Judge David S. Cunningham, Case Number: 22STCV36128, Date: 2025-02-07 Tentative Ruling

Judge: David S. Cunningham, Case: 22STCV36128, Date: 2025-02-07 Tentative Ruling

This case (22STCV36128) is part of the coordinated Southern California Clergy Cases (JCCP 5101).

Here, Richard Herber moves to be substituted in place of Plaintiff John Doe (B.G.J.).

“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.

Herbert’s declaration does not include the language required by section 377.32.

Instead, Herber declares that he should be substituted into this case because the Orange County probate court recently appointed him administrator of Plaintiff’s estate:

2. I was appointed as Administrator by the Superior Court of California, County of Orange on October 17, 2024, Case No. 30-2024-01414157-PR-PW-CMC.

3. A true and correct copy of the Order for Probate and Letters Testamentary are attached as Exhibit A.

4. Plaintiff John Doe (B.G.J.), whose name is Brother Gabriel Jon, died on March 25, 2023, while this action was pending.

5. As Administrator, I am entitled to continue this action on behalf of the Estate.

The Court finds that the motion should be granted. The probate court’s order is attached to Herber’s declaration at exhibit A. (See id. at Ex. A.) Despite the absence of the section 377.32 language in Herber’s declaration, the order suffices to show that Herber is an appropriate substitute given his court-approved status as administrator.

[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.)

“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.)