SACRAMENTO COUNTY SUPERIOR COURT Superior Court of California January 7, 2014, 2:00 PM Department 53 David I. Brown, Judge Law and Motion Tentative Ruling Case No.: 2011-00113630-CU-MM Case Name: Suzanne Lawson vs. Sharon L. Yorko Hearing on Demurrer Defendant and Cross-Defendant Janet L. Dill-Clarke, as Administrator of the Estate of Douglas W. Clarke’s (“Dr. Clarke”) demurrer to Plaintiff Suzanne Lawson First Amended Complaint (“FAC”) and the Cross-Complaint of Sharon Yurko and Eyeoptics Optometry Center is sustained with leave to amend. Defendant’s request for judicial notice of Dr. Clarke’s death certificate and the order from the probate court in Dr. Clarke’s probate case is granted. Plaintiff asserts causes of action against Defendant for wrongful death and medical malpractice arising from allegations regarding treatment she received from Dr. Clarke. The original complaint was filed on November 7, 2011. The FAC alleges that Dr. Clarke passed away on November 8, 2010. The cross-complaint for indemnity and contribution based on the underlying claims in the complaint was filed on July 19, 2013. The materials attached to Defendant’s RJN reflect that Dr. Clarke passed away on July 8, 2010. Defendant demurs to both the FAC and the cross-complaint on the basis that the action is barred because it was filed more than one year after Dr. Clarke passed away. Pursuant to CCP § 366.2, where a person against whom an action may be brought “dies before expiration of the applicable limitations period, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply.” (CCP § 366.2.) While Plaintiff is correct that the FAC alleges that Dr. Clarke passed away on November 8, 2010, within one year of the date the complaint was filed, the judicially noticeable documents show that Dr. Clarke actually passed away on July 8, 2010 and thus the complaint is untimely pursuant to CCP § 366.2. Plaintiff is incorrect that Defendant did not request judicial notice of the documents showing the date of Dr. Clarke's death. Defendant filed a separate request for judicial notice of the death certificate and for judicial notice of the Probate Court order which includes a finding that Dr. Clarke passed away on July 8, 2010. A court can “take judicial notice of documents such as orders, findings of fact and conclusions of law, and judgments.” ( Bach v. McNelis (1984) 207 Cal.App.3d 852, 865.) Evidence Code section 452 provides that judicial notice may be taken of official acts of the legislative, executive, and judicial departments of a state and of facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. Accordingly, judicial notice may be taken of a death certificate. (Ellenberger v. City of Oakland, (1946) 76 Cal.App.2d 828, 835; People v. Terry (1974) 38 Cal. App. 3d 432 ). Of course, a demurrer can attack defects that appear from matters such as the probate court order which are subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) While Plaintiff and Cross-complainants both argue that the FAC and cross-complaint are each timely pursuant to CCP § 377.50 and the Probate Code, the FAC and cross- complaint as currently pled do not support such a theory. CCP § 377.50 provides that an action to establish a decedent’s liability “for which the decedent was protected by insurance may be commenced or continued against the decedent’s estate as provided in Chapter 1 (commencing with section 550) of Part 13 of Division 2 of the Probate Code.” Probate Code § 551 provides that “[n]otwithstanding section 336.2 of the Code of Civil Procedure, if the limitations period otherwise applicable to the action had not expired at the time of the decedent’s death, an action under this chapter may be commenced within one year after the expiration of the limitations periods otherwise applicable.” Any action pursuant to Probate Code § 550 et seq., is limited to damages within the coverage limits of any insurance, unless the decedent’s personal representative is joined in the action and a timely creditor’s claim against the estate has been filed. (Probate Code § 554.) In the instant case, Plaintiff and Cross- complainants seek unlimited damages against Dr. Clarke’s Estate but fail to allege that Dr. Clarke was covered by insurance such that CCP § 377.50 and the relevant Probate Code provisions would apply. These allegations are essential given that the judicially noticeable facts, specifically, the fact of Dr. Clarke’s death, otherwise show that the actions (FAC and cross-complaint) against his estate are barred by the statute of limitations in CCP § 366.2. Plaintiff and cross-complainants are given leave to amend to address the above. Plaintiff and cross-complainants may file and serve an amended complaint and an amended cross-complaint no later than January 17, 2014. Defendant shall file and serve its responses within 10 days thereafter, 15 days if the amended pleadings are served by mail. (Although not required by any statute or rule of court, Plaintiff and cross-complainants are requested to attach a copy of the instant minute order to the amended pleadings to facilitate the filing of the pleadings.) The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.