Doug Duin v. Dale Elaine McCormick, et al

Filing 52

ORDER signed by Judge Garland E. Burrell, Jr. on 9/1/2011 ORDERING 34 The Estate has failed to demonstrate that it may not be named as a defendant under California Probate Code section 550 et seq.; therefore, the Estate's motion is DENIED. (Reader, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DOUGLAS C. DUIN,
Plaintiff,

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v.

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DALE ELAINE McCORMICK; ESTATE OF
ROBERT A. McCORMICK, Deceased;
JOHN G. STEFFES,

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Defendants.
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2:10-cv-02150-GEB-EFB
ORDER

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Defendant

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Estate

of

Robert

A.

McCormick,

Deceased

(the

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“Estate”), moves under Federal Rule of Civil Procedure (“Rule”) 12(b)(6)

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for an order dismissing it as a defendant from Plaintiff’s First Amended

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Complaint (“FAC”). Plaintiff alleges a negligence claim against the

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Estate based on personal injuries Plaintiff suffered in August of 2008

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on real property then-owned by Robert A. McCormick. Plaintiff alleges

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that Robert A. McCormick “is deceased, having died October 10, 2008[.]”

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(FAC ¶ 4.)

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The Estate’s dismissal motion was scheduled to be heard on May

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16, 2011, but was submitted without oral argument on May 11, 2011, since

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Plaintiff had not filed an opposition or statement of non-opposition as

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required by Local Rule 230(c). However, Plaintiff filed an opposition to

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the motion after the motion was submitted, which included an affidavit

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from an assistant for Plaintiff’s counsel. The assistant avers in the

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affidavit

that

Plaintiff’s

counsel

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was

not

aware

of

the

Estate’s

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dismissal motion, since the Court’s email notification stating the

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Estate’s

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assistant’s work] email in-box.” (Affidavit of Joan T. Nuefeld ¶ 11.)

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The assistant further avers that Plaintiff’s counsel first learned of

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the Estate’s motion after the assistant received the Court’s email

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notification stating the Estate’s dismissal motion was taken under

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submission.

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opposition, and also filed a reply brief. Plaintiff’s reason for filing

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a late opposition, is unpersuasive; however, all filed briefs have been

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dismissal

Id.

¶

motion

12.

was

The

filed

Estate

“was

not

objects

to

downloaded

the

to

untimely

[the

filed

considered.

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The Estate argues its dismissal motion should be granted since

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“there is no legal entity known as ‘the Estate of Robert A. McCormick,

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[D]eceased.’” (Estate’s Mot. 9:18.) Plaintiff rejoins that the Estate

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should not be dismissed since California Probate Code section 550 et

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seq. permits Plaintiff to name the Estate as a defendant.

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“Under [California] Probate Code § 550 [et seq.], ‘an action

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to

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protected

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decedent’s estate . . . .’” Pelayo v. City of Downey, 570 F. Supp. 2d

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1183, 1192 (C.D. Cal. 2008) (quoting Cal. Prob. Code § 550(a)). The

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Estate has failed to demonstrate that it may not be named as a defendant

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under California Probate Code section 550 et seq.; therefore, the

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Estate’s motion is denied.

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Dated:

establish
by

the

decedent’s

insurance

may

liability
be

for

commenced

or

which

the

decedent

was

against

the

continued

September 1, 2011

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GARLAND E. BURRELL, JR.
United States District Judge

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