Judge: Jill Feeney, Case: 22STCV17519, Date: 2023-03-09 Tentative Ruling
Case Number: 22STCV17519 Hearing Date: March 9, 2023 Dept: 30
Department 30, Spring Street Courthouse
March 9, 2023
22STCV17519
Motion to Substitute Successor In Interest for Plaintiff
DECISION
The hearing on this motion to appoint Jose Ramirez Lima as successor in interest is continued to allow Lima to file a certified copy of Decedent’s death certificate.
The parties are ordered to appear at the hearing to set a continued hearing date.
The certified copy of the death certificate must be filed at least five court days in advance of the continued hearing date.
Moving party is to give notice of this ruling.
Background
This is an action for premises liability arising from a slip and fall incident which took place in September 2020. Antonia Montes filed her Complaint against Davita, Inc. (“Davita”) on May 27, 2022.
On June 22, 2022, Decedent filed a Doe Amendment naming DVA Renal Healthcare, Inc. as a defendant in this action.
On September 20, 2022, Montes passed away.
On February 2, 2023, Decedent’s husband, Jose Ramirez Lima, filed the instant motion to appoint himself as Decedent’s successor in interest.
Summary
Moving Arguments
Decedent’s spouse, Jose Ramirez Lima, seeks to continue this action pursuant to California Code of Civil Procedure section 377.31 as successor in interest to Decedent’s estate.
Opposing Arguments
None.
Legal Standard
California Code of Civil Procedure section 377.31 provides that the decedent’s personal representative or, if none, the decedent’s successor in interest may continue a decedent’s pending action. (Code Civ. Proc., § 377.30; see Adams v. Superior Court (2011) 196 Cal.App.4th 71, 78-79.) A successor in interest is 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 the cause of action. (Code Civ. Proc., § 377.11.) Section 377.33 provides that the court in which an action is continued may make any order concerning parties that is appropriate to ensure proper administration of justice, including the appointment of the decedent’s successor in interest as a special administrator or guardian ad litem.
Section 377.32 provides that a person who seeks to commence such an action as the decedent’s successor in interest must file an affidavit or declaration providing certain information, including the decedent’s name, date and place of decedent’s death, and statements regarding whether the estate has been administered and that the affiant or declarant is the successor in interest on decedent’s claim. (Id., § 377.32(a).) A certified copy of the decedent’s death certificate must also be attached to the affidavit or declaration. (Id., § 377.32(c).)
Discussion
Jose Ramirez Lima submits an affidavit in support of the motion stating:
1. Decedent’s name is Antonia Montes. (Lima Decl., ¶4.)
2. Decedent passed away on September 20, 2022. (Id., ¶5.)
3. No proceeding is now pending in California for the administration of Decedent’s estate. (Id., ¶6.)
4. Lima is Decedent’s successor in interest as defined in Code Civ. Pro. Section 377.11. Additionally, Decedent’s living trust names Lima as the sole successor to her estate. No other person has a superior right to commence the action or proceeding or to be substituted for the Decedent in the pending action. (Id., ¶¶7-9.)
Lima attaches a California Death Record from Lexis Nexis. (Motion, Exh. B.) This is insufficient. To meet the requirements of Code Civ. Proc., section 377.32, subd. (a), Lima must attach a certified copy of Decedent’s death certificate to his declaration.
