Judge: Lee S. Arian, Case: 23STCV15278, Date: 2024-01-05 Tentative Ruling

Case Number: 23STCV15278    Hearing Date: February 14, 2024    Dept: 27

Tentative Ruling

Judge Lee Arian, Department 27

HEARING DATE:     February 14, 2024                             TRIAL DATE:  December 27, 2024

CASE:                         Tomas Jesus Martinez v. Target Corporation

CASE NO.:                 23STCV15278

MOTION FOR SUBSTITUTION OF THE PERSONAL REPRESENTATIVE OF THE DECEASED PLAINTIFF

MOVING PARTY:               Plaintiff’s counsel Michael Yadegari on behalf of non-party Domitila Martinez

RESPONDING PARTY:      No opposition

I.          BACKGROUND

            On June 30, 2023, Plaintiff Tomas Jesus Martinez filed a complaint against Defendant Target Corporation for injuries arising from a slip and fall on Defendant’s premises. Plaintiff filed the operative First Amended Complaint (“FAC”) on July 5, 2023, alleging causes of action for negligence and premises liability.

            On October 13, 2023, the Court granted Defendant’s unopposed motion to strike without leave to amend. Plaintiff was instructed to file an amended complaint without reference to punitive damages and attorney fees within 20 days of the order.

            On November 8, 2023, Plaintiff belatedly filed his operative Second Amended Complaint (“SAC”). The SAC added nine plaintiffs without leave to amend; these include: Domitila Martinez, Juan Martinez, Paulina Martinez, Lupe Martinez, Sandra Martinez, Tomas Martinez, Jesus Martinez, Jose Martinez, and Jorge Martinez (collectively referred to as “the Estate of Tomas Jesus Martinez.”) Seemingly, these newly added plaintiffs replaced Tomas Jesus Martinez, who is alleged to be deceased. The SAC also alleges the following causes of action: (1) negligence (wrongful death); (2) negligent entrustment and negligent supervision; and (3) survival action.

On January 4, 2024, Plaintiff’s counsel Michael Yadegari, on behalf of Domitila Martinez, Plaintiff’s widow, filed the instant motion for substitution of plaintiff pursuant to CCP § 377.11. Along with the motion, Yadegari filed a proposed order granting the motion.

On January 5, 2024, the Court sustained in part Defendant’s demurrer to the SAC on the grounds that it exceeded the Court’s October 13, 2023 order. Additionally, the Court specifically stated that “if Plaintiff seeks leave to amend in order to substitute parties or introduce new causes of action, then it must be done by noticed motion.” (1.05.2024 Minute Order, p. 4.)

The motion is unopposed.

II.        LEGAL STANDARD

            Following the death of a party, any legal action by that party may only proceed upon substitution of the decedent’s personal representative or successor in interest in her place.  (Code Civ. Proc. §§ 377.31, 367.)  California Code of Civil Procedure section 377.31 states that, “[o]n 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.”  

            California Code of Civil Procedure section 377.32, subdivision (a) states:  “The person who seeks . . . 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 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.’”  

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

            California Code of Civil Procedure section 377.33 enables “[t]he court in which an action is commenced . . . [to] make any order concerning parties that is appropriate to ensure proper administration of justice in the case.” 

III.      DISCUSSION

Here, the proposed order filed by Plaintiff’s counsel on January 4, 2024 was rejected because it was missing a stipulation. (See 1.04.2024 Notice of Rejection of Electronic Filing.)

Moreover, the Domitila Martinez declaration is insufficient to comply with the CCP § 377.32(a) requirements. It does not state 1) the location of Plaintiff’s death, 2) that no proceeding is pending for the administration of Plaintiff’s estate, or 3) that no other person has a superior right to commence the action or proceeding or be substituted for the decedent, all of which are required.

For the foregoing reasons, the Court denies the motion to be substituted without prejudice.

Moving party to give notice, unless waived by the parties. 

Dated:   February 14, 2024                                ___________________________________

                                                                                    Lee Arian

                                                                                    Judge of the Superior Court

            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 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.