Judge: Serena R. Murillo, Case: 20STCV00946, Date: 2023-04-20 Tentative Ruling

Case Number: 20STCV00946    Hearing Date: April 20, 2023    Dept: 29

TENTATIVE

Plaintiff Nikea Marshall’s unopposed motion to appoint Nikea Marshall as successor in interest of Plaintiff Da Jae Stewart’s causes of action is GRANTED. Plaintiff’s motion to enforce settlement and request for sanctions is DENIED without prejudice. 

Legal Standard

               Enforce Settlement

CCP section 664.6 provides that “[i]f parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement.  If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.”  (Code Civ. Proc., § 664.6.) 

Appoint Successor in Interest

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.) 

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.) 

Discussion

Plaintiff moves for an order substituting Nikea Marshall in place of Plaintiff Da Jae Stewart who is now deceased.

The declaration of Nikea Marshall is filed with the motion to substitute. The declaration satisfies all the requirements of CCP section 377.32(a), and Plaintiff has attached a certified copy of the decedent’s death certificate to the declaration as required under CCP section 377.32(c).

Thus, the motion to appoint a successor in interest is GRANTED.

Plaintiff also moves to enforce a settlement agreement with Defendants and requests sanctions. However, Plaintiff has not filed any evidence of a settlement agreement. Nor does the notice of the motion state that Plaintiff is seeking to enforce a settlement or put Defendants on notice of any sanctions. Further, Plaintiff has not provided any authority under which it seeks sanctions. Thus, the motion to enforce settlement and request for sanctions is DENIED without prejudice.

Conclusion

Accordingly, Plaintiff’s motion to appoint Nikea Marshall as successor in interest is GRANTED. Plaintiff’s motion to enforce settlement and request for sanctions is DENIED without prejudice.

Moving party is ordered to give notice.