Judge: Mark E. Windham, Case: 20STLC02017, Date: 2023-05-25 Tentative Ruling
Case Number: 20STLC02017 Hearing Date: May 25, 2023 Dept: 26
Lepley, et al. v. Campbell, et al.
SUBSTITUTE
PARTY FOR DECEASED DEFENDANT
TENTATIVE RULING:
Plaintiffs Stephen C. Lepley and
Christine E. Lepley’s Motion to Substitute Party for Deceased Defendant is
DENIED.
ANALYSIS:
Plaintiffs Stephen C. Lepley and Christine E. Lepley (“Plaintiffs”)
filed the instant action for breach of lease agreement against Defendant Robert
Campbell (“Defendant”) on March 2, 2020. Following Defendant’s failure to file
a responsive pleading, the Court entered his default on April 21, 2020. The
Court granted Defendant’s motion to vacate on August 12, 2020 and the answer
was filed on August 28, 2020.
On July 29, 2021, the Court denied Defendant’s motion for
summary judgment, or in the alternative, summary adjudication. Plaintiffs then
filed a Notice of Conditional Settlement on November 3, 2022. On November 8,
2022, defense counsel filed an Offer to Compromise and Acceptance under Code of
Civil Procedure section 998. The next day, they filed a Notice of Defendant
Robert Campbell’s Death, indicated that Defendant had passed away on October 28,
2022.
On January 4, 2023, Plaintiffs filed the instant motion to
substitute Defendant’s personal representative as Defendant in this action. An
opposition was filed by defense counsel on March 21, 2023 and Plaintiffs
replied on April 3, 2023.
Discussion
Plaintiffs’ motion cites to case law that holds the death of
a defendant does not result in the end of the action:
Section
385 of the Code of Civil Procedure provides, in pertinent part: “An action or
proceeding does not abate by the death ... of a party ... if the cause of
action survives or continues. In case of the death ... of a party, the court,
on motion, may allow the action or proceeding to be continued ... against his
or her [personal] representative.” In harmony with the foregoing provision is
Probate Code section 573, subdivision (a), which provides: “Except as provided
in this section, no cause of action is lost by reason of the death of any
person, but may be maintained by or against the person’s personal
representative.”
(Sacks v. FSR Brokerage,
Inc. (1992) 7 Cal.App.4th 950, 956.) Code of Civil Procedure section 385 is
now section 368.5 and Probate Code section 573 is now section 377.20. Code of
Civil Procedure section 368.5 states that “[a]n action or proceeding does not
abate by the transfer of an interest in the action or proceeding or by any
other transfer of an interest. The action or proceeding may be continued in the
name of the original party, or the court may allow the person to whom the
transfer is made to be substituted in the action or proceeding.” (Code Civ.
Proc., § 368.5.) Probate Code section 377.20 states that a cause of action for
or against a person is not lost by reason of the person’s death. (Prob. Code, §
377.20.) This statute, however, does not indicate what procedure should be
followed to substitute in the deceased party’s personal representative. The
motion does not offer additional authority regarding the procedure by which the
substitution is to be made. Nor does the motion identify the personal
representative who should be substituted into this action in Defendant’s place.
Instead, it jumps straight to why judgment should be entered pursuant to the
parties’ 998 offer.
The opposition
argues that Plaintiffs were required to follow section 377.41 of the Probate
Code, which states “the court may not permit an action or proceeding to be
continued against the personal representative unless proof of compliance with
Part 4 (commencing with Section 9000) of Division 7 of the Probate Code
governing creditor claims is first made.” (Prob. Code, § 377.41.)
Probate Code section
9370 specifically provides:
(a)
An action or proceeding pending against the decedent at the time of death may
not be continued against the decedent's personal representative unless all of
the following conditions are satisfied:
(1) A claim is first filed as provided in this part.
(2) The claim is rejected in whole or in part.
(3) Within three months after the notice of rejection is given, the
plaintiff applies to the court in which the action or proceeding is pending for
an order to substitute the personal representative in the action or proceeding.
This paragraph applies only if the notice of rejection contains a statement
that the plaintiff has three months within which to apply for an order for
substitution.
(b)
No recovery shall be allowed in the action against property in the decedent's
estate unless proof is made of compliance with this section.
(Prob. Code, § 9370,
subds. (a)-(b).) Plaintiffs offer no explanation why these requirements should
not be followed in light of their request to substitute in Defendant’s personal
representative, who remains unidentified. (Reply, p. 4:12-15.)
Conclusion
Therefore, Plaintiffs Stephen C.
Lepley and Christine E. Lepley’s Motion to Substitute Party for Deceased
Defendant is DENIED.
Court clerk to give notice.