Judge: Serena R. Murillo, Case: 20STCV34670, Date: 2022-12-09 Tentative Ruling

Case Number: 20STCV34670    Hearing Date: December 9, 2022    Dept: 29

TENTATIVE

The motion to substitute successor in interest is CONTINUED until January 27, 2023 at 1:30 p.m..

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.) 

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 her death, his daughter and granddaughter move for an order permitting their substitution as the Successors in Interest to Plaintiff’s causes of action.

Cynthia Brown and Marissa Escamilla’s declarations are filed with the motion. The declarations satisfy most of the requirements of CCP section 377.32(a), however, they do not state decedent’s place of death. Further, Plaintiff has attached a certified copy of the decedent’s death certificate to the declaration as required under CCP section 377.32(c). However, the Court has reviewed Plaintiff’s trust attached to the motion, which also lists Plaintiff’s son David T. Smith as a beneficiary. The motion has not addressed David T. Smith’s interest. As Plaintiff’s son, David has a superior interest than Plaintiff’s granddaughter, Escamilla. As such, the Court inquires as to David’s status. Is he alive? If he is and if David wishes to relinquish his interest as a successor in interest in this matter, his declaration is required stating so.

Thus, the motion to appoint Plaintiff’s daughter and granddaughter as successors in interest is CONTINUED to allow Plaintiff to present more information as to whether David is alive and if so, evidence is required to show he relinquishes his right to commence this action. Further, Plaintiff’s daughter and granddaughter’s declarations should state the place of Decedent’s death.

Moving party is directed to give notice.