United States District Court, S.D. California
SHANE CAVANAUGH, an individual and as personal representative and successor in interest of the Estate of RICHARD BOULANGER; the Estate of RICHARD BOULANGER, Plaintiffs,
COUNTY OF SAN DIEGO, a municipal Corporation; SHERRIFF BILL GORE, individually and in his official capacity as Sherriff for the County of San Diego; and DOES 1-50 inclusive, Defendants.
ORDER GRANTING MOTION TO APPOINT SHANE CAVANAUGH AS
SUCCESSOR-IN-INTEREST TO THE ESTATE OF RICHARD BOULANGER
[DOC. NO. 20]
ROGER T. BENITEZ United States District Judge.
matter before the Court is Plaintiffs' Ex Parte Motion to
Appoint Shane Cavanaugh as Successor in Interest to the
Estate of Richard Boulanger.
February 9, 2018, Plaintiffs Shane Cavanaugh, an individual
and as personal representative and successor in interest of
the Estate of Richard Boulanger, and the Estate of Richard
Boulanger initiated this action by filing the Complaint
against Defendants County of San Diego, and William Gore in
the Superior Court of California, County of San Diego -
Central Division. Plaintiffs' Complaint alleges six
causes of action including (1) Civil Right; (2) Deliberate
Indifference to Decedents Medical Needs; (3) Wrongful Death;
(4) Loss of Familial Relationship; (5) Survival Action; (6)
Monell municipal liability civil rights action. On
November 8, 2018, Defendants removed the case to the Southern
District Court (Doc. No. 1.) The Plaintiff move to remand the
case back to the state court in December 2018. On July 17,
2018, the court denied Plaintiffs motion for remand.
August 25, 2019, Plaintiffs filed an Ex Parte Motion
to Appoint Plaintiff Shane Cavanaugh as Successor-in-interest
to the Estate of Richard Boulanger by Shane Cavanaugh. (Doc.
No. 16.) On August 26, 2019, the Plaintiffs filed a Notice of
Withdrawal of Docket No. 16 by Shane Cavanaugh. (Doc. No.
August 26, 2019, Plaintiffs filed an Ex Parte Motion to
Appoint Plaintiff Shane Cavanaugh as Successor-in-interest to
the Estate of Richard Boulanger by Shane Cavanaugh. (Doc. No.
RULING OF COURT
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 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. Law 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.
Successor In Interest
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
(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 is authorized to act on behalf of the
decedent's successor in interest... with respect to the
decedent's interest in the action or proceeding."
(6) "No other person has a superior right to commence
the action or proceeding or to be substituted for the
decedent in the pending action or proceeding." (7)
"The affiant or declarant affirms or declares under
penalty of perjury under the laws of the State of California
that the foregoing is true and correct."
Cal.Civ.Proc.Code § 377.32(a).
in interest" is defined as "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. § 377.11.
of the decedent's estate" means "[i]f the
decedent died leaving a will, the sole beneficiary or all of
the beneficiaries who succeed to a cause of action, or to a
particular item of property that is the subject of a cause of
action, under the decedent's will," or "[i]f
the decedent died without leaving a will, the sole person or
all of the persons who succeed to a cause of action, or to a
particular item of property that is the subject of a cause ...