Case Number: BD391049 Hearing Date: February 26, 2018 Dept: 59

DEPT: 59

DATE: 2/26/18

MATTER: RFO ASSIGNING TO PETITIONER ANY AND ALL MONIES DUE TO BE PAID TO THE CHRIS THOMPSON LIVING TRUST FROM THE PROCEEDS OF SALE OF REAL PROPERTY OWNED BY GRAND CENTRAL ASSOCIATES LLP AND/OR METROPOLITAN PROPERTY ASSOCIATES, LLP

FILING DATE: 1/19/18

MOVING PARTY: Petitioner, Tracy Thompson (by counsel)

RESPONDING PARTY: Respondent, Chris Thompson, deceased, and Respondent’s beneficiaries, Richard Thompson, Taylor Thompson and Lola Thompson (latter in pro per)

CASE NUMBER: BD391049

NOTICE:

1. Petitioner did not give a sufficient amount of notice to Lola, who has asked for a continuance based on improper service, among other things. The POS of substituted services indicates that after the papers were left with co-occupant on 1/31/18, they were mailed to Lola on 2/1/18. As a result, service was deemed completed on 2/11/17 (10 days after mailing). (Code of Civil Procedure § 415.20(b).) Therefore, only 8 court days of notice was given to Lola instead of 16 court days, as required by Code of Civil Procedure 1005.

2. Respondent’s two other children were properly served.

DENY: Lack of substitution of Respondent’s personal representative or successor(s) in interest and/or because this request needs to be made by filing a creditor’s claim in a probate action.

REASONING:

1. Petitioner has cited to the wrong law and brought this request in the wrong action. The ability of a judgment creditor to reach property of a decedent debtor in satisfaction of a judgment is governed by the Probate Code, not by Enforcement of Judgments law under the Code of Civil Procedure. (Embree 125 CalApp4th 487.)

Probate Code 9300 states:

(a) Except as provided in Section 9303 [property is subject to execution lien at the time of decedent’s death], after the death of the decedent all money judgments against the decedent or against the personal representative on a claim against the decedent or estate are payable in the course of administration and are not enforceable against property in the estate of the decedent under the Enforcement of Judgments Law (Title 9 (commencing with Section 680.010) of Part 2 of the Code of Civil Procedure).

(b) Subject to Section 9301, a judgment referred to in subdivision (a) shall be filed in the same manner as other claims.

(Probate Code 9300.)

2. Furthermore, an action cannot be maintained by or against a deceased person. (See Weil & Brown, California Practice Guide: Civil Procedure Before Trial, Sections 2:128 & 2:503.) Nor can an action be maintained against Respondent’s estate, since an estate is not an entity known to the law. (Lazar v. Estate of Lazar (1962) 208 Cal.App.2d 554, 557.)

Since judgment of dissolution was entered in this case before Respondent’s death, the action can be maintained against Respondent’s personal representative (e.g., executor, administrator, administrator with the will annexed, etc., who has been issued letters (Probate Code 58(a) & 8400) or successor(s) in interest, “except that the court may not permit an action or proceeding to be continued against the personal representative unless proof of compliance with Part 4 (commencing with Section 9000) of Division 7 of the Probate Code governing creditor claims is first made.” (CCP 377.41.)

LAW:

1. Generally: “Where a party dies before the marriage is dissolved, the dissolution action must abate and the court can make no further orders with respect to property rights, spousal support, costs or attorney fees. On the other hand, when a judgment of dissolution has been entered and a party later dies, the court retains jurisdiction to adjudicate the reserved issues.” (In re Marriage of Allen (1992) 8 Cal.App.4th 1225, 1229.) “Where one party dies during the pendency of a dissolution proceeding, the court retains power to enter judgment in conformity with matters adjudicated before the death, but cannot adjudicate unresolved issues.” (Estate of Blair (1988) 199 Cal.App.3d 161, 167 (citing In re Marriage of Williams (1980) 101 Cal.App.3d 507, 510-511).)

Code of Civil Procedure 377.41 states:

“On motion, 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, except that the court may not permit an action or proceeding to be continued against the personal representative unless proof of compliance with Part 4 (commencing with Section 9000) of Division 7 of the Probate Code governing creditor claims is first made.” (CCP 377.41.)

Code of Civil Procedure 377.11 states: “For purposes of this chapter, “decedent’s successor 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.” (CCP 377.11.)

2. Definition of “Personal Representative (Probate Code 58(a)): “‘Personal representative’ means executor, administrator, administrator with the will annexed, special administrator, successor personal representative, or a person who performs substantially the same function under the law of another jurisdiction governing the person’s status.”

3. Re Personal Representative (Probate Code 8400):

“(a) A person has no power to administer the estate until the person is appointed personal representative and the appointment becomes effective. Appointment of a personal representative becomes effective when the person appointed is issued letters.

(b) Subdivision (a) applies whether or not the person is named executor in the decedent’s will, except that a person named executor in the decedent’s will may, before the appointment is made or becomes effective, pay funeral expenses and take necessary measures for the maintenance and preservation of the estate.

(c) The order appointing a personal representative shall state in capital letters on the first page of the order, in at least 12-point type, the following: ‘WARNING: THIS APPOINTMENT IS NOT EFFECTIVE UNTIL LETTERS HAVE ISSUED.’” (Probate Code 8400.)