Judge: Daniel M. Crowley, Case: BC716561, Date: 2022-12-15 Tentative Ruling

Case Number: BC716561    Hearing Date: December 15, 2022    Dept: 28

Plaintiff Juana Garcia’s Motion for Leave to Substitute Juana Garcia as Successor in Interest

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND

On August 1, 2018, Plaintiffs Jonathan Rede (“Jonathan”) and Kathy Rede (“Kathy”) filed this action against Defendants Ambursd Medical Transportation Inc. (“AMT) for motor vehicle negligence. Plaintiffs later amended the complaint to include Defendant Grigor Grigoryan (“Grigoryan”)

On September 10, 2018, AMT filed an answer.

On July 27, 2021, Kathy dismissed this complaint, without prejudice. On October 6, 2021, Johnathan dismissed his complaint, without prejudice.

On October 16, 2019, Plaintiffs Juana Garcia (“Garcia”) and Luis Verduzco (“Verduzco”) filed this action against Defendants for motor vehicle negligence.

On October 12, 2021, AMT filed an answer. On April 19, 2022, Grigoryan filed an answer.

On November 2, 2022, Garcia filed a Motion for Leave to Substitute Juana Garcia as Successor in Interest for Luis Verduzco to be heard on December 15, 2022. On November 15, 2022, Defendants filed an opposition. On November 22, 2022, Garcia filed a reply.

Trial is scheduled for December 21, 2022.

PARTY’S REQUESTS

Garcia requests the Court substitute Garcia as the successor in interest in place of Luis Verduzco, who passed away after commencing the action.

Defendants request the Court deny the motion.

LEGAL STANDARD

Code of Civil Procedure §377.31 states “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 decedent's personal representative or, if none, by the decedent's successor-in-interest.”

Code of Civil Procedure §377.32 states, in pertinent part: “(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: (I) 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 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 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. (c) A certified copy of the decedent’s death certificate shall be attached to the affidavit or declaration.”

DISCUSSION

Verduzco passed away on May 15, 2021, after commencing this action. At the time of his passing, Verduzco was married to Garcia, making Garcia his successor in interest. Verduzco is the appropriate successor under CCP § 377.11. Garcia filed an affidavit pursuant to CCP § 377.32 in her reply, along with a death certificate.

Defendants incorrectly argue that CCP § 336.1 bars Garcia from bringing forward this motion. CCP §336.1 states that, should the rightful plaintiff die before the expiration of an applicable status of limitations, the successor in interest may bring it either within that statute of limitations or six months after the person’s death. This is wholesale irrelevant, as the action was commenced by Verduzco prior to his death. CCP §336.1 only applies when an action has yet to be commenced. The Court grants the motion.

CONCLUSION

Plaintiff Juana Garcia’s Motion for Leave to Substitute Juana Garcia as Successor in Interest is GRANTED. The Court deems the Juana Garcia as substituted for Verduzco.

Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.