Judge Upinder S. Kalra, Case Number: 19STCV35714, Date: 2025-01-28 Tentative Ruling

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MOTION FOR CONTINUING PEDNING ACTION BY DECEDENT MEGAN RUSSO-KHAN’S SUCCESSOR IN INTEREST

MOVING PARTY: Plaintiffs Endanicha Bragg, Tracy Plummer, Marisol Romero, Kaiaunna Smith, Megan Russo-Kahn, and Clarissa Hernando

1. An Order allowing Michael Kahn to continue as successor in interest for Plaintiff Megan-Russo-Kahn.

1. Motion to Continue Pending Action by Decedent Megan Russo-Kahn’s Successor in Interest is GRANTED.

On October 7, 2019, Plaintiffs Endanicha Bragg, Tracy Plummer, and Marisol Romero (Plaintiffs) filed a Complaint against Defendants Pacific Maritime Association (PMA), International Longshore and Warehouse Union (ILWU), and International Longshore and Warehouse Union Local 13 (Local 13) (collectively, Defendants).

On April 16, 2020, Plaintiffs filed a First Amended Complaint (FAC) which added Plaintiffs Nola Hall and Jacqueline Sierra. The FAC has nine causes of action for: (1) Failure to Reasonably Accommodate Pregnancy, Failure to Provide Reasonable Advance Notice (Cal. Gov’t Code § 12945(a)(3), Cal. Code Regs. Tit. 2 § 11049(a)); (2) Failure to Reasonably Accommodate Lactation, Failure to Provide Reasonable Advance Notice (Cal. Gov’t Code § 12945(a)(3)(A), 2 Cal. Code Regs. § 11035(d), § 11049(a); Cal. Lab. Code §§ 1030, 1033); (3) Failure to Engage in Good-Faith Interactive Process to Reasonably Accommodate Pregnancy (Cal. Gov’t Code § 12945(a)(3); Cal. Code Regs. Tit. 2 11040(a)(2)(B)); (4) Failure to Engage in Good-Faith Interactive Process to Reasonably Accommodate Lactation (Cal. Gov’t Code § 12945(a)(3), Cal. Code Regs. Tit. 2 § 11040(a)(2)(B), § 11035); (5) Disparate Treatment Discrimination Based on Sex/Pregnancy (Cal. Gov’t Code § 12940(a)-(b), Cal. Code Regs. Tit. 2 § 11044(d)(1)); (6) Disparate Impact Discrimination Based on Sex/Pregnancy (Cal. Gov’t. Code § 12940(a)-(b)); (7) Interference with California Family Rights Act and Pregnancy Disability Leave Law (Cal. Gov’t Code §§ 12945(a)(4), 12945.2(t), Cal. Code Regs. Tit. 2 §§ 11044(d), 11092(d)); (8) Failure to Prevent Discrimination (Cal. Gov’t. Code § 12940(k)); and (9) Unfair Competition in Violation of Unfair Competition Law (Cal. Bus. & Prof. Code §§ 17200, et seq.)

Plaintiffs allege that they all became pregnant during the course of their work and were unable to obtain necessary accommodations related to their pregnancies. They further allege that Defendants’ failure to accommodate violated California law, resulted in lost pay and loss of seniority needed to acquire union membership.

On July 14, 2020, Plaintiffs filed a declaration and request to allow Jacqueline Sierra to withdraw as a class representative and to dismiss her claims without prejudice.

On August 26, 2020, Plaintiffs filed a declaration and request to allow Nola Hall to withdraw as a class representative and to dismiss her claims without prejudice.

On September 22, 2022, the court GRANTED Plaintiffs’ motion for leave to file a Second Amended Complaint (SAC).[1]

On October 24, 2022, Plaintiffs filed the SAC. The SAC added additional plaintiffs: Kaiaunna Smith, Megan Russo-Kahn, and Clarissa Hernando. The SAC also added additional factual allegations.

On August 18, 2023, the parties filed a Stipulation and Order to extend the five0year rule (CCP § 583.310 et seq.).

On October 5, 2023, the parties filed a Stipulation and Order to extend the parties’ deadlines for Plaintiffs’ motion for class certification.

On October 24, 2023, the parties filed a stipulation and order to extend the deadlines and page limits for Plaintiffs’ motion for class certification and Defendants’ opposition.

On September 19, 2024, Plaintiffs filed the instant Motion to Continue Pending Action by Decedent Megan Russo-Kahn’s Successor In Interest. There are no oppositions.

“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).)

Plaintiffs contend that the court should allow Michael Kahn as the Successor In Interest for Plaintiff Megan Russo-Kahn (decedent) to continue in her place. Plaintiffs further contend this motion is unopposed by Defendants.[2]

Here, movant Michael Kahn substantially complied with CCP § 377.32 by submitting an affivadit with the required items. First, the declaration includes decedent’s name. (Kahn Dec. ¶ 2.) Second, it states she died on December 7, 2023 in Wilmington, California. (Ibid.) Third, it states no proceeding is pending in California for administration of her estate. (Id. at ¶ 3.) The fourth item is not applicable because Ms. Russo-Kahn’s estate was not administered. (Id. at ¶ 4.) Mr. Kahn substantially complied with the fifth and sixth items because he states in the declaration that he married decedent on March 20, 2021 and the attached death certificate indicates he is her husband. (Id. at ¶ 5, Exhibit 1.) Additionally, Mr. Kahn indicates that decedent died intestate. (Id. at ¶ 3.) Pursuant to Probate Code § 6401(a), Mr. Kahn is entitled to decedent’s one-half portion of community property. The claims accrued during the marriage. (Kahn Dec. ¶ 5.) Therefore, decedent’s one-half of the community interest in those claims transferred to Mr. Kahn upon decedent’s death. (Probate Code § 6401(a).) As such, this requirement is met. Finally, Mr. Kahn declared under penalty of perjury that these statements are true. What is more, the Defendants do not oppose this motion.

1. Motion to Continue Pending Action by Decedent Megan Russo-Kahn’s Successor in Interest is GRANTED.

[1] Plaintiffs’ motion indicated in was the first amended complaint, but it is really a second amended complaint.

[2] Plaintiffs provide emails indicating Defendants do not oppose this motion. (Parker Decl., Exhibit 2.)