Judge: Lee S. Arian, Case: 21STCV40243, Date: 2024-12-03 Tentative Ruling

Case Number: 21STCV40243    Hearing Date: December 3, 2024    Dept: 27

Hon. Lee S. Arian, Dept 27

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MOTION FOR SUBSTITUTION

Hearing Date: 12/3/24

CASE NO./NAME: 21STCV40243 ANDREA MCCLELLAND vs LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY et al.

Moving Party: Plaintiff

Responding Party: Unopposed

Ruling: DENIED WITHOUT PREJUDICE

Background

On November 2, 2021, Decedent Andrea McClelland filed the underlying action alleging, among other claims, negligence arising from a motor vehicle accident that occurred on February 2, 2021, which caused Decedent to sustain injuries. Decedent passed away on June 25, 2022. Jasmine Brown, Decedent’s surviving daughter and successor in interest, now moves the Court for substitution pursuant to Code of Civil Procedure § 377.31.

Legal Standard

“A pending action or proceeding does not abate by the death of a party if the cause of action survives.” (Code Civ. Proc., § 377.21.)¿“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.)

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 shall execute and file an affidavit or a declaration under penalty of perjury under the laws of this state stating:

(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,” and (7) the statements are true, under penalty of perjury. (Code Civ. Proc., § 377.32.)

A certified copy of the decedent’s death certificate shall be attached to the affidavit or declaration. (Code Civ. Proc., § 377.32, subd. (c).)

Discussion

Although the decedent’s death certificate was attached, the requirements of Code of Civil Procedure § 377.32 have not been met. First, the decedent’s successor in interest did not file a declaration; instead, the decedent’s attorney filed the declaration. Because the successor in interest failed to file a declaration, the following required information is absent:

1.  A statement that “[n]o proceeding is now pending in California for administration of the decedent’s estate.”

2.  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.

3.  One of the following statements, with supporting facts:

·        “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.”

·        “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.”

4.  A statement that “[n]o 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.”

As these requirements have not been satisfied, the motion is denied without prejudice.

PLEASE TAKE NOTICE:¿ 

If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept27@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting. 

Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿You should assume that others may appear at the hearing to argue. 

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion.