Judge: Serena R. Murillo, Case: 21STCV42966, Date: 2022-10-26 Tentative Ruling

Case Number: 21STCV42966    Hearing Date: October 26, 2022    Dept: 29

Raymond Yashouafar v. Maria Elizabeth Domont

Motion to Substitute Defendant’s Successor in Interest filed by Plaintiff Raymond Yashaouafar

TENTATIVE

Plaintiff Raymond Yashaouafar’s Motion to Substitute Defendant’s Successor in Interest is DENIED. Plaintiff’s motion pursuant to Probate Code section 550 is GRANTED.

Legal Standard

Upon motion after the death of a person who commenced an action or proceeding, the court must 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 the following: 

a.                   The person who seeks to commence an action or proceeding or to continue a pending action or proceeding as the decedent’s successor in interest under this article, shall execute and file an affidavit or a declaration under penalty of perjury under the laws of this state stating all of 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.” 

b.                  Where more than one person executes the affidavit or declaration under this section, the statements required by subdivision (a) shall be modified as appropriate to reflect that fact. 

c.                   A certified copy of the decedent’s death certificate shall be attached to the affidavit or declaration. 

(Code Civ. Proc., § 377.32.) 

CCP section 377.41 provides that “[o]n motion, the court shall allow a pending action or proceeding against the decedent that does not abate to be continued against the decedent’s personal representative, or to the extent provided by statute, against the decedent’s successor in interest, except that the court may not permit an action or proceeding to be continued against the personal representative unless proof of compliance with Part 4 (commencing with Section 9000) of Division 7 of the Probate Code governing creditor claims is first made.”  (Code Civ. Proc., § 377.41.) 

Pursuing Insurance Proceeds 

Probate Code Section 550 states, “an action to establish the decedent’s liability for which decedent was protected by insurance may be commenced or continued against the decedent’s estate without needing to join as a party the decedent’s personal representative or successor in interest.” However, in such circumstances, recovery is limited based on the insurance coverage the decedent possessed at the time of the incident. (Probate Code § 554.)

Discussion

Since the time of the filing of Plaintiff’s Complaint, Defendant has died. In light of Defendant’s death, Plaintiff moves for an order permitting the substitution of Defendant’s Successor in Interest.

However, none of the requirements under CCP section 377.32(a) have been met. The person who seeks to commence an action or proceeding or to continue a pending action or proceeding as the decedent’s successor in interest, shall execute and file an affidavit or a declaration, which satisfies CCP section 377.32(a)(1)-(7.) No declaration is provided as Plaintiff does not know who Defendant’s successor in interest is. As such, the motion cannot be granted. Additionally, the Court notes the requirement under CCP section 377.32(c) has not been met either, as there is no certified copy of Defendant’s death certificate filed. The motion to substitute Defendant’s successor in interest is denied on these grounds.

Defendant has filed a notice of death. Accordingly, the Court grants Plaintiff’s motion pursuant to Probate Code § 550. Thus, recovery is limited as stated under Probate Code § 554. 

Moving party is directed to give notice.