Judge: Teresa A. Beaudet, Case: 20STCV10828, Date: 2023-03-20 Tentative Ruling

Case Number: 20STCV10828    Hearing Date: March 20, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

 

john a. carr,

                        Plaintiff,

            vs.

lucy m. johnson, et al.,

                        Defendants.

Case No.:

20STCV10828

Hearing Date:

March 20, 2023

Hearing Time:

2:00 p.m.

[TENTATIVE] ORDER RE:

 

MOTION TO SUBSTITUTE CO-EXECUTORS IN PLACE OF DECEASED PLAINTIFF/COUNTER DEFENDANT JOHN A. CARR;

 

MOTION TO SUBSTITUTE PARTIES

 

 

Background

            On March 18, 2020, Plaintiff John A. Carr filed this action against a number of defendants. On July 28, 2020, Plaintiff filed an amendment to the Complaint naming Eric Walker (“Walker”) in place of “Doe 4.” The operative Second Amended Complaint (“SAC”) was filed on October 13, 2020 and asserts causes of action for (1) quiet title and (2) cancellation of deed.

            On May 20, 2021 Walker filed a “Crossclaim” against (1) M.J. Carr; (2) Urban Realty Acquisition Group 2019, Inc.; (3) Ronald Perlstein, Trustee of the Ronald Perlstein Money Purchase Pension Plan, Entrust IRA # 10393; (4) Lucy M. Johnson, Trustee of the Johnson Family Irrevocable Trust Dated 8/01/19; (5) Danco Inc.; (6) Western Fidelity Associates, LLC, and (7) “All Persons Unknown, Claiming Any Legal or Equitable Right, Title, Estate, Lien, or Interest in the Property Described in the Crossclaim Complaint Adverse to Crossclaim Plaintiff’s title thereto, or Any Cloud on Crossclaim Plaintiff’s Title Thereto.” Walker’s cross-complaint

asserts two causes of action for quiet title. 

            John A. Carr, now deceased, by and through the Estate of John Allen Carr, Rose M. Carr and Patrick E. Carr (the “Carrs”) moves to substitute “Co-Executors” in place of John A. Carr. No opposition to this motion was filed.

Walker also moves for an order substituting the Estate of Lucy Maxine Johnson in place of thirteen parties in this action. No opposition to the motion was filed.

Discussion

 

Motion to Substitute Co-Executors in Place of Deceased Plaintiff/Counter Defendant John A. Carr

The Court first notes that at the Case Management Conference on January 30, 2023, the Court raised the issue of whether the Carrs must have an attorney to appear on their behalf as co-executors of the Carr Estate.  The Carrs have not addressed this issue and they have not appeared through counsel.

The Court next notes that on January 27, 2023, the Carrs filed and served a document entitled “Motion to Substitute Co-Executors in Place of Deceased Plaintiff/Counter Defendant John A. Carr.”  However, the document does not contain a notice of the motion nor does it contain a memorandum of points and authorities in support of the motion.  Instead, the Carrs have presented a list of numbered paragraphs that reference various code sections and contain no discussion of any applicable case law.

In the document filed by the Carrs, they reference Cal. Code Civ. Proc., § 377.20, subd. (a) which states that “[e]xcept as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person’s death, but survives subject to the applicable limitations period. The Carrs indicate that John A. Carr died during the pendency of this action on July 5, 2021. (Declaration By Successors in Interest, ¶ 2.)

In the SAC in this action, it is alleged that John A. Carr “is the owner by adverse possession of the Subject Property and specifically owns the fee simple absolute title to the Subject Property.” (SAC, ¶ 17.) The Carrs assert that John A. Carr’s adverse possession claim to such property is not impaired by his death. The Carrs cite to Code of Civil Procedure section 327, which provides that “[t]he right of a person to the possession of real property is not impaired or affected by a descent cast in consequence of the death of a person in possession of such property.” The Carrs do not provide any case authority or discussion as to how Code of Civil Procedure section 327 demonstrates that John A. Carr’s causes of action survive his death.

In addition, pursuant to Code of Civil Procedure section 377.32, subdivision (a), “[t]he person who seeks to commence an action or proceeding or to continue a pending action or proceeding as the decedent’s successor in interest under this article, shall execute and file an affidavit or a declaration under penalty of perjury under the laws of this state stating all of the following:

 

(1) The decedent’s name.

 

(2) The date and place of the decedent’s death.

 

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

 

(4) If the decedent’s estate was administered, a copy of the final order showing the distribution of the decedent’s cause of action to the successor in interest.

 

(5) Either of the following, as appropriate, with facts in support thereof:

 

(A) “The affiant or declarant is the decedent’s successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) and succeeds to the decedent’s interest in the action or proceeding.”

 

(B) “The affiant or declarant is authorized to act on behalf of the decedent’s successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) with respect to the decedent’s interest in the action or proceeding.”

 

(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.”

 

(7) “The affiant or declarant affirms or declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct.” (Code Civ. Proc.,            § 377.32, subd. (a).)

            In addition, “[a] certified copy of the decedent’s death certificate shall be attached to the affidavit or declaration.” (Code Civ. Proc., § 377.32, subd. (c).)

With regard to the requirements of Code of Civil Procedure section 377.32, subdivision (a), the Carrs list the decedent’s name (John A. Carr). The Carrs state that John A. Carr died on July 5, 2021, in Carlsbad, California. (Declaration By Successors in Interest, ¶ 2.)

The Carrs do not indicate in their Declaration that “[n]o proceeding is now pending in California for administration of the decedent’s estate.” (Code Civ. Proc., § 377.32, subd. (a)(3).)

Rather, Rose M. Carr and Patrick E. Carr state that they were appointed as Co-Executors for the Estate of John A. Carr on May 3, 2022 in Cause No. 37-2021-00051182-PR-PW, Superior Court of California, County of San Diego, and that “[s]uch estate remains open and has not been closed.” (Declaration By Successors in Interest, ¶ 3.)

            The Carrs also do not specifically provide in their declaration that “[t]he affiant or declarant is the decedent’s successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) and succeeds to the decedent’s interest in the action or proceeding,” nor are facts provided in support thereof. (Code Civ. Proc., § 377.32, subd. (a)(5)(A).) Rather, the Carrs state that they “succeed to the decedent’s interest in this action or proceeding.” (Declaration By Successors in Interest, ¶ 4.)

            In addition, a death certificate is attached to the Declaration by Successors in Interest, but it is not authenticated in the Declaration. (Code Civ. Proc., § 377.32, subd. (c).)

            The Court also notes that the Carrs seek to substitute the Co-Executors in place of “Counter Defendant John A. Carr.” As set forth above, Walker filed a “Crossclaim” in this action on May 20, 2021. However, John A. Carr does not appear to have been named as a Cross-Defendant in Walker’s “Crossclaim.”

            Based on the foregoing, the Court denies the Carr’s motion, without prejudice.

“Motion to Substitute Parties”

 In Walker’s Motion to Substitute Parties, Walker indicates that he applies “for an Order substituting the Estate of Lucy Maxine Johnson in place of thirteen parties in this action.” (Mot. at p. 2:2-3.)

As an initial matter, the Court notes that on July 25, 2022, Walker filed a previous motion to “substitute the Estate of Lucy Maxine Johnson in place of thirteen parties.” (July 25, 2022 Mot. at p. 2:3.)[1] On September 7, 2022, the Court issued an Order denying Walker’s July 25, 2022 motion to substitute parties.

            The Court notes that pursuant to Code of Civil Procedure section 1008, subdivision (b), “[a] party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.” Walker has not complied with the requirement of this provision in the instant motion. 

            The Court also does not find that Walker has set forth legal authority to support granting the instant motion. Walker asserts that[b]ecause the thirteen Walker family parties named by the Carr Complaint have an interest in the Subject Property only through inheriting it, and because the Estate represents their interests to the extent they will inherit, the Estate is the proper party in lieu of the Walker family parties.” (Mot. at p. 7:13-16.)

Walker states that Lucy Maxine Johnson, a defendant in John A. Carr’s SAC, is Walker’s grandmother. (Walker Affidavit, ¶ 7.) Walker indicates that Lucy Maxine Johnson died on June 17, 1991, and left a will devising her property including the property that is the subject of this action. (Walker Affidavit, ¶¶ 7, 11.) Walker was appointed as the Special Administrator of the Estate of Lucy Maxine Johnson. (Walker Affidavit, ¶ 20.) Walker asserts that the Estate of Lucy Maxine Johnson represents the interest of thirteen parties that are defendants in the SAC in the instant case. (Walker Affidavit, ¶ 24.)   

            Walker cites to Probate Code section 9820, which provides that “[t]he personal representative may: (a) Commence and maintain actions and proceedings for the benefit of the estate. (b) Defend actions and proceedings against the decedent, the personal representative, or the estate.The Court does not find that this authority demonstrates that the Estate of Lucy Maxine Johnson may be substituted in place of the subject thirteen defendants named in John A. Carr’s SAC.   

            Walker also cites to Olson v. Toy (1996) 46 Cal.App.4th 818, 823-824, where the Court of Appeal noted that “[t]he general rule, both at common law and under the codes, is that the executor or administrator is the proper party to sue on behalf of the estate . . . . In the absence of special circumstances . . . neither one nor all of the heirs or distributees under a will can sue alone, and they are not necessary or proper parties to a suit by the representative.” (Internal emphasis omitted.) However, here, Walker seeks to substitute the Estate of Lucy Maxine Johnson in place of defendants in John A. Carr’s action, he does not argue that an executor or administrator should sue on behalf of the estate.

Conclusion

Based on the foregoing, the Motion to Substitute Co-Executors in Place of Deceased Plaintiff/Counter Defendant John A. Carr is denied without prejudice.

Walker’s Motion to Substitute Parties is denied.  

The Court reminds the parties to deliver courtesy copies of their papers to Dept. 50 at the time the documents are filed and serve.  

The Court orders Walker to give notice of this ruling.

 

DATED:  March 20, 2023                             

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court



[1]The thirteen parties identified in the July 25, 2022 motion and the instant motion are the same.