Judge: Lisa R. Jaskol, Case: 20STCV35085, Date: 2024-02-08 Tentative Ruling

Case Number: 20STCV35085    Hearing Date: February 8, 2024    Dept: 28

Having considered the moving papers, the Court rules as follows. 

BACKGROUND 

On September 14, 2020, Plaintiffs Raymond Szymanski (“Szymanski”) and Edward Cummings (“Cummings”) filed this action against Defendants Benjamin Hernandez (“Hernandez”), Herc Rentals, Inc. (“Herc”), and Does 1-50 for motor vehicle tort and general negligence. 

On November 9, 2020, Hernandez and Herc filed an answer. 

On January 12, 2024, Theresa Tulak (“Tulak”), Cummings’s successor-in-interest, filed a motion to substitute herself for Cummings, to be heard on February 8, 2024.  No opposition has been filed. 

Trial is currently scheduled for June 10, 2024. 

SUCCESSOR’S REQUEST 

Tulak requests that the Court substitute her into the action as Cummings’s successor-in-interest because Cummings has passed away. 

LEGAL STANDARD 

Code of Civil Procedure section 377.31 provides: “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 decedent's personal representative or, if none, by the decedent's successor-in-interest.” 

Code of Civil Procedure section 377.32 provides: 

“(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.” 

(Code Civ. Proc., § 377.32.) 

DISCUSSION 

Cummings passed away on October 17, 2023, after filing this action.  Tulak is Cummings’s mother.  Tulak’s declaration satisfies the requirements of Code of Civil Procedure section 377.32.  The Court grants the motion. 

CONCLUSION 

The Court GRANTS Theresa Tulak’s motion for leave to substitute Theresa Tulak, in her capacity as successor-in-interest to Edward Cummings, for Edward Cummings. 

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file the proof of service of this ruling with the Court within five days.