Superior Court of California 

County of Los Angeles 

Department 78 

¿ 

 

I. BACKGROUND 

Plaintiff Gary O’Connor (“O’Connor”) alleges that he is the trustee of a trust that is the owner of a 90.05 percent share in two parcels of real property in Los Angeles, the “Compton Property” and the “East 1st Property.” The complaint alleges generally that O’Connor entered into a Purchase Agreement (“Purchase Agreement”) with the owners of the remaining 9.95 percent interest in both properties in September 2014: Greta Curtis (“Curtis”), Baypoint Mortgage, Inc. (“Baypoint”), Boostz, Inc. (“Boostz”), and Dr. Roots Herbs, LLC (“Roots”) (SAC ¶ 5), and later entered into various Amendments, none of which were executed, through the fault of defendants. (SAC ¶¶ 2–4.)¿Curtis’ corporate alter egos include Defendants Baypoint, Boostz, Roots, as well as Sisters, LLC.¿ (SAC ¶ 34.)¿ 

Curtis filed a Cross-Complaint on May 25, 2017, and an amended cross-complaint (“FAXC”) on July 26, 2017, alleging that O’Connor breached his fiduciary duty to her by filing the instant lawsuit to enforce an allegedly void sales agreement, and by failing to account for or distribute rent to his co-tenants in the relevant property, including Curtis. (FAXC ¶¶ 42–50.) 

II. PROCEDURAL HISTORY 

The only remaining defendant in the FAXC is Gary Paul O’Connor.   

The FAXC does not indicate whether Curtis named Gary Paul O’Connor in his individual capacity or in his capacity as trustee of the Money Market Retirement Trust or both. At the last conference on this case, Curtis indicated that she sued O’Connor in both capacities.  

On September 29, 2023, Cross-Complainant Greta Curtis filed her motion to add Charles Hasbun (“Hasbun”), administrator of the Gary Paul O’Connor Estate, as a Cross-Defendant. 

On November 29, 2023, the Court denied Curtis’s first motion to add Charles Hasbun as a Cross-Defendant as administrator of O’Connor’s estate on the grounds that Curtis had not filed a formal creditor’s claim against O’Connor’s personal representative or successor in interest. 

On April 26, 2024, Curtis filed a second motion to substitute Hasbun as personal representative for O’Connor. 

On July 1, 2024, Curtis’ motion to substitute Hasbun was denied. 

On July 1, 2024, Curtis filed a third motion to substitute Hasbun as personal representative for O’Connor. 

 

III. LEGAL STANDARD 

CCP § 377.40 provides: “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.” 

Further, CCP § 377.41 states: “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.” 

“An action may not be commenced against a decedent's personal representative on a cause of action against the decedent unless a claim is first filed as provided in this part and the claim is rejected in whole or in part.”¿ (Prob. Code § 9351.)¿ Thus, in general, a claim may not be pled against a decedent’s estate, and a pending lawsuit against a decedent at time of death cannot be continued against the estate, unless the plaintiff has filed a claim creditor's claim in the probate proceedings. (Prob. Code § 9000 et seq.) 

The claims requirements in such cases are set forth in Probate Code Section 9370, which states:¿¿ 

“(a) An action or proceeding pending against the decedent at the time of death may not be continued against the decedent's personal representative unless all of the following conditions are satisfied:¿¿ 

(1) A claim is first filed as provided in this part.¿¿ 

(2) The claim is rejected in whole or in part.¿¿ 

(3) Within three months after the notice of rejection is given, the plaintiff applies to the court in which the action or proceeding is pending for an order to substitute the personal representative in the action or proceeding. This paragraph applies only if the notice of rejection contains a statement that the plaintiff has three months within which to apply for an order for substitution. 

(b) No recovery shall be allowed in the action against property in the decedent’s estate unless proof is made of compliance with this section.” 

 

IV. DISCUSSION 

Previously, the motion was denied on the grounds that there is no evidence that Curtis made a formal creditor’s claim and the claim was rejected as required under Prob. Code, section 9370. (Min. Order, July 1, 2024.) On this third motion seeking to substitute Hasbun as a personal representative for O’Connor, Curtis provides a copy of her creditor’s claim against the Estate of O’Connor, filed on August 9, 2023. (Curtis Decl. ¶ 6; Exh. 3.) Curtis declares that she did not find either an acceptance or rejection of her claim, and provides a copy of the docket for the probate case concerning O’Connor’s estate. (Curtis Decl. ¶¶ 5-7; Exh. 2.) “If within 30 days after a claim is filed the personal representative or the court or judge has refused or neglected to act on the claim, the refusal or neglect may, at the option of the creditor, be deemed equivalent to giving a notice of rejection on the 30th day.” (Prob. Code §9256.) Thus, Curtis’ creditor’s claim was deemed rejected as of November 9, 2023. 

The motion was served on Hasbun and on Robert Brown, Counsel for the Administrator of O’Connor’s Estate by mail. No parties oppose the motion. Curtis has satisfied the requirement of Probate Code § 9370. 

 

V. CONCLUSION 

Curtis’ motion for an Order substituting Charles Hasbun, as administrator of the Gary Paul O’Connor Estate, as a Cross-Defendant for decedent Gary Paul O’Connor is GRANTED. 

IT IS ORDERED Charles Hasbun be substituted as a party Cross-Defendant in place of Gary Paul O’Connor, now deceased. Curtis is ordered to serve Charles Hasbun, as personal representative of decedent Paul O’Connor and Robert Brown as Counsel for the Administrator of O’Connor’s Estate, with an amended complaint within twenty (20) days of this Order. 

 

Moving Party is ordered to give notice. 

 

DATED: August 6, 2024 

__________________________ 

Hon. Michelle C. Kim¿ 

Judge of the Superior Court 

 

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 SMCDEPT78@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.