Judge: Serena R. Murillo, Case: 19STCV32637, Date: 2022-09-13 Tentative Ruling

Case Number: 19STCV32637    Hearing Date: September 13, 2022    Dept: 29

James Cecil Lewis v. Red’s Iron Specialties, Inc.

Motion to Substitute as Successor in Interest filed by Plaintiff James Cecil Lewis

TENTATIVE

The motion to appoint Jonah Lewis as successor in interest is CONTINUED to 10/24/2022 at 1:30 p.m. so that Jonah can provide the Court with evidence showing he is the personal representative of Decedent’s estate.

Legal Standard

CCP section 377.31 provides that “[o]n 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.) 

Under Probate Code section 58(a), a personal representative is defined as an “executor… special administrator… successor personal representative.”  

CCP section 377.32 provides that a person who seeks to commence such an action as the decedent’s successor in interest must file an affidavit or declaration providing 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.” 

(Code Civ. Proc., § 377.32(a).)  A certified copy of the decedent’s death certificate must also be attached to the affidavit or declaration.  (Id., § 377.32(c).) 

“‘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.”  (Code. Civ. Proc., § 377.11.) A “beneficiary of the decedent’s estate” means “if the decedent died without a will, the sole person or all of the persons who succeed to a cause of action, or to a particular item of property that is the subject of a cause of action, under Sections 6401¿and¿6402 of the Probate Code¿or, if the law of a sister state or foreign nation governs succession to the cause of action or particular item of property, under the law of the sister state or foreign nation.” (Code of Civ. Proc., § 377.10.)

Discussion

Since the time of the filing of Plaintiff’s Complaint, Plaintiff has died. In light of his death, his son moves for an order permitting his substitution as the Successor in Interest to Plaintiff’s causes of action.

Jonah Lewis’ declaration is filed with the motion. However, according to CCP §377.32(a), a person who seeks to become a successor in interest must declare, in part “(3) no proceeding is now pending in California for administration of the decedent’s estate.” Jonah’s declaration states that his father’s estate is now in Probate. (Lewis Decl., ¶ 4.)  Therefore, the requirements stated in CCP §377.32, specifically subsection (a)(3), are not satisfied, as there is currently another proceeding pending for the administration of the decedent’s estate.  

However, the Court notes that Jonah declares that he is the executor of his father’s estate. (Lewis Decl., ¶ 4.) As such, the Court will construe this motion as a motion to appoint Jonah as personal representative of decedent’s estate because Jonah states he is the executor, and the definition of personal representative under Probate Code section 58(a) includes an “executor.” Nevertheless, counsel did not provide any documentation showing that the Probate Court has granted Jonah’s petition to be appointed as special administrator and/or documentation that Jonah has been appointed the personal representative of Decedent’s estate.  

Thus, the motion to appoint Plaintiff’s son, Jonah Lewis, as successor in interest is CONTINUED to 10/24/2022 at 1:30 p.m. so that Jonah can provide the Court with evidence showing he is the personal representative of Decedent’s estate.

Moving party is directed to give notice.