Judge: Lee S. Arian, Case: 21STCV42358, Date: 2025-03-28 Tentative Ruling

Case Number: 21STCV42358    Hearing Date: March 28, 2025    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

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

Plaintiff Andre Cohen passed away on October 9, 2024. Andreas Russell Eismann, the decedent’s son, seeks to continue the action as successor in interest. No opposition was filed.

The motion satisfies the requirements of Code of Civil Procedure sections 377.31 and 377.32. The motion was filed with a declaration under penalty of perjury stating the decedent’s name, date and place of death, that no probate proceeding is pending, that Eismann is the successor in interest under section 377.11, that no other person has a superior right to continue the action, and that the statements are true. A certified copy of the death certificate is attached. (Motion at Exh. 1.) Accordingly, the motion to substitute is granted.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.