Judge: Steven A. Ellis, Case: 21STCV38259, Date: 2024-01-05 Tentative Ruling

Case Number: 21STCV38259    Hearing Date: February 14, 2024    Dept: 29

Motion to Substitute Successor in Interest filed by Nicholas Turley.

Tentative

The motion is granted.

Background

Rodney Dowd ("Petitioner") filed a petition against James River Insurance Company, regarding an underinsured motorist arbitration on October 18, 2021.

Petitioner filed the Motion to Substitute on January 8, 2024. The Court has not received any opposition.

A prior motion to substitute was denied, without prejudice, for procedural reasons.

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 the Petition, Petitioner has died. In light of his death, his uncle Nicholas Turley, moves for an order permitting him substitution as the Successor in Interest to Petitioner’s causes of action.

On January 8, 2024, Petitioner filed this motion to substitute.

The Declaration of Nick Turley includes:

(1) the decedent’s name, Rodney Dowd;

 (2) the date and place of decedent’s death, March 6, 2022 n Los Angeles, CA;

(3) that “No proceeding is now pending in California for administration of the decedent’s estate”;

(4)  that Mr. Dowd is the decedent’s successor in interest;

(5) that “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

(6) Mr. Dowd declares these statements are true under penalty of perjury

Attached to the motion is Petitioner’s death certificate.

Therefore, the Court GRANTS Petitioner’s motion to substitute a successor in interest.

Conclusion

The Court GRANTS Petitioner’s motion to substitute Nicholas Turley in place of deceased Petitioner.

Moving party is ORDERED to give notice.