Judge: Steven A. Ellis, Case: 21STCV22097, Date: 2023-08-25 Tentative Ruling

Case Number: 21STCV22097    Hearing Date: December 6, 2023    Dept: 29

Tentative

Motion to substitute is GRANTED.

Background

Travis Sanders ("Plaintiff") filed suit against Samuel Noah Lanier (“Defendant”) and DOES 1 through 50, alleging that Defendant collided with his vehicle on June 16, 2019. 

Plaintiff filed a Complaint on June 14, 2021, alleging two (2) causes of action: (1) Motor Vehicle Negligence and (2) General Negligence.

Plaintiff filed the Motion to Substitute on October 11, 2023. The Court has not received any opposition.

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

Since the time of the filing of Plaintiff’s Complaint, Plaintiff has died. In light of his death, his mother moves for an order permitting her substitution as the Successor in Interest to Plaintiff’s causes of action.

On October 11, 2023, this motion to substitute was filed. Attached to said motion is the Declaration of Jan Schilling, who states (1) her name and address, (2) decedent’s name, date and place of death, (3) the language “no other person has a superior right to commence the action or proceeding to be substituted for the Decedent’s interest in the action or proceeding,” (4) that no proceeding is now pending in California for decedent’s estate, (5) she is the decedent successor in interest, and (6) she signed it under the penalty of perjury. (Declaration of Jan Schilling.)

Attached to the motion is Plaintiff’s death certificate. As such, all the requirements to substitute Jan Schilling as the successor of interest for Travis Sanders are met.

Therefore, the Court GRANTS Plaintiff’s motion to substitute.

Conclusion

The Court GRANTS Plaintiff’s motion to substitute Jan Schilling in place of deceased Plaintiff.

Moving party is ORDERED to give notice.