Judge: Olivia Rosales, Case: 21NWCV00658, Date: 2022-09-01 Tentative Ruling

Case Number: 21NWCV00658    Hearing Date: September 1, 2022    Dept: SEC

GOMEZ v. CORONA

CASE NO.:  21NWCV00658

HEARING:  09/01/22

JUDGE:  OLIVIA ROSALES

ADD ON 3

TENTATIVE ORDER

     I.        Cross-Defendants’ VANESSA LEAL and RAUL GOMEZ’s Demurrer to the GUADALUPE MARIA CORONA’s First Amended Cross-Complaint is SUSTAINED with 20 days leave to amend.

    II.        Cross-Defendants’ VANESSA LEAL and RAUL GOMEZ’s Motion to Strike Portions of GUADALUPE MARIA CORONA’s First Amended Cross-Complaint is MOOT.

Moving Parties to give Notice.

This action for partition of real property was filed by Plaintiffs VANESSA LEAL and RAUL GOMEZ (“Cross-Defendants”) on October 4, 2021. On January 28, 2022, Defendant/Cross-Complainant GUADALUPE MARIA CORONA (“Cross-Complainant”) filed the subject First Amended Cross-Complaint (“FAXC”).

The FAXC alleges, in pertinent part: “CORONA is part owner of the property located at 14447 Placid Dr, Whittier, CA 90604 (the ‘Subject Property’).” (FAXC ¶6.) “LEAL and GOMEZ moved into the property in 2016, following the death of LEAL’s mother, CORONA’s daughter. [¶] CORONA had sympathy for LEAL, as LEAL professed that she had nowhere to go following her mother’s death. [¶] CORONA and LEAL entered into an oral agreement providing that CORONA and LEAL would both live at the Subject Property together and CORONA would put LEAL, and LEAL alone, on the deed to the property in exchange for LEAL providing care for CORONA when she needed care. CORONA was eighty-one years at the time of the transaction.” (FAXC ¶¶8-10.) Cross-Complainant allege that Cross-Defendants began to “mistreat” Cross-Complainant after the quitclaim deed to the Subject Property was signed in 2017. (see FAXC ¶¶12-19.)

The FAXC asserts the following causes of action: (1) Breach of Contract; (2) Elder Abuse; (3) Intentional Infliction of Emotional Distress; (4) Assault; (5) Battery; and (6) Promissory Fraud.

Cross-Defendants demur to the first, second, third, and sixth causes of action.

Cross-Complainant passed away on May 7, 2022.

To date, the Court is unaware that any parties have complied with the terms of CCP §377.32.

Except as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person’s death, but survives to the applicable limitations period. (CCP §377.20.) A cause of action that survives the decedent’s death may be commenced by the decedent’s personal representative. (CCP §377.30.) If no representative has been appointed, suit may be commenced by the decedent’s “successors in interest.” (CCP §377.30.) Under CCP §377.32(a), “[t]he person who seeks to commence an action or proceeding or to continue a pending action or proceeding as the decedent’s successor in interest under this article, shall execute and file an affidavit or declaration under penalty or perjury….”

This matter was previously continued on July 21, 2022 and then again on August 25, 2022 in order to ensure compliance with CCP §377.32. As of August 30, 2022, no new documents have been filed. The Court finds that Cross-Complainant has failed to file the requisite declaration of successor in interest pursuant to CCP §377.32(a). For purposes of demurrer, the FAXC is deficient without the required successor in interest declaration. Accordingly, the Demurrer is SUSTAINED with 30 days leave to amend. The Motion to Strike is rendered MOOT.