Judge: Serena R. Murillo, Case: 20STCV34670, Date: 2023-01-27 Tentative Ruling
Case Number: 20STCV34670 Hearing Date: January 27, 2023 Dept: 29
TENTATIVE
The motion to substitute successors in
interest is GRANTED.
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, her
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 the requirements of CCP
section 377.32(a). Further, Plaintiff has attached a certified copy of the
decedent’s death certificate to the declaration as required under CCP section
377.32(c). (Motion, Exh. A.) While David T. Smith is also the son of Plaintiff,
he has been unresponsive to counsel’s numerous inquiries asking whether he
would be Plaintiff’s successor in interest. (Cole Decl., ¶¶
3-14.) Moreover, he has been
unresponsive to counsel’s request to sign a relinquishment of interest in this
case. (Id., ¶¶
9-10.) As such, the Court finds that
David is uninterested in pursuing this case as Plaintiff’s successor in
interest.
Thus, the motion to appoint Cynthia
Brown and Marissa Escamilla’s as successors in interest is GRANTED.
Moving party is
directed to give notice.