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

Case Number

22CV00252

Case Type

Hearing Date / Time

Fri, 10/03/2025 - 10:00

Nature of Proceedings

Motion to Dismiss

Tentative Ruling

For all reasons discussed herein, the motion to dismiss deceased party James Allen Carr is denied.

Background:

On January 21, 2022, plaintiffs the People of the State of California 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) which were 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 receiving a permit from, or the consent of, the City. (Id. at ¶¶ 11-12.) On these same dates, Carr and Vasquez also caused the removal of a tree located in the setback of the Carr property without obtaining a permit. (Id. at ¶ 13.)

Carr filed an answer to the complaint on March 24, 2022, denying or otherwise responding to its allegations and asserting ten affirmative defenses.

On May 12, 2022, Vasquez filed an answer to the complaint, also generally denying its allegations and asserting affirmative defenses.

On September 24, 2024, plaintiffs filed a motion for an order (the substitution motion) substituting Barbara Jo Thurman Carr (Barbara) 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 substitution motion was made on the grounds that Carr is deceased, that this action survives Carr’s death under Code of Civil Procedure section 377.21, and that Barbara is the successor to the interests of Carr in this litigation.

The substitution motion was opposed by Barbara.

On December 20, 2024, the court entered a minute order (the Order) adopting its tentative ruling denying the substitution motion as follows:

“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.” (Dec. 20, 2024, Minute Order.)

On June 3, 2025, counsel for Carr filed a motion for an order dismissing Carr as a party to this action. The motion, which is opposed by plaintiffs, is made on the grounds that, following the death of Carr, the court lacks jurisdiction over Carr as a party.

Analysis:

For all reasons discussed herein, the present motion is procedurally inappropriate and will be denied.

“[T]he death of a party pending suit does not oust the jurisdiction of the court, and hence that the judgment is voidable only, not void.” (Todhunter v. Klemmer (1901) 134 Cal. 60, 63.) As more fully discussed in the Order set forth above, and subject to exceptions which do not appear to apply here, Code of Civil Procedure section 377.20 provides that “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).) Under Code of Civil Procedure section 377.40, plaintiffs may, subject to Probate Code section 9000 et seq., assert those causes of action which survive Carr’s death against Carr’s personal representative or, if provided by statute, Carr’s successor in interest.

Further, the court may not permit this action to be continued against Carr’s personal representative until plaintiffs must first prove “compliance with Part 4 (commencing with Section 9000) of Division 7 of the Probate Code governing creditor claims....” (Code Civ. Proc., § 377.41.)

Notwithstanding whether any failure by a party to satisfy procedural requirements necessary to substitute a decedent’s personal representative or successor in interest may preclude entry of judgment or prevent that party from recovering against property in the decedent’s estate as the motion effectively argues (and the court presently makes no findings as to these issues), any such failure is not, by itself, grounds for dismissing the action against the decedent. (Herring v. Peterson (1981) 116 Cal.App.3d 608, 612; see also Boyd v. Lancaster (1939) 32 Cal.App.2d 574, 581 [general discussion of court’s jurisdiction to enter judgment nunc pro tunc after the death of a party]; Grappo v. McMills (2017) 11 Cal.App.5th 996, 1007-1008 [generally discussing whether rendering of judgment against a deceased defendant where executor or administrator was not first substituted was appropriate]; Prob. Code, § 9370, subd. (b) [“[n]o recovery shall be allowed in the action against property in the decedent’s estate unless proof is made of compliance”].)

The court further notes that Code of Civil Procedure section 438 authorizes the filing of a motion for judgment on the pleadings which, if granted without leave to amend, may result in a judgment of dismissal as is ostensibly requested in this proceeding. (Code Civ. Proc., § 438, subd. (h)(1)(3); Baughman v. State of California (1995) 38 Cal.App.4th 182, 187, disapproved on another ground in Leon v. County of Riverside (2023) 14 Cal.5th 910, 930.) To the extent the motion effectively requests the dismissal of Carr based on the pleadings, the motion is timely considering that a trial confirmation conference is presently set for December 5, 2025, and that no pretrial conference order has been entered in this action. (Code Civ. Proc., § 438, subd. (e).)

Though a motion for judgment on the pleadings would be timely under the circumstances present here, the grounds for such motion must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 438, subd. (d).) The present motion is supported by a request for judicial notice of Carr’s certificate of death, a petition for probate of Carr’s last will and testament and for letters testamentary, letters testamentary appointing Barbara as executrix, and an order for probate entered on April 5, 2024, (RJN, ¶¶ 1-4 & Exhs. 1-4.) Even if the court were to assume without presently deciding that these matters are, generally, proper subjects of judicial notice, the pleadings filed in this action do not disclose on their face that Carr is deceased or that a petition or order for probate was filed, among other things. For these reasons, the matters for which judicial notice is requested constitute extrinsic evidence.

“Presentation of extrinsic evidence is ... not proper on a motion for judgment on the pleadings.” (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) As the grounds for the motion rely on extrinsic evidence and not matters which appear on the face of a challenged pleading, the motion is, for all reasons discussed above, procedurally inappropriate under Code of Civil Procedure section 438.

A court may treat a motion to dismiss a pleading that is supported by matters outside that pleading as “one for summary judgment and decide it on the basis of the requirements of Code of Civil Procedure section 437c.” (Ford Motor Co. v. Superior Court (1971) 16 Cal.App.3d 442, 446.) Under Code of Civil Procedure section 437c, a defendant may move for summary judgment on the grounds that a cause of action has no merit. (Code Civ. Proc., § 437c, subd. (p)(2).) A cause of action has no merit if “[a] defendant establishes an affirmative defense to that cause of action.” (Code Civ. Proc., § 437c, subd. (o)(2).) A defendant may its burden on summary judgment if that defendant shows “that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).)

“Summary judgment cannot be granted on a ground not raised by the pleadings.” (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663.) The motion fails to explain why the answer to the complaint filed by Carr, who was not deceased at the time that answer was filed, raises an affirmative defense based on Carr’s death, the probate proceedings which are the subject of the request for judicial notice described above, or on any failure by plaintiffs to satisfy procedural requirements related to those proceedings before seeking to substitute an authorized representative of Carr. (See Carr Answer at pp. 5-7.) For these reasons, the motion is also insufficient under Code of Civil Procedure section 437c.

Moreover, the motion fails to comply with Code of Civil Procedure section 437c, which requires the submission of, among other things, a separate statement. (See, e.g., Code Civ. Proc., § 437c, subd. (b)(1) [a motion for summary judgment must be “supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken...” and a separate statement].)

Also absent from the motion is any reasoned legal or factual argument showing why this action should be dismissed under Code of Civil Procedure section 583.410 et seq., or another statute.

For all reasons discussed above, the motion, which is procedurally inappropriate, will be denied.