Judge: Joseph Lipner, Case: 22STCV16403, Date: 2024-07-02 Tentative Ruling

Case Number: 22STCV16403    Hearing Date: July 2, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Plaintiff Jacob Hernandez (“Plaintiff”) moves for the appointment of Plaintiff’s surviving spouse, Rocio Lopez (“Lopez”); and Plaintiff’s minor sons Adrian D. Ruiz-Hernandez and Nathan A. Hernandez (acting through their mother and guardian Adriana Rodriguez, the former wife of Plaintiff) as the successors in interest of Plaintiff, who is deceased.

Plaintiff additionally moves for an order authorizing Lopez to be served by publication as a Defendant/Involuntary Plaintiff under Code of Civil Procedure, section 415.50, on the grounds that she is a necessary party under Code of Civil Procedure, section 389, but cannot be located after a diligent search.

The Court requests argument on the following issues:

(1) Whether this action arose during Plaintiff’s marriage to Lopez;

(2) Whether the interest in this action constitutes community property, quasi-community property, or separate property in Plaintiff’s marriage with Lopez; and

(3) whether Plaintiff’s firm searched the telephone directory, voters’ register, or real and personal property index for Lopez.

            The Court may need to continue this hearing for further briefing or information.

Background

This is an employment action. Plaintiff was employed by Defendant Pepe’s Inc. (“Defendant”), who was originally sued as Pepe’s Towing.

Plaintiff filed this action on May 18, 2022, raising claims for (1) wrongful termination in violation of public policy; (2) medical leave retaliation; (3) retaliation for requesting accommodations for disabilities under FEHA; (4) failure to engage in a timely, good faith interactive process under FEHA; (5) failure to reasonably accommodate disabilities under FEHA; (6) disability discrimination under FEHA; (7) harassment based on disabilities under FEHA; (8) retaliation for opposing violations of FEHA; (9) failure to prevent and stop harassment, discrimination, and retaliation under FEHA; and (1) whistleblower retaliation under Labor Code, sections 1102.5 and 1102.6.

Plaintiff alleges that the wrongdoing occurred from roughly December 2020 to February 2022. (Complaint ¶ 13.) Plaintiff was terminated on February 11, 2022. (Complaint ¶ 11.)

Plaintiff passed away on September 30, 2023 at Adventist Health White Memorial Hospital, 1720 E Cesar E Chavez Avenue, Los Angeles, California. (Rodriguez Decl., Ex. 1.)

Plaintiff filed this motion on June 10, 2024. No party filed an opposition.

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 providing: (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.)

“For the purposes of [appointing a successor in a legal action], ‘decedent's successor in interest’ means 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 a cause of action.” (Code Civ. Proc., § 377.11.)

“For the purposes of this chapter, ‘beneficiary of the decedent's estate’ means:

(a) If the decedent died leaving a will, the sole beneficiary or all of the beneficiaries who succeed to a cause of action, or to a particular item of property that is the subject of a cause of action, under the decedent's will.

(b) If the decedent died without leaving a will, the sole person or all of the persons who succeed to a cause of action, or to a particular item of property that is the subject of a cause of action, under Sections 6401 and 6402 of the Probate Code or, if the law of a sister state or foreign nation governs succession to the cause of action or particular item of property, under the law of the sister state or foreign nation.”

(Code Civ. Proc., § 377.10.)

Discussion

Appointment of Successor

It is unclear who the proper successor is.

Adriana Rodriguez, the mother of Adrian Ruiz-Hernandez and Nathan Hernandez, has provided a declaration containing all of the information required by Code of Civil Procedure, section 377.32 as to Adrian Ruiz-Hernandez and Nathan Hernandez’s rights to step in as successors to Plaintiff.

Geoffrey Lyon declares that Plaintiff had married Lopez in Las Vegas, Nevada. (Lyon Decl. ¶ 2.) Lyon declares that his firm was unable to find any divorce records between Plaintiff and Lopez. (Lyon Decl. ¶ 3.) Plaintiff and Lopez married on December 5, 2016. (Koh Decl. ¶ 2, Ex. 2.)

Plaintiff asserts that Plaintiff did not leave behind a will. (Motion at p. 4:23-24.) Plaintiff cites to paragraph 2 of a declaration from “Adrana Hernandez” which does not appear to exist. Assuming that Plaintiff meant to refer to the declaration of Adriana Rodriguez, the Court is still unable to find evidence in the Rodriguez declaration that Plaintiff died intestate.

Even assuming that Plaintiff died intestate, there are still gaps in Plaintiff’s analysis, as discussed below.

“As to community property, the intestate share of the surviving spouse is the one-half of the community property that belongs to the decedent under Section 100.

(b) As to quasi-community property, the intestate share of the surviving spouse is the one-half of the quasi-community property that belongs to the decedent under Section 101.

(c) As to separate property, the intestate share of the surviving spouse is as follows:

(1) The entire intestate estate if the decedent did not leave any surviving issue, parent, brother, sister, or issue of a deceased brother or sister.

(2) One-half of the intestate estate in the following cases:

(A) Where the decedent leaves only one child or the issue of one deceased child.

(B) Where the decedent leaves no issue, but leaves a parent or parents or their issue or the issue of either of them.

(3) One-third of the intestate estate in the following cases:

(A) Where the decedent leaves more than one child.

(B) Where the decedent leaves one child and the issue of one or more deceased children.

(C) Where the decedent leaves issue of two or more deceased children.

(Prob. Code, § 6401.)

“Except as provided in Section 6402.5, the part of the intestate estate not passing to the surviving spouse, under Section 6401, or the entire intestate estate if there is no surviving spouse, passes as follows:

(a) To the issue of the decedent, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240.”

(Prob. Code, § 6402.)

            It is not clear to the Court, based on Plaintiff’s briefing, what the relative interests of Lopez and of Plaintiff’s children are to this action. Plaintiff contends that Lopez has a 50 percent interest in this action, but does not provide an explanation of why this is the result. If the interest in the outcome of this action constitutes community property, it appears that the interest would belong entirely to Lopez. If the interest is quasi-community property, Lopez’s share would be 50 percent. If the interest is separate property, Lopez’s interest would be one-third. (See generally Prob. Code, § 6401.)

            Based on the Complaint, it appears that Plaintiff’s causes of action arose during Plaintiff’s marriage to Lopez. The Court requests argument from Plaintiff on whether this is true and, if so, what the community property characterization of the action is.

Request for Publication

Plaintiff requests authorization to serve Lopez by publication in the Los Angeles Daily Journal once a week for four consecutive weeks.

As discussed above, the facts in the record show that Lopez may have an interest in this action. In fact, it is possible that Lopez is the proper successor to the exclusion of Plaintiff’s children. Lopez is therefore a necessary party in this action, because complete relief cannot be afforded between the remaining parties without her participation. (Code Civ. Proc., § 389, subd. (a).)

Plaintiff’s counsel has filed a Doe amendment renaming Doe 1 as Rocio Lopez. (Motion, Ex. 5.)

“Section 415.50, authorizing service by publication specifies this method of service is only warranted when “‘the party to be served cannot with reasonable diligence be served in another manner specified in this article....’” (Kott v. Superior Court (1996) 45 Cal.App.4th 1126, 1137, quoting Code Civ. Proc., § 415.50, subd. (a).)

“The Judicial Council comment to this section is instructive in defining the showing required before a trial court is justified in finding a party has exercised reasonable diligence in attempting to locate the party to be served. ‘The term “reasonable diligence” … denotes a thorough, systematic investigation and inquiry conducted in good faith by the party or his agent or attorney. A number of honest attempts to learn [the] defendant's whereabouts or his address by [1] inquiry of relatives, friends, and acquaintances, or of [2] his employer, and by [3] investigation of appropriate city and telephone directories, [4] the voters’ register, and [5] the real and personal property index in the assessor’s office, near the defendant’s last known location, are generally sufficient. These are likely sources of information, and consequently must be searched before resorting to service by publication.’ However, the showing of diligence in a given case must rest on its own facts and no single formula nor mode of search can be said to constitute due diligence in every case.” ((Kott, supra, 45 Cal.App.4th at pp. 1137-1138 [internal citations omitted; cleaned up].)

Plaintiff’s law firm contacted Leticia Magdaleno, a close friend of Plaintiff, and confirmed that she had no information as to the whereabouts of Lopez. (Lyon Decl. ¶ 4.) Plaintiff’s firm contacted Adriana Rodriguez, Elvira Hernandez (Plaintiff’s mother), and Leticia Magdaleno, a coworker of Plaintiff, in attempts to find Lopez. (Koh Decl. ¶¶ 3, 4, 8, 11.) Plaintiff’s firm mailed letters to four individuals with the names Rocio Lopez who were believed to be likely candidates. (Koh Decl. ¶ 9.) Plaintiff’s firm searched on TruthFinder for Lopez and found 97 results for “Rocio Lopez” in Los Angeles, but determined that there were too many results to be helpful. (Koh Decl. ¶ 12.) Plaintiff’s firm also conducted searches on Westlaw PeopleMap, Google, Facebook, LinkedIn, and Instagram, but could not find Lopez. (Koh Decl. ¶ 7.)

The Court believes that some additional diligence may be necessary. It is unclear whether Plaintiff’s firm searched the telephone directory, voters’ register, or real and personal property index for Lopez. The Court requests that Plaintiff’s counsel provide clarification on this issue.