Judge: Steven A. Ellis, Case: 20STCV48102, Date: 2023-11-09 Tentative Ruling
Case Number: 20STCV48102 Hearing Date: April 4, 2024 Dept: 29
Motion to Substitute Plaintiff’s Successor’s in Interest
Tentative
The motion is granted.
Background
Plaintiff Elora Bridges ("Plaintiff") filed the
complaint in this action on December 16, 2020, against Howard Altman, Howard Altman as Trustee of the Maximum
Respect Trust, and Does 1 through 50, alleging injuries from a slip and
fall occurring on January 2, 2019. In
2021, Plaintiff amended the complaint to name Annette E Reusch Deed Trust and
Wilshire Courtyard LP Lessee as Doe 1; First Entertainment Credit Union as Doe
2 (subsequently dismissed); Omni Wilshire Courtyard, LLC as Doe 3 (subsequently
dismissed); and Wilshire Courtyard, L.P. as Doe 4. On March 17, 2022, Wilshire Courtyard, L.P.
filed an answer.
On May 10, 2023, Plaintiff filed a notice of settlement
of the entire case.
On October 2, 2023, a motion was filed to substitute
successors-in-interest Kaseem Ali, Michael Fennel, Kim Moore, and Martin Moore for
Plaintiff, who is deceased. On November
9, 2023, the Court continued the hearing on the motion so that moving parties
could cure certain procedural defects in the motion. On January 3, 2024, the hearing was continued
again for the same reason.
On January 22, 2024, moving parties filed the Declaration
of Timothy M. Ghobrial, Esq. in support of their motion.
No opposition has been filed.
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
On October 2, 2023, Plaintiff filed this
motion to substitute. Attached to said motion are the Declarations of Kaseem
Ali, Michael Fennel, Kim Moore, and Martin Moore, the children of Plaintiff.
However, these declarations are missing necessary information under Code of
Civil Procedure section 377.32, specifically:
(1)
Place of decedent’s death;
(2)
That there is no proceeding now
pending in California for administration of decedent’s state;
(3)
A copy of the final order relating to
the administration of the decedent’s estate;
(4)
That the declarant is decedent’s
success in interest or is authorized to act on behalf of the decedent’s
successor in interest; and
(5)
That no other person has a superior
right to be substituted for decedent.
Attached to the
motion is Plaintiff’s death certificate. (Exhibit 3.)
On January 22, 2024, the Declaration of
Timothy M. Ghobrial, Esq. was filed with declarations of Kim Moore, Michael
Fennel, Martin Moore, and Kaseem Ali attached.
The Court finds that all substantive and
procedural requirements are met. The
motion is granted.
Conclusion
The Court GRANTS
the motion to substitute.
The Court ORDERS
that successors-in-interest Kaseem Ali, Michael Fennel, Kim Moore, and Martin
Moore, are substituted into the action as plaintiffs in place of Elora Bridges,
who is deceased.
Moving party is
ORDERED to give notice.