Judge: Melvin D. Sandvig, Case: 22STCV20692, Date: 2024-04-30 Tentative Ruling
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Case Number: 22STCV20692 Hearing Date: April 30, 2024 Dept: F47
Dept. F47
Date: 4/30/24
Case #22STCV20692
MOTION FOR
LEAVE TO FIRST AMENDED COMPLAINT
&
APPOINT ROBERT
PARCO AS SUCCESSOR-IN-INTEREST
Motion filed on 4/3/24.
MOVING PARTY: Plaintiff John Parco
RESPONDING PARTY: all other parties
NOTICE: See below
RULING:
SUMMARY OF ACTION & PROCEDURAL HISTORY
This action arises out of a motor vehicle collision that
occurred on 9/30/21. Plaintiff Stellina
Parco was a passenger in one of the involved vehicles and suffered injuries as
a result of the collision. On 6/24/22,
Stellina Parco and her husband, John Parco, filed this action against various
defendants for: (1) Negligent Infliction of Personal Injury, (2) Negligent
Infliction of Personal Injury – Premises Liability, (3) Dangerous Condition of
Public Property and (4) Loss of Consortium.
Plaintiffs allege that a construction project taking place at the scene
of the collision created a visual obstruction to drivers on the roadway
constituting a dangerous condition, and this, along with the negligence of the
involved drivers, caused the collision.
On 3/5/24, Stellina Parco (Decedent) died. (J. Parco Decls.; R. Parco Decls).
On 4/3/24, Plaintiff John Parco filed and served this
motion for an order pursuant to CCP 377.31 appointing Robert Parco, as
successor-in-interest to Plaintiff Stellina Parco, deceased, and substituting
him in his capacity as successor-in-interest to Decedent Stellina Parco, as
plaintiff in place and stead of decedent, and for an order allowing the filing
of a First Amended Complaint. The motion
was electronically served on counsel for most other parties at the email
addresses listed in eCourt, and for some at additional email addresses. With regard to
Defendant/Cross-Complainant/Cross-Defendant Alexander Gray Popejoy, the motion
was electronically served on his counsel at the following email addresses: toshea@wawanesa.com and katoritz@wawanesa.com. However, the email address of record for
Popejoy’s counsel and the only email address listed on papers filed on behalf
of Popejoy is irismessina@wawanesa.com.
No oppositions or other responses to the motion have been
filed.
ANALYSIS
CCP 377.20(a) provides that “a cause of action for or
against a person is not lost by reason of the person's death, but survives
subject to the applicable limitations period."
CCP 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."
As such, Decedent’s successor-in-interest may continue
this action on her behalf. Additionally,
since this action was filed on 6/24/22, damages for pain and suffering are
still recoverable. CCP 377.34(b).
CCP 377.30 provides that a decedent’s
successor-in-interest is “subject to Chapter 1 (commencing with Section 7000)
of Part 1 of Division 7 of the Probate Code.”
Probate Code section 7000 states that property passes through a
decedent’s will, or if there is no will, “to the decedent’s heirs as prescribed
in the laws governing intestate succession.” Here, Decedent had a duly executed will and
therefore, Decedent’s successor in interest is the beneficiary named in the
will. (Nielsen Decl.)
Decedent had a duly executed pour over will which states:
“I give the entire residue of my estate to the trustee then in office under the
trust designated as THE JOHN AND STELLINA PARCO LIVING TRUST…” (the
Trust). (Nielsen Decl. ¶3). Pursuant to the terms
of the trust, after Decedent’s death, John Parco is the sole trustee of the
Trust and is therefore the successor in interest to Decedent’s claim. (Nielsen Decl.).
John Parco has filed the requisite declaration
acknowledging his status as the successor-in-interest; however, he has
authorized Robert Parco to act as the successor-in-interest on his behalf. See CCP 377.32. Decedent’s legal heirs who are entitled to
assert causes of action for wrongful death are her surviving spouse, John
Parco, and her children, Robert Parco, Maria Parco, and Johnny Parco. CCP 377.60.
All of Decedent’s legal heirs wish to pursue a wrongful death action
against Defendants, and each of them which is included in the proposed First
Amended Complaint along with some other changes due to the death of Decedent. (Nielsen Decl., Ex.D, E).
Plaintiff contends that allowing the amendment in in the
interests of justice as it accomplishes the addition and inclusion of
Decedent’s legal heirs’ wrongful death cause of action and substitutes Robert
Parco as successor-in-interest in place of Decedent.
CONCLUSION
Due to the issue with service noted above, if counsel for
Defendant/Cross-Complainant/Cross-Defendant Alexander Gray Popejoy appears and
has no opposition to the relief requested, the motion will be granted. Plaintiffs will then be ordered to separately
file the First Amended Complaint.
If counsel for Popejoy does not appear or appears and opposes
the relief requested, the hearing on the motion will be continued to allow
Plaintiff to properly serve the motion on Popejoy’s counsel and allow for the
filing of an opposition and reply thereto.
The Court notes that Plaintiffs’ counsel has failed to
electronically bookmark the exhibits attached to the moving papers as
required. See CRC
3.1110(f)(4). The parties are warned
that failure to comply with such court rules in the future may result in
matters being continued so that papers can be resubmitted in compliance with
the rules, papers not being considered and/or the imposition of sanctions.