Judge: Michael E. Whitaker, Case: 23SMCV00053, Date: 2023-12-13 Tentative Ruling

Case Number: 23SMCV00053    Hearing Date: December 13, 2023    Dept: 207

TENTATIVE RULING

MOTION

            Plaintiff Abraham Macias (“Decedent”) sued Defendant Ralphs Grocery Company, The Kroger Co. and John Doe for (1) assault; (2) battery; (3) intentional infliction of emotional distress; (4) negligence; and (5) negligent hiring, supervision and retention stemming from an attack in the restroom of a Ralphs grocery store. 

            Decedent passed away on May 6, 2023.  Counsel for Decedent now brings the instant motion to substitute Decedent’s son, Charan Macias, to maintain this action as successor in interest to Decedent’s estate.  The Motion is unopposed. 

ANALYSIS

            Code of Civil Procedure section 377.21 provides: “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.)  “Except as otherwise provided by statute, 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.”  (Code Civ. Proc., § 377.20, subd. (a).) 

Under Code of Civil Procedure section 377.31, “On 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.”  Section 377.32, subd. (a) provides:

(a) The person who seeks to commence an action or proceeding or to continue a pending action or proceeding as the decedent's successor in interest under this article, shall execute and file an affidavit or a declaration under penalty of perjury under the laws of this state stating all of the following:

(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.”

(B) “The affiant or declarant is authorized to act on behalf of the decedent's successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) with respect 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).)  Section 377.32, subdivision (c) requires that a certified copy of the decedent’s death certificate be attached to the affidavit or declaration.

            Here, Charan Macias has provided a declaration indicating the following:

1.      This is my "successor in interest" declaration under California Code of Civil Procedure § 377.32.

2.      My father Abraham Macias (the "Decedent") died on May 6, 2023, in the City of Los Angeles, Los Angeles County, California.

3.      A certified copy of the Decedent's death certificate is attached to this declaration as Exhibit "A"

4.      No proceeding is now pending in California for administration of the Decedent's estate.

5.      I am the Decedent's successor in interest (as defined in CCP § 377.11) and succeed to the Decedent's interest in this 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.

I Charan Macias, declare under penalty of perjury under the law of the State of California that the foregoing is true and correct.

(Declaration of Charan Macias.)  A copy of decedent Plaintiff’s death certificate is attached to the Macias declaration as Exhibit A.

            Therefore, the Motion complies with the procedural requirements of Section 377.32.

CONCLUSION

            Therefore, the Court grants the unopposed motion to permit Charan Macias to maintain this action as the successor-in-interest to decedent Plaintiff Abraham Macia’s estate as of December 13, 2023. 

            Counsel for Plaintiff shall provide notice of the Court’s order and file a proof of service of such.

DATED:  December 13, 2023                                                ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court