Judge: Mark C. Kim, Case: 22LBCV00027, Date: 2022-08-02 Tentative Ruling

Case Number: 22LBCV00027    Hearing Date: August 2, 2022    Dept: S27

1.     Background Facts

Plaintiff, Denise Ortega filed this action against Defendant, Hapag-Lloyd (America), LLC for discrimination and other employment-related claims.  Plaintiff filed the action on 1/19/22.

2.     Motion to Substitute Defendant

John Ortega declares that he is Plaintiff’s husband, and that Plaintiff passed away on 4/20/22.  Mr. Ortega seeks an order permitting him to substitute into this action as Decedent’s successor-in-interest. 

Pursuant to CCP §377.31, “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 §377.32 sets forth the requirements for substitution as follows:

“(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.”

John Ortega declares he was Decedent’s husband, that there is no pending proceeding for administration of her estate, that he is the successor to Decedent for purposes of the above statute, and that no other person has a superior right to proceed in this pending action.  He attaches a copy of Decedent’s death certificate as an exhibit to his declaration. 

The declaration fully satisfies the statute, and absent opposition, the motion is granted.

Moving Party is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.