Judge: Katherine Chilton, Case: 19STCV34317, Date: 2022-09-14 Tentative Ruling

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Case Number: 19STCV34317    Hearing Date: September 14, 2022    Dept: 25

PROCEEDINGS:      MOTION TO SUBSTITUTE SUCCESSOR IN INTEREST

MOVING PARTY:   Plaintiff’s Successor in Interest, Tia Stewart

RESP. PARTY:         None

MOTION TO SUBSTITUTE SUCCESSOR IN INTEREST

(CCP §§ 377.31, 377.32, et seq.)

TENTATIVE RULING:

For the foregoing reasons, Plaintiff’s Motion to Substitute Tia Stewart as Successor in Interest is CONTINUED TO October 17, 2022 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  At least 16 court days before the next scheduled hearing, Plaintiff must file and serve supplemental papers addressing the errors discussed herein. Failure to do so may result in the Motion being placed off calendar or denied.

SERVICE: 

[   ] Proof of Service Timely Filed (CRC, rule 3.1300)                 NO

[   ] Correct Address (CCP §§ 1013, 1013a)                                                 NO

[   ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     NO

OPPOSITION:          None filed as of September 8, 2022                        [   ] Late                      [X] None

REPLY:                     None filed as of September 8, 2022                        [   ] Late                      [X] None

ANALYSIS:

I.                Background

On September 25, 2019, Plaintiff Ciara Steadman (“Plaintiff”) filed a complaint against Defendants David Service Station, Inc. (“David”), Nam Chung (“Nam”), and Eung K. Chung (“Eung”), (collectively “Defendants”) for general negligence and premises liability, arising out of an alleged slip and fall accident.  On March 4, 2020, Defendants, collectively, filed an Answer to the Complaint denying all allegations in the Complaint.

On March 15, 2021, Plaintiff filed an Ex Parte Application to Substitute Estate of Ciara Steadman for Deceased Plaintiff Ciara Steadman.  The Court denied Plaintiff’s Ex Parte Application.  (3-15-21 Minute Order.)

On September 27, 2021, the Court granted Defendants’ Motion to Reclassify the case as a limited civil case, filed on August 12, 2021.  (9-27-21 Minute Order.)

On July 25, 2022, Plaintiff filed the instant Motion to Substitute Tia Stewart, As Successor in Interest, to Deceased Plaintiff Ciara Steadman (“Motion”).  On August 19, 2022, the Court, on its own motion, continued the hearing on the Motion to September 14, 2022.  (8-19-22 Minute Order.)

No opposition has been filed.

II.              Legal Standard

“On 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.)

Code of Civil Procedure § 377.32 provides the following:

(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.

III.            Discussion

The Court finds that the Motion has several deficiencies and does not comply with the requirements of Code of Civil Procedure § 377.32.  First, the Declaration of Tia Stewart was not submitted under penalty of perjury.  Second, it contains statements irrelevant to the instant case, including “I, Dominique Watson, declare, as follows,” “I am the successor of interest to Plaintiff Kentha McDowell” and others.  (Stewart Decl.)  Furthermore, Exhibit 1 – Certificate of Death for Ciara Ve Jon Steadman is not attached to the Declaration as stated.  (Ibid. at ¶ 2.)  Finally, the declaration of counsel is not submitted under penalty of perjury either.

The Court also finds that Plaintiff has not submitted a proper Proof of Service.  The Proof of Service filed with the Motion is not signed and indicates that the document served on Defendants is “Statutory Offer to Compromise.”  (Mot. p. 6.)

For these reasons, the Court continues the hearing on the Motion and orders Plaintiff to submit an affidavit or a declaration under penalty of perjury under the laws of this state that contains information relevant to this case, as well as a certified copy of the decedent’s Certificate of Death.  Plaintiff is also ordered to file Proof of Service demonstrating that Defendants have been served with the Notice of Motion, Motion, and other associated documents at least sixteen (16) days before the next hearing.

IV.           Conclusion & Order

For the foregoing reasons, Plaintiff’s Motion to Substitute Tia Stewart as Successor in Interest to Deceased is CONTINUED TO October 17, 2022, at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  At least 16 court days before the next scheduled hearing, Plaintiff must file and serve supplemental papers addressing the errors discussed herein.  Failure to do so may result in the Motion being placed off calendar or denied.

Moving party is to give notice.