Judge: Robert S. Draper, Case: 21STCV26047, Date: 2022-12-19 Tentative Ruling

Case Number: 21STCV26047    Hearing Date: December 19, 2022    Dept: 78

Superior Court of California 

County of Los Angeles 

Department 78 

Plaintiffs’ Motion to Name Rosa Elva Carlos Serrano (“Carlos”) as Successor in Interest for Plaintiff Martin Martin Gonzalez (“Gonzalez”) is CONTINUED for Thirty Days.

Plaintiffs are to submit a supplemental declaration from Successor in Interest Carlos stating “[n]o 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” as required by CCP section 337.32(6).

In addition, Plaintiffs are to attach Decedent’s birth certificate to the supplemental declaration.

FACTUAL BACKGROUND

This is an action for breach of the implied warranty of habitability in a residential apartment building. The operative First Amended Complaint (“FAC”) alleges as follows.

Plaintiffs are tenants of an apartment complex located at 10720 Burin Ave., Inglewood, California (the “Subject Property”). (FAC ¶¶ 1-7.) Defendant RACC Properties, LLC (“RACC”) owns and manages the Subject Property. (FAC ¶ 8.) Defendants Randy Stecyk and Amy E. Stecyk (together, “Stecyk”, and with RACC, “Defendants”) are managers of RACC. (FAC ¶ 11.)

Defendants have failed their statutory and common law duty of care by failing to repair and maintain the Subject Property to the detriment of Plaintiffs’ health and safety. (Compl. ¶ 16.) These defects include pest infestation, water leaks and chronic mold, and physical defects. (FAC ¶¶ 17(a-e).) Despite actual and constructive knowledge of these defects, Defendants failed to remedy the issues. (FAC ¶ 17.)

PROCEDURAL HISTORY 

On July 15, 2021, Plaintiffs filed the Complaint asserting seven causes of action:

1.    Breach of Implied Warranty of Habitability;

2.    Tortious Breach of Implied Warranty of Habitability;

3.    Negligence;

4.    Intentional Infliction of Emotional Distress;

5.    Private Nuisance;

6.    Violation of Civil Code section 1924.4; and,

7.    Violation of Business and Professions Code section 17200.

On September 29, 2021, Plaintiffs filed the First Amended Complaint asserting the same seven causes of action.

On November 8, 2021, Defendants filed an Answer.

On October 5, 2022, Plaintiffs filed a Motion for Leave to Amend Complaint. That motion will be heard on January 23, 2023.

On October 11, 2022, Plaintiffs filed the instant Motion to Appoint Successor in Interest for Plaintiff Martin Martin Gonzalez. No Opposition has been filed.

On October 24, 2022, Plaintiffs filed a Notice of Settlement. The Court will hear Plaintiffs’ Petitions to Confirm Minor’s Compromise as to this settlement between January and February 2023.

DISCUSSION 

I.                MOTION TO APPOINT A SUCCESSOR IN INTEREST

Plaintiffs move to appoint Rosa Elva Carlos Serrano as successor in interest for Plaintiff Martin Martin Gonzalez, who passed away intestate on October 6, 2022. Plaintiffs move pursuant to Code of Civil Procedure section 377.20, 377.31, and 377.33.

“A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent’s successor in interest . . . and an action may be commenced by the decedent’s personal representatives or, if none, by the decedent’s successor in interest.” (Code Civ. Proc., § 377.30.) After the death of a plaintiff, the court, on motion, shall allow a pending action that does not abate to be continued by the decedent’s personal representative or successor-in-interest. (Code Civ. Proc., § 377.31.) 

The person who seeks to commence or continue a pending action as the decedent’s successor-in-interest shall execute and file an affidavit or declaration stating: (1) the decedent’s name, (2) the date and place of decedent’s death, (3) “No proceeding is now pending in California for administration of the decedent’s estate,” (4) a copy of the final order showing the distribution of the decedent’s cause of action to the successor-in-interest, if the decedent’s estate was administered, (5) either the affiant or declarant is the decedent’s successor in interest or the affiant or declarant is authorized to act on behalf of the decedent’s successor in interest, with facts in support thereof, (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,” and (7) the statements are true, under penalty of perjury. (Code Civ. Proc., § 377.32.) 

Here, moving party Rosa Elva Carlos Serrano (“Carlos”) files a declaration with the motion stating: (1) Plaintiff’s name, Martin Martin Gonzales (Carlos Decl. ¶ 2); (2) Gonzalez passed away on October 6, 2022 (Ibid.); (3) No proceeding is now pending in California for administration of the decedent’s estate, and Carlos does not intend to start one (Id. ¶ 3); (4) Carlos is Gonzalez’s successor in interest with respect to the action (Id. ¶ 4); (5) Carlos attaches a copy of her and Gonzalez’s marriage certificate to her declaration.

However, Carlos’s declaration fails to state 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” as required by CCP section 377.32(6).

In addition, Plaintiffs state that Gonzalez’s death certificate is to be provided upon receipt. Gonzalez’s death certificate is required by Code of Civil Procedure section 377.32(c).

Accordingly, Plaintiffs’ Motion to Appoint a Successor in Interest is CONTINUED for thirty days.

Plaintiffs are to file a supplemental declaration containing the language required by CCP section 377.32(e) and Gonzalez’s death certificate. The Court will grant the motion at that time.

DATED:  December 19, 2022

___________________________

Hon. Robert S. Draper 

Judge of the Superior Court