Judge Daniel M. Crowley, Case Number: 23STCV08246, Date: 2024-09-04 Tentative Ruling

Plaintiff Harry Ginoza’s unopposed motion for an order to substitute Plaintiff’s niece, Linda Ginoza-Grovier, in place and stead of Plaintiff Harry Ginoza is continued to September 25, 2024, at 8:30 a.m. Plaintiff is to file Exhibit A to the Declaration of Ginoza-Grovier by September 6, 2024.

Plaintiff Harry Ginoza (“Ginoza”) (“Plaintiff”) moves unopposed for an order granting his niece, Linda Ginoza-Grovier (“Ginoza-Grovier”), who is the trustee of the Harry Ginoza Trust, be substituted in as Plaintiff in place and stead of Ginoza. (Notice Motion, pgs. 1-2; C.C.P. §377.32.) Plaintiff moves on the grounds that Ginoza died during the pendency of this action and Ginoza-Grovier is Ginoza’s successor-in-interest as trustee of the Harry Ginoza Trust. (Notice Motion, pg. 2.)

Plaintiff filed his operative Complaint on April 13, 2023, against Defendant Investor Partners, Inc. (“Investor Partners”) (“Defendant”) for five causes of action: (1) cancellation of written instruments; (2) declaratory relief; (3) quiet title; (4) fraud; and (5) breach of fiduciary duty.

Plaintiff filed the instant motion on May 16, 2024. As of the date of this hearing no opposition has been filed.

C.C.P. §377.32 provides the following information is required for a statement from a successor in interest:

(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:

(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.

(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.

Ginoza-Grovier executed and filed 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 (Decl. of Ginoza-Grovier ¶2); (2) the date and place of the decedent’s death (id.); (3) “No proceeding is now pending in California for administration of the decedent’s estate” (id. at ¶3); (5A) “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” (id. at ¶¶4-5); (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” (id. at ¶6); and (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” (id. at pg. 3).

However, Plaintiff fails to attach a certified copy of the decedent’s death certificate to her declaration in violation of C.C.P. §377.32(c). (See Decl. of Ginoza-Grovier ¶7)

Plaintiff’s motion is continued to September 25, 2024, at 8:30 a.m. to allow Plaintiff to attach Exhibit A to the Declaration of Ginoza-Grovier. Plaintiff is to file Exhibit A to the Declaration of Ginoza-Grovier by September 6, 2024.

Plaintiff’s unopposed motion is continued to September 25, 2024, at 8:30 a.m. to allow Plaintiff to attach Exhibit A to the Declaration of Ginoza-Grovier. Plaintiff is to file Exhibit A to the Declaration of Ginoza-Grovier by September 6, 2024.

Hon. Daniel M. Crowley

Judge of the Superior Court