Judge: David B. Gelfound, Case: 22CHCV01426, Date: 2025-02-11 Tentative Ruling

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Case Number: 22CHCV01426    Hearing Date: February 11, 2025    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION FOR LEAVE TO AMEND TO PROCEED AS A SURVIVAL ACTION BY PLAINTIFF’S SUCCESSOR-IN-INTEREST

Motion filed: 9/18/24

MOVING PARTY: Lenora Peraza, individually and as successor-in-interest to Plaintiff E.P.

RESPONDING PARTY: Defendant Doe 1

NOTICE: OK.

RELIEF REQUESTED: An order granting Lenora Peraza’s motion for leave to file a Second Amended Complaint to proceed with the action as Plaintiff’s successor-in-interest.

TENTATIVE RULING: The motion is DENIED.

BACKGROUND

This action arises from alleged childhood sexual assault.

On December 19, 2022, Plaintiff E.P. (“Plaintiff” or “E.P.”) initiated this action by filing a Complaint. Subsequently, on July 26, 2023, Plaintiff filed the operative First Amended Complaint (“FAC”) against Defendants Doe 1, a New York corporation, (“Doe 1”), Doe 2, a California corporation, (“Doe 2”), Doe 3, an individual, and Does 4 through 60. The FAC alleges the following causes of action: (1) Sexual Assault of A Minor (against Doe 3), (2) Intentional Infliction of Emotional Distress (against Doe 3), (3) Negligent Hiring, Supervision, and Retention (against Doe 1, Doe 2, and Does 4 through 60), (4) Negligent Supervision of A Minor (against Doe 1, Doe 2, and Does 4 through 60), and (5) Negligence (against Does 4 through 60). Defendant Doe 1 and Doe 2 filed their respective Answers to the FAC on December 21 and August 23, 2023, respectively. On November 20, 2023, the Court dismissed Doe 3, an individual in the FAC, pursuant to an oral request made by Plaintiff’s counsel at a case management conference.

On September 18, 2024, Lenora Peraza, individually and as successor-in-interest to Plaintiff (“Peraza”) filed the instant Motion (the “Motion”). Subsequently, on January 17, 2025, Doe 1 filed its Opposition and on February 4, 2025, Peraza submitted a Reply.

ANALYSIS

“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.)  A cause of action survives a party’s death unless “otherwise provided by statute.” (Id., § 377.20.) Actions for personal injuries generally survive the plaintiff’s death. (Herrero v. Atkinson (1964) 227 Cal.App.2d 69, 76.)

The decedent’s successor in interest is defined as “the beneficiary of the decedent's estate . . . who succeeds to a cause of action.” (Code Civ. Proc., § 377.11) The “beneficiary of the decedent’s estate” is determined “subject to Chapter 1 . . . of Part 1 of Division 7 of the Probate Code.” (Code Civ. Proc., § 377.30.) This chapter of the Probate Code governs the passage of a decedent’s property. In relevant part, it states that “title to a decedent's property passes on the decedent's death to the person to whom it is devised in the decedent's last will or, in the absence of such a devise, to the decedent's heirs as prescribed in the laws governing intestate succession.” (Prob. Code, § 7000.) When the decedent passes without a surviving spouse, his entire intestate estate passes to his issue. (Prob. Code, § 6402, subd. (a).) 

A.    Evidentiary Objection

Peraza submits an evidentiary objection; however, it appears that the objection was directed to an incorrect defendant and proceeding, rendering the notice defective.

Accordingly, the Court declines to consider the evidentiary objection.

B.     Successor-in-Interest

The decedent’s successor in interest is defined as “the beneficiary of the decedent's estate . . . who succeeds to a cause of action.” (Code Civ. Proc., § 377.11) The “beneficiary of the decedent’s estate” is determined “subject to Chapter 1 . . . of Part 1 of Division 7 of the Probate Code.” (Id., § 377.30.) This chapter of the Probate Code regards the passage of decedent’s property. In relevant part, it states: 

“[T]itle to a decedent's property passes on the decedent's death to the person to whom it is devised in the decedent's last will or, in the absence of such a devise, to the decedent's heirs as prescribed in the laws governing intestate succession.” 

(Prob. Code, § 7000.) When the decedent passes without a surviving spouse, his entire intestate estate passes to his issue. (Prob. Code, § 6402, subd. (a).) 

To continue the pending action of a deceased party, the successor in interest seeking to be substituted as plaintiff in place of the decedent must file a certified copy of the plaintiff’s death certificate, along with a declaration 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.” 

(Code Civ. Proc. § 377.32.) If correctly motioned and submitted, the court must allow the action to be continued by the decedent's personal representative or, if none, by the decedent's successor in interest. (Code Civ. Proc., § 377.31.) 

            Peraza declares that her mother, Plaintiff E.P. (“Decedent”), passed away on September 25, 2023, in Potter County, Texas. The Motion contains Decedent’s certificate of death and Peraza’s declaration. (Amaro Decl. ¶ 4, Ex. “A.”) Peraza attests that she was Decedent’s only child and Decedent was not married at the time of her passing. (Peraza Decl. ¶ 3.) The certificate of death indicates that, at the time of Decedent’s death, she was divorced. (Amaro Decl. Ex. “A.”)

In its Opposition, Doe 1 argues that Peraza has failed to satisfy statutory requirements, specifically that her declaration omits the requisite information and statement under Code of Civil Procedure section 377.32. Doe 1 contends that the declaration lacks the following mandatory assertion: “Each 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.’ (Code Civ. Proc. § 377.32.)

The Court acknowledges that Peraza’s declaration contains several required statements; however, it omits a critical assertion – that she is Decedent’s successor in interest under Code of Civil Procedure section 377.11 and has succeeded to Decedent’s interest in the action. This omission is material because strict compliance with Code of Civil Procedure section 377.32 is necessary to establish standing.

Additionally, there is no explicit evidence that Decedent died intestate, further complicating Peraza’s claim to succeed to Decedent’s interest in this action.

Accordingly, Peraza has failed to strictly comply with the statutory requirements necessary to continue Decedent’s pending action. The Court finds that Peraza has not established her standing as Decedent’s successor in interest.

C.    Leave to Amend Complaint

Code of Civil Procedure section 473 permits the Court, in its discretion and after notice to the adverse party, to allow “upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” (Code Civ. Proc., § 473, subd. (a)(1).) 

“Courts must apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial, when no prejudice is shown to the adverse party.” (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 746.)

A court may deny a motion to amend a complaint: for unreasonable delay in bringing the motion (P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345; when no liability exists under the plaintiff’s new theory (Huff v. Wilkins, supra, 138 Cal.App.4th at 746 [“Leave to amend is properly denied when the facts are undisputed and as a substantive matter no liability exists under the plaintiff's new theory.”].); when the amendment raises new issues that the adverse party had no opportunity to defend (Lavely v. Nonemaker (1931) 212 Cal. 380, 385 [“But amendments of pleadings to conform to the proofs should not be allowed when they raise new issues not included in the original pleadings and upon which the adverse party had no opportunity to defend.”].); or when the amendment would prejudice the opposing party (Komorsky v. Farmers Ins. Exchange (2019) 33 Cal.App.5th 960, 971 [“Ordinarily, leave to amend a complaint should be liberally granted unless the opposing party would be prejudiced by the amendment.”].). 

Here, Peraza seeks leave to amend the FAC to reflect that she is Decedent’s successor in interest. (See Amaro Decl. Ex. “B.”)

However, as the Court has determined that Peraza has not sufficiently established her status as Decedent’s successor in interest, the Motion is DENIED.

CONCLUSION

The Motion for Leave to Amend, filed by Lenora Peraza, individually and as successor-in-interest to Plaintiff E.P., is DENIED.

Moving party to give notice.