Judge: James L. Crandall, Case: 21-01183751, Date: 2023-01-05 Tentative Ruling

Motion for Leave to File Amended Complaint

TENTATIVE RULING:

The motion is DENIED without prejudice.

The motion states that Plaintiff Mary Vrooman has died, and her children Will Vrooman and Lisa McDonald seek to substitute as Plaintiffs and pursue a claim for wrongful death against Defendants.

Code of Civil Procedure section 377.32 states:

“(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:

(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.”

(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.

(c) A certified copy of the decedent's death certificate shall be attached to the affidavit or declaration.”

The declaration of Lisa McDonald contains the requisite facts to satisfy the requirements of CCP § 377.32. Although Will Vrooman’s declaration mirrors his sister, it is not signed and therefore fails to comply with CCP § 2015.5 and cannot be considered.

Counsel for Plaintiff has also failed to submit a declaration as required under California Rules of Court, Rule 3.1324 in support of the request to file an amended complaint.

California Rules of Court, Rule 3.1324 states in part:

“(a) Contents of motion

A motion to amend a pleading before trial must:

(1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;

(2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and

(3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

(b) Supporting declaration

A separate declaration must accompany the motion and must specify:

(1) The effect of the amendment;

(2) Why the amendment is necessary and proper;

(3) When the facts giving rise to the amended allegations were discovered; and

(4) The reasons why the request for amendment was not made earlier.”

Here, Plaintiff complies with what is required in the contents of the motion, but does not include a supporting declaration stating all of the matters required under Rule 3.1324(b).

Therefore, the motion is denied without prejudice. Movants will have only one more opportunity to may file an amended motion with supporting declarations in compliance with the Code of Civil Procedure and the California Rules of Court.

Moving party is to give notice of this ruling.