Judge: Lisa R. Jaskol, Case: 23STCV30540, Date: 2024-06-27 Tentative Ruling

Case Number: 23STCV30540    Hearing Date: June 27, 2024    Dept: 28

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

BACKGROUND 

On December 14, 2023, Plaintiff Charles Christopher Winbush (“Plaintiff”) filed this action against Defendants Florence Mills Apartments, L.P., Hollywood Community Housing Corporation, and Does 1-100 for general negligence and premises liability. 

On February 21, 2024, Defendants Hollywood Community Housing Corporation and Florence Mills Apartments, L.P. (“Defendants”) filed an answer and a cross-complaint against Cross-Defendants Walton Construction Inc. (“Walton”) and Does 1-50 for indemnification, apportionment of fault, and declaratory relief. 

On March 8, 2024, Defendants filed a first amended cross-complaint.  On April 12, 2024, Defendants filed a second amended cross-complaint.  On May 10, 2024, Walton filed an answer to the cross-complaint and filed a cross-complaint against Cross-Defendants T.R.E. Elevator Corp. and Moes 1-50 for negligence, express contractual indemnity, breach of contract, equitable indemnity and apportionment of fault, total equitable indemnity, and declaratory relief. 

On May 9, 2024, Plaintiff filed a motion to appoint a successor in interest, to be heard on June 27, 2024. 

Trial is currently scheduled for June 12, 2025. 

REQUEST 

Denikka Winbush (“Denikka Winbush”) asks the Court to substitute her into the case as Plaintiff’s successor in interest. 

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 

Plaintiff passed away on February 19, 2024, after filing this action.  Denikka Winbush is Plaintiff’s adult daughter.  Denikka Winbush’s declaration satisfies the requirements of Code of Civil Procedure section 377.32.  The Court grants the motion. 

CONCLUSION 

The Court GRANTS Denikka Winbush’s motion to substitute into the case as successor in interest to Plaintiff Charles Christopher Winbush. 

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.