Judge Ralph C. Hofer, Case Number: 21GDCV01289, Date: 2023-12-08 Tentative Ruling

The complaint alleges that Ivy Fung, the mother of plaintiff Kurt Takashi Ando, created a Revocable Trust in 2016. Ivy Fung was the Trustee, with successor Trustees being plaintiff and/or Marie Bernardini. The Trust was created by Ivy Fung after she was diagnosed with terminal illness, and was revocable until her death, after which the Trust became irrevocable and all Trust property was to be handed over to her only child and next of kin, plaintiff. Ivy Fung transferred her real property in La Crescenta to the Trust.

The complaint alleges that Marie Bernardini had been named as a successor trustee by connections between Ivy Fung, Bernardini, defendant Chaba Monari and defendant Church of Scientology. Plaintiff alleges that trust funds were used to pay defendant Monari over $200,000 a year from 2016-2017, and that following the death of Ivy Fung, Marie Bernardini began encumbering the property with loans facilitated by other defendants, used trust funds and loans to pay off her personal obligations, transferred funds to her company defendant Realty Home Solutions, and that following Marie Bernardini’s death, Bernardini’s husband defendant Jim Cox sold the property to a bona fide purchaser. The trust was depleted of all funds with the exception of $3,000. The complaint also alleges that defendant Cox removed personal property of Ivy Fung from the property, including expensive jewelry. The complaint alleges causes of action for breach of fiduciary duty, conspiracy, conversion, and negligence.

The file shows that on October 6, 2022, the court heard an OSC re: Default Judgment/Default Prove Up, at which the court was informed that defendant Jim Cox Sr. was deceased, with decedent’s son, James Cox Jr. being present in court. The court ordered the OSC discharged and stayed the case “in its entirety, pending the disposition of the probate case.”

On September 11, 2023, the court conducted a Status Conference Re: Stay/Probate Case/Status of Successor in Interest, at which Travis Cox, son of decedent, was present in court. The court ordered the stay previously ordered to remain in full force and effect pending a hearing on this motion to substitute Travis Cox as a party defendant in this action.

This motion was originally heard on December 8, 2023. The motion was continued to this date, January 26, 2024, for the submission of supplemental evidentiary proof concerning compliance with the requirements of the Probate Code, with the stay of this matter to remain in effect pending the continued hearing on the matter. Plaintiff has filed a timely supplemental declaration in support of the motion.

Plaintiff brings this motion seeking an order substituting Travis Cox as party defendant in this action in place of defendant Jim Cox, deceased, in the capacity of Travis Cox as the personal representative of the Estate of Jim Cox.

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.” There is no challenge here that the causes of action do not survive.

“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...”

“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...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.”

“(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:

(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.

The supplemental declaration here shows that on January 23, 2023, an attorney for Bradley Tyer filed a Petition for Letters of Administration and Authorization to Administer Under the Independent Administration of Estates Act, requesting that Bradley Tyer be appointed administrator of the Estate of James Gilbert Cox III. [Supp. Shapiro Decl., para. 3, Ex. 1]. The petition indicates that petitioner, a creditor, has contacted the issue of the decedent and requested each of them to open a probate to satisfy a judgment owed by the decedent, and that since all heirs expressed that they did not intend to open probate, petitioner was requesting appointment as administrator of the Estate. [Ex. 1, Attach. 3g(2)(a)].

The supplemental declaration also now attaches a Creditor’s Claim filed in the case number assigned to the Petition on January 24, 2024, by claimant Bradley Tyer, who indicates claimant is the attorney representing a judgment creditor and has legal power of attorney, and sets forth as facts supporting the creditor’s claim that there is a case pending in the Glendale courthouse, that the Glendale court has ordered the civil case stayed pending disposition of the probate case, and which attaches minute orders from this Glendale action. [Supp. Shapiro Decl. para. 4, Ex. 2]. The claim states the total amount of the claim is $1,200,000.00. [Ex. 2, para. 1].

The supplemental declaration also states that the Creditor’s Claim has not been granted or denied as of the date of the submission of the declaration, and that “[a]s of this date, no allowance or rejection of the Creditor’s Claim has been made.” [Supp. Shapiro Decl., paras. 5, 9].

The motion previously had argued that since no rejection or allowance of the creditor’s claim has been made to date, under Probate Code section 9256, a creditor may deem a claim rejected 30 days after it is filed.

“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.”

The court previously had been concerned that the showing was incomplete, as there had been no evidence confirming that plaintiff filed a creditor’s claim, or when it was filed. That evidence has now been submitted, and a copy of the claim submitted, as discussed above. Although the claim does not identify plaintiff Ando as the creditor upon whose behalf claimant/attorney Tyer is making the claim, there is reference to the Civil Case of “Kurt Takashi Ando v. Jim Cox.” [Ex. 2, p. 2]. The claim appears to satisfy the requirement under Probate Code section 9370, as set forth above, that plaintiff provide “proof” of compliance with the section, including proof that “(1) A claim is first filed,” by plaintiff in accordance with the section.

The court also had been concerned that the moving papers did not include evidence supporting plaintiff’s argument that that there was no notice of rejection served, when under subdivision (a)(2), plaintiff must provide proof that the claim has been “rejected in whole or in part.”

The court was also previously concerned that without proof of a notice of rejection, or lack thereof, the court could not confirm that subdivision (a)(3) would not apply here, requiring plaintiff to have applied to the court for an order to substitute the personal representative, “within three months after the notice of rejection is given,” if the notice contains a statement with this requirement. Specifically, this motion was filed on August 30, 2023, and without details concerning the disposition of the claim, it could not be confirmed that the motion was timely.

The evidence submitted now includes a direct representation by counsel that there has been no action on the claim. [Supp. Shapiro Decl., paras. 5, 9]. It appears that under Probate Code section 9256, “the court or judge has… neglected to act on the claim,” and that the neglect may be deemed equivalent to giving notice of rejection on the 30th day. The technical rejection of the claim here made on January 24, 2023, which would be deemed a notice of rejection as of February 23, 3023, appears to have accordingly been a rejection with did not contain a statement that plaintiff has three months within which to apply for an order for substitution. This motion, filed on August 20, 2023 would be timely.

“On August 15, 2023, the Probate Court appointed Travis Ethan Cox as Personal Representative of the Estate. A true and correct copy of the Minute Order from Probate Case 23STPB00726 is attached hereto as Exhibit 1.”

Plaintiff’s counsel submits a copy of a minute order in the Probate Action, 23 STPB00726, In re: Cox, James Gilbert, III- Decedent, dated August 15, 2023 in which Travis Ethan Cox was appointed personal representative of the estate:

“The Petition - Probate of Lost Will (Subsequent) filed on 6/1/2023 by Travis Ethan Cox is granted. Travis Ethan Cox is/are appointed Personal Representative(s) of the Estate with limited IAEA. Bond is ordered in the amount of $307,000.00.

The supplemental declaration also submits this minute order, along with an Order for Probate signed August 31, 2023, and filed September 1, 2023 appointing Travis Cox as personal representative, administrator with will annexed of the Estate of James Gilbert Cox III, aka James Cox. [Supp. Shapiro Decl., paras. 7, 8, Exs. 4, 5]. Travis Cox is the appropriate representative to be substituted as defendant for Jim Cox III. The motion accordingly is granted.

Motion for Substitution of Personal Representative is GRANTED, pursuant to CCP section 377.40 and CCP section 377.41, based on proof that Travis Cox has been appointed personal representative of the estate of decedent defendant James Gilbert Cox, III aka James Cox, and that plaintiff has submitted proof of compliance with Part 4 (commencing with Section 9000) of Division 7 of the Probate Code governing creditor claims.

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