Judge: Barbara M. Scheper, Case: 22STCV20036, Date: 2024-12-06 Tentative Ruling

Case Number: 22STCV20036    Hearing Date: December 6, 2024    Dept: 30

Dept. 30

Calendar No.

Zakariyae vs. Zakaryaie, et. al., Case No. 22STCV20036

Tentative Ruling re:  Motion for Substitution of Successor in Interest

Melanie Yadegar (Successor) moves to be substituted into the present action as cross-complainant in place of Farideh Zakaryaie (Decedent). Cross-defendant Manoocher Zakariyae (Cross-defendant) opposes her substitution.

“A pending action or proceeding does not abate by the death of a party if the cause of action survives.” (Code Civ. Proc., § 377.21.) “On motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent’s personal representative or, if none, by the decedent’s successor in interest.” (Id., § 377.31.)

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 shall execute and file an affidavit or a declaration under penalty of perjury under the laws of this state stating: (1) the decedent’s name; (2) the date and place of decedent’s death; (3) an affirmation that “[n]o proceeding is now pending in California for administration of the decedent’s estate”; (4) if the decedent’s estate was administered, a copy of the final order showing the distribution of the decedent’s  cause of action to the successor in interest; (5) an affirmation that either the declarant is the successor in interest or authorized to act on behalf of the successor in interest; (6) an affirmation that “[n]o other person has a superior right to commence the action or proceeding or to be substituted for the  decedent in the pending action or proceeding”; and (7) an affirmation of the declaration’s truth under penalty of perjury. (Id., § 377.32.) The party must also submit a certified copy of the decedent’s death certificate.

Substitution is mandatory if the statutory requirements are met. (Id., § 377.31.) Here, Successor has filed a declaration satisfying the requirements of section 377.32. (Yadegar Decl. ¶ 5.) Successor has also properly provided a copy of the death certificate. (Id., Ex. A.) Thus, pursuant to Code of Civil Procedure section 377.31, the Court finds that Successor may continue Decedent’s action.

Cross-defendant’s argument concerning estoppel is without merit. The procedure for substituting a successor in interest differs depending on whether the claim in question is by or against the decedent. (Compare id., § 377.30 with § 377.40.) To substitute Successor, Cross-defendant was required to open a probate estate and refused to do so. Successor has never disputed that she is Decedent’s successor in interest; she merely opposed substitution previously on procedural grounds.