Judge: Michelle C. Kim, Case: 22STCV34180, Date: 2024-04-30 Tentative Ruling

Case Number: 22STCV34180    Hearing Date: April 30, 2024    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

WILLIAM CLARK, 

Plaintiff(s),  

vs. 

 

CITY OF LOS ANGELES, ET AL., 

 

Defendant(s). 

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      CASE NO: 22STCV34180 

 

[TENTATIVE] ORDER DENYING WITHOUT PREJUDICE MOTION FOR ORDER SUBSTITUTING SUCCESSOR IN INTEREST FOR DECEDENT PLAINTIFF 

 

Dept. 31 

1:30 p.m.  

April 30, 2024 

 

I. BACKGROUND 

Plaintiff William Clark (“Plaintiff”) filed this action against defendants City of Los Angeles, et al. for damages arising from allegations of assault and battery. 

Fernanda M. Clark (“Mrs. Clark”) has now filed this motion to be substituted as Plaintiff’s successor-in-interest. LAFC Partners, LLLP opposes the motion on the grounds that the supporting declaration of Mrs. Clark is not in compliance with CCP §377.32. As of April 23, 2024, no reply has been filed. 

 

II. MOTION TO SUBSTITUTE 

  1. Legal Standard 

“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 . . . and an action may be commenced by the decedent’s personal representatives or, if none, by the decedent’s successor in interest.”  (Code Civ. Proc., § 377.30.)  After the death of a plaintiff, the court, on motion, shall allow a pending action that does not abate to be continued by the decedent’s personal representative or successor-in-interest.  (Code Civ. Proc., § 377.31.)  

The person who seeks to commence or continue a pending action as the decedent’s successor-in-interest shall execute and file an affidavit or declaration stating: (1) the decedent’s name, (2) the date and place of decedent’s death, (3) “No proceeding is now pending in California for administration of the decedent’s estate,” (4) a copy of the final order showing the distribution of the decedent’s cause of action to the successor-in-interest, if the decedent’s estate was administered, (5) either the affiant or declarant is the decedent’s successor in interest or the affiant or declarant is authorized to act on behalf of the decedent’s successor in interest, with facts in support thereof, (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,” and (7) the statements are true, under penalty of perjury.  (Code Civ. Proc., § 377.32(a)(1)-(7).) Additionally, a certified copy of the decedent’s death certificate shall be attached to the affidavit or declaration. (Code Civ. Proc., § 377.32(c).) 

 

  1. Discussion 

The Court has reviewed the moving papers and is unable to locate the declaration of Mrs. Clark. There is only the declaration of Plaintiff’s counsel, which is insufficient. Code Civ. Proc. § 377.32 instructs that it is the person seeking to continue the action as the decedent’s successor in interest who must file an affidavit under penalty of perjury. This code section provides a clear and straightforward guideline of all the elements which must be contained in the successor’s affidavit, including providing a certified copy of the decedent’s death certificate. Because no declaration of Mrs. Clark was furnished, the motion is defective on its face. 

 

III. CONCLUSION 

Based on the foregoing, the motion to substitute is DENIED without prejudice.   

 

Moving party to give notice. 

 

PLEASE TAKE NOTICE: 

  • Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. 

  • If a party intends to submit on this tentative ruling,¿the party must send an email to the Court at¿sscdept31@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿ The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.¿¿ 

  • Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿ You should assume that others may appear at the hearing to argue.¿¿ 

  • If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.¿ 

 

  Dated this 29th day of April 2024 

 

  

 

 

Hon. Michelle C. Kim 

Judge of the Superior Court