Judge David S. Cunningham, Case 20STCV22696 2022-08-18 Tentative Ruling

Judge: David S. Cunningham, Case: 20STCV22696, Date: 2022-08-18 Tentative Ruling

Opposing Party: Bay Vista Healthcare & Wellness Centre, LP and Bay Vista Wellness GP, LLC (collectively “Defendants”)

The hearing on Plaintiff’s motion to appoint is continued as to the “successor in interest” issue.

The Court adopts Plaintiff’s selection process. Each side must pick one arbitrator from the other side’s arbitrator list (Plaintiff picked retired judge Diane Wayne). The Court will appoint one of them.

On 6/12/20, Plaintiff filed the complaint. The complaint alleges that Defendants operate a “24-hour Skilled Nursing Facility” in Long Beach, California without a license and that they fail to disclose their unlicensed status to customers. (Complaint, ¶¶ 4-17, 23-38.)

On 1/27/21, Judge Ann Jones granted Defendants’ motion to compel individual arbitration and stayed the rest of the case. (1/27/21 Minute Order, p. 1.)

On 6/16/22, this Court denied Plaintiff’s ex parte application to appoint Sandra Palmer (“Palmer”) as Plaintiff’s successor in interest. (See 6/16/22 Minute Order, p. 1.)

On 7/6/22, Plaintiff filed the instant motion to appoint a successor in interest and an arbitrator.

“If a person dies having a cause of action for injuries suffered during life, the claim ‘survives’ to his or her estate under [Code of Civil Procedure] § 377.20 and may be prosecuted by a duly appointed executor or administrator on behalf of the estate.” (Ross & Cohen, Cal. Prac. Guide: Probate (The Rutter Group 2021) ¶ 15:281.)

“If there is no personal representative for the estate (e.g., estate not probated or probate completed), the ‘survival’ action may be prosecuted by the decedent’s ‘successor in interest’ – i.e., the person(s) who succeeds, by will or intestacy, to the cause of action or to the particular item of property that is the subject of the action.” (Ibid., emphasis in original.)

* “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.” (Code Civ. Proc. § 377.20, subd. (a).)

* “A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent’s successor in interest, . . . and an action may be commenced by the decedent’s personal representative or, if none, by the decedent’s successor in interest.” (Id. at § 377.30.)

* “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.” (Id. at § 377.31.)[1]

“A successor in interest . . . who seeks to be substituted as plaintiff in place of the decedent must execute and file a declaration” containing the information set forth in § 377.32. (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2021) ¶ 2:501.2.)

(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 377.1 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.

1. I am the mother of the decedent DESHAWN COOPER, who passed away on November 3, 2021 in Westminster, California (a certified copy of Mr. Cooper’s death certificate is attached as Exhibit “1”).

2. I am the beneficiary of the estate of my son, DESHAWN COOPER, the decedent in the above-captioned litigation. I am authorized to act on behalf of the decedent as the Successor in Interest as defined in Section 377.11 of the California Code of Civil Procedure with respect to the decedent in the action.

3. No proceeding is now pending in California for administration of the decedent's estate.

4. No other persons have a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 3/18/2022, at Las Vegas, NV.

Her declaration includes the requisite language, but more is necessary. Section 377.32 requires “facts in support” of the assertion that Palmer is Plaintiff’s successor. (Code Civ. Proc. § 377.32, subd. (a)(5).)

1. I am a natural born son of Deshawn Cooper. I have personal knowledge of the facts set forth herein, except as to those stated on information and belief and, as to those, I am informed and believe them to be true. If called as a witness, I could and would competently testify to the matters stated herein.

2. I have been advised that I may wish to seek independent counsel as it relates to the present declaration.

3. I have been advised that there is a litigation being instituted relating to the injuries sustained by my father, Deshawn Cooper, and his wrongful death relating thereto, as a result of his residence at Country Villa Bay Vista Healthcare.

4. I have been advised that as a lawful heir of my father, that I am considered a “necessary party” to the wrongful death cause of action under the “One Action Rule” in the State of California. Under the one action rule, there generally may be only a single action for wrongful death, in which all heirs must join; there cannot be a series of such suits by individual heirs. Gonzales v. S. California Edison Co. (1999) 77 Cal. App. 4th 485.

5. For reasons which are my own, I do not wish to be involved in this litigation in any capacity and through this declaration I am instructing the firm of Garcia & Artigliere to refrain from including my name in the caption of the case or including me in this litigation as a Plaintiff, Nominal Defendant, or in any other capacity. I am also instructing the firm of Garcia & Artigliere to refrain from service of a Summons and Complaint upon me and that I am to be considered “joined” in the case for purposes of the “one action rule” absent service upon me of a Summons and Complaint.

6. I do hereby waive and abandon any and all interest that I may now, or in the future, in any award of damages as it relates to the injuries sustained by or the wrongful death of Deshawn Cooper caused by injuries he sustained while he was a resident at Country Villa Bay Vista Healthcare. In so doing, I waive any rights I may have as a “necessary party” to the wrongful death cause of action.

7. I understand that by signing this document, I am forever releasing and holding Sandra Palmer, and the firm of Garcia & Artigliere harmless for any claims herein waived by me that I may have had for the injuries and/or wrongful death of my father, Deshawn Cooper.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed 11/10/2021 at (city) Long [B]each, (state) Ca[.]

2. I have been advised that I may wish to seek independent counsel as it relates to the present declaration.

8. I understand that this declaration may be presented to Defendants, their attorneys, and to the Court to satisfy them that the “one action rule” has been complied with by Plaintiffs and Defendants in this and any subsequent action I may institute in the future. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

* The declarations fail to state Jeremiah’s and D’Anjelo’s ages, so it is unclear if they are adults with capacity to waive.

* Jeremiah’s declaration is signed by Amy Troncosa, his purported guardian, but it lacks facts showing who she is and whether, in fact, she qualifies as a legal guardian with authority to waive his interests.

* Even assuming capacity to waive, the waivers appear to regard “wrongful death” claims, but this is not a “wrongful death” action; the complaint and the FAC do not allege “wrongful death” claims.

The Court sees two more problems. Plaintiff’s evidence fails to show whether Jeremiah and D’Anjelo are Plaintiff’s only living children and whether Plaintiff’s father is alive. (See, e.g., Maconachy Decl., ¶¶ 6-7 [stating that Stephen Cooper, Sr. is alive, resides in California, and is believed to be Plaintiff’s father].)

The Court intends to continue the hearing to give Plaintiff a chance to supplement the record to address these issues.

Plaintiff’s reply evidence fails to change the analysis. Palmer’s reply declaration states:

2. The individual who I believed was the father of [Plaintiff] refused to acknowledge he was the father. No paternity was ever established and no father is listed on [Plaintiff’s] birth certificate.

3. The person named in the Declaration of Drew P. Maconachy in Support of Defendants’ Opposition to Appoint A Successor in Interest and Motion to Appoint an Arbitrator, Stephen Cooper Sr., is not [Plaintiff’s] father, but his uncle.

(Reply Palmer Decl., ¶¶ 2-3.) Notably, the declaration fails to demonstrate that there is no living father, and, regardless, Defendants should receive an opportunity to respond.

As noted above, Judge Jones granted Defendants’ motion to compel arbitration on 1/27/21. (See 1/27/21 Minute Order, p. 1.)

Plaintiff contends the parties made competing arbitrator lists but have been unable to agree on a selection. Plaintiff suggests letting “each side [] strike all but one proposed arbitrator from opposing counsel’s list, leaving two remaining proposed arbitrators for the Court to choose from.” (Motion, p. 5.)

Defendants ask the Court to “appoint an arbitration provider[,]” namely, JAMS. (Opposition, p. 6.) They claim “appointing JAMS as the arbitration provider promotes judicial efficiency as it avoids the Court having to select a specific arbitrator or receive feedback from the parties on the appropriateness of the specific arbitrator.” (Id. at p. 7.) “Instead, the JAMS procedures create an impartial process for selection of an arbitrator.” (Ibid.)

The arbitration agreement emphasizes that the Federal Arbitration Act (“FAA”) applies. (See, e.g., Kiepen Decl., Ex. A, § 1.7.)

3.1 The parties hereby acknowledge that arbitration is preferable to a judicial forum and that Federal and State law favors the enforcement of valid arbitration provisions. Arbitration under this agreement shall be conducted by a single arbitrator agreed upon by the Parties. In the absence of such agreement, the arbitrator shall be an attorney or retired judge selected pursuant to Section 5 of the [FAA], 9 USC § 5. The arbitration shall be conducted in the county in which the Facility is located, unless the Parties agree on a different location. In reaching a decision the arbitrator shall prepare findings of fact and conclusions of law. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction.

Since the parties do not agree, the bolded words require the arbitrator to be an attorney or retired judge, and he or she must be chosen pursuant to section 5 of the FAA.

If in the agreement provision be made for a method of naming or appointing an arbitrator or arbitrators or an umpire, such method shall be followed; but if no method be provided therein, or if a method be provided and any party thereto shall fail to avail himself of such method, or if for any other reason there shall be a lapse in the naming of an arbitrator or arbitrators or umpire, or in filling a vacancy, then upon the application of either party to the controversy the court shall designate and appoint an arbitrator or arbitrators or umpire, as the case may require, who shall act under the said agreement with the same force and effect as if he or they had been specifically named therein; and unless otherwise provided in the agreement the arbitration shall be by a single arbitrator.

(9 U.S.C. § 5, emphasis added; see also Code Civ. Proc. § 1281.6 [giving courts similar power to appoint arbitrators].)

There is no crossover between the parties’ arbitrator lists. Plaintiff proposes retired judges Michael Latin, Victor Person, and David Chaffee and retired attorney Allan Goodman. (See Motion, Ex. 3.) Defendants propose retired judges Carl West, Gail Andler, and Diane Wayne. (See Opposition, p. 8.)

Under the circumstances, Plaintiff’s suggestion is a reasonable compromise. Plaintiff chose Diane Wayne from Defendants’ list. (See Motion, p. 5.) The Court orders Defendants to choose one arbitrator from Plaintiff’s list, then the Court will appoint one of the two.

The Court declines to appoint an arbitration provider at this time, especially because Defendants made the request for the first time in opposition (no notice), the arbitration agreement does not expressly mandate JAMS, and, inevitably, the Court’s arbitrator selection will determine the arbitration provider.

[1] “‘[D]ecedent’s successor in interest’ means 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.” (Id. at § 377.11, emphasis added.)

“Beneficiary of the decedent’s estate” means:

(a) If the decedent died leaving a will, the sole beneficiary or 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.

(b) If the decedent died without leaving a will, 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 cause of action, under Section 6401 and 6402 of the Probate Code or, if the law of a sister state or foreign nation governs succession to the cause of action or particular item of property, under the law of the sister state or foreign nation.

(Id. at § 377.10, emphasis added.)