Judge: Lee W. Tsao, Case: 22NWCV01197, Date: 2023-08-16 Tentative Ruling
Case Number: 22NWCV01197 Hearing Date: October 11, 2023 Dept: C
Petrinit, et al. v. gorgan family trust
CASE NO.: 22NWCV01197
HEARING: 10/11/23 @ 10:30 AM
#8
Plaintiff’s Motion to Substitute Fernando
Leon as Successor in Interest to Deceased Plaintiff Michelena Emery Petrini is
GRANTED.
Moving Party to give NOTICE.
Plaintiff moves for an order substituting
Fernando Leon as successor in interest to Plaintiff Michelena Emery Petrini.
Plaintiffs
Michelena Emery Petrini, Ariel Inez-Hope Leon, Noel Fernando Leon, and Raylene
Dominique Rodriguez filed a Complaint against the Grogan Family Trust, Richard
Pat Gorgan, and Donna Lee Gorgan for (1) Breach of Implied Warranty of
Habitability; (2) Tortious Breach of Implied Warranty of Habitability; (3)
Negligence; (4) Intentional Infliction of Emotional Distress; (5) Private
Nuisance; (6) Violation of Civil Code § 1942.4; and (7) Unfair Business
Practices.
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.
Discussion
Fernando Leon avers that Plaintiff Michelena
Emery Petrini (Decedent) passed on June 14, 2023 in Los Angeles County, no
proceeding is now pending in California for the administration of Decedent’s
estate, that he is Decedent’s successor in interest, and no other person has a
superior right to be substituted for Decedent. Decedent’s Certificate of Death
was attached to Mr. Leon’s declaration. Thus, Plaintiff’s Motion to Substitute
Fernando Leon as Successor in Interest to Deceased Plaintiff Michelena Emery Petrini
is GRANTED.
Leave to Amend
“The court may, in furtherance of justice, and
on any terms as may be proper, allow a party to amend any pleading or
proceeding by adding or striking out the name of any party, or by correcting a
mistake in the name of a party, or a mistake in any other respect; and may,
upon like terms, enlarge the time for answer or demurrer. The court may
likewise, in its discretion, after notice to the adverse party, allow, upon any
terms as may be just, an amendment to any pleading or proceeding in other
particulars; and may upon like terms allow an answer to be made after the time
limited by this code.” (CCP § 473(a)(1).)
Here,
Plaintiff is granted leave to amend her Complaint to name her successor in
interest as Plaintiff and the newly discovered Doe Defendant, Nicholas Grogran.
Plaintiff is ordered to file her First Amended Complaint attached as Exhibit A
to Daryoush Zalfaghari’s Declaration
filed concurrently with this Motion within 10 days of this Order.