Judge: Serena R. Murillo, Case: 21STCV01619, Date: 2022-10-28 Tentative Ruling
Case Number: 21STCV01619 Hearing Date: October 28, 2022 Dept: 29
Raul Leon Sanchez v. Rafael Vaca, et al.
Motion to Substitute as Successor in Interest filed by Plaintiff Raul
Leon Sanchez
TENTATIVE
The motion to appoint Sari Flores as
successor in interest is CONTINUED to December 7, 2022.
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.)
In turn,
Probate Code section 6402 provides, in pertinent part:
“…the entire intestate estate if there is no
surviving spouse, passes as follows:
(a)
To the issue of the decedent…
(Probate Code section 6402.)
Discussion
Since the time of the filing of Plaintiff’s Complaint, Plaintiff
has died. In light of his
death, Sari Flores moves for an order permitting her substitution as
the Successor in Interest to Plaintiff’s causes of action.
On September 6,
2022, the Court continued the matter to allow Plaintiff’s proposed successor in
interest to file more information with the Court. However, Plaintiff has not
yet filed this information. Thus, the Court will continue one last time for
Plaintiff to do so.
Conclusion
Accordingly, the motion to appoint Sari
Flores as successor in interest is CONTINUED to December 7, 2022, to allow
Plaintiff to present more information and evidence of the marriage.
Alternatively, if Flores and Plaintiff are divorced, Plaintiff should move to
substitute their children as successors in interest, instead.
Moving party is
directed to give notice.