Judge: Michelle C. Kim, Case: BC698037, Date: 2023-05-23 Tentative Ruling

Case Number: BC698037    Hearing Date: May 23, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

1.     Background

Plaintiff Guadalupe Montiel (“Plaintiff”), by and though her guardian ad litem, Maria Montiel, filed this action against Defendant Grand Valley Health Care Center, LLC (“Defendant”) for Medical Malpractice and General Negligence.  Plaintiff was dropped by Defendant’s employee while Plaintiff was under Defendant’s care.  Because of Plaintiff’s incapacity, an application for appointment of Plaintiff’s sister, Maria Montiel, as Plaintiff’s guardian ad litem was approved. 

At this time, Plaintiff seeks an order substituting Plaintiff, who has passed away, with the representative of her estate and bypassing the previously necessary Minor’s Compromise proceeding to disperse funds.  Plaintiff passed away on January 11, 2022, and an Affidavit for Collection of Personal Property under Probate Code sections 13100-13106 was issued naming Beatriz Montiel (“Beatriz”) as Plaintiff’s successor in interest and representative of her estate.  The motion states that Beatriz seeks to be placed into Plaintiff’s shoes in accordance with Code of Civil Procedure section 377.33.  The motion is unopposed.

2.     Motion to Substitute Deceased Plaintiff with Estate Representative

A pending action does not abate by reason of the plaintiff’s death; instead, the court may make an order substituting the plaintiff’s personal representative or successor-in-interest as the plaintiff in the action.  (Code Civ. Proc., §§ 377.21 and 377.33.)  The personal representative or successor-in-interest must make a motion to be substituted into the action.  (Code Civ. Proc., § 377.31.)  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 must execute and file an affidavit or a declaration under penalty of perjury asserting statutory required information.  (Code Civ. Proc., § 377.32, subd., (a).)  The information provided on the declaration must include: 

(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.” 

(Id.)  Further, A certified copy of the decedent’s death certificate must be attached to the declaration.  (Code Civ. Proc. §§ 377.32, subd., (c).)  Code of Civil Procedure section 377.33 enables “[t]he court in which an action is commenced . . . [to] make any order concerning parties that is appropriate to ensure proper administration of justice in the case.” 

Here, the Court may substitute Plaintiff’s successor-in-interest, Beatriz, as the plaintiff in the action pursuant to Code of Civil Procedure section 377.33.  The Court finds that the Declaration of Beatriz comports with the statutory required information in Code of Civil Procedure section 377.32, subdivision (a).  (Montiel Decl.; Exhs. “A” and “B.”)  Also, a certified copy of the decedent’s death certificate is attached to the Declaration of Beatriz pursuant to Code of Civil Procedure section 377.32, subdivision (c).  (Id.) 

Accordingly, the motion is GRANTED.

The Court substitutes Plaintiff’s successor-in-interest, Beatriz Montiel, as the plaintiff in the action.

The Court orders the release of funds to settle Plaintiff’s estate.

Plaintiff is ordered 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 23rd day of May 2023