Judge: Michael E. Whitaker, Case: 21SMCV01048, Date: 2024-07-30 Tentative Ruling

Case Number: 21SMCV01048    Hearing Date: July 30, 2024    Dept: 207

TENTATIVE RULING

MOTION

            Plaintiffs Zhibin Qiu, Bin Xiao, and Cheng Li move to substitute Patsy King as successor-in-interest to Defendant Daniel Chu, who is deceased, in this action.  Defendant Chu opposes the motion.

LEGAL STANDARD

“A pending action or proceeding does not abate by the death of a party if the cause of action survives.”  (Code Civ. Proc., § 377.21.)   “Subject to Part 4 (commencing with Section 9000) of Division 7 of the Probate Code governing creditor claims, a cause of action against a decedent that survives may be asserted against the decedent's personal representative or, to the extent provided by statute, against the decedent's successor in interest.” (Code Civ. Proc., § 377.40.)

On motion, the court shall allow a pending action or proceeding against the decedent that does not abate to be continued against the decedent’s personal representative or, to the extent provided by statute, against the decedent’s successor in interest, except that the court may not permit an action or proceeding to be continued against the personal representative unless proof of compliance with Part 4 (commencing with Section 9000) of Division 7 of the Probate Code governing creditor claims is first made.

(Code Civ. Proc., § 377.41.)  Unless the decedent's personal representative is made a party, a judgment should not be rendered for or against a decedent, nor for or against the representative. (See Sacks v. FSR Brokerage, Inc. (1992) 7 CA4th 950, 957; Sellery v. Cressey (1996) 48 CA4th 538, 541, fn. 2.)

            Here, Plaintiffs advance the Declaration of Ming Ji (“Ji”), counsel for Plaintiffs, in support of the motion.  In part, Ji avers that Defendant Chu died on February 21, 2022.  (See Ji Decl. ¶ 3,  Ex. 1.)  Further, Ji states as follows:

5. Upon information and belief, Defendant Chu established The Chu Family Trust on November 26, 1996. On or about December 30, 1997, a real property commonly known as 3812 Winford Drive, Tarzana, CA 91356 was transferred into the family trust. Exhibit 2 is a true and correct copy of the transfer deed.

6. I inquired with Defendant Chu’s counsel in the instant case if a probate was opened for Defendant Chu. The answer was negative. I also conducted research on court’s website and found no probate of Defendant Chu’s estate. Neither did I receive any notice regarding the administration of Defendant Chu’s estate.

7. Upon information and belief, Defendant Chu’s estate, including the Windford property, was distributed through The Chu Family Trust without probate. Ms. Patsy King is the surviving spouse and the successor in interest.

Foremost, the Court finds that Ji’s statements, as set forth in paragraphs 5 and 7, have no probative value.  (See, e.g., Long Beach Unified School Dist. v. Margaret Williams, LLC (2019) 43 Cal.App.5th 87, 105, fn. 9 [affidavits on information and belief lack probative value and are permitted only when the facts to be established are incapable of positive averment].) 

            Notwithstanding, Chu opposes the motion on the grounds that Probate Code sections 9100 and 9340 require filing a credit claim, which Plaintiff did not do, and cannot do, since Code of Civil Procedure section 366.2 provides a one-year statute of limitations to bring an action “after the date of death[.]”  

            Finding Plaintiff has not provided proof of compliance with Part 4 (commencing with Section 9000) of Division 7 of the Probate Code, the Court cannot grant Plaintiff’s motion, pursuant to Code of Civil Procedure section 377.41.

CONCLUSION AND ORDER

For the foregoing reasons, the Court denies Plaintiff’s motion.  The clerk of the court shall provide notice of the Court’s ruling.

DATED:  July 30, 2024                                  ___________________________

                                                                  Michael E. Whitaker

                                                                  Judge of the Superior Court