Judge: Mark E. Windham, Case: 23AHCV01818, Date: 2024-06-12 Tentative Ruling

Case Number: 23AHCV01818    Hearing Date: June 12, 2024    Dept: 26

  

Palmer v. Torres, et al.

MOTION TO SUBSTITUTE SUCCESSOR IN INTEREST

(CCP § 377.10, et seq.)

TENTATIVE RULING

 

Non-party Bobby Marcellus Gould’s Motion to Substitute Bobby Marcellus Gould, an Individual and as Successor In Interest To Decedent Simone Palmer, is DENIED WITHOUT PREJUDICE.

 

 

ANALYSIS:

 

The instant action was commenced by Plaintiff Simone Palmer (“Palmer”), Ahnesti Johnson, and Knowledge Johnson (“minor Plaintiffs”) on August 10, 2023. The action for motor vehicle negligence is brought against Defendants Hortencia Reyes Torres and Samantha Reyes Torres (“Defendants”). On May 9, 2024, Moving Party Bobby Marcus Gould (“Gould”) filed the instant Motion to Substitute Bobby Marcellus Gould, an Individual and as Successor In Interest To Decedent Simone Palmer. No opposition has been filed to date.

 

 

 

Discussion

 

Gould moves to be substituted into this action, following the death of Palmer, as her surviving husband and the successor in interest of the Estate of Simone Palmer. Code of Civil Procedure, section 377.31 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.

 

(c) A certified copy of the decedent’s death certificate shall be attached to the affidavit or declaration.

 

(Code Civ. Proc., § 377.32.)

 

Discussion

 

The Motion is supported by the declarations of Gould and of Palmer’s attorney, to which is attached a certified copy of the death certificate. (Motion, Gould Decl., Exh. B.) The declarations set forth some but not all of the information required by Code of Civil Procedure, section 377.32.

 

Gould’s declaration states Palmer’s name, and that “no proceeding is now pending in California for administration of the decedent’s estate.” (Id. at ¶¶1, 5.) There is no statement, however, of Palmer’s date and place of death. Gould also declares that there has been no administration of Palmer’s estate. (Id. at ¶¶5-6.) Finally, Gould declares he is Palmer’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 the declaration of Gould nor Palmer’s counsel, however, set forth supporting facts to show that Gould is the beneficiary of Palmer’s estate or that he succeeds 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 Motion for Substitution is denied without prejudice.

 

Conclusion

 

Non-party Bobby Marcellus Gould’s Motion to Substitute Bobby Marcellus Gould, an Individual and as Successor In Interest To Decedent Simone Palmer, is DENIED WITHOUT PREJUDICE.

 

 

Court clerk to give notice.