Judge: Yolanda Orozco, Case: 20STCV02620, Date: 2022-12-06 Tentative Ruling

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**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

Case Number: 20STCV02620    Hearing Date: December 6, 2022    Dept: 31

MOTION FOR ORDER SUBSTITUTING PARTY IS GRANTED 

Background 

On January 21, 2020, Plaintiffs Darnell (“Darnell”) Jernigan and Delbert Jernigan (“Delbert”), individually and as successors to the interest of Derrick Ty Barrett (“Decedent”) (collectively “Plaintiffs”), filed a Complaint alleging causes of action for (1) premises liability, (2) negligence, and (3) products liability against Defendants L.A. Portfolio Management I, LLC (“LPM”), Hobart Portfolio, LLC (“HP”), and David Pourbaba (“David”) (collectively “Defendants”).  The Complaint alleges in pertinent part as follows.   

Sometime between February 27, 2018 to March 4, 2018, there was a gas leak in one or more of the water heater/boiling, venting, and other related devices, systems and structures (the “Systems”) at the real property located at 920 South Hobart Boulevard, Los Angeles (the “Property”). (Compl., ¶ 1.)  As a result of the gas leak, there was a dangerous and defective condition at the Property that led to the fatal distribution of carbon monoxide gas throughout the Property and intoxicated and poisoned Decedent. (Compl. ¶ 1.)  

On November 03, 2022, the Plaintiffs moved for an Order Substituting Manlio Gutierrez for and in place of Deceased Plaintiff Zoila Esperanza Cuadra De Gutierrez. 

No opposition has been filed. 

Legal Standard 

“On 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.” (Code Civ. Proc., § 377.31.) 

“(a) The person who seeks to commence an action or proceeding or 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 the 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 follow, 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.’

[ . . .]

(c)   A certified copy of the decedent’s death certificate shall be attached to the affidavit or declaration.”

(Code Civ. Proc., § 377.32) 

Discussion 

Plaintiff Zoila Esperanza Cuadra De Gutierrez passed away in Los Angeles, California on January 09, 2022. (Kaloustian Decl. ¶ 3, Ex. A; Gutierrez Decl. ¶ 2, Ex. A.) A certified copy of her death certificate is attached. (Id.) 

Plaintiffs’ counsel was informed of the passing the decedent in May 2022 and informed that Manlio Gutierrez is the surviving spouse of Plaintiff. (Kaloustian Decl. ¶ 4.) No probate proceeding is pending since Plaintiff’s estate is valued less than $150,000.00 and did not consist of real property pursuant to California Probate Code section 13100. (Id.) The decedent died intestate. (Gutierrez Decl. ¶ 6.) Therefore, there is no proceeding pending in California for the administration of the decedent’s estate. Manlio Gutierrez is the successor-in-interest to the decedent. (Gutierrez Decl. ¶ 3.) 

Mr. Gutierrez asserts that Manlio Gutierrez is the successor-in-interest to the decedent under the Code of Civil Procedure section 377.11 and that no other person has a superior right to be substituted for the decedent in this pending actin. (Gutierrez Decl. ¶¶ 4, 5.) 

The motion is GRANTED. 

Conclusion 

Plaintiffs’ Motion for an Order Substituting Manlio Gutierrez for Deceased Plaintiff Zoila Esperanza Cuadra De Gutierrez in this action is GRANTED. 

Moving Party to give notice.