Judge Mark E. Windham, Case Number: 22STLC05890, Date: 2024-06-18 Tentative Ruling

Judge: Mark E. Windham, Case: 22STLC05890, Date: 2024-06-18 Tentative Ruling

Case Number: 22STLC05890 Hearing Date: June 18, 2024 Dept: 26

St. Julian v. Reece, et al.

MOTION TO VACATE DISMISSAL AND APPOINT SUCCESSOR

(CCP §§ 473(b) and 377.10, et seq.))

TENTATIVE RULING:

Third parties Winston St. Julian, Jr. and Corey St. Julian’s Motion to Vacate Dismissal and Appoint Successor is CONTINUED TO AUGUST 20, 2024 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY JULY 29, 2024, MOVING PARTIES ARE TO FILE SUPPLEMENTAL DECLARATIONS CORRECTING THE DEFECTS NOTED HEREIN.

ANALYSIS:

On September 9, 2022, Plaintiff Winston St. Julian (“Plaintiff”) filed the instant action against Defendant Michael Reece (“Defendant”). The action came for trial on March 8, 2024, at which time Plaintiff failed to appear and the Court dismissed the action without prejudice. (Minute Order, 03/08/24.)

Third-parties Winston St. Julian, Jr. and Corey Winston St. Julian (“Moving Parties”) filed the instant Motion to Vacate Dismissal and Appoint Successor on April 3, 2024. No opposition to the Motion has been filed to date, nor has proof of service of the Summons and Complaint been filed.

Discussion

The request to vacate dismissal is brought pursuant to Code of Civil Procedure, section 473, subdivision (b). Under this statute, an application for relief must be made no more than six months after entry of the order from which relief is sought and must be accompanied by an affidavit of fault attesting to the moving party’s mistake, inadvertence, surprise or neglect. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) When based on attorney fault with respect to entry of default, default judgment, or involuntary dismissal, a timely request for relief must be granted. (Code Civ. Proc., § 473, subd. (b).) When brought pursuant to the provision for discretionary relief based on party fault, the request must have been filed within a reasonable amount of time.

The motion was timely filed less than one month after dismissal of the action and is supported by an attorney affidavit of fault. Plaintiff’s counsel declares that they inadvertently failed to calendar the trial date. (Motion, Bagdassarian Decl., ¶¶2-3.) Therefore, the case must be reinstated under Code of Civil Procedure section 473, subdivision (b).

The request to appoint Moving Parties as Plaintiff’s successor-in-interest is brought pursuant to Code of Civil Procedure, section 377.3, which states, “[o]n 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, section 377.11 defines “successor-in-interest” as “the beneficiary of the decedent’s estate or other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of a cause of action.” (Code Civ. Proc., § 377.11.) Under Code of Civil Procedure, section 377.32:

(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.

(Code Civ. Proc., § 377.32.)

The Motion is supported by the declarations of both Moving Parties, to which is attached a certified copy of the death certificate. (Motion, St. Julian, Jr. Decl., Exh. A; St. Julian Decl., Exh. A.) The declarations set forth some but not all of the information required by Code of Civil Procedure, section 377.32.

The declaration states Plaintiff’s name, place of death, and that “no proceeding is now pending in California for administration of the decedent’s estate.” (Id. at ¶¶2-5.) They also declare that there has been no administration of Plaintiff’s estate and that they are Plaintiff’s biological sons. (Id. at ¶¶5-6.) Finally, Moving Parties declare they are Plaintiff’s successor in interest, as set forth in Code of Civil Procedure section 377.11. (Id. at ¶6.) Section 377.11 defines successor in interest as the “beneficiary of the decedent’s estate or other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of a cause of action.” (Code Civ. Proc., § 377.11.) Neither declaration, however, set forth supporting facts to show that Moving Parties are the beneficiaries of Plaintiff’s estate or that they succeed to a cause of action or to a particular item of the property that is the subject of a cause of action.

The supporting declarations, therefore, do not comply with the statutory requirements set forth above. The request for appointment as Plaintiff’s successor-in-interest is continued.

Conclusion

Court clerk to give notice.