Judge: Martha K. Gooding, Case: 2022-01239830, Date: 2022-12-19 Tentative Ruling

Motion to Substitute Plaintiff

Before the court is the Motion by Plaintiff Anthony Mack, by and through his Successor-In-Interest, Brian Messner, to substitute Brian Messner as the Personal Representative of the Estate of Anthony Mack instead of the successor in interest in place of Anthony Mack, the decedent.

A pending action does not abate by reason of the death of a party if the cause of action survives. [CCP § 377.21] (Essentially, all causes of action survive death except as provided by statute; see CCP § 377.20.)  

The court may make appropriate orders substituting the decedent's personal representative or successor in interest as plaintiff on claims belonging to the decedent. Alternatively, it may appoint the successor in interest as a special administrator or guardian ad litem on such claims. (CCP § 377.33.)

This case was filed on 1/7/22. (ROA 2) It appears Plaintiff Anthony Mack died shortly thereafter.  On 8/4/22, an order appointing Brian Messner as the Special Administrator of the Estate of Anthony Mack was issued by a Probate Judge in Ventura. (Verdugo Decl., ¶ 6, Ex. 1.)

Letters were issued on 8/30/22, making the order effective. The powers granted to the Special Administrator by the order indicates that “the special administrator shall have all powers necessary to commence, defend, maintain, manage, settle, or compromise all litigation for, against, or on behalf of the ESTATE OF ANTHONY REDFORD MACK.” (Verdugo Decl., ¶ 6, Ex. 1.)

The Court ordinarily would be inclined to grant the motion; however, the order appointing Brian Messner as Special Administrator states on its face that the Letters expire on 10/13/22 (Ex. 1, ¶ 2.)

The Court will hear from counsel at the hearing on this issue.

The hearing on this matter is continued on the Court’s own motion to Thursday, January 5, 2023 at 1:30 p.m. due to a conflict on the Court’s calendar.