United States District Court, S.D. California
THE ESTATE OF RUBEN NUNEZ, by and through its successor-in-interest LYDIA NUNEZ, ALBERT NUNEZ, and LYDIA NUNEZ, Plaintiffs,
v.
COUNTY OF SAN DIEGO, WILLIAM GORE, et al., Defendants.
ORDER GRANTING PLAINTIFFS’ EX PARTE MOTION FOR
ORDER APPOINTING PLAINTIFF LYDIA NUNEZ AS SUCCESSOR-IN-
INTEREST TO THE ESTATE OF RUBEN NUNEZ [ECF NO.
3]
Hon.
Mitchell D. Dembin United States Magistrate Judge
Before
the Court is Plaintiffs’ Ex Parte Motion to Appoint
Plaintiff Lydia Nunez as Successor in Interest to the Estate
of Ruben Nunez. (ECF No. 3).
I.
BACKGROUND
On June
8, 2016, Plaintiffs The Estate of Ruben Nunez by and through
its successor-in-interest Lydia Nunez, Albert Nunez, and
Lydia Nunez initiated this action by filing a Complaint
against Defendants County of San Diego, William Gore, Bruce
Leicht, Alfred Joshua, Harry Oreol, Kayla Fisher, Marcy Moon,
and Does 1 - 50. (ECF No. 1). Plaintiffs’ Complaint
alleges eleven causes of action including: (1) deliberate
indifference to serious medical needs; (2) wrongful death (42
U.S.C. § 1983); (3) right of association; (4) failure to
properly train; (5) failure to properly supervise and
discipline; (6) failure to properly investigate; (7)
Monell municipal liability civil rights action; (8)
wrongful death (CCP § 377.60); (9) negligence; (10)
violation of 42 U.S.C. § 12132; and (11) violation of 29
U.S.C. § 794(a). (ECF No. 1).
On June
10, 2016, Plaintiffs filed the Ex Parte Motion to Appoint
Lydia Nunez as Successor in Interest to the Estate of Ruben
Nunez. (ECF No. 3). No opposition has been filed.
II.
PLAINTIFFS’ ARGUMENT IN SUPPORT OF MOTION
Plaintiff
Lydia Nunez contends that because decedent’s estate was
not administered, a final order showing the distribution is
not required. Plaintiff Lydia Nunez also contends that, as
set forth in the death certificate of decedent (ECF No. 4),
decedent was unmarried at the time of his death and died
without children. (ECF No. 3 at 3). Plaintiff Lydia Nunez
contends that she has complied with all requirements of Cal.
Civ. Proc. Code § 377.32 to commence a survival action
as 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. Code § 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., 51 F.Supp.3d 887, 894 (CD. Cal. Feb. 18, 2014).
Plaintiff Lydia Nunez states that “[b]ecause Ruben
Nunez did not leave any will or other testamentary
instrument, there is no probate proceeding pending for the
administration of his estate.” (ECF No. 3 at p. 3
citing Decl. Lydia Nunez at ¶ 6). Because Plaintiff has
demonstrated there is no court-appointed executor or
administrator of the estate, and her declaration states that
no proceeding is pending for administration of the
decedent’s estate, the Court finds the Plaintiff Lydia
Nunez is not the decedent’s personal representative.
B.
Successor In Interest
Because
Plaintiff Lydia Nunez is not decedent’s personal
representative, she must establish that she is the successor
in interest. See Cal. Civ. Proc. Code § 377.30
(“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.); see also Tatum
v. City & Cnty. of San Francisco, 441 F.3d 1090,
1094, n.2 (9th Cir. 2006) (“Where there is no personal
representative for the estate, the decedent’s
‘successor in interest’ satisfies the
requirements of California law ...”).
In
California, the person who seeks to commence an action as the
decedent’s successor in interest is required to execute
and file an affidavit or declaration under penalty of
perjury, stating: “(1) the decedent’s name. (2)
The date and place of decedent’s death. (3) ‘No
proceeding is now pending in California for the
administration of the decedent’s estate.’ (4) If
the decedent’s estate was administered, a copy of the
final order showing the distribution of the decedent’s
cause of action to the successor in interest. (5) Either of
the following, as appropriate, with facts in support thereof:
(A) ‘The affiant or declarant is the decedent’s
successor in interest... and succeeds to the
decedent’s interest in the action or proceeding.’
(B) ‘The affiant or declarant in the pending action or
...