13-634298

Defendants Christopher Ayayo and Deborah Young’s motion for attorneys’ fees and costs in the amount of $9,919 against Glenn Rosen is continued to April 29, 2014 @ 1:30 p.m.

Defendants are to file no later than April 11, 2014. A supplemental brief addressing the whether and how the court can hear a motion for, and grant, an award of fees against a deceased plaintiff where no representative or successor in interest has been substituted in.

Moving parties seek an award of fees against Glenn Rosen. But he is dead and no one has been substituted in to defend his or his estate’s interests. Moving parties successfully opposed Peggy Rosen’s attempt to be substituted in for Glenn Rosen. There is no one to effectively give notice of the pending motion to and no one to respond.

Thus far, the Court has not discovered a clear answer as to how this matter should proceed. But it seems unlikely that an award against a deceased party can be litigated and entered against him in his absence and without notice to or participation by anyone with standing to protect his or his estate’s interests. In any adversarial proceeding, notice to the party subject to an order or judgment is a basic due process requirement.

According to a treatise, “[s]ubject to Prob.C. 9000 et seq. governing creditor claims in the administration of estates (14 Summary (10th), Wills and Probate, Section 612 et seq.), a cause of action that survives may be asserted against the decedent’s personal representative or, to the extent provided by statute, against the decedent’s successor in interest. (C.C.P. 377.40.) These statutes apply retroactively. (Parsons v. Tickner (1995) 31 C.A.4th 1513, 1523, 37 C.R.2d 810.) (14 Summary (10th), Wills and Probate,Section 518 et seq.).” B. Witkin, Cal. Proc. (5th ed. 2008), Actions Section 15.

The fact that the court entered an order granting the anti-SLAPP motion and dismissing the action after Glenn Rosen’s death does not answer the question of whether the court may hear the fee motion. The anti-SLAPP motion had been fully briefed. Where the argument and evidence is fully submitted at the time of the defendant’s death, the court may enter judgment. Code Civ. Proc. Section 669; Leavitt v. Gibson (1935) 3 Cal. 2d 90, 107; Wells v. Coca Cola Bottling Co. of Fresno (1956) 140 Cal. App. 2d 218, 221; However, the case of Williamson v. Plant Insulation Co. (1994) 23 Cal. App. 4th 1406, 1415, 1416 (personal injury action, in which plaintiff died during trial, was not ready for rendition where evidentiary stage of trial had not been completed, jury had not been instructed, attorneys had not presented summations, and there had been no verdict on which judgment could be rendered).

Because of the court’s concern about whether it can and should proceed, on a motion seeking substantive relief against Glenn Rosen, after his death and in the absence of any representative, the court will continue the hearing for a month and ask the moving parties to brief the issue.