Judge: Stephanie M. Bowick, Case: BC703209, Date: 2023-02-22 Tentative Ruling
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Case Number: BC703209 Hearing Date: February 22, 2023 Dept: 19
RULING
After consideration of the briefing filed and oral argument at the hearing, Plaintiffs 101 Vermont Auto Group and Andrew Hong’s unopposed Motion to Substitute in Executor for Deceased Party CCP 377.41 is GRANTED.
Counsel for Plaintiffs to give notice.
STATEMENT OF THE CASE
This case arises out of breach of
contract and fraud. Plaintiffs 101 Vermont Auto Group, Inc. (“101 Vermont”) and
Andrew Hong (“Hong”) (collectively, “Plaintiffs”) bring suit against Defendants
Joseph Schrage, Michael Schrage, Assets Of State Court Receivership Estate,
Byron Moldo, State Court Receiver, Sage Management Co., Inc., Sage Holding
Company, Sage Downtown, Inc., West Covina Auto Group, LLC, Sage MJL Properties,
LLC, UCNP II, LLC, UCNP 4, LLC UCNP 8, LLC, and UCN Partners, LLC alleging the
following causes of action:
1.
Breach of Contract [All Plaintiffs against
Joseph, Michael, and Entity Defendants as alter egos of Sage Vermont];
2.
Conversion [All Plaintiffs against all
Defendants)];
3.
Violation of Penal Code section 496a [All
Plaintiffs against all Defendants];
4.
Breach of Fiduciary Duty [Plaintiff 101 Vermont
Auto Group against all Defendants];
5.
Fraud [All Plaintiffs against all Defendants];
and
6. Express Indemnification [All Plaintiffs against Joseph, Michael, and Entity Defendants as alter egos of Sage Vermont].
Plaintiff has represented that Defendant Joseph Schrage passed away and a Petition for Probate has been filed. (See September 27, 2019 Minute Order.)
On June 7, 2022, Plaintiffs filed
the instant Motion to Substitute in Executor for Deceased Party CCP 377.41 (the
“Motion”).
GROUNDS FOR MOTION
Pursuant to Code of Civil Procedure section 377.41,
Plaintiffs move for an order to substitute Alexis Schrage as Executrix of the
Estate of Joseph Schrage for decedent Defendant Joseph Schrage.
The Court GRANTS Plaintiff’s unopposed request to take judicial notice of Exhibits 1 through 3. (See Evid. Code, § 452(d), (h).)
The Court GRANTS Plaintiff’s unopposed request to take judicial notice of Exhibits 4 and 5. (See Evid. Code, § 452(d), (h).)
DISCUSSION
As an initial matter, the Court notes that Defendants Joseph Schrage and Michael Schrage do not oppose the instant Motion, effectively consenting to the Court granting it. (See Cal. R. Ct., 8.54(c) [“A failure to oppose a motion may be deemed a consent to the granting of the motion.”].)
Civil Code section 377.41 provides as follows:
On 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.)
Probate Code section 9370 provides as follows:
(a) An action or proceeding pending
against the decedent at the time of death may not be continued against the
decedent’s personal representative unless all of the following conditions are
satisfied:
(1) A claim is first filed as provided
in this part.
(2) The claim is rejected in whole or
in part.
(3) Within three months after the
notice of rejection is given, the plaintiff applies to the court in which the
action or proceeding is pending for an order to substitute the personal
representative in the action or proceeding. This paragraph applies only if the
notice of rejection contains a statement that the plaintiff has three months
within which to apply for an order for substitution.
(b) No recovery shall be allowed in
the action against property in the decedent’s estate unless proof is made of
compliance with this section.
(Probate Code, § 9370; see id. at § 9256 [“If within 30 days after a claim is filed the personal representative or the court or judge has refused or neglected to act on the claim, the refusal or neglect may, at the option of the creditor, be deemed equivalent to giving a notice of rejection on the 30th day.”].)
The Court finds that Plaintiffs sufficiently establish that Alexis Schrage is Defendant Joseph Schrage’s personal representative. (RJN, Ex. 1.)
As explained in the Court’s December 12, 2022 Minute Order, the Court previously found that Plaintiffs failed to show proof of compliance with Part 4 (commencing with Section 9000) of Division 7 of the Probate Code governing creditor claim, reasoning that Plaintiff’s request for judicial notice of Exhibit 1, filed June 7, 2022, did not contain conformed copies of each of Plaintiffs’ creditors’ claims showing that they were timely filed. (See December 12, 2022 Minute Order, pp. 4-5.)
The Court takes judicial notice of Plaintiffs’ Exhibits 4 and 5 and find that Plaintiffs adequately establish compliance with Part 4 (commencing with Section 9000) of Division 7 of the Probate Code governing creditor claims. Exhibits 4 and 5 are conformed copies of Plaintiffs’ creditor’s claims with proofs of service indicating that they were served on Alexis Schrage, Defendant Joseph Schrage’s personal representative. (RJN, Exs. 3-4.)
Accordingly, the Court GRANTS Plaintiffs’ Motion.