Judge: Audra Mori, Case: BC698037, Date: 2023-02-21 Tentative Ruling

Case Number: BC698037    Hearing Date: February 21, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Plaintiff Guadalupe Montiel (“Plaintiff”), by and though her guardian ad litem, Maria Montiel, filed this action against Defendant Grand Valley Health Care Center, LLC for medical malpractice. Plaintiff was dropped by Defendant’s employee while Plaintiff was under Defendant’s care. 

At this time, Plaintiff seeks an order substituting Plaintiff, who has passed away, with the representative of her estate.  The motion is unopposed. 

Plaintiff passed away on January 11, 2022, and an Affidavit for Collection of Personal Property under Probate Code §§ 13100-13106 was issued naming Beatriz Montiel (“Beatriz”) as Plaintiff’s successor in interest and representative of her estate.  The motion states that Beatriz seeks to be placed into Plaintiff’s shoes in accordance with CCP § 377.33.

Per CCP §377.21, a pending action does not abate by reason of the plaintiff’s death; instead, per CCP §377.33, the Court may make an order substituting the plaintiff’s personal representative or successor-in-interest as the plaintiff in the action.  Per §377.31, the personal representative or successor-in-interest must make a motion to be substituted into the action.  The person who seeks to commence an action or proceeding or to continue a pending action or proceeding as the decedent's successor in interest must execute and file an affidavit or a declaration under penalty of perjury asserting statutory required information.  (CCP § 377.32(a).)

            Here, the motion does not comply with CCP § 377.32.  Only Plaintiff’s counsel’s declaration is attached to the motion; however, CCP § 377.32 requires an affidavit or declaration by the person seeking to be substituted in as the successor-in-interest plaintiff.  Plaintiff’s counsel does not establish sufficient personal knowledge of the facts asserted in counsel’s declaration as to comply with the statutory requirements, and no declaration from Beatriz was submitted with the motion. 

            Based on the foregoing, the motion is denied without prejudice. 

Plaintiff is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 21^st day of February 2023