Judge: Theresa M. Traber, Case: 20STCV36872, Date: 2022-09-21 Tentative Ruling

Case Number: 20STCV36872    Hearing Date: September 21, 2022    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     September 21, 2022               TRIAL DATE: May 9, 2023

CASE:                         Anthony Victoria v. Connolly-Pacific Co.

CASE NO.:                 20STCV36872           

MOTION TO SUBSTITUTE SUCCESSOR-IN-INTEREST FOR PLAINTIFF ANTHONY VICTORIA FOR CONTINUING THIS PENDING ACTION

MOVING PARTY:               Plaintiff Anthony Victoria, deceased, by and through his attorneys.

RESPONDING PARTY(S): Notice of Non-Opposition filed by Defendant Connoly-Pacific Co. on September 8, 2022

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for Labor Code violations filed on September 25, 2020. Plaintiff alleges that Defendant retaliated against Plaintiff for reporting safety violations, and consistently committed numerous wage and hour violations including failure to pay wages due, failure to pay minimum wages, and failure to pay overtime compensation, as well as failure to provide rest breaks and itemized wage and hour statements.

Plaintiff, who is deceased, moves by and through his attorneys for an order substituting his successor-in-interest to continue this pending action.

TENTATIVE RULING:

Plaintiff’s motion for an order substituting his successor-in-interest, Janice Victoria, to continue this pending action is GRANTED.

DISCUSSION:

            Plaintiff moves for an order substituting his successor-in-interest, Janice Victoria, to continue this pending action.

            Except 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. (Code Civ. Proc. § 377.20.) A pending action or proceeding does not abate by the death of a party if the cause of action survives. (Code Civ. Proc. § 377.21.) Code of Civil Procedure section 377.31 provides that, “[o]n motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent’s personal representative or, if none, by the decedent’s successor in interest.” (Code Civ. Proc. § 377.31.) Section 377.32 sets for the requirements for such a motion, as follows:

(a) The 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.”

(b) Where more than one person executes the affidavit or declaration under this section, the statements required by subdivision (a) shall be modified as appropriate to reflect that fact.

(c) A certified copy of the decedent’s death certificate shall be attached to the affidavit or declaration.

(Code Civ. Proc. § 377.32.) Relief sought under this provision is mandatory if the statutory requirements are met. (Pepper v. Superior Court (1977) 76 Cal.App.3d. 252, 260-61.) If a personal representative has been appointed, only the personal representative has standing to pursue the action on behalf of the decedent. (Code Civ. Proc. § 377.31.)

            Here, Plaintiff has included a verified declaration from Plaintiff’s successor-in-interest, Janice Victoria, who seeks to continue this action. (Declaration of Janice Victoria ISO Mot.) The Declaration sets forth the decedent’s name, Anthony Victoria, and that he died on November 19, 2021 in Laguna Nigel, California. (Victoria Decl. ¶¶ 1-2.) The declaration does not state that the estate of the decedent was administered, and states that no proceeding is now pending in California for the administration of his estate. (Id. ¶ 3.) The Declaration states that Janice Victoria is the decedent’s surviving spouse and successor-in-interest. (Id. ¶ 4.) The decedent’s death certificate, attached to the Declaration, shows that Janice Victoria is Plaintiff’s surviving spouse. (Id. Exh. 1.) The declaration states 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. (Id. ¶ 5.) Finally, the declaration declares under penalty of perjury under the laws of the State of California that the foregoing statements are true and correct. (Id. p.2:14-15.)

            The Court finds that Plaintiff has complied with the statutory requirements of Code of Civil Procedure section 377.32. Accordingly, Plaintiff is entitled to an order substituting his successor-in-interest, Janice Victoria, to continue this pending action. 

CONCLUSION:

Accordingly, Plaintiff’s motion for an order substituting his successor-in-interest, Janice Victoria, to continue this pending action is GRANTED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: September 21, 2022                            ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.