Judge: Mel Red Recana, Case: 21STCV11646, Date: 2024-10-07 Tentative Ruling
Case Number: 21STCV11646 Hearing Date: October 7, 2024 Dept: 45
Hearing date: 10/07/2024 08:30 AM
Moving Party: Peter Stephan (Plaintiff)
Responding
Party: None; No opposition
Motion for Substitution of Deceased Plaintiff
The court has
considered the moving papers.
As
such, the motion for substitution is GRANTED.
Background
On March 25,
2021, Plaintiff Peter Stephan (Decedent) filed suit against Defendants Golden
Malibu Holdings, LLC; and Andrew Harrison Barnes (Defendants).
Decedent, by and
through Xiaolan Huang Stephen (Stephen), moves to substitute Decedent with
Stephen on the grounds that Stephen is Decedent’s successor-in-interest.
Stephen moves pursuant to Code of Civil Procedure section 377.31 (Section
377.31) and 377.11 (Section 377.11).
Legal Standard
Section 377.31
provides that “[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”. “ ‘[D]ecedent’s successor in
interest’ means 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.) The beneficiary of the decedent’s estate, in turn, means “[i]f the
decedent died leaving a will, the sole beneficiary or all of the beneficiaries
who succeed to a cause of action, or to a particular item of property that is
the subject of a cause of action, under the decedent's will.” (Code Civ. Proc.,
§377.10, subd. (a).)
In the case of a
pending proceeding, the person who seeks to continue the pending action must
execute and file an affidavit which contains, in relevant part:
(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.” . . . (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.”
(Code Civ. Proc., §377.32 subd. (a).)
Discussion
Here,
Stephen’s declaration complies with the requirements of Code of Civil Procedure
section 377.32. She has demonstrated grounds for substitution. She declares
that Decedent died while flying from Paris, France to the United States. Due to
the onboard death, the plane was diverted to Portugal. Decedent’s death
certificate—attached to Stephan’s declaration with a translation—issued from
Portugal. (Stephn Decl., ¶2, Ex. 1 [Death Certificate].) She declares she is
the residuary beneficiary under Decedent’s will and no proceeding is pending
for the administration of decedent’s estate. (Stephen Decl., ¶4.) She declares
that no person has a superior right to her and makes the declaration under
penalty of perjury. (Stephen Decl., ¶5.)
As
such, the motion for substitution is GRANTED.
It is so
ordered.
Dated:
October 7, 2024
_______________________
MEL RED RECANA
Judge of the
Superior Court