Burgos

Gorgonia Alvarez Burgos appeals a judgment dismissing her first amended complaint for damages for personal injury against Karen Tamulonis as personal representative of Armando Moscaritolo, deceased, after the court sustained Tamulonis’s demurrer without leave to amend. (Code Civ. Proc., § 581d.) The basis for sustaining the demurrer was that the action against the personal representative was barred by the one-year after death limitation of former section 353, subdivision (b), notwithstanding the fact that within one year of Moscaritolo’s death Burgos had filed the original complaint naming Moscaritolo as defendant, among others not relevant to this case.

The problem was that at the time Burgos filed the original complaint, she did not know of Moscaritolo’s death. After taking steps to perfect substituted service under section 415.20, subdivision (b), Burgos first learned of the death. By the time Burgos petitioned for leave to file a late claim against the estate (which was granted) and the time Burgos filed and served the amended complaint naming Tamulonis in her representative capacity as defendant, more than one year had passed since Moscaritolo’s death.

In this case…