Judge: Robert B. Broadbelt, Case: BC696666, Date: 2023-10-10 Tentative Ruling

Case Number: BC696666    Hearing Date: February 13, 2024    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             Plaintiffs AWI Builders, Inc., Construction Contractors Corporation, Zhirayr “Robert” Mekikyan, and Anna Mekikyan

RESPONDING PARTY:       Unopposed

Motion to Substitute Estate in Place of Deceased Defendant

The court considered the moving papers filed in connection with this motion.  No opposition papers were filed.

DISCUSSION

Plaintiffs AWI Builders, Inc., Construction Contractors Corporation, Zhirayr “Robert” Mekikyan, and Anna Mekikyan (“Plaintiffs”) move the court for an order substituting the “Estate of Susan Nakagama” (“Estate”) in place of defendant Susan Nakagama (“Defendant”) in this action on the ground that Defendant is now deceased.

 “[A] cause of action against a decedent that survives may be asserted against the decedent’s personal representative or, to the extent provided by statute, against the decedent’s successor in interest.”  (Code Civ. Proc., § 377.40.)  “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 or, to the extent provided by statute, against the decedent’s successor in interest, 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.”  (Code Civ. Proc., § 377.41.)  

Plaintiffs have presented evidence establishing that Defendant passed away on November 10, 2022.  (Pacheco Decl., Ex. A, p. 2 [Defendant’s Death Certificate].)  However, Plaintiffs have not (1) presented authority establishing that the court may substitute the Estate in place of Defendant, or (2) submitted evidence showing that Plaintiffs have complied with the Probate Code, such that Plaintiffs may substitute Defendant’s personal representative (i.e., Harold T. Payne) as defendant pursuant to section 377.41.

The court therefore denies Plaintiffs’ motion without prejudice to Plaintiffs filing a motion that complies with Code of Civil Procedure sections 377.40 and 377.41.

ORDER

            The court denies plaintiffs AWI Builders, Inc., Construction Contractors Corporation, Zhirayr “Robert” Mekikyan, and Anna Mekikyan’s motion to substitute estate in place of deceased defendant without prejudice.

            The court orders plaintiffs AWI Builders, Inc., Construction Contractors Corporation, Zhirayr “Robert” Mekikyan, and Anna Mekikyan to give notice of this ruling.

IT IS SO ORDERED.

DATED:  February 13, 2024

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court