Judge: James L. Crandall, Case: 21-1191365, Date: 2022-10-13 Tentative Ruling

Motion for Order Appointing and Substituting Personal Representative for Deceased Plaintiff

The Motion for an order appointing and substituting a personal representative as the plaintiff in this action; and granting leave to file a supplemental complaint to allege wrongful death is CONTINUED to December 15, 2022.

Substitution of a personal representative:

Code of Civil Procedure Section 377.21 states that “[a] pending action or proceeding does not abate by the death of a party if the cause of action survives.” Section 377.31 states that “[o]n 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.” (Code Civ. Proc. §377.31.)

Section 377.32 provides the procedural requirements for a successor in interest to substitute in as plaintiff. Specifically, section 377.32 provides:

“(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.”

This Motion seeks to appoint Janet Grigas and Jeryl Parker as the personal representatives of plaintiff Avis Benning.

In support of the Motion, Janet Grigas and Jeryl Parker have filed a joint declaration. Although the joint declaration complies with the requirements set forth in Code of Civil Procedure Section 377.32, it is not signed by Janet Grigas.

Accordingly, the Motion is CONTINUED to allow the moving party to submit a signed declaration of Janet Grigas and Jeryl Parker.

Moving party may submit the signed declaration no later than 9 court days before the continued hearing.

Leave to file a Supplemental Complaint:

The Motion also seeks to file a supplemental Complaint to allege wrongful death.

Code of Civil Procedure section 464, subdivision (a) states: “The plaintiff and defendant, respectively, may be allowed, on motion, to make a supplemental complaint or answer, alleging facts material to the case occurring after the former complaint or answer.”

A motion for leave to file a supplemental complaint is subject to the same procedural requirements as a motion for leave to file amended pleadings. (Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2020) ¶ 6:812.)

California Rules of Court, Rule 3.1324, subdivision (a) provides that: “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.”

California Rules of Court, Rule 3.1324, subdivision (b) provides that: “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.”

Although the notice of Motion states that a copy of the proposed supplemental complaint is attached, no supplemental complaint was attached.

Further, the Motion does not comply with Rule 3.1324, subdivisions (a) and (b).

Accordingly, the Motion is CONTINUED to December 15, 2022 to allow the moving party to comply with Rule 3.1324.

Moving party may file a declaration which complies with Rule 3.1324 no later than 9 court days before the continued hearing.

Any opposition to be filed no later than 5 court days before the continued hearing.

Moving party to give notice.

Future hearing dates

12/9/22 – MSC

1/9/23 – Jury Trial