Opinion
NOT TO BE PUBLISHED
Sup.Ct.No. CVP001566
OPINION
MORRISON, J.
In 1999, a light plane carrying four skydivers crashed, killing the pilot and three of the passengers and injuring the fourth. One year later, the survivor and successors to the estates of the deceased passengers filed suit against “The Estate of Lynn Maxey Wylie [sic], Deceased” for negligence. The following years saw considerable, contentious litigation, marked primarily by procedural sloppiness. Finally, in late 2005, the trial court granted a motion for summary judgment by the Estate of Wiley based on plaintiffs’ failure to serve the insurer as required by Probate Code section 552. Plaintiffs appeal, contending any claim of defect in service, including no service, was forfeited by the Estate of Wiley’s many general appearances.
This case is, as the trial court observed, “really muddled up. And that muddling goes back a long ways on both sides.” The confusion began with the complaints and an apparent misnaming of the defendant. Plaintiffs named the Estate of Wiley as defendant. Generally, an estate is not a legal entity and cannot sue or be sued. There is an exception for actions brought to establish the decedent’s liability for which the decedent was protected by insurance. Defendant Estate of Wiley contends this is that type of action, in which naming the estate as defendant is proper, and the plaintiffs must lose because they failed to comply with the requirements of Probate Code section 552 to serve the insurer. The premise of this argument is that the requirement to serve the insurer is a statutory prerequisite to bringing the action, designed to permit the insurer to control the defense, and failure to serve the insurer is an affirmative defense to a Probate Code section 552 action. Once a defendant pleads failure to serve the insurer as an affirmative defense, a plaintiff must plead waiver of service as an affirmative defense to that affirmative defense.
We disagree with that premise. Instead, we read the service requirement of Probate Code section 552 as simply the designation of whom is to be served, necessary because an estate is not a legal entity. This service requirement is subject to the normal rules of service of process, one of which is that a
general appearance is the equivalent of personal service. (Code Civ. Proc., § 410.50, subd. (a).) Since the Estate of Wiley has made a general appearance, it has forfeited any objection to service as a matter of law. It was error to grant summary judgment on the basis relied upon by the trial court and we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
We take the underlying facts from one of our prior opinions in this case, Sevilla v. Estate of Wiley (Dec. 8, 2004, C044669) [nonpub. opn.] (hereafter Sevilla I). “On June 19, 1999, as part of a skydiving trip arranged by Blue Sky Adventures, a Cessna airplane took off from Paso Robles airport and crashed shortly after takeoff. The plane was owned by Daniel Dougherty and piloted by Lynn Maxey Wiley. On board were four skydiving passengers, Dougherty, Suzanne Gray, Therese Pursel, and James Pursel. Wiley, Dougherty, Gray, and Therese Pursel were killed; only James Pursel survived.”
In contrast to the straightforward facts, the procedural history of this case is intricately detailed. The survivor and representatives of the deceased passengers brought suit for negligence against Blue Sky Adventures, “The Estate of Lynn Maxey Wylie, Deceased,” and Does One through One Hundred. Blue Sky Adventures apparently was never served and never appeared; it is not a party to this appeal. There is no proof of service in the record to indicate if service of the original complaints was made on anyone and, if so, on whom.
The current record on appeal contains only the initial complaint of representatives of Therese Pursel. There is no dispute that the other complaints were identical.
Several months later, an answer was filed by Jan Conroy, Wiley’s surviving husband. He filed an answer as “Successor-in-Interest to Estate of Lynn Maxey Wiley” and was represented by Michael Harrington. The answer generally denied the allegations of the complaint and asserted nine affirmative defenses. Harrington had represented Conroy since 2000. In January 2001, just before the answer was filed, Harrington was appointed Cumis counsel for the Estate of Wiley by United States Aviation Underwriters.
The term “Cumis counsel” refers to independent counsel provided to the insured by an insurer who is contesting coverage but still providing a defense. (See San Diego Navy Credit Union v. Cumis Ins. Society, Inc. (1984) 162 Cal.App.3d 358, 364; Civ. Code, § 2860.)
About a month after the answer, Conroy, individually and again as Successor-in-Interest to the Estate of Lynn Maxey Wiley, also filed a cross-complaint against Blue Sky Adventures, its owner David Hughes, and the estate of Daniel Dougherty, the owner of the plane, for implied equitable indemnity and apportionment of fault. The cross-complaint also sued United States Aviation Underwriters, Inc., United States Aircraft Insurance Group and Ken Steiner (the insurers) for breach of contract and bad faith. The cross-complaint noted that the skydiving passengers may have signed releases that contained an insurance disclaimer. The cross-complaint alleged the disclaimer was false because Wiley had one million dollars of insurance coverage.
Disputes arose between Harrington and the insurers. The insurers tried, unsuccessfully, to remove Harrington as Cumis counsel. In February 2001, Bonnie Cohen and James Nolan were retained to represent the Estate of Wiley.
In June 2001, plaintiffs filed an at-issue memorandum, representing that all essential parties had been served or appeared.
Sometime during the summer of 2001, the Estate of Wiley, represented by Nolan, moved for summary judgment on the basis that plaintiffs’ claims were precluded by the releases or by the doctrine of assumption of the risk. The trial court denied the motion, finding the releases had not been authenticated and the Estate had not established that negligent operation of a jump plane was a risk inherent to skydiving.
There were disputes between Harrington and insurance counsel, Cohen and Nolan, regarding the defense. In February 2002, Harrington moved for an order granting control of the defense; the order was denied.
In April 2002, the Estate of Wiley again moved for summary judgment. The Estate argued it was the only defendant in the case. It argued that plaintiffs’ claims must fail because they failed to follow the rules of the Probate Code to claim money damages against Wiley or any of her representatives. Since plaintiffs failed to file creditors’ claims, as required by the Probate Code, they could not recover from the estate’s assets and any such claim was barred by the one-year statute of limitations of Code of Civil Procedure section 366.2. By failing to serve the insurer, plaintiffs had no claim to insurance proceeds under Probate Code sections 550 to 555.
In opposition to this motion, plaintiffs argued the affirmative procedural defenses had not been pled in the answer and were without merit. Further, any defect in service had been waived “long ago” by the Estate of Wiley’s general appearances without an objection to any defect in service.
In the meantime, both plaintiffs and Conroy had petitioned to probate Wiley’s estate. The trial court requested briefing on the effect of these petitions on defendant’s motion for summary judgment. Conroy declined to join the summary judgment motion. In his supplemental brief, Conroy asserted it was well known through numerous filings with the court that plaintiffs had presented a one million dollar demand before filing the lawsuit and that demand was forwarded to the insurer.
The court subsequently granted Conroy’s petition.
The trial court denied the motion for summary judgment because defendant’s answer failed to raise the affirmative defenses of statute of limitations, failure to file creditors’ claims, or lack of notice to the insured.
The Estate of Wiley filed an answer to the complaints. The answer contained a general denial and asserted 16 affirmative defenses, including that liability was barred by pre-accident releases signed by plaintiffs, failure to file creditors’ claims pursuant to Probate Code sections 9000 et seq., the statute of limitations of Code of Civil Procedure section 366.2, and failure to serve the insurer as required by Probate Code sections 550 to 555.
Conroy moved to amend his answer. That motion was denied. The trial court found that Cohen and Harrington were counsel “for the same party” and deemed the answer filed in July 2002 by Cohen to be the amended answer of the Estate of Wiley.
The Estate of Wiley, represented by Cohen and Nolan, then filed two separate motions for summary judgment, one based on the releases signed by plaintiffs and one based on the affirmative defenses under the Probate Code. In a tentative ruling, these motions were denied because they failed to set forth new facts or law from the previous motions on the same grounds. Subsequently, the court reconsidered and granted the motion for summary judgment based on the releases. It expressly declined to rule on the motion based on probate issues.
Plaintiffs appealed from the ensuing judgment. This court, in Sevilla I, affirmed the judgment as to plaintiff James Pursel, the sole survivor of the accident. We reversed the judgment as to the other plaintiffs because there was a triable issue of fact as to whether the releases contained a material misrepresentation of fact upon which these plaintiffs relied.
While the appeal was pending, the Estate of Wiley obtained an order for attorney fees based on an attorney fee provision in the release. It declined to reveal the billing statements to plaintiffs, submitting them only to the court for in camera review. Plaintiffs appealed from this fee award. On appeal, this court reversed the award as to James Pursel (the only plaintiff as to whom the judgment had been affirmed), finding the in camera review procedure improper; indeed, we found the procedure to be “a remarkable disregard for our adversarial system.” (Sevilla v. Estate of Wiley (Mar. 29, 2005, C046387) [nonpub. opn.] p. 7 (hereafter Sevilla II).)
The case returned to the trial court and the court held a hearing to determine how to proceed. The Estate of Wiley indicated it wanted the court to rule on its motion for summary judgment based on Probate Code issues. The court ruled a new notice of motion was required, which could incorporate previously filed memorandums of points and authorities. The opposition was to incorporate previously filed opposition. Any supplemental briefing was limited to new facts and new law.
The Estate of Wiley filed a new notice of motion for summary judgment/summary adjudication. It incorporated by reference all pleadings relating to the previous motion for summary judgment filed October 2002. The Estate filed a supplemental brief and supplemental separate statement, raising one new fact. The Estate claimed there was no insurance coverage for plaintiffs’ claims, relying on a stipulated judgment from September 2004, that there was no coverage under a certain policy.
Plaintiffs opposed the motion, incorporating by reference their opposition filed in November 2002. That opposition incorporated by reference plaintiffs’ earlier opposition that argued the insurers waived any defects in service by voluntarily appearing in the action. The plaintiffs took issue with the new fact, contending the stipulated judgment was not binding on them, the lack of ability to respond in damages did not entitle defendant to judgment, the stipulated judgment did not establish there was no insurance coverage, and plaintiffs were not limited to insurance recovery.
A hearing was conducted in August 2005, on three pending motions: the summary judgment motion, James Pursel’s motion to tax costs, and a motion to set attorney fees against James Pursel. The court awarded the Estate of Wiley attorney fees of $206,365.60 against James Pursel. Judgment was entered against James Pursel for $219,604.28 in fees and costs.
Pursel has abandoned his appeal from this judgment. This fee award is significantly higher than the award of $129,523.63, which was the subject of Sevilla II.
The trial court granted the motion of Estate of Wiley for summary judgment for failure to serve the insurer as required by Probate Code section 552. As to uninsured claims against the personal administrator of the Estate of Wiley, the court on its own motion treated the motion as one for judgment on the pleadings. It granted that motion as plaintiffs failed to allege timely filing, service, and rejection of creditors’ claims. Plaintiffs were granted leave to amend.
Plaintiffs filed amended complaints, naming as defendants, Blue Sky Adventures, the Estate of Lynn Maxey Wiley, Deceased, and Jan Conroy, as personal representative of the estate. Conroy, represented by Harrington, answered the amended complaints.
Judgment was entered in favor of the Estate of Wiley.
Plaintiffs moved to correct the order and set aside the judgment. Plaintiffs claimed the trial court granted only summary adjudication, not summary judgment, in favor of the Estate of Wiley. Further, the court did not rule as to plaintiffs’ rights to any proceeds from insurance policies, so the court’s reference to uninsured claims was misleading. Finally, plaintiffs asserted the memorandum of costs must be stricken as the Estate of Wiley was not a prevailing party as there were outstanding claims still against it.
The court denied this motion.
Plaintiffs appealed from both the judgment and the postjudgment order. The two appeals were consolidated.
DISCUSSION
I
The original complaints named as defendant: “The Estate of Lynn Maxey Wylie, Decedent.” “The ‘estate’ of a decedent is not an entity known to the law. It is neither a natural nor an artificial person. It is merely a name to indicate the sum total of the assets and liabilities of a decedent, or of an incompetent, or of a bankrupt. [Citation.]” (Tanner v. Best (1940) 40 Cal.App.2d 442, 445.) “An ‘estate’ can neither sue nor be sued. [Citation.]” (Estate of Bright v. Western Air Lines (1951) 104 Cal.App.2d 827, 829.)
There is an exception to this rule. “[A]n action to establish the decedent’s liability for which the decedent was protected by insurance may be commenced or continued against the decedent’s estate without the need to join as a party the decedent’s personal representative or successor in interest.” (Prob. Code, § 550.) Such an action “shall name as defendant, “Estate of (name of decedent), Deceased.’” (Prob. Code, § 552.) Unless the personal representative of the estate is joined as a party to the action, damages are limited to the limits and coverage of insurance. (Prob. Code, § 554.) A judgment against the estate may be enforced against the insurer. (Prob. Code, § 9390, subd. (a).)
Defendant Estate of Wiley contends that since the estate was named as defendant this action is an action permitted under Probate Code section 550. Estate of Wiley further contends it is the only defendant as Blue Sky Adventures was not served and did not appear.
It is not certain whom plaintiffs intended as the defendant; they have never indicated their intent and continue to refer to the defendant as Estate of Wiley. Their brief on appeal, however, makes clear that they do not intend to be limited to the proceeds of any insurance. At this point, there is another defendant. Conroy answered the complaints as “Successor-in-Interest to the Estate of Lynn Maxey Wiley.” The Estate of Wiley contends this designation is meaningless as there is no such thing as a successor-in-interest to a defendant. This assertion is incorrect. Subject to the provisions of the Probate Code regarding creditors’ claims, a cause of action against a decedent that survives may be asserted against the decedent’s personal representative or the decedent’s successor-in-interest. (Code Civ. Proc., § 377.40.) As Witkin explains, the decedent’s successor-in-interest is the proper party where, as here, there is no personal representative. (4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 115, pp. 175-176.)
Earlier in the case, the trial court took the position there was only one defendant. It denied Conroy’s motion to amend the answer, finding Cohen and Harrington represented “the same party.” Later, the court held a different view, finding there were “two completely different defendants.”
His cross-complaint indicates he is suing pursuant to Code of Civil Procedure section 377.10, which defines the beneficiary of a decedent’s estate, and Parsons v. Tickner (1995) 31 Cal.App.4th 1513, which permitted a lawsuit by decedent’s daughter as his successor-in-interest.
Conroy’s designation is incorrect; he should be Wiley’s successor-in-interest, not the successor-in-interest to her estate. Nevertheless, there was no objection to Conroy’s appearance. A party may appear in an action even though he is not named in the complaint. (Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1146.) If an unnamed, yet answering defendant participates in the action without objection from anyone, the complaint should be deemed amended. (Id. at p. 1147.) That result has now been achieved as the complaints have been amended to name Conroy as personal representative. The trial court indicated plaintiffs may pursue the assets of the estate.
That still leaves the Probate Code section 552 action for insurance proceeds against the Estate of Wiley. That action may exist even though there is an action against the personal representative. The remedy provided by such an action is cumulative and may be pursued with other remedies. (Prob. Code, § 550, subd. (b).) The action against the estate may be consolidated with an action against the personal representative. (Prob. Code, § 552, subd. (c).) Unless the personal representative is joined as a party, a judgment in the action does not adjudicate the rights by or against the estate. (Prob. Code, § 553.)
In addition to providing the name of the defendant, Probate Code section 552, subdivision (a) states: “Summons shall be served on a person designated in writing by the insurer or, if none, on the insurer. Further proceedings shall be in the name of the estate, but otherwise shall be conducted in the same manner as if the action were against the personal representative.” The Estate of Wiley contends the requirement of service on the insurer is a prerequisite to a section 552 action. The trial court agreed, granting summary judgment to the Estate of Wiley on the basis that plaintiffs failed to serve the insurer.
Probate Code section 552, subdivision (a) requires summons be served on the insurer or its designee. A summons “is the usual means by which the court gives jurisdictional notice to the defendant, directs his appearance, and thus acquires jurisdiction of his person. [Citations.]” (3 Witkin, Cal. Procedure (4th ed. 1996) Actions, § 875, p. 1063.) Defective service may be challenged by a special appearance and motion to quash. (Id., § 883, p. 1069; see Code Civ. Proc., § 418.10.) Code of Civil Procedure section 583.250 requires mandatory dismissal of an action if service is not made within three years after the action is commenced. The Estate of Wiley did not challenge the lack of service by these methods.
Instead, Estate of Wiley made a general appearance in the action by, at the very least, answering the complaints (Code Civ. Proc., § 1014), and moving for summary judgment on the merits. (Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 53 [If defendant seeks affirmative relief on the merits, application may be deemed a general appearance.].) Generally, a defendant makes a general appearance when he takes part in the action. (2 Witkin, Cal. Procedure (4th ed. 1996) Jurisdiction, § 184, p. 747.)
“A general appearance by a party is equivalent to personal service of summons on such party.” (Code Civ. Proc., § 410.50, subd. (a).) “A general appearance operates as a consent to jurisdiction of the person, dispensing with the requirement of service of process, and curing defects in service.” (2 Witkin, Cal. Procedure, supra, Jurisdiction, § 190, p. 756.) In Fireman’s Fund Ins. Co. v. Sparks Construction, Inc., supra, 114 Cal.App.4th 1135, 1147, the court held the long-standing rule that a general appearance “waives” objections to service is actually a matter of forfeiture, not waiver. “Service of summons is required in order to give the defendant notice of the action, as due process demands. [Citation.] But once the defendant appears in the action, this purpose has been served. ‘A defendant has a right to demand that process be issued against him in the manner provided by law, but if process is not so issued and he appears generally without making objection, such appearance, being the purpose of the process, confers jurisdiction of the person and the court is empowered to act in the premises.’ [Citation.]” (Ibid.)
The Estate of Wiley contends plaintiffs cannot rely on this rule of forfeiture. It contends that service on the insurer is a statutory prerequisite to bringing a Probate Code section 552 action. Failure to serve the insurer, therefore, is an affirmative defense to a Probate Code section 552 action. The Estate of Wiley contends forfeiture is a defense to the affirmative defense of lack of service and it must appear in an operative pleading. The Estate of Wiley does not cite a single authority which holds that waiver or forfeiture of defects in service must be pled. Instead, it relies on the entirely different situation presented in Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715. In Westlye, plaintiff sued a ski shop and distributors of ski equipment, alleging a defective binding failed to release when he fell, causing injury. Defendants moved for summary judgment, relying on an agreement plaintiff signed releasing them from liability. Plaintiff, in turn, claimed the agreement was unconscionable. This court held summary judgment was proper on the claims of negligence and breach of contract; plaintiff had failed to plead unconscionability as a defense to defendant’s affirmative defense of a disclaimer agreement. (Id. at pp. 1736-1741.)
The trial court supported this view when it denied the first summary judgment motion on probate issues due to the Estate of Wiley’s failure to plead affirmative defenses in its answer.
The Estate of Wiley argues the fact that it and the insurers had actual notice of the action, and that it appeared, is irrelevant. It contends it is not contesting the jurisdiction of the trial court over the Estate of Wiley. Rather, it argues the service requirement of Probate Code section 552 serves a purpose distinct from the usual purpose of service of process. Service on the insurer is not intended to give jurisdictional notice; instead, it is intended to allow the insurer to direct the defense, without interference from the insured. The Estate of Wiley contends the defense was substantially prejudiced by the failure to serve the insurer because Conroy schemed with plaintiffs to promote a false claim of insurance coverage.
The Estate of Wiley cites no authority for the proposition that the service requirement of Probate Code section 552 has a purpose distinct from the usual purpose of service of process to give jurisdictional notice to defendant. Nothing in the statute hints that service of summons on the insurer is somehow different than the usual service of process. Since it is well-established in California law that a decedent’s estate is not a legal entity that can be sued (Estate of Bright v. Western Air Lines, supra, 104 Cal.App.2d 827, 829), it was necessary for the Legislature to indicate on whom service should be made. The suggestion that the Legislature intended the insurer to have sole control of the defense, without interference from the personal representative of the estate or the decedent’s successor-in-interest, is belied by the provision that permits the court, on the motion of any interested party or its own motion, to order the appointment and substitution of a personal representative as defendant. (Prob. Code, § 552, subd. (b).)
By making general appearances over the years in this action, the Estate of Wiley forfeited any claim as to defects in service as a matter of law. It was error to grant summary judgment on the ground that plaintiffs failed to serve the insurer.
II
The Estate of Wiley contends the summary judgment may be affirmed based on the releases signed by the skydivers. It contends this court may affirm the summary judgment on any legally correct theory, provided the parties had an adequate opportunity to address it below. (Kramer v. State Farm Fire & Casualty Co. (1999) 76 Cal.App.4th 332, 335.)
In Sevilla I, this court reversed summary judgment as to three plaintiffs on the basis that there was a triable issue of material fact whether the releases contained a material misrepresentation about insurance coverage. The Estate of Wiley purports to address this point by relying on discovery responses by plaintiffs that refused to identify insurance policies that provided coverage. The Estate of Wiley contends plaintiffs are now judicially estopped from claiming there is a misrepresentation as to insurance in the releases because they now assert that insurance is not relevant to this case.
The trial court did not rely on the releases in granting summary judgment. We are constrained in relying on another ground to affirm. In 2002, the Legislature amended the summary judgment statute. (Stats. 2002, ch. 448, § 5.) Code of Civil Procedure section 437c, subdivision (m)(2) now provides: “Before a reviewing court affirms an order granting summary judgment or summary adjudication on a ground not relied upon by the trial court, the reviewing court shall afford the parties an opportunity to present their views on the issue by submitting supplemental briefs. The supplemental briefing may include an argument that additional evidence relating to that ground exists, but that the party has not had an adequate opportunity to present the evidence or to conduct discovery on the issue. The court may reverse or remand based upon the supplemental briefing to allow the parties to present additional evidence or to conduct discovery on the issue.”
We note the discovery responses the Estate of Wiley relies upon were not presented to the trial court until March 2006, after the trial court had ruled on the summary judgment motion. Thus, plaintiffs had not had an opportunity to address the discovery responses and their effect on the summary judgment motion. This matter should first be addressed in the trial court. (See Adams v. Pacific Bell Directory (2003) 111 Cal.App.4th 93, 101.)
DISPOSITION
The judgment is reversed. Plaintiffs shall recover their costs on appeal. (Cal. Rules of Court, rule 8.276(b).)
We concur: SCOTLAND, P.J., SIMS, J.