LINDA DELGADO VS ROLLIN LEO BARRY

Tentative Rulings

Case Number: BC693834    Hearing Date: October 31, 2019    Dept: 4B

[TENTATIVE] ORDER RE: MOTION FOR SUBSTITUTION OF SUCCESSOR IN INTEREST FOR DECEASED DEFENDANT

On August 6, 2018, Plaintiffs Valerie Sapot and Noah Sapot (collectively, “Plaintiffs”) filed this action against Defendant Rosemarie Palanchian (“Defendant”) for damages arising from a motor vehicle collision. Defendant passed away on March 11, 2019. She left her property in an inter vivos trust named Babe’s Trust. Plaintiffs seek leave to substitute Judith Cocuzza and Jaqueline Cocuzza-Walker, the trustees and beneficiaries of Babe’s Trust, as party defendants in this case. 

When a defendant dies, “the court shall allow a pending action or proceeding against the decedent that does not abate to be continued against the decedent’s personal representative, or to the extent provided by statute, against the decedent’s successor in interest . . . . (Code Civ. Proc., § 377.41.) The plaintiff must timely file a creditor’s claim against the estate. (Ibid.) The “ ‘decedent’s success in interest’ means the beneficiary of the decedent’s estate or other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of a cause of action.” (Code Civ. Proc., § 377.11.) Where there is no proceeding to administer the probate estate of a deceased settlor, and no notice to creditors is filed or published pursuant to Probate Code sections 19003 and 19040, a trust beneficiary is personally liable, to the extent provided in Probate Code section 19402, for the unsecured claims of the creditors of the deceased settlor’s probate estate. (Probate Code, § 19400.) A probate or trust estate is not a legal entity; it is simply a collection of assets and liabilities. As such, it has no capacity to sue, be sued or defend an action. Any litigation must be maintained by, or against, the executor, administrator or trustee of the estate. (Galdjie v. Darwish (2003) 113 Cal.App.4th 1331, 1344.)

Plaintiffs’ attorney submits a declaration stating Defendant’s attorney confirmed there is no probate administration of Defendant’s estate and that no probate or trust claims procedure has been used. (Declaration of Chance J. Pardon, ¶ 4.) Plaintiff’s attorney also declares that through conversations with Defendant’s attorney, it is her understanding that Defendant’s property was held in trust and that Judith Cocuzza and Jaqueline Cocuzza-Walker are trustees and beneficiaries of the trust.

The motion is therefore GRANTED, and Judith Cocuzza and Jaqueline Cocuzza-Walker, the beneficiaries and trustees of Babe’s Trust, are substituted as Defendant’s successor in interest.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. 

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.

Case Number: BC693834    Hearing Date: October 29, 2019    Dept: 4B

[TENTATIVE] ORDER RE: MOTION FOR SUBSTITUTION OF MICHELLE M. BARRY-SUZUKI AS PERSONAL REPRESENTATIVE FOR DECEASED DEFENDANT

On February 13, 2018, Plaintiff Linda Delgado filed this action against Defendant Rollin Leo Barry for damages arising from a motor vehicle collision on February 18, 2016. Defendant passed away on March 17, 2019, leaving his daughter, Michelle M. Barry-Suzuki, as the executor. Ms. Barry-Suzuki was eventually named as a special administrator of Defendant’s estate. Plaintiff seeks leave to substitute Ms. Barry-Suzuki, as a party defendant in this case.

A probate or trust estate is not a legal entity; it is simply a collection of assets and liabilities. As such, it has no capacity to sue, be sued or defend an action. Any litigation must be maintained by, or against, the executor, administrator or trustee of the estate. Galdjie v. Darwish (2003) 113 Cal.App.4th 1331, 1344. An action pending against a decedent at the time of death may be continued against decedent's personal representative, thus exposing decedent's estate to potential liability in excess of any liability insurance, provided: a formal creditor's claim is first properly filed and rejected by the representative; and the plaintiff substitutes the representative as a party to the action within three months after rejection of the claim (provided the notice of rejection expressly advises plaintiff of this requirement). (Prob. Code, § 9370 subd. (a).) A claim is deemed rejected if the personal representative does not act on it within thirty days. (Prob. Code, § 9256.)

Plaintiff’s attorney submits a declaration attaching a copy of the creditor’s claim filed and served on July 22, 2019 and attests that no response has been received, and thus it is deemed rejected. Plaintiff filed this motion seventeen days after her creditor’s claim was deemed rejected. There is no opposition to the motion. The motion is therefore GRANTED, and Michelle M. Barry-Suzuki as the personal representative is substituted for Defendant Rollin Leo Barry.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.