United States District Court, S.D. California
THE ESTATE OF BERNARD VICTORIANNE by and through its successor-in-interest ZELDA VICTORIANNE, BERNARD VICTORIANNE II, and ZELDA VICTORIANNE, Plaintiffs,
COUNTY OF SAN DIEGO, WILLIAM GORE, and DOES 1-50, Defendants.
WILLIAM Q. HAYES, Judge.
The matter before the Court is Plaintiffs' Ex Parte Motion to Appoint Zelda Victorianne as Successor in Interest to the Estate of Bernard Victorianne. (ECF No. 11).
On September 11, 2014, Plaintiffs The Estate of Bernard Victorianne by and through its successor-in-interest Zelda Victorianne, Bernard Victorianne II, and Zelda Victorianne initiated this action by filing the Complaint against Defendants County of San Diego, William Gore. (ECF No. 1). Plaintiffs' Complaint alleges seven causes of action including: (1) deliberate indifference to serious medical needs; (2) wrongful death; (3) right of association; (4) failure to properly train; (5) failure to properly supervise and discipline; (6) failure to properly investigate; and (7) Monell municipal liability civil rights action. (ECF No. 1).
On November 4, 2014, Plaintiffs filed the Ex Parte Motion to Appoint Zelda Victorianne as Successor in Interest to the Estate of Bernard Victorianne. (ECF No. 11). On November 20, 2014, Defendants filed an opposition. (ECF No. 20). On November 26, 2014, Plaintiffs filed a reply. (ECF No. 26).
II. CONTENTIONS OF PARTIES
Defendants contend that Zelda Victorianne is not the personal representative of the decedent or administrator of decedent's estate. Defendants contend that she attests in her affidavit in support of her request to be designated as the successor in interest that there have been no estate administration proceedings, and thus she could not have been appointed as decedent's or estate representative.
Defendants further contend that neither the complaint nor the ex parte application indicate whether decedent died intestate, without children, a spouse or domestic partner; all of which bear on identifying the people to whom a surviving cause of action devolves. Defendants contend that assuming the decedent died intestate, without children, spouse, or domestic partner, and using the complaint allegations as a reference, Zelda Victorianne would not be the only person to whom the decedent's assets, in this instance the survival cause of action, would devolve. Defendants contend that the asset also passes to Bernard Victorianne, II, decedent's father. (Cal. Prob. Code § 6402(b).)
Plaintiff Zelda Victorianne contends that because decedent's estate was not administered, a final order showing the distribution is not required. Plaintiff Zelda Victorianne further contends that, as set forth in the death certificate of decedent (ECF No. 11-2), decedent was unmarried at the time of his death and died without children. Plaintiff Zelda Victorianne contends that she has complied with all requirements of Cal. Civ. Proc. Code section 377.32 to commence a survival action a decedent's successor in interest.
III. RULING OF COURT
In actions pursuant to 42 U.S.C. § 1983, "the survivors of an individual killed as a result of an officer's excessive use of force may assert a Fourth Amendment claim on that individual's behalf if the relevant state's law authorizes a survival action. The party seeking to bring a survival action bears the burden of demonstrating that a particular state's law authorizes a survival action and that the plaintiff meets that state's requirements for bringing a survival action." Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 369 (9th Cir. 1998) (internal citations omitted). See also Fed. R. Civ. P 17(b) ("[C]apacity to sue or be sued shall be determined by the law of the state in which the district court is held."). Under California law, "[a] cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent's successor in interest, ... and an action may be commenced by the decedent's personal representative or, if none, by the decedent's successor in interest." Cal. Civ. Proc. §377.30.
A. Personal Representative
"[A] personal representative is by definition a court-appointed executor or administrator of an estate, not merely an heir, ... and... a personal representative must be a person empowered by law to administer the decedent's estate." Hassanati v. Int'l Lease Fin. Corp., 2014 WL 5032354, at *16 (C.D. Cal. Feb. 18, 2014). Plaintiff fails to provide evidence that she is a court-appointed executor or administrator of the estate. Plaintiff's affidavit states that "[n]o proceeding is now pending in California for administration of the decedent's estate. (ECF No. 11-1 at 2). Because Plaintiff Zelda Victorianne fails to demonstrate that she is a court-appointed executor or administrator of the estate, and her affidavit states that no ...