Judge Steven A. Ellis, Case Number: 20STCV11604, Date: 2023-10-20 Tentative Ruling

Judge: Steven A. Ellis, Case: 20STCV11604, Date: 2023-10-20 Tentative Ruling

Case Number: 20STCV11604 Hearing Date: April 11, 2024 Dept: 29

Motion to Substitute Successor in Interest filed by Brenda Wells.

Tentative

The motion is granted.

Background

This case arises out of an alleged slip and fall on March 25, 2018, at a Burger King location on Cherry Avenue in Long Beach, California.

On March 23, 2020, Plaintiff Richard Wells (“Plaintiff”) filed a Complaint against Defendants Burger King Corporation, California Food Management, LLC (collectively “Defendants”), and Does 1 through 25 asserting causes of action for general negligence and premises liability. Defendants filed an Answer on January 25, 2021.

On August 22, 2022, Defendants filed a motion for summary judgment. The motion was unopposed. On October 20, 2023, the Court granted Defendants’ motion for summary judgment.

The Court entered judgment in favor of Defendants, and against Plaintiff, on January 3, 2024.

On November 21, 2023, Defendants filed a notice of Plaintiff’s death. According to Defendants, Plaintiff died on August 13, 2023.

On March 11, 2024, Petitioner Brenda Wells (“Petitioner”) filed a Motion to Substitute Petitioner for the deceased Plaintiff as the plaintiff in this action. The Court shortened time, heard the motion on March 26, and denied the motion without prejudice for procedural reasons.

On March 27, Petitioner filed this motion, a new Motion to Substitute Petitioner for the deceased Plaintiff as the plaintiff in this action. On Petitioner’s opposed ex parte application, the Court shortened time and advanced the hearing date on this motion to April 11. Defendants filed their opposition on April 8.

Legal Standard

“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 representatives or, if none, by the decedent’s successor in interest.” (Code Civ. Proc., § 377.30.) After the death of a plaintiff, the court, on motion, shall allow a pending action that does not abate to be continued by the decedent’s personal representative or successor-in-interest. (Code Civ. Proc., § 377.31.)

The person who seeks to commence or continue a pending action as the decedent’s successor-in-interest shall execute and file an affidavit or declaration that includes (1) the decedent’s name; (2) the date and place of decedent’s death; (3) “No proceeding is now pending in California for administration of the decedent’s estate”; (4) a copy of the final order showing the distribution of the decedent’s cause of action to the successor-in-interest, if the decedent’s estate was administered; (5) either the declarant is the decedent’s successor in interest or the declarant is authorized to act on behalf of the decedent’s successor in interest, with facts in support thereof; (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”; and (7) that the statements are true, under penalty of perjury. (Code Civ. Proc., § 377.32, subd. (a).) The affidavit or declaration must attach a certified copy of the decedent’s death certificate. (Code Civ. Proc., § 377.32, subd. (c).)

Discussion

Plaintiff died on August 13, 2023. (B. Wells Decl., ¶ 3.) Petitioner, Plaintiff’s widow, seeks an order allowing her to substitute in as plaintiff in place of her deceased husband.

On March 27, 2024, Petitioner filed this motion to substitute.

The Declaration of Brenda Wells includes:

(1) the decedent’s name, Richard Wells;

(2) the date and place of Plaintiff’s death, August 13, 2023 in Los Angeles, California;

(3) that there is no proceeding now pending in California for the administration of Plaintiff’s estate;

(4) that Petitioner is the Plaintiff’s successor in interest;

(5) that no other person has a superior right to be substituted in for Plaintiff;

(6) and Petitioner declares these statements are true under penalty of perjury.

Petitioner also attaches copy of death certificate to this motion. (B. Wells Decl., Exh. C.)

The Court finds Petitioner’s declaration meets the requirements of Code of Civil Procedure section 377.31. As such, Petitioner’s motion is complete.

Defendants oppose the motion. They argue that now that judgment has been entered, there is no “pending action or proceeding” within the meaning of Code of Civil Procedure section 377.31. The Court does not read section 377.31 so narrowly. If Plaintiff were still alive, he could still bring a motion to set aside the judgment; as his cause of action does not abate with his death, the Court sees no reason to read section 377.31 to preclude his successor-in-interest from substituting in and bringing such a motion.

Defendants also argue that they have closed their litigation file and it would be highly prejudicial to them to allow the substitution. But that is an argument better addressed in the context of the (likely upcoming) motion to set aside the judgment, not the motion to substitute. Again, allowing the substitution does not, in itself, cause undue prejudice to Defendants; whether the motion were filed by Plaintiff (if he were still alive) or is now filed by his successor, the prejudice is the same and can be addressed in connection with the merits of the set aside motion.

Finally, the Court notes that allowing the motion to substitute, and then having the successor file an expected set aside motion, serves the interests of justice and may ultimately be in the interests of everyone. Defendant died before judgment was entered, and Defendants knew this before they submitted the judgment to the Court; there is at least a question about whether the Court should have entered judgment against a person known by the parties (but not the Court) to be deceased.

For the foregoing reasons, the Court GRANTS Petitioner’s motion to substitute a successor in interest.

Conclusion

The Court GRANTS Petitioner’s motion to substitute a successor in interest for Plaintiff.

The Court ORDERS that Petitioner Brenda Wells is hereby substituted as plaintiff in this action as the successor-in-interest of Plaintiff Richard Wells.

Moving party is ORDERED to give notice.