Judge: Upinder S. Kalra, Case: 19STCV19115, Date: 2022-08-08 Tentative Ruling

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Case Number: 19STCV19115    Hearing Date: August 8, 2022    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   August 8, 2022                                               

CASE NAME:           Marcella McMahon v. California Automobile Insurance Company Formerly Known as Mercury Indemnity Company, et al. 

CASE NO.:                19STCV19115

PLAINTIFF’S MOTION TO APPOINT SUCCESSOR IN INTEREST

MOVING PARTY: Non-party Kenneth McMahon

RESPONDING PARTY(S): None as of August 3, 2022.

REQUESTED RELIEF:

1.      An order appointing Kenneth McMahon as Successor in Interest

TENTATIVE RULING:

1.      Motion to Appoint Kenneth McMahon as Successor in Interest is GRANTED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On June 3, 2019, Plaintiff Marcella McMahon (“Plaintiff”) filed a complaint against Defendants California Automobile Insurance Company, formerly known as Mercury Indemnity Company, Accurate Leak Locators and Does 1 through 100. The complaint alleged four causes of action: (1) Breach of Written Contract (Policy of Insurance), (2) Negligence, (3) Breach of Implied Covenant of Good Faith and Fair Dealing, and (4) Financial Elder Abuse. The complaint alleges that the Plaintiff obtained a insurance policy for the Subject Property. This insurance policy agreed to provide coverage for loss or damage due to accidental direct physical loss. In June 2018, the Plaintiff suffered a plumbing incident that caused physical damage to the Property. The Plaintiff then had Defendant Accurate perform work on the property, but as a result of jackhammering, Accurate exposed asbestos. Plaintiff then informed Defendant CAIC/Mercury, but the claim was denied.

On August 2, 2019, Defendant California Automobile Insurance Company filed a Demurrer with a Motion to Strike, which was SUSTAINED, with leave to amend.

On August 29, 2019, Defendant Accurate Leak Locators filed an Answer.

On August 29, 2019, Defendant Accurate Leak Locators filed a Cross-Complaint.

On September 23, 2019, Plaintiff filed a First Amended Complaint.

On October 23, 2019, Defendant California Automobile Insurance Company filed a Demurrer with a Motion to Strike.

On January 6, 2020, Plaintiff filed a Second Amended Complaint.

On February 5, 2020, Defendant California Automobile Insurance Company filed an Answer.

On November 4, 2020, Defendant California Automobile Insurance Company filed a Motion for Summary Judgment.

On January 7, 2022, the Hearing for Summary Judgment was continued after Plaintiff’s counsel informed the Court that the Plaintiff had passed away.

On May 10, 2022, Non-party Kenneth G McMahon, the Decedent’s son, filed the current motion to be Appointed as the Decedent’s Successor in Interest. No opposition has been filed.

LEGAL STANDARD

Following the death of a party, any legal action by that party may only proceed upon substitution of the decedent’s personal representative or successor in interest in her place.  (Code Civ. Proc. §§ 377.31, 367.)  California Code of Civil Procedure section 377.31 states 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.” 

California Code of Civil Procedure section 377.32, subdivision (a) states:  “The person who seeks . . . 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 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.’” 

A certified copy of the decedent’s death certificate must be attached to the declaration.  (Code Civ. Proc. §§ 377.32, subd, (c).)

Service:

The Proof of Service indicates that Mr. McMahon served the documents via mail to Defendants.

ANALYSIS:

Kenneth McMahon moves to be appointed as successor in interest. Mr. McMahon indicates that his mother, the Decedent Plaintiff Marcella McMahon, passed away on March 14, 2021. (Dec. McMahon Ex. A). Mr. McMahon’s brother, James G. McMahon was going to be continuing this action but passed away on September 11, 2021. (Dec. McMahon Ex. B). According to the Last Will and Testament, Mr. McMahon is the successor in interest under CCP § 377.11, and is the successor in interest to the real property involved in this current action. (Dec. McMahon, Ex. C D).

Mr. McMahon contends that under both CCP §§377.20 and 377.21, the Breach of Contract, Breach of the Implied Covenant of Good Faith and Fair Dealing, and the Negligent action all survive the Decedent’s death as the matter involved the policy of insurance for the property and damages to that property.

A party who moves to be appointed as successor in interest must comply with CCP § 377.32(a). Here, the declaration of Mr. McMahon is sufficient. It provides the following:

1.      Name of the decedent: Marcella McMahon

2.      The date and place of decedent’s death: March 14, 2021 in Cerritos, California

3.      “No proceeding is now pending in California for administration of the decedent’s estate”: Paragraph 3 of the Declaration indicates that no proceedings are pending for administration of the 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: Ex. D attached to the Declaration indicates that Mr. McMahon is the successor in interest according to the Affidavit of the Death of Joint Tenant

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

                                                              i.      ‘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.’ 

                                                            ii.      ‘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.’ 

b.      Paragraph 5 of the Declaration complies with subsection (a) – Mr. McMahon is the successor interest as defined under CCP § 377.11.

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”: Paragraph 6 of the Declaration that no other person has a superior right to continue the action.

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’”: the Declaration was made under penalty of perjury.

Lastly, under subsection (c), a certified copy of the death certificate must be attached. Ex. A provides both Marcella McMahon’s death certificate and James G. McMahon’s death certificate.

Conclusion:

            For the foregoing reasons, the Court decides the pending motion as follows:

            Motion to be Appointed as Successor in Interest is GRANTED.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             August 8, 2022                        __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court