California Court of Appeal Jun 20, 2016 No. B267046Unpublished
Filed 6/20/16 Smith v. Evans CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
JAMES J. SMITH, as Trustee, etc., B267046
Petitioner and Appellant, (Los Angeles County Super. Ct. No. KP013220) v.
ROBERT D. EVANS, as Executor, etc.
Objector and Respondent.
APPEAL from an order of the Superior Court of Los Angeles County, Maria E. Stratton, Judge. Reversed. Driskell & Gordon and Robert L. Driskell for Plaintiff and Appellant. Allen & Kimbell, John H. Parke and James M. Sweeney for Defendant and Respondent.
I. INTRODUCTION
Plaintiff, James J. Smith, appeals from the dismissal of an action against
defendant, Robert D. Evans, Jr. At issue is the failure to bring the case to trial within five
years pursuant to Code of Civil Procedure1 section 583.360. As will be noted, defendant
died before the expiration of the five-year period. Defendant’s son filed the dismissal
motion. There was no evidence defendant’s son was legally authorized to do so. Judge
Maria E. Stratton granted the dismissal motion. Plaintiff contends defendant’s death
tolled the five-year period under section 583.340, subdivision (a). We agree and reverse
Cal.App.3d at pp. 611-612.) Our Supreme Court explained, “Lack of jurisdiction in its
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most fundamental or strict sense means an entire absence of power to hear or determine
the case, an absence of authority over the subject matter or the parties . . . . [¶] But in its
ordinary usage the phrase ‘lack of jurisdiction’ is not limited to these fundamental
situations. For the purpose of determining the right to review by certiorari, restraint by
prohibition, or dismissal of an action, a much broader meaning is recognized. Here it
may be applied to a case where, though the court has jurisdiction over the subject matter
and the parties in the fundamental sense, it has no ‘jurisdiction’ (or power) to act except
in a particular manner, or to give certain kinds of relief, or to act without the occurrence
of certain procedural prerequisites. Thus, a probate court, with jurisdiction of an estate,
and therefore over the appointment of an administrator, nevertheless acts in excess of
jurisdiction if it fails to follow the statutory provisions governing such appointment.”
(Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288; accord, Pham,
supra,172 Cal.App.3d at p. 971, fn. 6.) The tolling provision based on suspension of
court jurisdiction to try the action encompasses both lack of fundamental jurisdiction and
acts in excess of jurisdiction. (Pham, supra,172 Cal.App.3d at pp. 970-971; Herring v.
Peterson, supra, 116 Cal.App.3d at pp. 612-613.)
A party’s death suspends the trial court’s jurisdiction until the appointment of a
personal representative. (Pham, supra,172 Cal.App.3d at pp. 972-973; Herring v.
Peterson, supra, 116 Cal.App.3d at p. 613; Wills v. Williams (1975) 47 Cal.App.3d 941,
945; see Watts v. Crawford (1995) 10 Cal.4th 743, 750, fn. 14.) Here, defendant’s death
suspended the trial court’s jurisdiction and tolls the five-year period. Defendant’s son
moved to dismiss for delay of prosecution on April 17, 2015. But there is no evidence
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defendant’s son requested appointment as a personal representative, executor or trustee
before filing the dismissal motion. Further, defendant’s son did not seek substitution as
successor in interest in a related action, case No. KC064169, until October 13, 2015.
Moreover, the continued presence of Mr. Parke, who represented defendant, did not
confer continued jurisdiction. (Herring v. Peterson, supra, 116 Cal.App.3d at p. 612.)
The authority of Mr. Park did not survive the death of defendant. Thus, defendants death
left no one to prosecute the underlying action on his behalf. (Pham, supra,172
Cal.App.3d at pp. 972-973; Herring v. Peterson, supra, 116 Cal.App.3d at p. 613.)
Furthermore, section 583.340, subdivision (a) does not supply a time limit or impose
upon plaintiff an obligation to expedite matters. (Schwenke v. J & P Scott, Inc. (1988)
205 Cal.App.3d 71, 78; Herring v. Peterson, supra, 116 Cal.App.3d at p. 616; Polony v.
White (1974) 43 Cal.App.3d 44, 48 [“The statute does not define a duty nor impose an
obligation, it merely deals with a defined state of facts and declares the legal consequence
that flows therefrom”].) Thus, whether a plaintiff is diligent is not part of the analysis
under section 583.340, subdivision (a). (Spanair S.A. v. McDonnell Douglas Corp.
(2009) 172 Cal.App.4th 348, 358; Schwenke v. J & P Scott, Inc., supra, 205 Cal.App.3d
at pp. 77-78.)
The five-year statutory period for bringing the action to trial was tolled when
defendant died on August 30, 2014. The probate court’s jurisdiction was suspended upon
defendant’s death. Defendant died before October 5, 2014, which is five years after the
action commenced. When Judge Stratton granted the dismissal motion, the five-year
period had not expired. Having concluded the five-year period was tolled under section
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583.340, subdivision (a), we need not reach plaintiff’s other contentions. This includes
contentions concerning additional periods that did not count against the five year period:
the time during which the case was subject to reference orders; during periods when it
was purportedly impossible to try the case; and conduct of defendants which delayed the
trial. We have not decided these issues. And whether they are relevant to when the case
must be tried after the remittitur issues is a matter we leave in the probate court’s good
hands.
IV. DISPOSITION
The judgment of dismissal is reversed. All parties are to bear their own costs
incurred on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J.
We concur:
KRIEGLER, J.
BAKER, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the death of a defendant suspends the trial court's jurisdiction until a personal representative is appointed, thereby tolling the five-year period for bringing an action to trial under Code of Civil Procedure section 583.340, subdivision (a).
Issues
Whether the death of a defendant without the appointment of a personal representative suspends the trial court's jurisdiction and tolls the five-year period for bringing a case to trial.
Disposition. reversed
Quotations verified verbatim against the opinion
“A party’s death suspends the trial court’s jurisdiction until the appointment of a personal representative.”
“The five-year statutory period for bringing the action to trial was tolled when defendant died on August 30, 2014.”
“The tolling provision based on suspension of court jurisdiction to try the action encompasses both lack of fundamental jurisdiction and acts in excess of jurisdiction.”