Judge: Lee W. Tsao, Case: 21NWCV00633, Date: 2023-08-10 Tentative Ruling
Case Number: 21NWCV00633 Hearing Date: April 9, 2024 Dept: C
Priscilla Olaes vs RD Restaurant Group, Inc.,
et al.
Case No.: 21NWCV00633
Hearing Date: April 9, 2024 @ 2024 @ 9:30 AM
#1
Tentative Ruling
I.
Plaintiff’s Motion to Authorize Emmanuel Olaes,
Roslyn Granger, and the Olaes Family Trust to Continue Action to Due to the
death of Plaintiff Priscilla Olaes is GRANTED.
II.
Defendants’ Motion to Quash Subpoena is OFF-CALENDAR
at Defendants’ request.
Plaintiff
to give notice.
Background
Plaintiff entered into seven Promissory Notes and Fixed
Loan Agreements between February 1, 2008 and November 17, 2008 with Defendants
RDR and Golden Den. Defendant David Kim was a personal guarantor on the Notes.
Four of the seven sets of Loan Documents provide that upon Mrs. Olaes’s death,
they are to be made payable to Emmanuel Olaes and Roslyn Granger. The other
three sets of Loan Documents provide that upon Mrs. Olaes’s death, they are to
be made payable to the Olaes Family Trust Dated June 25, 1991. Emmanuel Olaes
is the Trustee of the Trust.
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 representative or, if none, by the decedent’s
successor in interest. (CCP § 377.30.)
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.¿ (CCP § 377.32.)
The court in which all
action is commenced or continued under this article may make any order
concerning parties that is appropriate to ensure proper administration of
justice in the case, including appointment of the decedent’s successor in
interest as a special administrator or guardian ad litem. (CCP § 377.33.)
Discussion
Plaintiff Priscilla Olaes died on December 21, 2023. Emmanuel Olaes, Roslyn Granger, and the Olaes
Family Trust request authorization to continue this lawsuit as Priscilla Olaes’s
Successors in Interest.
A
party who moves to be appointed as successor in interest must comply with CCP §
377.32(a). The proposed successors in
interest have done so here. The
declaration of Emmanuel Olaes indicates the name of decedent and the date and
place of death (Olaes Decl., ¶ 2.) and that no proceeding is pending in
California for administration of Priscilla Olaes’s Estate. (Id., ¶ 4) The declarations of Emmanuel
Olaes, Roslyn Granger, and Raymond Olaes establish that they are the successors
in interest as defined under CCP §¿377.11, as they are the heirs and children
of Priscilla Olaes (Declarations of Emmanuel Olaes ¶ 5, Roslyn Granger ¶ 5,
Raymond Olaes ¶ 4).
Raymond Olaes is also a child
of Priscilla Olaes and thus he may have a right to continue the action;
however, Raymond has filed a declaration in this action stating he “wholeheartedly
supports” the efforts by the proposed successors in interest to continue the lawsuit
against the Defendants and “trust[s] [his] brother and sister to continue
prosecuting [his] mother’s case.” (Raymond Olaes Decl., ¶ 4.) Therefore, the
Court finds that no person has a superior right to commence the action.
Each
declaration is made under penalty of perjury under the laws of the State of
California. Finally, the declaration of Roslyn Granger attaches the death
certificate of Priscilla Olaes. (Roslyn Granger Decl., Exhibit A.) The proposed successors in interest have satisfied
the requirements of CCP § 377.32(a).
Defendants
argue that Plaintiff’s right to recover on the promissory notes belongs
exclusively to Plaintiff’s Probate Estate, which currently does not exist. According to Defendants, the loan documents
indicate they are payable to Emmanual Olaes, Roslyn Granger and/or the Olaes
Family Trust if Pricilla Olaes does not
survive the notes. Because the notes were valid and binding for
36 months, and Pricilla Olaes died after the notes matured, only her probate
estate may recover from Defendants. As
such, her probate estate is an indispensable party, and this action must be
abated to allow a personal representative of the probate estate to be appointed
and to participate in this action.
The Court finds that it is unnecessary to determine,
at this stage of the proceedings, whether a probate estate is an indispensable party.
“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. (CCP § 377.31, italics added.) Defendants do not
dispute that Emmanuel Olaes and Roslyn Granger have complied with the
requirements of CCP
§ 377.32(a). Defendants cite no
authority for the stay they are seeking.
Because the proposed successors in interest have complied with the
requirements of CCP § 377.32(a), they are entitled to continue this lawsuit on
behalf of the decedent. Defendants may raise
the issue of indispensable parties by way of demurrer or otherwise.
Accordingly,
Plaintiff’s motion to Authorize Emmanuel Olaes, Roslyn Granger, and the Olaes
Family Trust to Continue Action to Due to the death of Plaintiff Priscilla
Olaes is GRANTED.