Judge: Glenn R. Salter, Case: 21-1220032, Date: 2022-09-01 Tentative Ruling

The motion of defendant Kumiko Kojima to be named as the plaintiff’s successor-in-interest pursuant to Code of Civil Procedure section 377.41 is DENIED without prejudice.

Background

The plaintiff and the defendant were joint tenants of certain residential property in Orange County.  Plaintiff filed an action for adverse possession that claimed the plaintiff had lived on the property for more than six years, defendant had failed to pay real property taxes or any expenses, and thus plaintiff had acquired defendant’s joint tenancy interest by adverse possession.  (It is assumed, without considering, that this is a viable theory and cause of action.)

The defendant claims the plaintiff died in Japan in May 2012, and there is some evidence to support that claim.  (The court need not, given its ruling, address the competency of that evidence; it will simply assume the plaintiff has, after the filing of the complaint, died.  If true, that that plaintiff died in Japan, that would seem to run counter to the allegations of the complaint.)

Given the plaintiff’s death, the defendant claims to have obtained full title to the property through the joint tenancy deed and uses acquisition of title to seek appointment as plaintiff’s successor in interest.

Analysis

The general rule is that a cause of action for a claim to real property (necessarily including a claim for adverse possession) survives the death of the plaintiff.  (Code Civ. Proc., § 377.20.)

When a cause of action is not abated by the death of the plaintiff, the court must allow the action to be maintained by the decedent’s personal representative or, if none, by a successor in interest.  (Code Civ. Proc., § 377.31.)

Nothing in the application indicates whether there is a personal representative in place, or even whether there is a pending estate administration.  Given how recent the plaintiff’s death was, it is quite possible there are relatives or others that are prepared to begin administration of an estate—maybe here or in Japan.

The court is aware plaintiff’s counsel has not filed opposition or otherwise commented on the next steps.  However, the failure of counsel to oppose is not dispositive.  It may simply be that counsel recognizes it may have no client.

Notice

The defendant shall give notice to all parties, including counsel for the deceased plaintiff.