Judge: Cynthia A Freeland, Case: 37-2016-00019863-CU-NP-NC, Date: 2023-09-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - September 14, 2023

09/15/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Non-PI/PD/WD tort - Other Motion Hearing (Civil) 37-2016-00019863-CU-NP-NC ANDERSON VS MISCALL [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 08/10/2023

Plaintiffs Ivy Anderson and Edward Moran (collectively, 'Plaintiffs')'s motion for leave to amend their Complaint in light of the death of Defendant Laurence Miscall, Jr. ('Defendant') is granted.

Plaintiffs' request for judicial notice ('RJN') is granted.

California Code of Civil Procedure ('CCP') § 377.20(a) provides that '[e]xcept as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person's death, but survives subject to the applicable limitations period.' Cal. Code Civ. P. § 377.20(a). Moreover, '[a] pending action or proceeding does not abate by the death of a party if the cause of action survives.' Cal. Code Civ. P. § 377.21. CCP §§ 377.40-377.43 governs causes of action against a decedent. In relevant part, CCP § 377.40 provides that '[s]ubject to Part 4 (commencing with Section 9000) of Division 7 of the Probate Code governing creditor claims, a cause of action against a decedent that survives may be asserted against the decedent's personal representative or, to the extent provided by statute, against the decedent's successor in interest. See Cal. Code Civ. P. § 377.40. CCP § 377.41 provides that: On motion, the court shall allow a pending action or proceeding against the decedent that does not abate to be continued against the decedent's personal representative or, to the extent provided by statute, against the decedent's successor in interest, except that the court may not permit an action or proceeding to be continued against the personal representative unless proof of compliance with Part 4 (commencing with Section 9000) of Division 7 of the Probate Code governing creditor claims is first made.

Cal. Code Civ. P. § 377.41. In an action against a decedent's personal representative or successor in interest, 'all damages are recoverable that might have been recovered against the decedent had the decedent lived except damages recoverable under Section 3294 of the Civil Code or other punitive or exemplary damages.' Cal. Code Civ. P. § 377.42.

For purposes of CCP § 377.41, the 'decedent's successor in interest' is defined as 'the beneficiary of the decedent's estate or other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of a cause of action.' Cal. Code Civ. P. § 377.11. Additionally, the 'beneficiary of the decedent's estate,' when the decedent dies with a will, is 'the sole beneficiary of all of the beneficiaries who succeed to a cause of action, or to a particular item of property that is the subject of a cause of action, under the decedent's will.' Cal. Code Civ. P. § 377.10(a). However, when a decedent dies intestate, a 'beneficiary of the decedent's estate' is defined as 'the sole person or all of the persons who succeed to a cause of action, or to a particular item of property that is the subject of a Calendar No.: Event ID:  TENTATIVE RULINGS

3007285 CASE NUMBER: CASE TITLE:  ANDERSON VS MISCALL [IMAGED]  37-2016-00019863-CU-NP-NC cause of action, under Sections 6401 and 6402 of the Probate Code . . . .' Cal. Code Civ. P. § 377.10(b).

The court finds that Plaintiffs have demonstrated good cause to grant the requested relief. The undisputed evidence shows that on June 8, 2016, Plaintiffs commenced this action by filing a Complaint against Defendant for malicious prosecution. See Plaintiffs' RJN, Ex. JN-2. On February 23, 2023, Defendant's counsel filed a served a Notice of Death indicating that Defendant had passed away on February 14, 2023. Ibid., Ex. JN-3. Plaintiffs have since discovered that Defendant owned certain real property in his capacity as co-trustee of the previously revocable family trust known as the Laurence Miscall, Jr. and Francis Kay Miscall Family Trust (the 'Trust'). See Pagano Decl., ¶ 4. Plaintiffs further contend, and Defendant does not dispute, that Defendant's surviving spouse, Francis Kay Miscall, is the appropriate individual for this suit to continue against in her capacity as trustee of the Trust and as Defendant's successor in interest. Ibid., ¶ 5. The foregoing constitutes grounds to grant the motion.

The court must respectfully disagree with Defendant that Plaintiffs are placing the proverbial cart before the horse. CCP § 377.41 is clear that the court 'shall' allow an action to be continued against decedent's successor in interest upon the requisite showing of good cause. Defendant cites no authority for the proposition that the court cannot grant the motion because Plaintiffs' malicious prosecution claim is presently unliquidated and no 'debt' is owed by Mrs. Miscall. Such an interpretation would eviscerate CCP § 377.41 and render any plaintiff incapable of continuing his or her prosecution of an action that has not yet been reduced to a judgment.

In light of the foregoing, the court grants Plaintiffs' motion to amend their Complaint. Plaintiffs shall file and serve their proposed First Amended Complaint within ten (10) days of this hearing.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, September 15, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of September 15, 2023.

If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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