Case Number: GC045033 Hearing Date: June 06, 2014 Dept: NCE

Motion to allow Adam Nevarrez to continue legal action

Plaintiff’s motion to allow Adam Nevarrez to continue this action, as the estate representative of Samuel Nevarrez, is denied without prejudice for the reasons stated in the opposition, as indicated below. The court has insufficient information concerning how moving party has standing to pursue this matter when standing previously was asserted by decedent’s wife, as successor in interest, and there is insufficient information provided concerning the nature and disposition of her estate. The court understands the decedent’s wife was determined to be the successor in interest by the Court of Appeal and this court would appreciate seeing a copy of the order so appointing her, if there was such an order.

It appears that plaintiff Samuel Nevarrez passed away on January 5, 2012 during the pendency of the appeal in this matter, and that his wife, Susan Schroeder-Nevarrez, passed away on March 17, 2014. CCP section 377.20 provides that “[a] cause of action for or against a person is not lost by reason of a person’s death, but survives subject to the applicable statute of limitations period.” Section 377.22 then provides “a pending action or proceeding does not abate by the death of a party if the cause of action survives.” Under CCP section 377.31, “[o]n 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.”

By this motion, Samuel Nevarrez’s son Adam Nevarrez seeks leave to pursue this action as his father’s “personal representative,” or failing that status, as his “successor in interest” under section 377.31. Pursuant to Probate Code section 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.” There is no evidence that Adam Nevarrez has been appointed executor or as administrator in any capacity listed in section 58, or as successor personal representative in this or any other jurisdiction and therefore no evidence sufficient for the court to find him to be the personal representative of his father’s estate.

The question then becomes whether Adam qualifies for successor in interest status. CCP section 377.11 defines “decedent’s successor in interest” to mean “the beneficiary of the decedent’s estate or other successor in interest who succeeds to a cause of action.” A “beneficiary of the decedent’s estate” where the decedent did not leave a will is “the sole person or persons who succeed to a cause of action … under Sections 6401 and 6402 of the Probate Code ….” Plaintiff states “all of the persons who succeed to the cause of action would be the remaining heirs of Samuel Nevarrez, who are his three adult children.” (Reply, p. 4, lns. 11-13.) However, defendant Country Villa Services Corp. dba Country Villa Health Services argues that conclusion is incorrect. Defendant points out that a cause of action to recover money damages, as well as the money recovered, is personal property (Marriage of Klug (2005) 130 Cal.App.4th 1389, 1397), which Family Law Code section 780 states is community property if the cause of action for damages arose during the marriage. Defendant then states, presumably pursuant to Probate Code section 6401(a), that the claims in this lawsuit are community property which “passed in their entirety to his wife and successor in interest, Susan Schroeder Navarrez [sic]” and so it is “her estate which needs a representative to allow this litigation to continue.” (Emphasis in original.) (Opposition, page 3, lns. 19-24.) Defendant contends that because there is no information provided concerning whether Mrs. Nevarrez has a will, a successor in interest or any biological children, it cannot be determined that Adam Nevarrez is the proper person to be designated as successor in interest of her estate such that this motion must be denied.

Defendant’s argument appears to have merit. Probate Code section 100(a) states that “Upon the death of a married person, one-half of the community property belongs to the surviving spouse and the other half belongs to the decedent.” Probate Code section 6401(a) provides that “As to the community property, the intestate share of the surviving spouse is the one-half of the community property that belongs to the decedent under Section 100.” Together, these two sections appear to give all of the community property to the surviving spouse where there is no will, which would include the decedent’s cause of action in this case.

Moving party’s argument that Family Code section 2603(b) provides that the “community estate personal injury damages shall be assigned to the person who suffered the injury” is unpersuasive. That section governs disposition upon divorce. Probate Code sections 100 and 6401 govern disposition upon death.

To the extent that Adam Nevarrez claims standing under Welfare and Institutions Code section 15657.3(d), he has failed to demonstrate that he is either an intestate heir whose interest is affected by the action, the decedent’s successor in interest as defined in CCP Section 377.11 (discussed above), or an interested person as defined in Section 48 of the Probate Code (an heir or child who has a “property right in or claim against a trust estate or the estate of a decedent which may be affected by the proceeding.”)

Motion of Plaintiff for leave to file a First Amended Complaint is denied without prejudice. It is not clear that the new proposed plaintiff has established appropriate standing to pursue the matter.