Judge: Steven A. Ellis, Case: 22STCV24347, Date: 2024-05-28 Tentative Ruling
Case Number: 22STCV24347 Hearing Date: May 28, 2024 Dept: 29
Motion to Substitute Successor in Interest for Plaintiff Janette Sanchez.
Tentative
The motion is granted.
Background
On July 28, 2022, Janette Sachez (“Plaintiff”) filed a
complaint against Adan Ibarra (“Defendant”) for motor vehicle negligence and
general negligence causes of action arising out of an automobile accident
occurring on July 28, 2020.
On March 18, 2024, Plaintiff filed a notice of
settlement.
Plaintiff has passed away. On May 1, 2024, Matthew Bernardo Rodriguez
(“Petitioner”) filed this motion for an order to be appointed Plaintiff’s
successor in interest. 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
Plaintiff died on July 22, 2021, before
filing of the complaint. Petitioner is not listed on the complaint bringing
this action against Defendant.
“[Code of Civil Procedure section 377.32]
provision does not require that the affidavit be filed as a condition precedent
to commencing or continuing the action. However, failure to file the affidavit
could possibly subject the action to a plea in abatement.” (Parsons v.
Tickner (1995) 31 Cal.App.4th 1513, 1523–1524.)
In light of Plaintiff’s death, her son, Matthew
Bernardo Rodriguez, Petitioner, is her successor in interest to the Estate of
Plaintiff.
Petitioner moves for an order permitting his substitution
as the successor in Interest to Plaintiff’s causes of action.
The Declaration
of Matthew Bernardo Rodriguez includes:
(1) the decedent’s name, Janette Sanchez;
(2) the date of Plaintiff’s death, July 22, 2021;
(3) that there is no proceeding now pending in California
for the administration of Plaintiff’s estate;
(4) that he
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.
A copy of Plaintiff’s death certificate is
attached to this motion. (Shakhbazyan Decl., ¶ 2Exh. B.)
Petitioner’s unopposed motion satisfies all
substantive and procedural requirements.
It is granted.
Petitioner also requests the Court order him
Special Administrator for Plaintiff for the purpose of this case. That request is DENIED. He may continue to prosecute this action as
Plaintiff’s successor in interest pursuant to Code of Civil Procedure section 377.31
– no less and no more.
Conclusion
The Court
GRANTS Petitioner’s motion to be substituted as successor in interest for
Plaintiff.
Moving party is ORDERED to give notice.