DANNY IBARRA ET AL VS JOHN G MCCANDLESS

Motion to Stay Proceedings

Having considered the moving, opposing, reply, and supplemental papers, the Court rules as follows.

BACKGROUND

On April 21, 2017, Plaintiffs Danny Ibarra and Miriam Ibarra (“Plaintiffs”) filed a complaint against Defendant John G. McCandless (“Defendant”) alleging motor vehicle and general negligence for an automobile collision that occurred on December 17, 2015.

On August 21, 2019, Defendant filed a motion to stay proceedings pursuant to California Code of Civil Procedure section 128.

On September 19, 2019, the Court continued the hearing on the motion to stay proceedings for Plaintiff to file and serve a motion for leave to amend their complaint.

On November 1, 2019, the Court continued the hearing on the motion to stay proceedings for the parties to work on a stipulation and order to allow Plaintiff to file an amended complaint.

On November 18, 2019, Plaintiffs filed a first amended complaint naming “Estate of Jon G. Mc Candless – C Probate Code 550” as the Defendant.

On November 19, 2019, the Court continued the hearing on the motion to stay proceedings for Plaintiff to file and serve a stipulated to amended complaint naming either the personal representative of Defendant’s estate or the Defendant’s insurer by 11:59 p.m. on November 26, 2019.

On December 5, 2019, the Court continued the hearing to December 20, 2019 because the parties were waiting on verification from State Farm to name it as a party to the action.

On December 20, 2019, the Court ordered the parties to file a brief addressing whether or not the Court should reenter an order granting the November 18, 2019 stipulation to file a first amended complaint.

Trial is set for February 24, 2020.

PARTY’S REQUEST

Defendant requests the Court stay the proceedings until Plaintiffs proceed against Defendant’s personal representative or Defendant’s insurance carrier because Defendant has passed away.

LEGAL STANDARD

Courts have the power to amend and control their process and orders so as to make them conform to law and justice.  (Code Civ. Proc. ; 128, subd. (a)(8).)

A personal injury cause of action does not abate due to the death of a defendant.  (Herring v. Peterson (1981) 116 Cal.App.3d 608, 614.)  A plaintiff may either continue the action against the personal representative of the estate or the decedent’s insurer.  (Ibid. (citing repealed Probate code sections); see also Prob. Code ;; 550, subd. (a), 9370.)

DISCUSSION

Defendant has filed a brief stating Defendant does not object to the Court reentering an order granting the November 18, 2019 stipulation to file a first amended complaint or for Plaintiffs to pursue Plaintiffs’ action under Probate Code section 550.  In reentering this order, the Court finds the motion to stay proceedings is moot as the stipulation names Defendant’s estate as a defendant.

CONCLUSION

The Court APPROVES the stipulation filed on November 14, 2019.

The Court orders Plaintiffs to file the proposed first amended complaint attached as Exhibit A to the stipulation filed on November 14, 2019 within 10 days of this ruling.

The motion is DENIED.

Defendant is ordered to give notice of this ruling.

Motion to Stay Proceedings

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On April 21, 2017, Plaintiffs Danny Ibarra and Miriam Ibarra (“Plaintiffs”) filed a complaint against Defendant John G. McCandless (“Defendant”) alleging motor vehicle and general negligence for an automobile collision that occurred on December 17, 2015.

On August 21, 2019, Defendant filed a motion to stay proceedings pursuant to California Code of Civil Procedure section 128.

On September 19, 2019, the Court continued the hearing on the motion to stay proceedings for Plaintiffs to file and serve a motion for leave to amend their complaint.

On November 1, 2019, the Court continued the hearing on the motion to stay proceedings for the parties to work on a stipulation and order to allow Plaintiffs to file an amended complaint.

On November 18, Plaintiffs filed a first amended complaint naming “Estate of Jon G. McCandless – C Probate Code 550” as the Defendant.

On November 19, 2019, the Court continued the hearing on the motion to stay proceedings for Plaintiff to file and serve a stipulated  amended complaint naming either the personal representative of Defendant’s estate or the Defendant’s insurer by 11:59 p.m. on November 26, 2019.

Trial is set for February 24, 2020.

PARTY’S REQUEST

Defendant requests that the Court stay the proceedings until Plaintiffs proceed against Defendant’s personal representative or Defendant’s insurance carrier because Defendant has passed away.

LEGAL STANDARD

Courts have the power to amend and control their process and orders so as to make them conform to law and justice.  (Code Civ. Proc. ; 128, subd. (a)(8).)

A personal injury cause of action does not abate due to the death of a defendant.  (Herring v. Peterson (1981) 116 Cal.App.3d 608, 614.)  A plaintiff may either continue the action against the personal representative of the estate or the decedent’s insurer.  (Ibid. (citing repealed Probate code sections); see also Prob. Code ;; 550, subd. (a), 9370.)

DISCUSSION

Defendant passed away on March 27, 2019.  (Rabbani Decl., ¶ 5.)  Defendant argues the proceedings should be stayed because: (1) Plaintiffs have not filed an amended complaint naming Defendant’s estate instead of Defendant and (2) Plaintiffs have not commenced a proceeding against the personal representative of Defendant’s estate.  (Motion, pp. 6:1-9:12.)

Plaintiffs have not filed a stipulated amended complaint naming either the personal representative of Defendant’s estate or the Defendant’s insurer by 11:59 p.m. on November 26, 2019, as was ordered by the Court.  As stated in the Court’s November 19, 2019 order, “[a] probate or trust estate is not a legal entity; it is simply a collection of assets and liabilities.  As such, it has no capacity to sue or be sued, or to defend an action.”  (Smith v. Cimmet (2011) 199 Cal.App.4th 1381, 1390-1391 (citation omitted).)  Plaintiffs have not named the proper party. There is no evidence that Plaintiffs have been attempting to stipulate with Defendant to file a proper amended complaint.

Thus, the motion is GRANTED.

All future hearings dates are VACATED.

An OSC RE: Dismissal is set for February 10, 2020 at 8:30 a.m. in Department 4A at Spring Street Courthouse located at 312 North Spring Street, Los Angeles, California 90012.

Defendant is

Motion to Stay Proceedings

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On April 21, 2017, Plaintiffs Danny Ibarra and Miriam Ibarra (“Plaintiffs”) filed a complaint against Defendant John G. McCandless (“Defendant”) alleging motor vehicle and general negligence for an automobile collision that occurred on December 17, 2015.

On August 21, 2019, Defendant filed a motion to stay proceedings pursuant to California Code of Civil Procedure section 128.

On September 19, 2019, the Court continued the hearing on the motion to stay proceedings for Plaintiff to file and serve a motion for leave to amend their complaint.

On November 1, 2019, the Court continued the hearing on the motion to stay proceedings for the parties to work on a stipulation and order to allow Plaintiff to file an amended complaint.

Trial is set for February 24, 2020.

PARTY’S REQUEST

Defendant requests that the Court stay the proceedings until Plaintiffs proceed against Defendant’s personal representative or Defendant’s insurance carrier because Defendant has passed away.

LEGAL STANDARD

Courts have the power to amend and control their process and orders so as to make them conform to law and justice.  (Code Civ. Proc. ; 128, subd. (a)(8).)

A personal injury cause of action does not abate due to the death of a defendant.  (Herring v. Peterson (1981) 116 Cal.App.3d 608, 614.)  A plaintiff may either continue the action against the personal representative of the estate or the decedent’s insurer.  (Ibid. (citing repealed Probate code sections); see also Prob. Code ;; 550, subd. (a), 9370.)

DISCUSSION

Defendant died on March 27, 2019.  (Rabbani Decl., ¶ 5.)  Defendant argues the proceedings should be stayed because: (1) Plaintiffs have not filed an amended complaint naming Defendant’s estate instead of Defendant and (2) Plaintiffs have not commenced a proceeding against the personal representative of Defendant’s estate.  (Motion, pp. 6:1-9:12.)

On November 14, 2019, Plaintiffs filed a stipulation in which the parties agreed to allow to file a first amended complaint signed by the parties.  This first amended complaint names “Estate of Jon G. Mc Candless – C Probate Code 550” as the Defendant.  However, “[a] probate or trust estate is not a legal entity; it is simply a collection of assets and liabilities. As such, it has no capacity to sue or be sued, or to defend an action.”  (Smith v. Cimmet (2011) 199 Cal.App.4th 1381, 1390-1391 (citation omitted).) the proposed amended complaint does not name the proper party. It is apparent, however, that the parties are working together to resolve this dispute and to resolve this litigation. permitting the filing of

Accordingly, the hearing on the motion is CONTINUED to December 5, 2019 at 1:30 p.m. in Department 4A in Spring Street Courthouse located at 312 North Spring Street, Los Angeles, California 90012.

Plaintiffs are ordered to file and serve a stipulation permitting a first amended complaint naming either the personal representative of Defendant’s estate or the Defendant’s insurer by 11:59 p.m. on November 26, 2019.

Plaintiffs are ordered to give notice of this ruling.