Judge: William A. Crowfoot, Case: 20STCV31067, Date: 2022-12-16 Tentative Ruling

Case Number: 20STCV31067    Hearing Date: December 16, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On August 17, 2020, plaintiff Arlene Hernandez (“Plaintiff”) filed this action against defendants ABF Freight System, Inc. and John Doe arising from a motor vehicle collision that occurred on June 25, 2019.  On December 29, 2020, Plaintiff amended the complaint to name Arcbest II, Inc. as Doe 1.  On February 1, 2021, Plaintiff amended the complaint to add Carlos Doe as Doe 2.  On August 27, 2021, Plaintiff amended the complaint to add Carlos Castillo-Vallejo as Doe 3. 

Nearly a year later, on August 3, 2022, ABF Freight System, Inc., Arcbest II, Inc., and Carlos Castillo Vallejo (collectively, “Defendants”) filed a notice stating that Plaintiff passed away on or about the week of May 9, 2022.

On September 9, 2022, the Court granted Defendants’ ex parte application to vacate the final status conference and trial date due to Plaintiff’s death and the absence of any motion to substitute a successor-in-interest. 

On November 29, 2022, this motion was filed to substitute “Jennie Celena Momtano” and Lona Rose Lupica (collectively, “Moving Parties”) as Plaintiff’s successors-in-interest.  This motion was also served on Defendants’ counsel by electronic mail on November 29, 2022.  Therefore, as Defendants point out in their opposition brief, the scheduled hearing date provides insufficient notice pursuant to CCP 1005(b).  However, Defendants do not request a continuance and have submitted an opposition brief that substantively addresses the motion, therefore, the Court proceeds to rule on the motion on its merits. 

“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 stating: (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 affiant or declarant is the decedent’s successor in interest or the affiant or 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) the statements are true, under penalty of perjury.  (Code Civ. Proc., § 377.32.)

This motion is procedurally deficient.  First, the motion and accompanying declarations identifies “Jennie Celena Momtano” as one of Plaintiff’s daughters.  However, Defendants submits a portion of Plaintiff’s deposition testimony wherein she identifies her daughter as “Jennie Montono.”  In light of this evidence, it does not appear that “Jennie Celena Momtano” is the appropriate individual to serve as Plaintiff’s successor-in-interest.  Also, the Declaration of Lona Rose Lupica does not appear to be signed because the signature provided is identical to the one provided in the Declaration of Jennie Celena Momtano.  Indeed, Defendants raise serious concerns about the legitimacy of either Jennie or Lona’s declarations.

          Defendants also argue that substitution is futile because the statute of limitations has expired.  This argument is not well-taken.  Citing to CCP 366.1, Defendants contend that Moving Parties should have filed this motion before November 3, 2022, within 6 months of Plaintiff’s death on May 3, 2022.  Defendants incorrectly conflate filing a survival action with a motion to substitute a successor-in-interest.  This action was filed before the statute of limitations expired, therefore Code of Civil Procedure section 366.1 is inapplicable.  Moving Parties are not seeking to “commence” an action, but to continue an action that was already pending at the time of Plaintiff’s death.

          Nevertheless, because the moving papers are deficient, the motion to substitute a successor in interest is DENIED without prejudice.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.