Department 58

Hearing Date: July 31, 2024

Case Name: Katie Schwartz v. Elm Enterprises LLC, a California limited liability corporation, Denmar Investment Co., Inc., a California corporation, and Does 1 through 20

Case No.: 22STCV10256

Motion: Motion for Leave to Amend First Amended Complaint

Moving Party: Successor in Interest Kerri Stern

Responding Party: Defendants Elm Enterprises LLC and Denmar Investment Co., Inc.

Tentative Ruling: The Motion is granted in part and denied in part.

On March 24, 2022, Plaintiff Katie Schwartz (“Schwartz”) filed an action against Defendants Elm Enterprises LLC (“Elm”), Denmar Investment Co., Inc. (“Denmar”), and Does 1-20, (collectively “Defendants”) arising out of a residential rental agreement. Plaintiff alleges that she rented a residential property owned and managed by Defendants and Defendants failed to maintain the property in habitable conditions despite numerous complaints.

On July 1, 2022, Defendants filed a Demurrer and Motion to Strike. On July 22, 2022, Plaintiff filed the First Amended Complaint (“FAC”) against Defendants for (1) breach of contract, (2) breach of covenant of quiet enjoyment, (3) breach of warranty of habitability, (4) negligence, (5) nuisance, (6) trespass to land, (7) tenant harassment, (8) unfair business practices, (9) intentional infliction of emotional distress, and (11) retaliation/constructive eviction. As a result, Defendants took the Demurrer and Motion to Strike off calendar.

On August 22, 2022, Defendants filed another Demurrer with Motion to Strike as to the FAC. On September 28, 2022, the Court overruled the Demurrer in its entirety and granted the Motion to Strike in part, solely as to paragraph 61 of the FAC, with 20 days leave to answer. Defendants filed an Answer to the FAC on October 17, 2021.

On June 7, 2024, Plaintiff filed a Notice of Settlement. However, on June 10, 2024, Defendants objected to the filed Notice, stating that even though they believed an agreement had been reached following mediation on May 28, 2024, they had recently learned that Plaintiff had passed away on March 26, 2024.

On July 2, 2024, Plaintiff filed a Motion for Leave to Amend FAC after Plaintiff’s Death. Defendants filed an Opposition on July 18, 2024, and Plaintiff filed a Reply on July 24, 2024.

Legal Standard

A. Leave to Amend

Leave to amend is permitted under Code of Civil Procedure § 473(a) and § 576. The policy favoring amendment and resolving all matters in the same dispute is “so strong that it is a rare case in which denial of leave to amend can be justified. [Citation.]” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422.) Notwithstanding the “policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [citations], this policy should be applied only ‘where no prejudice is shown to the adverse party . . . .’ [citation]. A different result is indicated ‘where inexcusable delay and probable prejudice to the opposing party’ is shown. [Citation].” (Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 487.)

A motion for leave to amend a pleading must also comply with the procedural requirements of California Rules of Court, Rule 3.1324, which requires a supporting declaration to set forth explicitly what allegations are to be added and where, and explicitly stating what new evidence was discovered warranting the amendment and why the amendment was not made earlier. The motion must also include (1) a copy of the proposed and numbered amendment, (2) specifications by reference to pages and lines the allegations that would be deleted and added, and (3) a declaration specifying the effect, necessity and propriety of the amendments, date of discovery and reasons for delay. (See Cal. Rules of Court, Rule 3.1324(a), (b).)

B. Successor in Interest

“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.” (Code Civ. Proc. § 377.31.)

Code of Civil Procedure § 377.32 provides the following:

(a) 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 under this article, shall execute and file an affidavit or a declaration under penalty of perjury under the laws of this state stating all of the following:

(1) The decedent’s name.

(2) The date and place of the decedent’s death.

(3) “No 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) Either of the following, as appropriate, with facts in support thereof:

(A) “The affiant or declarant is the decedent’s successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) and succeeds to the decedent’s interest in the action or proceeding.”

(B) “The affiant or declarant is authorized to act on behalf of the decedent’s successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) with respect to the decedent’s interest in the action or proceeding.”

(6) “No 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.”

(7) “The affiant or declarant affirms or declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct.”

(b) Where more than one person executes the affidavit or declaration under this section, the statements required by subdivision (a) shall be modified as appropriate to reflect that fact.

Discussion

Kerri Stern (“Stern”), Plaintiff’s sister and successor in interest, moves for an order to amend the First Amended Complaint and to substitute herself as the Plaintiff in action due to the death of Plaintiff Schwartz, and to add the cause of action for wrongful death. (Mot. pp. 1-2.) The motion is made on the grounds of inadvertence, mistake, or reasonable neglect. A copy of the Second Amended Complaint is attached as Exhibit 1. (Lavi Decl. ¶ 2, Ex. 1.)

According to Stern, Schwartz passed away on March 26, 2024; a copy of her certified death certificate is attached as Exhibit A. (Stern Decl. ¶ 1, Ex. A.) Schwartz did not have a spouse or children and passed away without a will. (Ibid. at ¶ 2.) There are no proceedings pending in California or any other state for the administration of Schwartz’s estate. (Ibid. at ¶ 3.) Stern is the successor in interest to the estate of Schwartz and has full authority to proceed with the instant litigation; no other person has a superior right to commence this action. (Ibid. at ¶¶ 4-5.)

In opposition, Defendants argue that the Motion should be denied because Stern has failed to present the Court with sufficient evidence that she was appointed as personal representative of the estate of Katie Schwartz. (Oppos. p. 2.) Defendants also argue that the Court should deny Stern’s request to add the cause of action for “wrongful death” because the proposed pleading does not present any allegations as to the cause of Schwartz’s death and would be subject to demurrer or motion to strike. (Ibid. at p. 3.)

In her Reply, Stern has submitted the Certificate of Death for Katie Schwartz, which was previously missing. She also states that there is no personal representative in the matter as Schwartz passed away without any assets and there is no estate to administer. (Reply p. 2.) Stern also states that Defendants are improperly arguing the merits of the wrongful death claim in their Opposition. (Ibid.)

As a preliminary matter, the Court finds that Stern has impermissibly filed two separate motions as a single motion. Combining motions allows the moving party to avoid paying the requisite filing fees. Filing fees are jurisdictional and it is mandatory for court clerks to demand and receive them. (See Duran v. St. Luke's Hospital (2003) 114 Cal. App. 4th 457, 460; Gov. Code § 70617(a).) Here, Stern paid a single filing fee for what should have been two separate motions.

A. Leave to Amend

Stern has not complied with the procedures of California Rules of Court, Rule 3.1324 in moving to amend the FAC as she has not specified the effect, necessity, and propriety of the amendments, or why she is seeking to amend the Complaint nearly 100 days after the passing of Plaintiff Schwartz. Accordingly, Stern’s request to amend the FAC is denied without prejudice.

B. Substitute Successor in Interest

The Court finds that Stern has complied with the procedural requirements of Code of Civil Procedure § 377.32. Stern’s declaration, executed under penalty of perjury under the laws of the state of California, lists her sister’s name, date and location of death, and encloses a certified copy of Plaintiff Schwartz’s death certificate. Moreover, it sets forth that there are no pending proceedings for the administration of Schwartz’s estate, Stern is Schwartz’s successor in interest, and there are no persons with a superior right to commence the action.

Accordingly, Stern’s request to be substituted as successor in interest to Plaintiff Schwartz in this instant action is granted.

Conclusion

Kerri Stern’s Motion for Leave to Amend First Amended Complaint after Plaintiff’s Death is granted in part. Stern’s request to be substituted as successor in interest to Plaintiff Katie Schwartz is granted. Stern’s request to amend the First Amended Complaint to add a cause of action for wrongful death is denied without prejudice.