Judge: Michael E. Whitaker, Case: SC126387, Date: 2023-11-08 Tentative Ruling

Case Number: SC126387    Hearing Date: November 8, 2023    Dept: 207

TENTATIVE RULING

BACKGROUND

            On September 9, 2016, Plaintiff Daniel Fawcett (“Plaintiff”) brought suit, stemming from a dispute over a home construction project.  On March 5, 2020, the Court granted the parties’ stipulation submitting the parties’ claims to arbitration.  Page 2 of that stipulation provided “WHEREAS the Parties agree that the Court ordered written discovery closed (depositions and expert discovery can continue); and the deadlines associated with the trial date to file for Motions for Summary Judgment and Motions for Summary Adjudication have passed.”  (March 5, 2020 Stipulation and Order Submitting Claims to Arbitration.)  The Court stayed this case pending arbitration on March 16, 2020.  (See March 16, 2020 Minute Order.)

            Neither Plaintiff nor Plaintiff’s counsel appeared at the April 30, 2021 Post-Arbitration Status Conference.  (April 30, 2021 Minute Order.)  Plaintiff’s counsel also did not appear at the July 13, 2022 Status Conference Re: Completion of Arbitration.  (July 13, 2022 Minute Order.)  The Court issued an Order to Show Cause Re: Plaintiff’s counsel’s failure to appear.  (Ibid.)

            Plaintiff apparently passed away on or about July 16, 2022.  (Motion at p. 3; Opp. at p. 1.)  On September 14, 2022, Plaintiff’s counsel filed a Status Conference Statement on behalf of Plaintiff.  Plaintiff’s counsel also appeared at the September 16, 2022 Status Conference and at the July 13, 2023 Status Conference.  (See September 16, 2022 Minute Order and July 13, 2023 Minute Order.)  At no point did Plaintiff’s counsel represent to the Court that Plaintiff had died.

            Defendants Livinghomes, LLC; Steve Glenn; and Rethink Livinghomes, LLC (“Defendants”) now move for a Hearing on the Status of Parties.  “Plaintiff” opposes the motion  and Defendants reply. 

LEGAL STANDARD

Notwithstanding the apparent death of Plaintiff, “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.)  To that end, “A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent's successor in interest, subject to Chapter 1 (commencing with Section 7000) of Part 1 of Division 7 of the Probate Code, and an action may be commenced by the decedent's personal representative or, if none, by the decedent's successor in interest.”  (Code Civ. Proc., § 377.30.)  But concerning counsel, the attorney-client relationship terminates upon the death of a client.  (See Swartfager v. Wells (1942) 53 Cal.App.2d 522, 528 [“The authority of an attorney necessarily ceases with the death of the client, for no one can act for a dead man. After the death of the client, his attorney therefore becomes a stranger to the proceeding”]; see also Civ. Code, § 2356.)

Yet, “A client's death terminates a lawyer's actual authority (see Restatement Second, Agency § 120). The rights of a deceased client pass to other persons—executors, for example—who can, if they wish, revive the representation. Procedural rules usually provide for substitution for the deceased client in actions to which the client was a party. The lawyer for the deceased client must cooperate in such a transition and seek to protect the deceased client's property and other rights (see § 33). In extraordinary circumstances, the lawyer may exercise initiative, for example taking an appeal when the time for doing so would expire before a personal representative could be appointed (see § 33, Comment b).”  (Restatement (Third) of the Law Governing Lawyers § 31 (2000).)

ANALYSIS

Defendants contend, “Plaintiff’s counsel has continued to pursue this litigation without the authority of the estate or identified representative of the late Daniel Fawcett” in potential violation of Business and Professions Code section 6104.  Section 6104 provides, “Corruptly or willfully and without authority appearing as attorney for a party to an action or proceeding constitutes a cause for disbarment or suspension.” 

Defendants further contend that Plaintiff’s counsel has continued to object to discovery requests in connection with the Arbitration, and Defendants did not learn of Plaintiff’s death until September 13, 2023, in connection with a meeting between experts and parties.  (Motion at pp. 3-4; KLR Decl. ¶ 12.)

Defendants argue they have been prejudiced by the failure to disclose Plaintiff’s death, because “Without the deposition of the Plaintiff there is no means by why Defendants can examine the Plaintiff’s claims and assertions as outlined in the Second Amended Complaint.” (Motion at p. 4.)  “Thus, Defendants are unduly prejudiced in the preparation for mediation and arbitration of this matter because they do not have any details of Plaintiff’s allegations against the remaining Defendants.”  (Ibid.)

“Plaintiff” opposes, indicating that following Plaintiff’s death in 2022, the bulk of his estate has been administered by his sister, Emily Fawcett, as Trustee of the Daniel M. Fawcett Living Trust.  Emily is also the executor of Plaintiff’s estate.  Plaintiff’s estate has subsequently retained Plaintiff’s counsel to continue representing Plaintiff in this case.  On August 20, 2023, Plaintiff’s estate filed a Petition for Probate to Administer the Estate for purposes of this action.  (Opposition at p. 2.)  The Probate Court hearing is set for November 13, 2023.

“Plaintiff” argues that (1) this court lacks jurisdiction, by virtue of the order compelling the case to arbitration; (2) Plaintiff’s counsel will seek amendment of the named parties to reflect the Estate, once the Probate order issues on November 13; (3) Plaintiff is not obligated to waive the attorney-client privilege; and (4) Defendants’ prejudice argument lacks merit because all discovery, except expert discovery, was closed before the case was compelled to arbitration.

In reply, Defendants emphasize that depositions were still allowed in the arbitration proceedings, pursuant to the parties’ stipulation, and Plaintiff’s counsel continued to substantively represent Plaintiff in the Arbitration proceeding, despite the fact that Plaintiff’s sister did not file a Probate petition until more than a year after Plaintiff’s death.  Defendants also point out that mediation is scheduled for November 7, with no one having the legal authority to settle for Plaintiff.  Any order from the probate action will not issue until November 13 at the earliest.  On reply, Defendants request sanctions.

It is unclear exactly what relief Defendants seek by their motion.  The Motion requests a “hearing on status of parties” but addresses Defendants’ prejudice in the Arbitration proceedings due to counsel’s failure to disclose Plaintiff’s death.  In any event, the March 16, 2020 Minute Order stayed this case “pending binding arbitration as to the entire action.”  (March 16, 2020 Minute Order.) 

Therefore, this Court lacks jurisdiction to decide the issues presented in the motion without a party first requesting to vacate the stay order.

Defendants shall provide notice of the Court’s ruling and file a proof of service regarding the same.

DATED:  November 8, 2023                          ___________________________

                                                                  Michael E. Whitaker

                                                                  Judge of the Superior Court