Judge Michael E. Whitaker, Case 20STCV32387 2023-05-02 Tentative Ruling

Judge: Michael E. Whitaker, Case: 20STCV32387, Date: 2023-05-02 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged). Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

On August 25, 2020, Plaintiffs Dejon Paris Cosby (“Dejon”), individually and as successor-in-interest to decedent Nicole Fletcher (“Decedent”), Anthony Bueno, a minor, by and through his guardian ad litem, Mariean Bueno (“Mariean”), individually, and as successor-in-interest to Decedent, and Josiah Yvonn Guidry (“Josiah”), a minor, by and through his guardian ad litem, Jon’te Guidry (“Jon’te”), individually, and as successor-in-interest to decedent (collectively “Plaintiffs”), filed a Complaint against Defendants Sea-Logix, LLC (“Sea-Logix”) and Gerardo Benavidez (“Gerardo”) (collectively “Defendants”) for (1) wrongful death and (2) survival action for the injuries and ultimate death suffered by Decedent arising from a motor vehicle accident.

On December 4, 2020, Defendants filed a Cross-Complaint against Korey Crooms (“Crooms”) for (1) equitable indemnity, (2) apportionment of fault, and (3) declaratory relief.

On June 10, 2022, Plaintiffs filed a First Amended Complaint (“FAC”) and added a cause of action for declaratory relief. All other causes of action and parties remained the same.

On July 8, 2022, Horne filed a Cross-Complaint against Defendants for (1) negligence (successor-in-interest) and (2) wrongful death.

Defendants move for summary adjudication as to Horne’s cause of action for negligence (successor-in-interest). Horne opposes the motion. Defendants and Plaintiffs reply to the opposition.

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty . . . .” (Code Civ. Proc., § 437c, subd. (f)(1).)

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” ¿(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) ¿“[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” ¿(Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].) Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

Defendants contend that Horne cannot recover damages under Code of Civil Procedure section 377.34, subdivision (b) based on the First Cause of Action (Negligence- Successor in Interest) asserted in Horne’s Cross-Complaint filed on July 8, 2022. Horne’s First Cause of Action is a survivor claim and he seeks to recover damages stemming from Decedent’s pre-death harm, which include her pain and suffering. (Horne Cross-Compl., ¶¶ 9-13.)

(a) In an action or proceeding by a decedent’s personal representative or successor in interest on the decedent’s cause of action, the damages recoverable are limited to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement.

(b) Notwithstanding subdivision (a), in an action or proceeding by a decedent’s personal representative or successor in interest on the decedent’s cause of action, the damages recoverable may include damages for pain, suffering, or disfigurement if the action or proceeding was granted a preference pursuant to Section 36 before January 1, 2022, or was filed on or after January 1, 2022, and before January 1, 2026.

Defendants contend that while Horne may be a proper plaintiff, entitled to the damages as the statutory spouse, he could not commence a separate survival action since Plaintiffs have already filed a survivor claim on behalf of Decedent in the Complaint. (San Diego Gas & Electric Co. v. Superior Court (2007) 146 Cal.App.4th 1545, 1553 [“There is but one survivor cause of action belonging to the decedent that is brought on behalf of the decedent by the decedent's personal representative or successor in interest.”]) In addition, because there can only be one survivor cause of action, Horne in effect joined Plaintiffs’ survivor cause of action (through the Cross-Complaint), and because Plaintiffs filed their survivor cause of action on August 25, 2020 (which is before January 1, 2022), Horne cannot recover damages pursuant to Code of Civil Procedure section 377.34, subdivision (b).

In opposition, Horne contends that he is the sole successor-in-interest to Decedent’s survivor claim. Plaintiffs filed with their complaint a declaration in compliance with Code of Civil Procedure section 377.32 in which they stated “[n]o other person has a superior right to commence or to be substituted for Decedent in any lawsuit.” Horne contends that Plaintiffs’ statement was incorrect. To support that assertion, Horne advances his own declaration in which he avers:

· On March 5, 2020, during a rough patch in our marriage, I filed a petition for dissolution (divorce) of marriage in the Superior Court of California, County of San Bernardino. This petition was the only such family-law type filing I made. This petition was never adjudicated or finalized by the Court; no order or decree was ever entered; nothing ever became of the petition beyond this lone filing.

· On the date of Nicole Fletcher's death (May 23, 2020), she and I remained legally married. In fact, we were reconciling prior to her tragic death.

(Declaration of Mark Horne, ¶¶ 3-5.) Accordingly, Horne contends that he was entitled to assert Decedent’s survivor claim, as it was community property. (Fam. Code, § 780 [“Except as provided in Section 781 and subject to the rules of allocation set forth in Section 2603, money and other property received or to be received by a married person in satisfaction of a judgment for damages for personal injuries, or pursuant to an agreement for the settlement or compromise of a claim for such damages, is community property if the cause of action for the damages arose during the marriage”].)

Further, Horne cites to Code of Civil Procedure section 377.11, which provides: “For purposes of this chapter, ‘decedent’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.) In addition, Horne relies on Code of Civil Procedure section 377.10 which provides:

For the purposes of this chapter, “beneficiary of the decedent's estate” means:

(a) If 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.

(b) If the decedent died without leaving a will, the sole person or all of the persons who succeed to a cause of action, or to a particular item of property that is the subject of a cause of action, under Sections 6401 and 6402 of the Probate Code or, if the law of a sister state or foreign nation governs succession to the cause of action or particular item of property, under the law of the sister state or foreign nation.

(Code Civ. Proc., § 377.10, subds. (a)-(b).) Furthermore, Probate Code section 6401, provides: “As to community property, the intestate share of the surviving spouse is the one-half of the community property that belongs to the decedent under Section 100.” Probate Code section 100 provides in relevant part: “[u]pon the death of a person who is married or in a registered domestic partnership, one-half of the community property belongs to the surviving spouse and the other one-half belongs to the decedent.”

In summary, Horne contends that he, not Plaintiffs, is the successor-in-interest vis-à-vis Decedent’s survivor claim. Horne contends that Plaintiffs improperly filed their survivor cause of action, as he was the only person that could have asserted Decedent’s survivor cause of action.

The Court finds that Horne has created a triable issue of material fact as to whether he, alone, may maintain Decedent’s survivor cause of action as asserted in the Cross Complaint. While Defendants state that a divorce was pending at the time of Decedent’s death, Horne has presented evidence that at the time of Decedent’s death he was married to Decedent and that they were reconciling, which does not establish as a matter of law that Decedent and Horne living separately. [1]

If Decedent and Horne were not living separately at the time of the subject incident, then Horne arguably would be the only party that could assert the survivor cause of action, in particular because Decedent’s intestate share of her community property would belong to Horne. Defendants’ contention that Horne and Plaintiffs status as successors-in-interest is immaterial for purposes of ruling on the motion is misguided because, to the extent the survival cause of action is treated as community property, Horne is the only person that could have filed it, and it would mean that it was improperly filed by Plaintiffs on August 25, 2020.

In addition, Plaintiffs argue in reply to Horne’s opposition that Horne is not Decedent’s successor-in-interest for purposes of Section 377.34. Yet, Horne has not had the opportunity to substantively address the arguments made in Plaintiffs’ reply. In addition, Code of Civil Procedure section 437c, subdivision (b)(4) provides that “[a] reply to the opposition shall be served and filed by the moving party. Plaintiffs are not the moving parties and did not join Defendants in the instant motion. As such, the Court declines to consider Plaintiffs’ reply. (See San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 [“Where a remedy as drastic as summary judgment is involved, due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail”]; see also Wall Street Network Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171.)

Based on the record, the Court finds that there are triable issues of material fact related to which party is the successor-in-interest to Decedent. If Plaintiffs are the successors-in-interest to Decedent, then Decedent’s survivor claim may be subject to Code of Civil Procedure section 377.34, subdivision (a). On the other hand, if Horne is Decedent’s successor-in-interest, then Decedent’s survivor claim may be subject to Code of Civil Procedure section 377.34, subdivision (b). At this juncture, the Court cannot find as a matter of law if Plaintiffs or Horne is/are the successor-in-interest. And contrary to Defendants’ assertion, the Court opines that the question of whether Plaintiffs or Horne is/are Decedent’s successor-in-interest, and which survivor claim is the operative one, must first be resolved before determining which damages provision set forth in Section 377.34 applies. [2] As such, the Court finds that Defendants’ motion seeking adjudication under Section 377.34 to be premature.

Consequently, the Court denies Defendants’ Motion for Summary Adjudication. The Clerk of the Court shall provide notice of the Court’s ruling.

[1] Family Code section 781 provides in pertinent part: “(a) Money or other property received or to be received by a married person in satisfaction of a judgment for damages for personal injuries, or pursuant to an agreement for the settlement or compromise of a claim for those damages, is the separate property of the injured person if the cause of action for the damages arose as follows: (1) After the entry of a judgment of dissolution of a marriage or legal separation of the parties. (2) While the injured spouse is living separate from the other spouse.” The Court notes that there is no sufficient competent evidence in the record that Horne and Decedent were living separately at the time of the subject incident.

[2] The dispute between Plaintiffs and Horne amounts to which party has standing to assert the survivor claim on Decedent’s behalf. “The concept of justiciability involves the intertwined criteria of ripeness and standing. Standing derives from the principle that every action must be prosecuted in the name of the real party in interest. A party lacks standing if it does not have an actual and substantial interest in, or would not be benefited or harmed by, the ultimate outcome of an action. Standing is a function not just of a party's stake in a case, but the degree of vigor or intensity with which the presents its arguments. Ripeness refers to the requirements of a current controversy. According to the Supreme Court, an action not founded upon an actual controversy between the parties to it, and brought for the purpose of securing a determination of a point of law will not be entertained. A controversy becomes ripe once it reaches, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made.” (City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 59 [cleaned up].)

DEPARTMENT	32
HEARING DATE	May 2, 2023
CASE NUMBER	20STCV32387
MOTION	Motion for Summary Adjudication
MOVING PARTIES	Defendants/Cross-Complainants Sea Logix, LLC and Gerardo Benavidez
OPPOSING PARTY	Cross-Complainant/Defendant Mark Horne