Doug Duin v. Dale Elaine McCormick, et al
Filing
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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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