OF STAY; BANKRUPTCY FILING

Proof of Service

10/19/2016: Proof of Service

STATUS CONFERENCE STATEMENT

3/10/2017: STATUS CONFERENCE STATEMENT

Minute Order

3/20/2017: Minute Order

NOTICE OF RULING ON STIPULATION TO CONTINUE TRIAL, FSC AND RELATED DATES

8/3/2017: NOTICE OF RULING ON STIPULATION TO CONTINUE TRIAL, FSC AND RELATED DATES

Minute Order

11/9/2017: Minute Order

EX PARTE APPLICATION OF DEFENDANTS TEE SOOK CHUNG AND CHRISTOPHER WOO TO CONTINUE TRIAL PURSUANT TO THE STIPULATION ENTERED INTO BY THE PARTIES; DECLARATION OF JEFFREY E. ZINDER

11/9/2017: EX PARTE APPLICATION OF DEFENDANTS TEE SOOK CHUNG AND CHRISTOPHER WOO TO CONTINUE TRIAL PURSUANT TO THE STIPULATION ENTERED INTO BY THE PARTIES; DECLARATION OF JEFFREY E. ZINDER

32 More Documents Available

 

Docket Entries

  • 04/17/2019
  • at 08:30 AM in Department 5, Stephen I. Goorvitch, Presiding; Jury Trial - Not Held - Continued - Party's Motion

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  • 04/03/2019
  • at 10:00 AM in Department 5, Stephen I. Goorvitch, Presiding; Final Status Conference - Not Held - Continued - Party's Motion

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  • 03/29/2019
  • Notice of Ruling; Filed by Jee Sook Chung (Defendant); Christopher Woo (Defendant)

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  • 03/27/2019
  • at 08:30 AM in Department 5, Stephen I. Goorvitch, Presiding; Hearing on Ex Parte Application (to continue trial and related dates) - Held - Motion Granted

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  • 03/27/2019
  • Minute Order ( (Hearing on Ex Parte Application to continue trial and related...)); Filed by Clerk

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  • 03/27/2019
  • Ex Parte Application (of Defendants to Continue Trial and Related Dates; Declarations in Support thereof); Filed by Jee Sook Chung (Defendant); Christopher Woo (Defendant)

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  • 03/25/2019
  • Notice of Change of Firm Name; Filed by Jee Sook Chung (Defendant); Christopher Woo (Defendant)

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  • 09/24/2018
  • Notice of Ruling (on Ex Parte Application to Continue Trial); Filed by Roberto Alcaraz (Plaintiff); Leticia Alcaraz (Plaintiff)

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  • 09/24/2018
  • NOTICE OF RULING ON EX PARTE APPLICATION TO CONTINUE TRIAL

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  • 09/21/2018
  • at 08:30 AM in Department 5; Ex-Parte Proceedings - Held - Motion Granted

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90 More Docket Entries
  • 05/28/2015
  • Proof of Service (not Summons and Complaint); Filed by Roberto Alcaraz (Plaintiff)

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  • 05/22/2015
  • DEFENDANTS' ANSWER TO PLAINTIFFS' COMPLAINT

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  • 05/22/2015
  • Answer; Filed by Jee Sook Chung (Defendant)

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  • 04/14/2015
  • Proof-Service/Summons; Filed by Roberto Alcaraz (Plaintiff)

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  • 04/14/2015
  • Proof-Service/Summons; Filed by Roberto Alcaraz (Plaintiff)

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  • 04/14/2015
  • PROOF OF SERVICE SUMMONS

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  • 04/14/2015
  • PROOF OF SERVICE SUMMONS

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  • 04/07/2015
  • Complaint; Filed by Roberto Alcaraz (Plaintiff); Leticia Alcaraz (Plaintiff)

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  • 04/07/2015
  • SUMMONS

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  • 04/07/2015
  • COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

    Read MoreRead Less

Tentative Rulings

Case Number: BC578011    Hearing Date: December 30, 2020    Dept: 32

 

Superior Court of California

County of Los Angeles

Department 32

roberto alcaraz, et al.,

Plaintiffs,

v.

jee sook chung, et al.,

Defendants.

Case No.: BC578011

Hearing Date: December 30, 2020

[TENTATIVE] order RE:

DEfendants’ motion to deposit funds

Defendants’ MOTION FOR SUMMARY ADJUDICATION

Background

Plaintiffs Roberto Alcaraz and Leticia Alcaraz (“Plaintiffs”) filed this action following the death of their son in a motor vehicle collision with Defendants Jee Sook Chung and Christopher Woo (“Defendants”). Now, Defendants move to deposit funds with the Court and for summary adjudication. Plaintiffs oppose both motions. The Court grants Defendants’ motion for summary adjudication on the merits. The Court denies Defendants’ motion to deposit funds as moot.

PROCEDURAL HISTORY

Plaintiffs filed this action on April 7, 2015, following the death of their son in a motor vehicle collision with Defendants. Defendants answered the complaint on May 22, 2015. On August 18, 2016, Defendants filed a notice of an automatic stay due to their filing for bankruptcy under Chapter 7 (for individuals or joint debtors). The bankruptcy petition itself was filed on July 21, 2016. (Declaration of Jeffrey E. Zinder, Exh. E.) Defendants identified this action in their bankruptcy petition. (Id., Exh. E, p. 55 of 88.)

Plaintiffs sought and received an order from the Bankruptcy Court (Kwan, J.) granting relief from the automatic stay under Title 11, United States Code, section 362. (Declaration of Joseph H. Low IV, Exh. #4.) The Bankruptcy Court ruled that Plaintiffs may “proceed under applicable nonbankruptcy law to enforce [their] remedies to proceed to final judgment in the nonbankruptcy forum, provided that the stay remains in effect with respect to enforcement of any judgment against the debtors or property in their bankruptcy estate.” (Ibid.) However, the Bankruptcy Court declined to reach the merits of Plaintiffs’ claims.

[T]he Court does not determine the merits of any claims or defenses of the parties in the litigation in the nonbankruptcy forum, such as, whether [Plaintiffs’] claim exceeds the policy limits of [Defendants’] automobile insurance, or whether [Plaintiffs] may proceed against [Defendants’] insurance for bad faith refusal to settle. Thus, the court should not set any cap through stay relief litigation on the ability of [Plaintiffs] to liquidate a claim against [Defendants], nor will the court issue any declaratory relief that the policy is “open” to allow [Plaintiffs] to proceed against the insurer directly in excess of the policy limits based on any alleged bad faith breach of a duty to settle. The Court notes that [Plaintiffs] as potential judgment creditors of [Defendants] may be third party beneficiaries of the insurance policy, but any recovery would be limited to the policy limits based on applicable California Supreme Court authority as argued by the insurer. Aside from only determining whether or not [Plaintiffs] have a “colorable claim” to enforce a right as to [Defendants], in any event, the court cannot grant stay relief to movants to allow them to sue the insurer directly because any cause of action that [Defendants] may have against the insurer would be property of the bankruptcy estate.

(Ibid., citations omitted.) Defendants received a discharge as of October 31, 2016. (Id., Exh. #5.)

On March 20, 2017, the Court (Osorio, J.) found that Plaintiff obtained relief from the bankruptcy stay, so the Court set final status conference and trial dates. Since that time, the parties have repeatedly stipulated to continue the respective final status conference and trial dates. At one such proceeding, the parties raised an issue before the Court (Goorvitch J.): Whether liability is limited the policy limit of Defendant’s insurance policy ($100,000) due to the bankruptcy. Defendants maintain that liability is capped at the policy limit, which is $100,000, due to the bankruptcy. Defendants have stipulated to entry of a judgment in this amount.

Defendants previously filed a motion for judgment on the pleadings on this issue. Plaintiffs did not dispute that liability would be limited to $100,000, but instead opposed the motion in procedural grounds. The Court denied the motion, finding that the Court had no authority to grant the relief sought by Defendants. Now, Defendants have filed a motion for summary adjudication, seeking a ruling that Plaintiffs’ causes of action have no merit based upon their willingness to stipulate to entry of a judgment in the amount of $100,000. In other words, Defendants seek a ruling on the issue whether their liability is, in fact, limited to $100,000. Defendants also have filed a motion to deposit this amount with the Court pending the outcome of this action.

LEGAL STANDARD

A. Motion for Summary Adjudication

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.]  There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  In ruling on the motion, “the court may not weigh the plaintiff's evidence or inferences against the defendant[’s] as though it were sitting as the trier of fact.”  (Id. at 856.)  However, the court “must . . . determine what any evidence or inference could show or imply to a reasonable trier of fact.”  (Ibid., emphasis original.)  

B. Motion for Deposit of Funds

Where a party possesses property: (1) that is capable of delivery; (2) that is the subject of litigation; and (3) that should, under the circumstances of the case, be held by the court pending final disposition of the action, the court may, on motion, order property to be deposited in court or delivered to that party. (Code Civ. Proc., § 572.) If the court grants the motion, the money is delivered to the clerk, who then deposits it with the court’s treasury, as provided in Government Code section 68084. (Code Civ. Proc., § 573.)

Discussion

A. Motion for Summary Adjudication – Procedural Issues

Defendants have filed a unique motion. Usually, parties file motions for summary adjudication seeking judgments in their favor. This is the first motion this Court has encountered in which a party effectively seeks an adverse judgment. However, technically, this motion is not barred by Code of Civil Procedure section 437c. “A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c(a)(1); see also Code Civ. Proc. § 437c(f)(1).) The statute does not require movants to seek judgments in their favor; only that they seek judgments that completely dispose of a cause of action, an affirmative defense, a claim for punitive damages, or an issue of duty. (Code Civ. Proc. § 437c(f)(1).)

Defendants move for summary adjudication, arguing that they have stipulated to entry of judgment in the amount of $100,000, and therefore Plaintiffs’ claims for any amount in excess have no merit. This motion appears to satisfy the requirements of section 437c. Plaintiffs argue that this motion is improper, arguing that Defendants are seeking a ruling on the issue of damages, which is impermissible except with respect to punitive damages. (See Code Civ. Proc. § 437c(f)(1).) Plaintiffs misconstrue Defendants’ motion. Defendants are stipulating to entry of judgment of the policy limit of $100,000, and then seeking summary adjudication on the issue whether Plaintiffs’ claims have continued merit in light of this stipulation. The Court finds that this motion, while unusual, is not procedurally barred because granting the motion would completely dispose of Plaintiffs’ causes of action. (Ibid.) Moreover, the Second District appears to permit such motions in cases involving bankruptcy issues. (See Boyer v. Jensen (2005) 129 Cal.App.4th 62.) Therefore, the Court shall reach the merits of the motion.

B. Motion for Summary Judgment – Merits

Defendants have stipulated to entry of a judgment in the amount of $100,000, and the Court accepts that stipulation. Therefore, the Court must address the dispositive issue: Whether liability is, in fact, limited to $100,000. Following the accident, Defendants filed for bankruptcy and identified this action as a potential judgment against them. The Bankruptcy Court issued a discharge as of October 31, 2016. The law is clear that a bankruptcy discharge forecloses liability against Defendants for this personal injury action, which was disclosed to the Bankruptcy Court and therefore discharged:

The Bankruptcy Code provides that a discharge of a debtor (1) voids any judgment at any time obtained, to the extent that such judgment is a determination of the personal liability of the debtor with respect to any debt discharged . . . ; and (2) operates as an injunction against the commencement or continuation of an action, the employment of process, or any act, to collect, recover or offset any such debt as a personal liability of the debtor.

(Forsyth v. Jones (1997) 57 Cal.App.4th 776, 780-781, citations and alterations omitted.) “Thus, it is clear that, following discharge, a plaintiff of other creditor may not seek to hold the debtor personally liable for any debt, but may proceed against either a codebtor or a surety or guarantor who guaranteed the debtor’s payment of that debt.” (Id., p. 781.) Under such circumstances, Plaintiffs may proceed only against Defendants’ insurance company. (Id., p. 782.)

Plaintiffs argue that there is an “open policy” issue and that Defendants’ insurance company is responsible for more than $100,000 based upon its bad faith in not settling the case within policy limits. The covenant of good faith and fair dealing implied in every insurance policy obligates the insurer to accept a reasonable offer to settle a lawsuit within the policy limits whenever there is a substantial likelihood of a recovery in excess of those limits. (Rappaport-Scott v. Interinsurance Exchange of the Automobile Club (2007) 146 Cal.App.4th 831, 836, citations omitted.) “An insurer that fails to accept a reasonable settlement offer within policy limits will be held liable in tort for the entire judgment against the insured, even if that amount exceeds the policy limits.” (Ibid., citations omitted.)

On its face, this law might appear to permit Plaintiffs to proceed against Defendants’ insurance company for the excess of the policy. However, the mechanics of this process run contrary to the protections of the Bankruptcy Code. In order to proceed on an open policy theory, Plaintiffs must “bring two lawsuits to collect a judgment from the liability insurer: first against the insured and then, after judgment is obtained in the first suit, a separate action against the insurer.” (Boyer v. Jensen, supra, 129 Cal.App.4th at p.72.)

It is well established that the insured’s liability must be established independently and not in an action brought directly against the insurer and the insurer may not be joined in the action against the insured. It is only after obtaining a judgment against the insured that the injured party’s independent cause of action against the insurer arises. At that point, the injured party may proceed directly against any liability insurance covering the defendant, and obtain satisfaction of the judgment up to the amount of the policy limits.

(Id., pp. 72-73.) This creates a problem under the Bankruptcy Code because Plaintiffs would first pursue an action against Defendants which could result in liabilities against them. The Bankruptcy Appellate Panel of the Ninth Circuit has made clear that a discharge does not preclude an action naming the debtors “where it is clear that recovery will be limited to insurance proceeds.” (In re Munoz (2002) 287 B.R. 546, 550 n.2, citing In re Beeney (1992) 142 B.R. 360, 363.) It is clear that any judgment up to the policy limit would be satisfied with insurance proceeds, which permits such actions to go forward. It is not clear, however, that any judgment in excess of the policy limit would be satisfied with insurance proceeds. There may be an open policy; there may not. The problem is that Plaintiffs contemplate an action against Defendants which could result in a judgment against them that would not be satisfied by their insurance company. That is prohibited under the Bankruptcy Code, and the Court cannot conclude on this record that there is an open policy issue as a matter of law.

Plaintiffs argue that any judgment in excess of $100,000 would become the property of the bankruptcy estate, allowing Plaintiffs “to file a creditor’s claim for the excess judgment to be paid through the trustee in bankruptcy.” (Plaintiffs’ Opposition to Motion to Deposit Funds, p. 8:11-15.) Plaintiffs are incorrect. Any judgment against Defendants in excess of $100,000 may be satisfied by Defendants’ insurance company or may exist as a judgment against Defendants, the latter of which is not permissible under the Bankruptcy Code. More important, the bankruptcy case ended over four years ago, so there is no basis to reopen the bankruptcy matter and revive potential debts.

Plaintiffs rely on the Bankruptcy Court’s order lifting the stay as authorization to proceed on an open policy theory. However, the Bankruptcy Court’s order specifically states that “any recovery would be limited to the policy limits base don applicable California Supreme Court authority as argued by the insurer.” (Declaration of Joseph H. Low IV, Exh. #4.)

Plaintiffs cite Forsyth v. Jones for the proposition that “the debtor’s discharge does not affect the liability of any other entity responsible for the debt.” (Plaintiff’s Opposition to Motion for Deposit of Funds, p. 12:22-28.) The Court agrees. Plaintiffs are entitled to pursue litigation against “either a codebtor or a surety or guarantor who guaranteed the debtor’s payment of that debt.” (Forsyth v. Jones, supra, 57 Cal.App.4th at 781.) However, the only defendants in this case are Defendants (who received a discharge from the Bankruptcy Court) and, indirectly, their insurance company. There are no other defendants or applicable insurers, and Plaintiffs do not identity any other party with potential liability. Plaintiffs concede that there are no other applicable insurance policies. As discussed Defendants’ insurance company’s liability is limited to $100,000.

Plaintiffs argue that the Court cannot limit a judgment on a sua sponte basis. The Court is not limiting a judgment on a sua sponte basis. The Court is ruling on a legal issue as a predicate to deciding a noticed motion. The Court has considered Plaintiffs’ remaining arguments and does not find them persuasive. Based upon the foregoing, the Court accepts Defendants’ stipulation to entry of judgment in the amount of $100,000. The Court finds that Plaintiffs’ causes of action lack merit in light of this stipulation because they cannot recover more than $100,000 as a matter of law. Therefore, Defendants’ motion for summary adjudication is granted.

C. Motion to Deposit Funds

Defendants’ insurer, by and through Defendants, move to deposit $100,000 with the Court. The Court denies the motion as moot in light of its ruling on Defendants’ motion for summary adjudication.

Conclusion and Order

This case involves a conflict between Plaintiffs’ remedies in state court and Defendants’ rights in Bankruptcy Court, and it appears that Defendants’ insurance company may be the beneficiary of this conflict. Nevertheless, the Court finds that the liability of Defendants’ insurance company is limited to $100,000. Therefore, the Court grants Defendants’ motion for summary judgment based upon its stipulation to entry of judgment in this amount, finding there is no merit to Plaintiffs’ causes of action beyond this amount. The Court denies Defendants’ motion for deposit of funds as moot. The Court orders Defendants to prepare a proposed judgment and lodge it with the Court within five days. The Court advances and vacates the final status conference and trial dates and sets an Order to Show Cause re: Judgment and Dismissal with for January 15, 2021, at 1:30 p.m. The Court’s clerk shall provide notice.

DATED: December 30, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Case Number: BC578011    Hearing Date: July 31, 2020    Dept: 32

 

Superior Court of California

County of Los Angeles

Department 32

roberto alcaraz, et al.,

Plaintiffs,

v.

jee sook chung, et al.,

Defendants.

Case No.: BC578011

Hearing Date: July 31, 2020

[TENTATIVE] order RE:

motion for judgment on the pleadings

Background

Plaintiffs Roberto Alcaraz and Leticia Alcaraz (“Plaintiffs”) filed this action on April 7, 2015, against Defendants Jee Sook Chung and Christopher Woo (“Defendants”). Plaintiffs allege that Defendants made an unlawful turn while driving, resulting in the death of Plaintiffs’ son. Defendants declared bankruptcy on August 18, 2016. (Declaration of Joseph H. Low IV, Exh. #1.) On November 16, 2016, the Bankruptcy Court terminated the stay with respect to the instant action. (Id., Exh. #2.) The Court held that the “movant proceed under applicable nonbankruptcy law to enforce its remedies to proceed to final judgment in the nonbankruptcy form, provided that the stay remains in effect with respect to enforcement of any judgment against the debtors or property of their bankruptcy estate.” (Ibid.) Now, Defendants move for judgment on the pleadings against them in the amount of $100,000, which is the policy limit of Defendants’ applicable motor vehicle insurance policy. Plaintiffs oppose the motion, which is denied.

Legal Standard

A motion for judgment on the pleadings has the same function as a general demurrer, but may be made after the time to demur has expired. (Code Civ. Proc., § 438, subd. (f).) “Like a demurrer, the grounds for the motion [for judgment on the pleadings] must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Civic Partners Stockton, LLC v. Youssefi (2013) 218 Cal.App.4th 1005, 1013.)

Discussion

The Court denies the motion because Code of Civil Procedure section 438(c)(1)(B) does not confer authority on this Court to issue a judgment as required by Plaintiff. That section provides that the Court may grant a motion for judgment on the pleadings filed by a defendant if the Court has no jurisdiction of the subject of the cause of action or the complaint does not state sufficient facts to constitute a cause of action against that defendant. (Code Civ. Proc. § 438(c)(1)(B).) Defendants cite no authority for the proposition that the Court can resolve a limitations on damages by way of a motion for judgment on the pleadings.

Plaintiffs do not dispute that their liability is limited to $100,000. Inexplicably, they intend to proceed to trial in this matter, notwithstanding that Defendant has offered this amount to settle the case. Defendant made this offer pursuant to Code of Civil Procedure section 998, meaning that unless Plaintiff obtains a judgment in excess of $100,000—which appears to be highly unlikely under the circumstances—Plaintiff will be forced to pay Defendants’ costs. Despite the fallacy of Plaintiffs’ position, however, the Court has no authority to grant the relief sought by Defendant. Therefore, the Court must deny the motion.

Conclusion and Order

Defendants’ motion for judgment on the pleadings is denied. Code of Civil Procedure section 583.310 requires that a case must proceed to trial within five years of filing. However, pursuant to section 583.340, the Court does not count delay attributable to a stay or when proceeding to trial was “impossible, impracticable, or futile.” Accordingly, the Court excludes the time period of August 18 to November 16, 2016, which is 90 days. This is the time period during which this action was stayed due to bankruptcy proceedings. The Court also excludes the time period of March 16 to December 31, 2020, which is 290 days. This is the time period during which no civil jury trials have been scheduled due to COVID-19.

In sum, the Court is excluding 380 days from the time limits under Code of Civil Procedure section 583.310. Because this action was filed on April 7, 2015, the deadline to proceed to trial is now April 22, 2021. The parties have not corrected or otherwise objected to these calculations.

The Court sets the following dates:

Final Status Conference: January 19, 2021, at 10:00 a.m.

Trial: February 2, 2021, at 8:30 a.m.

The discovery and motions cut-off shall remain closed. The Court’s clerk shall provide notice.

DATED: July 31, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

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