Judge Ralph C. Hofer, Case Number: 19GDCV00161, Date: 2023-09-08 Tentative Ruling

Judge: Ralph C. Hofer, Case: 19GDCV00161, Date: 2023-09-08 Tentative Ruling

Case Number: 19GDCV00161 Hearing Date: September 8, 2023 Dept: D

TENTATIVE RULING

Calendar: 2

Date: 9/8/2023

Case No: 19 GDCV00161 Trial Date: None Set

Case Name: Allen v. Belillti, et al.

MOTION FOR SUBSTITION AS SUCCESSOR

IN INTEREST

Moving Party: Cynthia Charles, as Successor Trustee

Responding Party: Defendants Oran Belillti, Shalom Belillti, Jacqueline Belillti,

Sandra Belillti, and Ortan Construction, Inc.

RELIEF REQUESTED:

To be substituted as plaintiff in this action as the successor-in-interest to plaintiff/decedent Diahanna Allen

SUMMARY OF FACTS:

Plaintiff Diahanna Allen alleges that she is 87 years old, and disabled, and the sole owner of two residential properties in the City of Glendale, which are approximately one block from each other at 1538 Highland Avenue and 1613 Highland Avenue. Plaintiff alleges that the 1538 Property contains a one-story main house, a garage and guest house, and that in 2012, plaintiff met with defendants Oran Belillti (Oran) and Shalom Belillti (Shalom), the Chief Financial Officer and Chief Executive Officer, respectively, of defendant Ortam Construction, Inc. (Ortam Construction), to discuss a remodel project involving the 1538 Property, specifically, to make the property ADA-compliant, add a second story to the main house with an elevator, legalize the guest house so that a full-time caregiver could reside there, and alter the garage. Plaintiff also wished to have defendants perform remodeling services at the 1613 Property.

Plaintiff alleges that in January 2013, defendants had plaintiff sign a kitchen remodeling contract in connection with the 1613 Property, and also in 2013 began performing services in connection with the 1538 property, although plaintiff did not sign a home improvement contract with respect to the 1538 Property until May of 2014, at which time defendants extracted a payment of $120,000 from plaintiff, far in excess of the $1,000 down payment which is permissible for such a contract. Plaintiff alleges that defendants Oran and Shalom recognized that plaintiff had financial resources at her disposal, and so repeatedly visited her to extract payments from her and have her sign confusing contracts/change orders for the projects, but did not perform the services promised, and presented contracts and change orders which involved the same scope of work or work for which plaintiff had been previously billed. They instructed plaintiff to issue checks, which she did.

Plaintiff also alleges that defendants Oran and Shalom, along with their spouses, defendants Sandra Belillti (Sandra) and Jacqueline Belillti (Jacqueline) took plaintiff to dinner approximately once a month, every other month, doing so under the pretense of friendship, when they were in reality acting to further a scheme of elder abuse. The complaint alleges that defendants extracted nearly $900,000 from plaintiff, but plaintiff received minimal, if any, value for the services which were performed at either Property, and that almost all of the work performed is defective, shoddy, and incomplete, and much of the work was done without obtaining the required permits.

The file shows that on October 10, 2022, a Notice of Death was filed, indicating that plaintiff Allen had died on October 7, 2022.

ANALYSIS:

The substitution here is sought due to the death of plaintiff. CCP § 377.20 (a) provides that “a cause of action for or against a person is not lost by reason of the person’s death but survives subject to the applicable statute of limitations period.” CCP § 377.21 provides “A pending action or proceeding does not abate by the death of a party if the cause of action survives.”

Accordingly, under CCP § 377.31:

“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.”

The motion is brought by Cynthia Charles, as Successor Trustee of the Revocable Living Trust of Robert B. Allen and Diahanna L. Allen Trust Dated July 26, 1991 (Allen Trust) and as Successor Trustee of the Diahanna L. Allen Separate Property Trust dated August 6, 2012 (Separate Property Trust) (collectively the "Trusts"). The motion indicates that Charles is the currently acting Trustee of the Allen Trust, which holds the sole interest in the 1538 Highland Avenue Property and is also the currently-acting Trustee of the Separate Property Trust, which holds sole interest in the 1613 Highland Avenue property. [Charles Decl., ¶¶ 2, 3, 7-9]. Pursuant to the terms of the Trusts, Charles is accordingly decedent’s successor in interest. [Charles Decl. ¶¶ 7-9].

Charles relies on CCP § 377.11, which provides, in pertinent part:

“For purposes of this chapter, ‘decedent’s successor in interest’ means the beneficiary of the decedent’s estate or other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of a cause of action.”

Since Charles has succeeded to the real property that is the subject of the causes of action, and to decedent’s community and separate property interests, Charles as Successor Trustee appears to qualify as decedent’s successor in interest.

Where a party is a successor in interest, a declaration containing specified information must be filed pursuant to CCP § 377.32, which provides:

“(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.

Here, the declaration states the name of decedent, and her date and place of death. [Charles Decl. ¶ 5]. A copy of the death certificate is attached. [Charles Decl. ¶ 5, Ex. A]. The declaration also states that there is no proceeding pending for administration of plaintiff’s estate, that declarant is the successor in interest, and that 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. [Charles Decl. ¶¶ 6, 7, 10]. The declaration is signed under penalty of perjury.

The declaration is in order, and Charles argues that the language of CCP section 377.31 is mandatory, so that Charles “has an absolute right to be substituted for the decedent.” Adams v. Superior Court (2011, 2nd Dist.) 196 Cal.App. 4th 71, 79, quoting 22 Cal. Law Revision Com. Rep. (1992) pp. 895, 901, fn. 10, 932.

Defendants have filed an untimely opposition, filed and served one court day late, possibly due to a failure to account for the Labor Day court holiday. The Court reluctantly has considered this opposition, particularly as the reply has properly and timely objected on this ground.

In any case, defendants in opposition do not challenge the status of Charles as successor in interest, or the sufficiency of the declaration submitted, but argue that the motion is untimely.

Defendants argue that here plaintiff Allen died on October 7, 2022, so that a motion for substitution must have been filed within six months. That six-month period ran on May 10, 2023, but this motion was not filed until July 10, 2023, so was two months late.

Defendants rely on CCP section 366.1, without quoting its language. This omission is likely because the statute in its plain terms does not apply here.

CCP section 366.1 provides:

“If a person entitled to bring an action dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced before the expiration of the later of the following times:

(a) Six months after the person's death.

(b) The limitations period that would have been applicable if the person had not died.”

Charles in reply argues that defendants rely on a statute which does not apply to the situation here, but to a situation where no action has yet been commenced on behalf of a deceased person, when there is no question that the decedent here, plaintiff Allen had commenced this action before her death.

This approach appears to be the proper analysis; the statute expressly applies to the time when “an action may be commenced.”

As set forth above, relief here is properly sought here under CCP § 377.31, which expressly applies:

(Emphasis added).

The statute applies to a motion “after the death of a person who commenced an action,” there is no six-month time limit included in this statute, and the statute relied upon by defendants does not apply here. The only pleading that is untimely here is the opposition.

CCP § 377.31 includes mandatory language, “shall.” There is no argument by defendants that challenges Charles’ showing under this statute on its merits, such as that the action has abated or there is a personal representative or a successor in interest with a superior right to be substituted into the action.

Moreover, Charles points out in the motion and reply that with respect to the cause of action for Elder Abuse, by express statutory provision, Charles is entitled to continue to pursue the claim.

Welfare & Institutions Code § 15657.3 (d) states, in pertinent part:

“(1) Subject to paragraph (2) and subdivision (e), after the death of the elder or dependent adult, the right to commence or maintain an action shall pass to the personal representative of the decedent. If there is no personal representative, the right to commence or maintain an action shall pass to any of the following, if the requirements of Section 377.32 of the Code of Civil Procedure are met:…

(B) The decedent's successor in interest, as defined in Section 377.11 of the Code of Civil Procedure.”

Here, Charles has established that she is the decedent’s successor in interest, and has submitted a declaration meeting the requirements of CCP § 377.32, as discussed above, so meets the requirements of the Welfare & Institutions Code as well. The motion accordingly is granted.

RULING:

Motion of Non-Party Cynthia Charles for Substitution in Place of Plaintiff Diahanna Allen as Plaintiff’s Successor-in-Interest is GRANTED.

The Court finds that Cynthia Charles as Successor Trustee of the Revocable Living Trust of Robert B. Allen and Diahanna L. Allen Trust Dated July 26, 1991 and as Successor Trustee of the Diahanna L. Allen Separate Property Trust dated August 6, 2012 sufficiently has established that she is the Successor in Interest of decedent plaintiff Diahanna Allen pursuant to CCP § 377.11 and has submitted the declaration required by CCP § 377.32.

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE

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