Judge: William A. Crowfoot, Case: 23AHCV02064, Date: 2023-12-27 Tentative Ruling

Case Number: 23AHCV02064    Hearing Date: December 27, 2023    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT

On September 7, 2023, this elder abuse action was filed by plaintiff Mary Swanston (“Plaintiff”). Plaintiff subsequently passed away on October 26, 2023. (Martin Decl., ¶ 1, Ex. 1.) On November 28, 2203, following an unsuccessful ex parte application, Plaintiff’s son, Jack I. Martin III (“Martin”) filed this noticed motion to be appointed as Plaintiff’s successor-in-interest.

“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.)

Plaintiff and Martin’s attorney, Rosalie E. Baladejo, declares that she previously appeared ex parte on November 14, 2023, and represented to the Court that Martin acted through his authorized power of attorney, Barbara Baltierra, because he was unable to do so on his own behalf. (Motion, Baladejo Decl., ¶ 3.) Baladejo then states that she was mistaken with respect to Martin’s mental capacity and apologizes for providing the inaccurate information. (Ibid.)

The Court has reviewed the declaration submitted by Martin and finds that it complies with section 377.32 of the Code of Civil Procedure. Accordingly, the motion is GRANTED.

Moving party to give notice.

Dated this 27th day of December 2023

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@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.