Judge: Serena R. Murillo, Case: 19STCV32637, Date: 2022-10-24 Tentative Ruling

Case Number: 19STCV32637    Hearing Date: October 24, 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 December 1, 2022 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

On September 13, 2022, the motion to appoint Plaintiff’s son, Jonah Lewis, as successor in interest was continued so that Jonah can provide the Court with evidence showing he is the personal representative of Decedent’s estate. This evidence has not yet been filed with the Court. Thus, the Court will continue the matter to December 1, 2022, to allow Jonah more time to file these documents.

Moving party is directed to give notice.