Judge: Michael Shultz, Case: 21CMCV00263, Date: 2023-10-26 Tentative Ruling
INSTRUCTIONS: If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must:
1. Contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling.
2. No later than 4:00 p.m. on the court day before the hearing, call the Courtroom (310-761-4302) advising that all parties will submit on the tentative ruling and waive hearing; and
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If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on.
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Case Number: 21CMCV00263 Hearing Date: October 26, 2023 Dept: A
[TENTATIVE] ORDER
The
complaint alleges that all parties jointly own real property as
tenants-in-common. Defendant Lorna McGreggor, lives on the property. Plaintiffs
allege claims for partition by sale of the real property and for an accounting.
Plaintiff,
Georgia McGreggor (“decedent”), Trustee of the Bernard McGreggor Irrevocable
Trust (“Bernard Trust”), died on August 10, 2023. Plaintiff, Wanda
McGreggor-Allen (“Wanda”), requests an order to substitute herself as successor
trustee of the Bernard Trust, which occurred by virtue of the trust instrument
upon decedent’s death. Plaintiff, Joseph Cleotha Young (“Young”), decedent’s
son, requests an order to appoint himself as successor-in-interest to decedent’s
individual claims as well as the claims of the Georgia McGreggor Revocable
Trust (“Georgia Trust”). He is now successor-in-interest by virtue of the trust
instrument and his mother’s death. Decedent’s claims survive her death. No
opposition has been filed.
An
action for or against a decedent is not lost by reason of that person’s death. (Code
Civ. Proc., § 377.21.) The claims survive subject to the applicable
limitations period. (Code
Civ. Proc., § 377.20 (a).) 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 pursuant to
a noticed motion.” (Code
Civ. Proc., § 377.31.)
The motion
shall be supported by an affidavit providing a copy of the death certificate, stating
the decedent’s name, date, and place of death, and that no proceeding is
pending in California for administration of the decedent’s estate. (Code
Civ. Proc., § 377.32.) Petitioner shall also declare that declarant is
decedent’s successor-in-interest or is authorized to act on behalf of the
decedent’s successor-in-interest and that no other person has a superior right
to continue the decedent’s claims. (Id.) Plaintiffs have
provided the required declaration.
The
Bernard Trust provides that Wanda shall serve as successor-in-interest upon the
death of Georgia McGreggor. (Wanda Decl., Ex. B.) Accordingly, Wanda will
assert her individual claims, and in her new capacity as Trustee for the
Bernard Trust. Therefore, the complaint should be amended to reflect her
additional capacity as Trustee of the Bernard Trust.
The
Georgia Trust provides that in the event of her death, Young shall serve as the
first successor trustee. (Young Decl., Ex. D.) Therefore, he shall be
substituted in as successor-in-interest of Georgia McGreggor, and as Trustee of
the Georgia Trust.
Based
on the foregoing, the motion is GRANTED.