Case Name: Forrest Huff v. Securitas Security Services USA, Inc., et al.

Case No.: 2010-1-CV-172614

This is an action under the Private Attorneys General Act (“PAGA”) by a former employee of defendant Securitas Security Services USA, Inc. (“Securitas” or “SUSA”). The plaintiff, Forrest Huff, passed away in 2019. Before the Court is defendant’s motion to dismiss, or, in the alternative, motion for judgment on the pleadings on the ground that the claim asserted in this action does not survive Huff’s death. The motion is opposed by plaintiff’s counsel, who represents that Huff’s successor in interest intends to file a motion to become a special administrator and urges that the litigation may be continued by this individual.

I. Factual and Procedural Background

Securitas provides businesses with on-site security, and plaintiff was employed with the company as a security guard. (Huff v. Securitas Security Services USA, Inc. (2018) 23 Cal.App.5th 745, 751.) Securitas hires employees to work as guards and then contracts with its clients to provide guards for a particular location. (Ibid.) It occasionally places guards in temporary assignments, but more typically provides clients with long term placements. (Ibid.) A standard contract duration, though terminable on 30 days’ notice, is three years. (Ibid.)

Huff was employed by Securitas for about a year, working at three different client sites. (Huff v. Securitas Security Services USA, Inc., supra, 23 Cal.App.5th at p. 751.) After he was removed from an assignment at the client’s request in March 2010, Huff resigned his employment. (Ibid.) Two months later, in May 2010, he filed this action.

The operative second amended complaint (“SAC”), filed on May 17, 2013, sets forth claims for (1) failure to pay overtime compensation in violation of California Labor Code section 1194 and (2) PAGA penalties. The first cause of action was dismissed in August 2014. In the second cause of action, plaintiff complains of four practices by defendant. First, he alleges that Securitas is a “temporary services employer” within the meaning of California Labor Code section 201.3, subdivision (a)(1) and is accordingly required to pay wages on a weekly rather than a bi-monthly schedule under subdivision (b) of that section. (SAC, ¶ 37.) Plaintiff further alleges that Securitas fails to timely pay final wages to security officers who quit or are removed from a site (id. at ¶ 39); alternatively, if officers discharged from client sites are still employed by Securitas, defendant fails to pay them for time spent interviewing with its clients and working with a Securitas “generalist” to find a new assignment (id. at ¶¶ 41-43). Finally, plaintiff alleges that he and others worked unpaid overtime when they arrived early to relieve supervisor Bonnie Iddings. (Id. at ¶ 45.)

As summarized in Huff v. Securitas Security Services USA, Inc., supra, 23 Cal.App.5th 745, the second cause of action proceeded to a first phase of trial in 2015, following which the Court entered judgment for defendant on the ground that Huff lacked standing to pursue the PAGA claim. The Court subsequently granted Huff’s motion for a new trial, and, in a published order dated May 23, 2018, the court of appeal affirmed. The court explained that “the order granting a new trial does not limit retrial to a particular issue. As a result, all issues now remain to be tried, and on retrial … the trial court will not be bound by the previous ruling on the issue.” (Id. at p. 764, internal citation omitted.)

In June 2019, the first phase of the new trial was completed. Plaintiff subsequently filed his opening post-trial brief on August 5, 2019. The parties then learned that plaintiff had passed away. On August 23, the Court entered a stipulated order staying all proceedings, including further post-trial briefing, pending confirmation of plaintiff’s death and to allow consideration of whether and how the case might proceed. In a joint case management conference statement filed on October 17, plaintiff’s counsel confirmed that he had obtained plaintiff’s death certificate, revealing that Huff was found dead in his Florida home on August 15, 2019. Plaintiff’s counsel filed the death certificate with the Court, and requested that the Court set defendant’s anticipated motion to dismiss the action for hearing no sooner than February 2020, in order to allow time for counsel to determine who was legally authorized to speak for plaintiff’s estate. The Court scheduled the instant motion for hearing on February 28, 2020.

Securitas filed its moving papers on January 21, 2020. On February 2, plaintiff’s counsel filed an opposition, which states that “Forrest Huff’s successor is planning on filing a C.C.P. §377.33 motion to become a special administrator, and C.C.P. §377.31 allows such an administrator to substitute in as plaintiff …. The court is requested to provide a motion date to appoint a special administrator.”

II. Procedural Issues

Code of Civil Procedure section 377.31 provides:

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.

A successor in interest is required to file the materials specified in Code of Civil Procedure section 377.32; section 377.33 provides that “[t]he court in which an action is … continued under this article may make any order concerning parties that is appropriate to ensure proper administration of justice in the case, including appointment of the decedent’s successor in interest as a special administrator or guardian ad litem.”

The statute does not provide a deadline by which a motion pursuant to section 377.31 must be filed following a plaintiff’s death, nor does it specify the procedure a defendant should follow to obtain a dismissal where no motion to continue the action has been filed.

Here, Securitas brings a non-statutory motion to dismiss or, alternatively, a non-statutory motion for judgment on the pleadings. There is some authority supporting the use of a non-statutory motion to dismiss to challenge the validity of an attorney’s appearance for a plaintiff. (See Baker v. Boxx (1991) 226 Cal.App.3d 1303, 1311–1312 [this issue is not properly raised through a motion to quash service, but is “perhaps” properly raised through “a nonstatutory motion to dismiss,” citing Clark v. Willett (1868) 35 Cal. 534].) Moreover, the issue of a plaintiff’s capacity to sue is properly addressed on the pleadings where appropriate (Code Civ. Proc., § 430.10, subd. (b)), and the Court may take judicial notice of plaintiff’s death based on his death certificate (see People v. Terry (1974) 38 Cal.App.3d 432, 439). There is authority supporting the treatment of a procedurally improper motion for summary judgment as a non-statutory motion for judgment on the pleadings where the issue raised is appropriately resolved on the pleadings. (See Saltarelli & Steponovich v. Douglas (1995) 40 Cal.App.4th 1, 4–5 [treating procedurally defective motion for summary judgment as nonstatutory motion for judgment on the pleadings: “[i]n considering this motion, the court may consider matters properly subject to judicial notice”].)

Ultimately, plaintiff’s lack of capacity to continue this action gives rise to a plea in abatement. (See The Rossdale Group, LLC v. Walton (2017) 12 Cal.App.5th 936, 942–943 [lack of capacity to sue is a plea in abatement].) Where the event causing a lack of capacity occurs after a party’s time to demur or answer has passed, the party should typically move for leave to file an amended answer asserting the plea. (Ibid.) However, where, as here, there are no material factual disputes, a non-statutory motion to dismiss or motion for judgment on the pleadings may provide an appropriate alternative. (See id. [reviewing motion to dismiss for lack of capacity based on undisputed facts under a de novo standard of review].)

The Court will thus address Securitas’s motion as a non-statutory motion to dismiss or motion for judgment on the pleadings. In addition, the Court will consider the motion pursuant to its authority to “make any order concerning parties that is appropriate to ensure proper administration of justice in the case” pursuant to Code of Civil Procedure 377.33.

III. Analysis

Having reviewed and considered the parties’ briefing and performed its own research, the Court is inclined to find that, were he or she to file a proper motion pursuant to Code of Civil Procedure section 377.31, plaintiff’s successor in interest would be able to continue this action on plaintiff’s behalf. While a PAGA claim—like other claims for statutory penalties—is not assignable (Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior Court (First Transit, Inc.) (2009) 46 Cal.4th 993, 1003), and older authorities state that “[o]rdinarily a right that cannot be assigned does not survive the death of the person entitled to it” (In re Blair’s Estate (1954) 42 Cal.2d 728, 731), the Court has searched in vain for any modern authorities applying this rule of thumb as the law of California.

Instead, survival of actions is governed by statute. “In 1961 the Legislature revisited the entire subject of survival of actions.” (Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 298.)

The 1961 legislation was drafted by the California Law Revision Commission, and its report explains the reasons for the amendments it proposed to the Legislature. We may refer to that report as evidence of the Legislature’s intent in adopting the provisions thus proposed.

First, the commission recommended that the survival statute be expanded to include actions for personal torts that do not result in physical injury (e.g., malicious prosecution, false imprisonment, invasion of privacy, defamation), reasoning that “The failure of these actions to survive at common law appears to rest in large part on nothing more than the continued application of the ancient maxim that ‘personal actions die with the person.’ This maxim merely states a largely meaningless conclusion, has no compelling wisdom on its face, is of obscure origin, and appears to be of questionable application to modern conditions.” The Legislature adopted this recommendation, providing in the first paragraph of former section 573 that “no cause of action shall be lost by reason of the death of any person” (italics added).

(Sullivan v. Delta Air Lines, Inc., supra, 15 Cal.4th at pp. 298–299, internal citations omitted.)

Notably, this broad language was not limited to causes of action sounding in tort. As explained by the Law Revision Commission:

1. The proposed legislation provides for the survival of all causes of action. The Commission attempted originally to draft a statute limited to effectuating its view that all tort causes of action should survive, but encountered great difficulty in attempting to draft technically accurate and satisfactory language to accomplish this more limited objective. Legislation limited to “causes of action in tort,’ ’ would create problems because there simply is not a satisfactory definition of the meaning and scope of the term “tort.” Moreover, such language would raise questions as to whether actions arising from breaches of trust and purely statutory actions, whether or not “sounding in tort,” were included. Similar questions would arise if a statute of limited scope were written in other terms. The Commission therefore recommends the enactment of a broad and inclusive provision for the following reasons:

(a) A comprehensive survival statute would have the advantage of simplicity and clarity by eliminating difficult questions of construction which would result from the use of more restrictive language.

(b) Such a statute is sound in theory since there does not appear to be any rational basis upon which to determine that some actions should survive while others do not.

(c) A comprehensive survival statute would make little or no substantive change in the present law. With respect to survival of non-tort causes of action, the Commission’s study of the present law has shown that actions based on contract, quasi-contract, trusts, actions to recover possession of property or to establish an interest therein, and most statutory actions already survive.

(Recommendation and Study Relating to Survival of Actions (Oct. 1960) 3 Cal. Law Revision Com. Rep. (1961) pp. F-8–F-9.) The Commission similarly recommended eliminating survival provisions governing specific claims, which were then found in various statutes, explaining that “the presence of such specific provisions for survival in these statutes might conceivably lead a court to hold that some other existing or future statutory cause of action does not survive because the Legislature has failed to include such specific provisions therein.” (Id. at p. F-9.) Thus, the survival statutes were amended to provide for the survival of all statutory claims by default.

Second, the commission recommended that the survival statute be expanded to allow recovery of punitive damages that the deceased plaintiff would have been entitled to recover if he or she had lived, reasoning in part that “The object of awarding such damages being to punish the wrongdoer, it would be particularly inappropriate to permit him to escape such punishment in a case in which he killed rather than only injured his victim.” The Legislature adopted this recommendation in the third paragraph of former section 573.

(Sullivan v. Delta Air Lines, Inc., supra, 15 Cal.4th at pp. 298–299, internal citations omitted.) Based on this reasoning, the statute was amended to allow an executor or administrator to recover “any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had he lived.” (Id. at p. 299, quoting Stats. 1961, ch. 657, § 2, p. 1868, emphasis added.)

In 1992, “[t]he general rule of survival of actions declared by former Probate Code section 573 was reenacted essentially verbatim in Code of Civil Procedure section 377.20, subdivision (a) (‘Except as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person’s death….’).” (Sullivan v. Delta Air Lines, Inc., supra, 15 Cal.4th at p. 301.) “[T]he principal change made throughout the 1992 legislation was to authorize the decedent’s successor in interest to bring or defend an action when there are no probate proceedings pending and hence no personal representative appointed.” (Id. at pp. 301-302.)

Thus, today, the governing statute states that “[e]xcept as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person’s death, but survives subject to the applicable limitations period.” (Code Civ. Proc., § 377.20, subd. (a).) The damages recoverable following the person’s death continue to include “any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived….” (Code Civ. Proc., § 377.34.) While the statute provides that “[n]othing in this chapter shall be construed as affecting the assignability of causes of action” (Code Civ. Proc., § 377.22), such that a claim’s survival does not render it assignable, it in no way suggests that a claim must be assignable in order to survive.

Defendant contends that because a PAGA action is ultimately a representative action brought on behalf of the state, it is not a cause of action that belongs to the deceased plaintiff for purposes of the survival statute. It is true, and significant, that “[a] PAGA representative action is … a type of qui tam action” brought on behalf of the state. (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 382.) However, courts addressing the survival of actions under the most prominent qui tam statute, the federal False Claims Act, have overwhelmingly concluded that such actions survive the death of the original “relator” who brings the case on behalf of the government, and a representative of the relator’s estate may proceed with the case. (See U.S. v. NEC Corp. (11th Cir. 1993) 11 F.3d 136; U.S. ex rel. Colucci v. Beth Israel Medical Center (S.D.N.Y. 2009) 603 F.Supp.2d 677; U.S., ex rel. Hood v. Satory Global, Inc. (D.D.C. 2013) 946 F.Supp.2d 69, 81 [noting that only one of the district courts to have considered whether a qui tam action survives the death of the relator has concluded that it does not, and that case has been criticized and undermined by a subsequent opinion of the United States Supreme Court].) Similar to a PAGA aggrieved employee, a relator under the False Claims Act must notify the government of his or her claim when commencing an action, so that the government may elect to pursue the claim itself if it wishes, and the relator is entitled to a percentage of the total recovery if the case succeeds (see U.S. v. NEC Corp., supra, 11 F.3d at p. 138, discussing 31 U.S.C. § 3730). The False Claims Act is thus similar to PAGA in these salient respects, and the Court finds no other basis upon which to distinguish the two statutes with regard to the issue of survival.

Relatedly, defendant urges that the specific language of the PAGA statute must control over the more general survival statute. However, while PAGA imposes standing and procedural requirements on the aggrieved employee who brings an action (see Lab. Code, §§ 2699, 2699.33), assuming that these requirements were satisfied by the plaintiff who initially brought suit, there is no basis to impose them on an administrator who continues to prosecute the action following the plaintiff’s death. “[A] survivor cause of action is not a new cause of action that vests in the heirs on the death of the decedent.” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1264.) Rather, it is a claim that “belonged to the decedent before death but, by statute, survives that event.” (Ibid.) The standing requirements of the survival statute, rather than the underlying standing requirements of the decedent’s claim, are the ones the administrator must satisfy: otherwise, the survival statute would serve little purpose. The Court finds no basis to impose a stricter standard with regard to PAGA claims, particularly considering the False Claims Act authorities noted above. Indeed, the court of appeal has observed in this very case that the standing requirements in qui tam actions are typically more generous than in other types of cases. (See Huff v. Securitas Security Services USA, Inc., supra, 23 Cal.App.5th at p. 757, internal citations omitted [“As observed by the California Supreme Court in Iskanian (citing the Federal False Claims Act as an example), traditional standing requirements do not necessarily apply to qui tam actions since the plaintiff is acting on behalf of the government …. [I]n this context, not being injured by a particular statutory violation presents no bar to a plaintiff pursuing penalties for that violation.”].) Finally, while PAGA’s notice requirements must also be satisfied by the aggrieved employee who brings suit, it would not serve the remedial purpose of the statute to hold that a PAGA claim brought on behalf of the government expires upon the death of the plaintiff who satisfied the notice requirements.

IV. Next Steps

While the Court is thus inclined to find that plaintiff’s successor in interest would be able to continue this action on plaintiff’s behalf were he or she to file a compliant motion pursuant to Code of Civil Procedure section 377.31, no such motion has been filed. Plaintiff’s counsel offers no explanation for the continuing delay in this regard. Given the time that has passed since plaintiff’s death, the Court expects the issue to be resolved through a formal motion soon—if it is not, defendant’s motion to dismiss is properly granted. The Court will thus continue the hearing on the instant motion and will grant plaintiff 30 days to file a motion pursuant to Code of Civil Procedure section 377.31.

Plaintiff’s counsel has indicated that he may seek to find another aggrieved employee to pursue this action in the event that plaintiff’s successor in interest is not appointed special administrator. To be clear, nothing in this tentative ruling is intended to endorse this approach. Given that PAGA claims are not assignable, the Court is of the view that any aggrieved employee who seeks to pursue a PAGA claim must have satisfied the procedural requirements of the statute him- or herself, and cannot step into the shoes of the original PAGA plaintiff in this regard as the plaintiff’s successor in interest can. Finally, the Court recognizes defendant’s observation that there presently is no plaintiff with capacity to pursue this action, and will entertain no motions by plaintiff’s counsel other than a motion to continue the action pursuant to section 377.31.

V. Conclusion and Order

Defendant’s motion to dismiss, or, in the alternative, motion for judgment on the pleadings is CONTINUED to a date to be determined by the parties and the Court. Any motion on behalf of plaintiff to continue this action pursuant to Code of Civil Procedure section 377.31 et seq. shall be filed within 30 calendar days of the filing of this order.

The parties shall appear at the hearing on this matter to discuss the scheduling of the continued hearing on the instant motion and the hearing on the anticipated motion of plaintiff’s successor in interest pursuant to section 377.31. The parties may appear telephonically.

The Court will prepare the order.