2011-00102445-CU-PA

George Antablian vs. Barbara Diane Rubenstein

Nature of Proceeding:   Motion to Compel Discovery Responses

Filed By:  Bates, Mark A.

Motion to compel discovery responses by “Estate of Barbara Diane Rubenstein” is
denied, without prejudice.

Under § 58(a) of the Probate Code, “Personal representative” means an executor,
administrator, administrator with the will annexed, special administrator, successor
personal representative, public administrator acting pursuant to Section 7660, or a
person who performs substantially the same function under the law of another
jurisdiction governing the person’s status.

CCP 377.41 provides that a pending action against a decedent that does not abate
may be continued against the decedent’s personal representative or, to the extent
provided by statute, against the decedent’s successor in interest. [“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.”]

The Court is aware that it inadvertently signed a submitted stipulation of the parties on
March 26, 2012 naming the Estate as the defendant in place of decedent.  However,
as the Estate is not a legal entity, the proper representative must be substituted in
before a ruling on this or any other motion is made. A probate estate is simply a
collection of assets and liabilities. Generally, as such, it has no capacity to sue or be
sued, or to 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.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.