Judge: Upinder S. Kalra, Case: 22STCV14834, Date: 2022-12-15 Tentative Ruling

Case Number: 22STCV14834    Hearing Date: December 15, 2022    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   December 15, 2022                                        

CASE NAME:           Galina Spivak, et al. v. James Karubian  

CASE NO.:                22STCV14834

MOTION TO APPOINT SUCCESSOR IN INTEREST

MOVING PARTY: Plaintiff Galina Spivak

RESPONDING PARTY(S): None as of December 12, 2022

REQUESTED RELIEF:

1.      An order appointing Galina Spivak as Successor-in-Interest of Plaintiff Anna Magidene

TENTATIVE RULING:

1.      Motion for Order Appointing Galina Spivak as Successor-in-Interest of Plaintiff Anna Magidene is GRANTED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On May 4, 2022, Plaintiffs Galina Spivak, Boris Spivak, Anna Magidene, and Sarah-Lia Spivak (“Plaintiffs”) filed a complaint against Defendant James Karubian (“Defendant.”) The complaint alleges five causes of action: (1) Negligence, (2) Trespass, (3) Private Nuisance, (4) Premises Liability, and (5) Wanton and Reckless Misconduct. Plaintiffs allege that they were owners of residences located in Los Angeles. Defendant owned residences next door to Plaintiffs residence. Due to Defendant’s negligence by failing to maintain the vacant properties in a reasonable manner, Plaintiffs’ residence was damaged due to a fire on the vacant property.

On June 3, 2022, Plaintiff filed a Notice of Related Case, as to Case Nos. 22STCV01882 and 22STCV13881.  

On June 9, 2022, Non-Party California Fair Plan Association filed a Notice of Related Case, as to Case Nos. 22STCV13881 and 22STCV01882.

On September 12, 2022, Plaintiff filed a Motion to Continue Decedent’s Action as Successor-in-Interest.

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).)

ANALYSIS:

            Plaintiff moves to have Galina Spivak appointed as Anna Magidene successor in interest. Plaintiff Anna Magidene died on July 20, 2021

This action arises out of a fire that occurred in January 2021 on the property of Defendant James Karubian. This fire destroyed Plaintiffs’ homes and this matter is also related to other causes of action and has been consolidated. (Dec. Reed. ¶ 2-3.)

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

1.      Name of the decedent: Anna Magidene

2.      The date and place of decedent’s death: July 20, 2021, in Los Angeles, California

3.      “No proceeding is now pending in California for administration of the decedent’s estate”: Paragraph 2 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: The Declaration of Beatriz Ramirez does not indicate that the estate was adminstrered. 

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 3 of the Declaration complies with subsection (a) – Galina Spivak is the successor interest as defined under CCP § 377.11, as she is the daughter and sole heir of Anna Magidene.

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 5 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 Anna Magidene’s death certificate.

Conclusion:

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

            Motion for Order Appointing Galina Spivak as Successor-in-Interest of Plaintiff Anna Magidene is GRANTED.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             December 15, 2022                 _________________________________                                                                                                                  Upinder S. Kalra

                                                                                    Judge of the Superior Court