People of the State of CA et al vs James Allen Carr et al

Case Number

22CV00252

Case Type

Hearing Date / Time

Fri, 12/20/2024 - 10:00

Nature of Proceedings

Motion Substitute Successor in Interest

Tentative Ruling

For all reasons discussed herein, the motion of plaintiffs for substitution of the successor in interest of a deceased defendant is denied.

Background:

On January 21, 2022, plaintiffs the People of the State of California (the People) and the City of Santa Barbara (the City) (collectively, plaintiffs) filed a complaint against defendants James Allen Carr (Carr) and Enrique Calles Vasquez (Vasquez), alleging five causes of action: (1) violations of the Santa Barbara Municipal Code; (2) trespass to timber in violation of Civil Code section 3346 and Code of Civil Procedure section 733 [alleged by the City only]; (3) conversion [alleged by the City only]; (4) creating a public nuisance in violation of Santa Barbara Municipal Code section 1.28.040; and (5) creating a public nuisance in violation of Civil Code sections 3479 and 3480 [alleged by the People only]. As alleged in the complaint:

Carr is the owner of real property located at 1708 Paterna Road in Santa Barbara, California (the Carr property). (Compl., ¶ 7.) A parkway strip owned by the City (the City parkway) is located in front of the Carr property, and a City sidewalk separates the Carr property from the City parkway. (Ibid.) The City owned three trees (the City trees) located in front of the Carr property and planted in the City parkway. (Id. at ¶ 10.) From December 18 to 19, 2020, Carr and Vasquez caused the destruction and removal of the City trees without the City’s consent and without receiving a permit from the City. (Id. at ¶¶ 11-12.) On these same dates, Carr and Vasquez also caused the destruction and removal of a tree located in the setback of the Carr property without obtaining a permit. (Id. at ¶ 13.)

Carr answered the complaint on March 24, 2022, generally denying its allegations and asserting ten affirmative defenses. On May 12, 2022, Vasquez answered the complaint, generally denying its allegations and asserting affirmative defenses.

On September 24, 2024, plaintiffs filed a motion for an order substituting Barbara Jo Thurman Carr (Barbara) as a party defendant in this action in her capacity as the successor in interest to Carr. (Notice at p. 2, ll. 1-4 & 6-9.) (Note: Due to common surnames the Court will refer to Barbara by her first name to avoid confusion. No disrespect is intended.) The motion is opposed by Barbara, who is represented by counsel.

Analysis:

Information appearing in exhibit 1 to the motion demonstrates that Carr passed away on April 22, 2023, and that Barbara is the spouse of Carr, and the sole beneficiary, personal representative, and executor of Carr’s estate. (Motion, Exh. 1 [Barbara Decl.], ¶¶ 1-4.) Plaintiffs contend that because Barbara is Carr’s successor in interest, she must be substituted in the place and stead of Carr in this action. (Notice at p. 2; Memo. at p. 3 [introduction].)

“A pending action or proceeding does not abate by the death of a party if the cause of action survives.” (Code Civ. Proc., § 377.21.) “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, but survives subject to the applicable limitations period.” (Code Civ. Proc., § 377.20, subd. (a).) Though Barbara contends that plaintiffs seek to recover monetary damages and not a particular item of property to which Barbara has succeeded, Barbara does not appear to reasonably dispute that the causes of action alleged by plaintiffs against Carr survive Carr’s death. (See, e.g., Saurman v. Peter’s Landing Property Owner, LLC (2024) 103 Cal.App.5th 1148, 1165 [general discussion of purpose of a survival action].)

“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.” (Code Civ. Proc., § 377.41.) In addition, Code of Civil Procedure section 377.40 provides that “[s]ubject to Part 4 (commencing with Section 9000) of Division 7 of the Probate Code governing creditor claims, a cause of action against a decedent 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.” (Code Civ. Proc., § 377.40.)

The undisputed record before the Court indicates for present purposes that Barbara is both the personal representative of Carr and a successor in interest. (See Code Civ. Proc., § 377.11; see also In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1152-1153 & Lickter v. Lickter (2010) 189 Cal.App.4th 712, 733-734 [general discussions].) For reasons further discussed above, whether plaintiffs seek to continue this litigation against Barbara in her capacity as successor in interest to Carr, or as the personal representative of Carr, the action may be continued subject to, and upon proof of compliance with, Probate Code section 9000 et seq. governing creditor claims. (Code Civ. Proc., §§ 377.40 & 377.41; see also Spears v. Spears (2023) 97 Cal.App.5th 1294, 1302-1304 [general discussion]; Wood v. Brown (1974) 39 Cal.App.3d 232, 237 [statutory requirement of presentation of claim ensures executor will be notified of all claims and provides opportunity for amicable disposition of claim].)

Plaintiffs do not appear to contend that they are not public entities as defined in Probate Code section 9200, subdivision (b), that the allegations of the complaint do not assert a “claim” as that term is defined in Probate Code section 9000, subdivision (a)(1), or that plaintiffs are not “creditors” of the estate of Carr as that term is defined in Probate Code section 9000, subdivision (c). (See also Prob. Code, § 9200, subd. (a) [requiring claims by public entities to be filed within specified time frames].) Notwithstanding that plaintiffs do not appear to dispute that they seek to continue the litigation as a creditor of Carr’s estate based on Carr’s alleged liability for the removal and destruction of the City trees, wholly absent from the motion is any reasoned legal or factual argument showing that plaintiffs complied with the provisions of Probate Code section 9000 et seq. governing creditor’s claims, or that plaintiffs are exempt from complying with these provisions.

In addition, Barbara submits in support of her opposition to the motion, the declaration of her counsel, Jared M. Katz (Katz), who declares that on January 16, 2024, Barbara filed, as Santa Barbara Superior Court case no. 24PR00018, entitled Estate of James Allen Carr (the estate proceeding), a notice of petition (the notice of petition) to administer the estate of Carr and a petition for probate. (Katz Decl., ¶ 2 & Exh. A.) Katz is supervising and monitoring the estate proceeding. (Id. at ¶ 3.)

Katz further asserts that on April 5, 2024, the Court entered in the estate proceeding an order appointing Barbara as the executor of Carr’s will with full authority to administer Carr’s estate, and issued letters testamentary. (Katz Decl., ¶ 4 & Exhs. B-C.) Barbara published notice of the administration of Carr’s estate, and on April 3, 2024, filed in the estate proceeding a proof of publication. (Id. at ¶ 5 & Exh. D.) Katz states that on June 7, 2024, plaintiffs were served with written notice of the estate proceeding and the administration of Carr’s estate, and with a notice (the notice to creditors) of the administration of Carr’s estate and of plaintiffs’ obligation to file a creditor’s claim within 60 days of June 7, 2024 (the date of mailing of the notice to creditors). (Id. at ¶ 6 & Exh. E.) The notice to creditors included a creditor’s claim form. (Ibid.) Katz contends that plaintiffs did not file a creditor’s claim in the estate proceeding. (Id. at ¶ 7.)

Though plaintiffs in reply contend that they were not served with notice of the estate proceeding, the proofs of service attached to the notice of petition and notice to creditors, which ostensibly included a blank creditor’s claim form, indicate to the Court that these documents were served on counsel of record for the City and the People in this action. (See, e.g., Exhs. A at PDF pp. 10-11 & E at PDF p. 35.) Plaintiffs also fail to offer any reasoned argument to show why publication of the notice of petition was insufficient to provide plaintiffs with notice of the estate proceeding. Therefore, it is presently unclear to the Court on what basis plaintiffs contend that they were not served with notice of the estate proceeding. (See also Venturi v. Taylor (1995) 35 Cal.App.4th 16, 23-24 [general discussion].)

For all reasons discussed above, plaintiffs have failed to demonstrate compliance with the requirements or conditions of Probate Code section 9000 et seq. governing creditor claims, or an exemption from compliance. Therefore, at this stage of the proceedings, the Court will deny the motion.