Judge Peter A. Hernandez, Case Number: 22PSCV00895, Date: 2024-02-26 Tentative Ruling

Plaintiff Marjorie Sobosky’s unopposed Motion to Substitute Personal Representative as Plaintiff is GRANTED.

On or about August 20, 2021, Marjorie was hospitalized at Pomona Valley Hospital Medical Center (“PVHMC”). During Marjorie’s hospitalization, PVHMC’s nursing and care staff failed to timely diagnose and treat her obstructed bowel and UTI and failed to take pressure wound precautions, which resulted in Marjorie developing a stage 4 ulcer. Marjorie was also given blood thinners which caused bowel bleeding.

On February 2, 2023, Marjorie filed a Second Amended Complaint, asserting causes of action against PVHMC and Does 1-50 for:

2. Reckless Neglect in Violation of Elder Abuse and Dependent Adult Civil Protection Act

An Order to Show Cause Re: Why Sanctions Sho0uld Not Be Imposed for Defendant’s Failure to Appear on February 26, 2024 is set for April 11, 2024.

The Final Status Conference is set for November 19, 2024. Trial is set for December 3, 2024.

“On motion after the death of a person who commenced an action or proceeding, 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.” (Code Civ. Proc., § 377.31).

Paul Eugene Sobosky (“Paul”), as Marjorie’s duly appointed personal representative, moves the court for an order allowing him to substitute in as plaintiff on this case.

The court rules on Paul’s Request for Judicial Notice as follows: Granted as to Exhibit B (i.e., “Order for Probate” entered August 10, 2023 in case styled Estate of Marjorie Faith Sobosky, Case No. PR0882300842 [“Probate Action”]) and Granted as to Exhibit C (i.e., Letters Testamentary issued September 5, 2023 in the Probate Action).

The motion was originally heard on February 26, 2024; at that time, the court did not adopt its tentative ruling and continued the hearing to April 8, 2024.

The court agrees with Paul’s assertion that Code of Civil Procedure § 377.32[1] is not applicable because he is seeking an order to prosecute the litigation as a “personal representative” and not as a “successor in interest.”

Paul has submitted a declaration, wherein he attests that he is Marjorie’s successor in interest (Paul Decl., ¶ 1); that Marjorie died on May 11, 2023 at San Antonio Regional Hospital, 999 San Bernadino Road in Upland, California (Id., ¶ 2; see also “Notice of Errata Relating to Exhibit A in Motion to Substitute Plaintiff”); that he was appointed the executor of Marjorie’s will on August 10, 2023 and letters testamentary were issued on September 5, 2023 (Id., ¶ 3, Exhs. B and C) and that no other person has a superior right to continue this action or to be substituted for the decedent in this pending action (Id., ¶ 4).

[1] Code of Civil Procedure § 377.32 provides as follows: “(a) 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 under this article, shall execute and file an affidavit or a declaration under penalty of perjury under the laws of this state stating all of the following:

(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.’

(b) Where more than one person executes the affidavit or declaration under this section, the statements required by subdivision (a) shall be modified as appropriate to reflect that fact.