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Estate of Smith v. Holslag

United States District Court, S.D. California

February 28, 2018

ESTATE OF TIMOTHY GENE SMITH, by his successor in interest, JANIE RICHELLE SANDERS; JANIE RICHELLE SANDERS, SANDY LYNN SIMMONS, and WYATT ALLEN GUNNER SMITH, as individuals, Plaintiffs,
v.
SCOTT HOLSLAG, as an individual and on behalf of CITY OF SAN DIEGO; NATALIE ANN MACEY d/b/a MACEY BAIL BONDS, as an individual; LEGAL SERVICE BUREAU, INC. d/b/a GLOBAL FUGITIVE RECOVERY, a California domestic corporation; DAN ESCAMILLA, as an individual and on behalf of LEGAL SERVICE BUREAU, INC., Defendants.

          ORDER

          Hon. William Q. Hayes United States District Court.

         The matters before the Court are (1) the Motion for Judgment on the Pleadings (ECF No. 64) filed by Defendant Natalie Macey; (2) the Motion for Order to Substitute Wyatt Allen Gunner Smith for Janie Richelle Sanders and to Appoint Wyatt Allen Gunner Smith as Successor in Interest to the Estate of Timothy Gene Smith (ECF No. 68) filed by Plaintiffs Janie Sanders, Sandy Simmons, Wyatt Smith, and Estate of Timothy Smith (by his successor in interest, Janie Sanders); and (3) the Motion to Dismiss the Ninth, Tenth, and Twelfth Causes of Action Against Defendant Escamilla (ECF No. 72) filed by Defendant Dan Escamilla.

         I.Motion to Substitute

         A. Background

         On December 8, 2016, this action was initiated by the filing of the Complaint (ECF No. 1). The Complaint names four Plaintiffs: Janie Sanders, Sandy Simmons, Wyatt Smith, and “Estate of Timothy Gene Smith, deceased, by his successor in interest, Janie Richelle Sanders” (collectively, “Plaintiffs”). Id. at 1. On December 29, 2016, Plaintiffs filed a First Amended Complaint (the “FAC”) (ECF No. 7). The FAC is the operative complaint in this matter.

         On October 17, 2017, Plaintiffs filed a Motion for Order to Substitute Wyatt Allen Gunner Smith for Janie Richelle Sanders and to Appoint Wyatt Allen Gunner Smith as Successor in Interest to the Estate of Timothy Gene Smith (the “Motion to Substitute”) (ECF No. 68). Plaintiffs attached a Declaration of Wyatt Allen Gunner Smith (ECF No. 68-2) to the Motion to Substitute. On October 23, 2017, Defendant Dan Escamilla filed a Response to the Motion to Substitute. (ECF No. 75).[1] On October 25, 2017, Defendant Scott Holslag filed an Opposition to the Motion to Substitute. (ECF No. 79).[2] On October 26, 2017, Plaintiffs filed a Reply to Escamilla's Response to the Motion to Substitute and Holslag's Opposition to the Motion to Substitute. (ECF No. 81). Plaintiffs attached a Supplemental Declaration of Wyatt Allen Gunner Smith (ECF No. 81-1) to the Reply. On November 15, 2017, the Court issued an Order permitting Escamilla to file a Surreply to the Motion to Substitute. (ECF No. 86). On November 15, 2017, Escamilla filed a Surreply to the Motion to Substitute (ECF No. 87).[3] On January 18, 2018, Plaintiffs filed an Amended Declaration of Wyatt Allen Gunner Smith (ECF No. 88). On January 19, 2018, Plaintiffs filed a second Amended Declaration of Wyatt Allen Gunner Smith (ECF No. 90). On January 23, 2018, the Court issued an Order permitting Escamilla to file a Second Surreply to the Motion to Substitute. (ECF No. 91). On January 25, 2018, Escamilla filed the Second Surreply to the Motion to Substitute. (ECF No. 93).

         B. Contentions of the Parties

         Plaintiffs contend that the Court should substitute Wyatt Smith for Sanders as Timothy Smith's successor in interest because Wyatt Smith qualifies as Timothy Smith's successor in interest and has complied with California's requirements for litigants seeking to bring claims as an estate's successor in interest. (ECF No. 68 at 5). Escamilla and Holslag contend that Wyatt Smith has not complied with California law regarding declarations that must be submitted by a litigant seeking to act as an estate's successor in interest. ECF No. 79 at 2; ECF No. 93 at 4.[4]

         C. Discussion

In § 1983 actions . . . the survivors of an individual killed as a result of an officer's excessive use of force may assert a . . . 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), as amended (Nov. 24, 1998) (citations omitted).

         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. “Under this section, an action or proceeding may be commenced by the decedent's successor in interest only if there is no personal representative.” Id. cmt. 1992 Addition. There is currently no personal representative for Timothy Smith's estate. See ECF No. 81 at 3 n.1; Wyatt Smith's Supplemental Declaration at ¶ 5.

         “‘[D]ecedent's successor in interest' means the beneficiary of the decedent's estate or other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of a cause of action.” Cal. Civ. Proc. Code § 377.11. “The distributee of the cause of action in probate is the successor in interest or, if there is no distribution, the heir, devisee, trustee, or other successor has the right to proceed under this article.” Id. at § 377.30 cmt. 1992 Addition (citing id. at § 377.11). Timothy Smith's causes of action have not been distributed in probate because Timothy Smith left no will or other testamentary instrument. ECF No. 81 at 3; Wyatt Smith's Supplemental Declaration at ¶ 5. Timothy Smith was survived by Wyatt Smith, his son, and Sanders, who may or may not have been his legal wife. See Sanders Declaration at ¶¶ 1-2; Wyatt Smith's Supplemental Declaration at ¶ 2. Sanders has waived any right she may have to Timothy Smith's causes of action. Sanders Declaration at ¶ 5. Consequently, Wyatt Smith has succeeded to Timothy Smith's causes of actions under California probate law. See ...


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