2016-00192235-CU-BC

Donald Mark Whisler vs. Robert Richard Winger

Nature of Proceeding: Motion to Continue Pending Action by Personal Representatives for

Filed By: Wright, Brandon T.

Richard F. Munoz and Donald K. Anderson’s “Motion To Continue Pending Action As Personal Representatives” of Decedent, Defendant/Cross-Complainant, Robert

Winger, pursuant to Code of Civil Procedure § 377.31, is unopposed and is GRANTED.

Code of Civil Procedure § 377.31 provides, in its entirety:

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.

The personal representative of the estate of a person who filed suit before death has a right to expect and demand substitution if the cause of action survives or continues. ( Majors v. County of Merced (1962) 207 Cal.App.2d 427, 434.)

Here, decedent Robert Winger is a named defendant in this action; before he passed away he filed a Cross-Complaint against Whisler and others for breach of contract, among other causes of action. (Register of Actions No. 42 (Winger’s Cross-Complaint).) No showing having been made to the contrary, the Court finds that decedent Robert Winger is “a person who commenced an action” within the scope of the statute. Further, no showing having been made to the contrary, Mr. Winger’s causes of action survive his death and do not abate. (Speer v. Brown (1938) 26 Cal.App.2d 283, 294.)

Richard F. Munoz and Donald K. Anderson assert that they have been duly appointed, qualified, and acting as the personal representatives of Robert Winger in that they are joint executors of his estate pursuant to a will. (Declaration of Brandon T. Wright (“Wright Decl.”) ¶¶ 5-12.) Indeed, in August of 2017, Munoz and Anderson were appointed personal representatives and co-executors of the will of Robert Winger by an order of the Superior Court of California, County of Sacramento. (Id. ¶ 9, Exhs. B-C.)

(Recently in this action, the Court granted a similar motion vis a vis the plaintiff Mark Whisler, also deceased. On October 9, 2018, this Court granted Allan Owen leave to continue litigating this action as special administrator of deceased Plaintiff and Cross-Defendant Mark Whisler.)

The Court will sign the order submitted with the moving papers.