Judge Stephanie M. Bowick, Case Number: 21STCV44323, Date: 2023-08-14 Tentative Ruling

Judge: Stephanie M. Bowick, Case: 21STCV44323, Date: 2023-08-14 Tentative Ruling

DEPARTMENT 19 LAW AND MOTION RULINGS
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Case Number: 21STCV44323 Hearing Date: August 14, 2023 Dept: 19

RULING

After consideration of the briefing filed and oral argument at the hearing, the unopposed Motion for Order to Appoint Decedent Diana Sorges Alkana’s Personal Representative/Successor in Interest Per CCP 377.32 is GRANTED.

The Court signs the proposed order filed on May 19, 2023.

Counsel for Plaintiffs to give notice.

STATEMENT OF THE CASE

This case arises out of alleged fraud and negligence. Plaintiffs Diana Sorges Alkana, Trustee of The Diana Sorges Alkana Trust Dated January 8, 2004 and Diana Sorges Alkana (collectively, “Plaintiffs”) bring suit against Defendants Richard Conwell, Jonathan Edward Clark, Victor R. Wang, Adam Blanke a/k/a Adam Wilder, WWC Corp. dba Keep Your Kets Inc., WWC Holdings LLC, True Fit Real Estate, Inc., 1115 N San Gabriel LLC, and SRS Infrastructure (collectively, “Defendants”) alleging the following causes of action:

1. Fraud;

2. Breach Of Fiduciary Duty;

3. Constructive Fraud;

4. Wrongful Eviction —In Tort;

5. Conversion;

6. Conspiracy;

7. Financial Elder Abuse;

8. Cancellation Of Instruments;

9. Rescission;

10. Negligent Misrepresentation;

11. Negligence;

12. Negligence; And

13. Declaratory Relief.

On May 19, 2023, Plaintiffs filed the instant Motion for Order to Appoint Decedent Diana Sorges Alkana’s Personal Representative/Successor in Interest Per CCP 377.32 (the “Motion”)

GROUNDS FOR MOTION

Pursuant to Code of Civil Procedure section 377.31, Plaintiffs move for an order appointing Carol Walker Ng as Plaintiff Diana Sorges-Alkana’s personal representative/successor in interest.

DISCUSSION

“Except as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person’s death, but survives subject to the applicable limitations period.” (Code Civ. Proc., § 377.20(a).) “A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent’s successor in interest… and an action may be commenced by the decedent’s personal representative or, if none, by the decedent’s successor in interest.” (Code Civ. Proc., § 377.30.) Further, “[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.)

Code of Civil Procedure section 377.32 provides that:

(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.

(Code Civ. Proc., § 377.32.)

The Court finds the Affidavit/Declaration of Carol Walker Ng contains all the necessary information set forth in Code of Civil Procedure section 377.32.

Accordingly, the Court GRANTS the Motion.