Judge: Joseph Lipner, Case: 22STCV08533, Date: 2024-03-12 Tentative Ruling

Case Number: 22STCV08533    Hearing Date: March 12, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Evan Everhart (“Everhart”) moves to be appointed as the successor in interest to the deceased Plaintiff Linda Everhart (“Plaintiff”).

The Court GRANTS Everhart’s motion.

Background

This is an employment action. Plaintiff was employed by Defendant Los Angeles Unified School District (“Defendant”) as a substitute teacher from November 23, 1994 until November 5, 2021.

Plaintiff has a number of disabilities, including a standing imbalance condition, muscle weakness, and limited eyesight. Plaintiff alleges that Defendant discriminated against her and terminated her employment on the basis of her disabilities and her religion.

Plaintiff filed this action on March 9, 2022. The operative complaint is now the Second Amended Complaint, which raises claims for (1) discrimination; (2) retaliation in violation of FEHA; (3) failure to prevent discrimination and retaliation; (4) failure to accommodate disability; (5) failure to engage in the interactive process; and (6) retaliation in violation of Labor Code, section 1102.5.

Plaintiff passed away on November 16, 2023 in Van Nuys, California.

On January 22, 2024, Everhart moved to be appointed as Plaintiff’s successor in interest to continue this litigation. On January 24, 2024, Everhart filed an amended motion and supporting declarations. Defendant filed an opposition. No party filed a reply.

Legal Standard

“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 representatives or, if none, by the decedent’s successor in interest.” (Code Civ. Proc., § 377.30.) After the death of a plaintiff, the court, on motion, shall allow a pending action that does not abate to be continued by the decedent’s personal representative or successor-in-interest. (Code Civ. Proc., § 377.31.)

The person who seeks to commence or continue a pending action as the decedent’s successor-in-interest shall execute and file an affidavit or declaration stating: (1) the decedent’s name, (2) the date and place of decedent’s death, (3) “No proceeding is now pending in California for administration of the decedent’s estate,” (4) a copy of the final order showing the distribution of the decedent’s cause of action to the successor-in-interest, if the decedent’s estate was administered, (5) either the affiant or declarant is the decedent’s successor in interest or the affiant or declarant is authorized to act on behalf of the decedent’s successor in interest, with facts in support thereof, (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,” and (7) the statements are true, under penalty of perjury. (Code Civ. Proc., § 377.32.) 

Discussion

Everhart has provided a declaration containing all of the information required by Code of Civil Procedure, section 377.32.

Defendant does not deny that any of the statutory requirements have been met, but instead argues that the motion should be denied because Everhart’s substitution would prejudice Defendant because Defendant did not have the opportunity to depose Plaintiff before she passed away.

Defendant does not cite to any authority indicating that prejudice is a basis for denying a motion to be appointed as successor in interest, which courts “shall allow” when the statutory requirements are met. (Code Civ. Proc., § 377.31.) Because denying the motion on this basis, which would be incurable, would functionally extinguish Plaintiff’s claims, the Court is not prepared to do so without even a single point of authority indicating that such an action is permissible. Furthermore, it does not appear that the prejudice to Defendant would be unduly heavy. Although Defendant will not be able to depose Plaintiff, Plaintiff will also be unable to appear as a witness. Thus, any disadvantages at trial are likely to be mutual. Defendant will still be able to depose any witnesses that Plaintiff’s counsel does intend to call at trial, and Defendant will be able to request production of any documents containing information from Plaintiff which Plaintiff’s counsel intends to present at trial.

The Court therefore grants the motion.