Judge: Theodore R. Howard, Case: 20-1172971, Date: 2023-05-18 Tentative Ruling

Plaintiff Stephanie Burnett’s (“Plaintiff”) Motion to Substitute Stephanie Burnett for deceased plaintiff Lonzell Burnett as successor-in-interest (“Motion”) is DENIED without prejudice.

Stephanie brings the Motion pursuant to Civ. Proc. Code §§ 377.20 and 377.31, which generally permit a successor-in-interest to substitute into an action on behalf of a party who has died while a lawsuit is in progress. 

However, as defendants Philip Straw, D.C., Vivienne Nicole Reign, Optimal Health Straw Chiropractic, Inc., and Neuropathy Solutions, Inc. (“Defendants” together) point out, the complaint contains two emotional distress causes of action as well as claims for pain and suffering that do not survive a party’s death pursuant to Civ. Proc. Code § 377.34(a).  (Gailing v. Rose, Klein & Marias (1996) 43 Cal. App. 4th 1570, 1577; The MEGA Life & Health Ins. Co. v. Superior Ct. (2009) 172 Cal. App. 4th 1522, 1533.)  Permitting Stephanie to take over those causes of action and claims would likely not be correct as Plaintiff recovery for those items on behalf of plaintiff/decedent Lonzell Burnett (“Lonzell”) would be barred.

Additionally, Plaintiff attached what appears to be a First Amended Complaint (“FAC”) but did not reference the purpose of this document anywhere in the Notice, Motion, or Declaration.  To the extent Plaintiff wishes to file an amended complaint, she has made no such request or motion to that effect.  The FAC also contains the same causes of action and claims for damages that would now be barred with the death of Lonzell.  Also as noted by Defendants, Plaintiff failed to comply with several requirements of CRC 3.1324.

Plaintiff did not file any reply brief to rebut Defendants’ arguments.

The Motion is denied without prejudice.

Defendants to give notice.