[ENTER ADDRESS]
Plaintiff in Pro Per
SUPERIOR COURT OF THE STATE OF XXX
FOR THE COUNTY OF XXXX
XXXX,
Plaintiff
vs.
XXXX
Defendant
Case No.:XXXX
Judge: XXXX
Dept: 31
NOTICE OF MOTION; MOTION FOR
LEAVE TO FILE AMMENDED
COMPLAINT; MEMORANDUM IN
SUPPORT; AND DECLARATION IN
SUPPORT
MOTION FOR LEAVE TO AMEND COMPLAINT
NOW COMES, SEAN RASHTI, Plaintiff, proceeding Pro Se, pursuant to CCP §
473(a)(1) who hereby moves this Court to grant Plaintiff leave to amend his Complaint.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT FOR MOTION TO
RECONSIDERATION
FACTUAL BACKGROUND
On or about November XXXX, Plaintiff filed a Complaint against the Defendant.
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MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
On or about XXXXX, XXXX, Defendant’s attorney, filed a Stipulation & order
to proceed against estate and limit Recovery to insurance policy Limits. In the said document,
the Defendant alleged that Defendant Toby Wank was insured under an automobile liability
policy with State Farm Mutual Automobile Insurance Company with a per person limit of
$250,000. The document further stated that the policy provided coverage for the subject claim in
the event Toby Wank was found wholly or partially responsible for the incident.
Interestingly, the Defendants notified the Plaintiff that Defendant Toby Wank had died
on or about January 9, 2021, about a year later when the proposed Stipulation was being sent to
Plaintiff.
In that regard, the proposed stipulation provided that the matter be held against the
Defendant’s estate pursuant to Probate Code section 550, et seq, and that the recovery of any
claim under the action be limited to the said policy limit of $250,000.
However, the total damages suffered by Plaintiff surpass the said policy limit.
Plaintiff therefore files this Motion for Leave to Amend the Complaint and substitute the
Defendant with the correct party. Plaintiff intends to amend the Complaint in the following
manner:
i. Changing the Defendant in the Complaint to Defendant’s Personal Representative
pursuant to CCP § 473(a)(1).
ARGUMENTS
It is in the furtherance of justice for this Court to grant the leave to Amend
“The Court may, in the furtherance of justice, and on any terms as may be proper, allow a
party to amend any pleading…” CCP § 473(a)(1); see also McKenney v. Purepac Pharm Co.
(2008) 167 Cal. App. 4 th 72, 78.
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MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
Probate Code Sections 550 and 552 provide that an action against a deceased person,
where the plaintiff seeks recovery of insurance proceeds only, may be filed against “the Estate of
[Decedent].” Summons shall then be served on the insurer, not any estate representative.
Code of Civil Procedure Section 377.40 states: “Subject to Part 4 (commencing with
Section 9000) of Division 7 of the Probate Code governing creditor claims, a cause of action
against a decedent that survives may be asserted against the decedent’s personal representative
or, to the extent provided by statute, against the decedent’s successor in interest.” Accordingly,
the plaintiff must timely file a creditor’s claim against the estate (if it exists), in order to preserve
the right to proceed with his or her action for damages.
In this action, Defendant died. Therefore, Plaintiff has to substitute the Defendant with
either the estate of the Defendant or the personal representative of the Defendant or his successor
in interest. Plaintiff’s damages exceed the insurance policy limit of the Defendant. Therefore
Plaintiff has to substitute the Defendant accordingly, in order to get full redress from the
Defendant’s actions.
Plaintiff has attached the Amended Complaint.
CONCLUSION
WHEREFORE, Plaintiff requests this Court grant the following Order(s):
1. THAT Plaintiff be allowed to amend the Complaint by substituting the Defendant
with Defendant’s Personal Representative or Successor in Interest;
2. THAT this Court grant any other Order it deems just.
DATED:
Respectfully submitted,
____________________________
XXXX
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MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
XXXX
[ENTER ADDRESS]
Plaintiff in Pro Per
SUPERIOR COURT OF THE STATE OF XXXX
FOR THE COUNTY OF XXXX
XXXX,
Plaintiff
vs.
XXXXX
Defendant
Case No.: XXXX
Judge: Honorable XXXX
Dept: 31
NOTICE OF MOTION; MOTION FOR
LEAVE TO FILE AMMENDED
COMPLAINT; MEMORANDUM IN
SUPPORT; AND DECLARATION IN
SUPPORT
DECLARATION IN SUPPORT OF PLAINTIFF’S FOR LEAVE TO AMEND
COMPLAINT
I, XXX, declare
1. On or about XXXXX, Plaintiff filed a Complaint against the Defendant.
2. On or about XXXX, XXXX, Defendant’s attorney, filed a Stipulation & order
to proceed against estate and limit Recovery to insurance policy Limits. In the said
document, the Defendant alleged that Defendant Toby Wank was insured under an
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MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
automobile liability policy with State Farm Mutual Automobile Insurance Company with
a per person limit of $250,000. The document further stated that the policy provided
coverage for the subject claim in the event Toby Wank was found wholly or partially
responsible for the incident.
3. Defendants notified the Plaintiff that Defendant Toby Wank had died on or about January
9, 2021, about a year later when the proposed Stipulation was being sent to Plaintiff.
4. The proposed stipulation provided that the matter be held against the Defendant’s estate
pursuant to Probate Code section 550, et seq, and that the recovery of any claim under the
action be limited to the said policy limit of $250,000.
5. The total damages suffered by Plaintiff surpass the said policy limit.
6. Plaintiff could not file this Motion at the required time because he was organizing the
right strategy for his case against Defendant, so as to avoid the case being dismissed.
7. Plaintiff did not immediately substitute Defendant because he was waiting for a ruling on
his Request for a Declaration of the Policy Limits of the Defendant. Plaintiff wanted to be
sure of the policy limits so that he may know whether to sue the Estate of the Personal
Representative or Successor in Interest of the Defendant.
8. The Defendants further notified the Plaintiff that Defendant Toby Wank had died on or
about January 9, 2021, about a year later when the proposed Stipulation was being sent to
Plaintiff. For over a year, Plaintiff was left in the dark concerning the death of the
Defendant.
9. Plaintiff therefore needed a declaration from the Defendant, of the Defendant’s Policy
Limits, after which Plaintiff would proceed to decide the correct party to sue, and
substitute the party accordingly.
I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct.
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MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
____________________________
XXXX
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MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
CERTIFICATE OF SERVICE
I hereby certify that on [ENTER DATE], a copy of the foregoing document has been
sent to the Defendant in the following address:
[ENTER ADDRESSES FOR DEFENDANT].
DATED:
____________________________
XXXX
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