S A Thomas v. Leroy Baca et al

Filing 1000

ORDER by Judge Dean D. Pregerson: denying 970 Plaintiffs Ex Parte Application to substitute Dwain Gipson for his deceased brother,Plaintiff Eric L. Gipson. (lc). Modified on 6/20/2014. (lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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S.A. THOMAS,

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Plaintiff,

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v.

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LEROY BACA, et al.

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Defendants.
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Case No. CV 04-08448 DDP (SHx)
ORDER DENYING EX PARTE
APPLICATION TO SUBSTITUTE
PLAINTIFF

[Dkt. No. 970]

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Presently before the court is Plaintiffs’ Ex Parte Application

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to substitute Dwain Gipson (“Dwain”) for his deceased brother,

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Plaintiff Eric L. Gipson.

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I.

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INTRODUCTION
Plaintiff Eric L. Gipson (“Gipson”) passed away on June 13,

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2014, less than two weeks before the scheduled trial date.

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brother, Dwain, now seeks to substitute in as a plaintiff under

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Federal Rule of Civil Procedure 25(a).

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substitution and contends that Dwain lacks standing.

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His

Defendant opposes the

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II.

DISCUSSION

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A.

Substitution of Parties under FRCP 25

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Under Federal Rule of Civil Procedure 25, “[i]f a party dies

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and the claim is not extinguished, the court may order substitution

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of the proper party.

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party or by the decedent’s successor or representative.”

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Civ. P. 25(a)(1).

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A motion for substitution may be made by any
Fed. R.

Rule 25 is a procedural rule, and controls the manner of
effecting substitution in federal courts.

In re Baycol Products

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Litigation, 616 F.3d. 778, 788 (8th Cir. 2010).

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who is a proper party,” however, is a substantive issue, on which

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the court must look to state law.

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No. 11-cv-520 AWI, 2014 WL 897040 *6 (E.D. Cal. Mar. , 2014).

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“The question of

Id.; Fox v. County of Tulare,

Rule 25(a) should be applied flexibly and liberally to

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substitute parties who would best represent the decedent’s

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interests.

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seeking to bring a survival action under Section 1983 bears the

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burden of demonstrating that a particular state’s law authorizes a

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survival action and that the plaintiff meets that state’s

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requirements for bringing a survival action.”

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Vegas Metropolitan Police Dept., 159 F.3d 365, 369 (9th Cir. 1998);

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42 U.S.C. § 1988(a).

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B.

Baycol, 616 F.3d at 789.

Nevertheless, “the party

Moreland v. Las

California Survivorship Law
1.

Gipson’s Claim Is Not Extinguished

Here, Defendant does not dispute that under California law,
Gipson’s Section 1983 claim survives his death.
2.

Whether Dwain Is A “Proper Party”

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In California, a survival claim “passes to the decedent’s

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successor in interest, subject to . . . the Probate Code, and an

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action may be commenced by the decedent’s personal representative

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or, if none, by the decedent’s successor in interest.”

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Civ. P. §377.30.

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i.

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Cal. Code

Whether Dwain Is Gipson’s “Personal
Representative”

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Under the California Probate Code, “‘personal representative’

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means executor, administrator, successor personal representative .

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. . or a person who performs substantially the same function under

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the law of another jurisdiction . . . .”

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Here, Plaintiffs do not assert that Dwain is the executor of

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Gipson’s estate or performs other functions that would qualify him

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as a “personal representative.”

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claim, a person has no power to administer a decedent’s estate

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until appointed by the court as personal representative.1

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Prob. Code § 8400(b).

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ii.

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Cal. Prob. Code § 58.

Even if Dwain had made such a

Cal.

Whether Dwain is Gipson’s “Successor in
Interest”

“‘[D]ecedent’s successor in interest’ means the beneficiary of

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the decedent’s estate or other successor in interest who succeeds

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to a cause of action or to a particular item of the property that

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is the subject of a cause of action.”

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A “beneficiary of the decedent’s estate” means a beneficiary named

Cal. Code Civ. P.

§ 377.11.

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Prior to court appointment, even a named executor’s power is
limited to measures necessary to maintain and preserve the estate.
Cal. Prob. Code § 8400(b).
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in a decedent’s will or a beneficiary under California’s rules of

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intestacy.

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Cal.Civ.P. Code § 377.10.

Here, though the ex parte application refers to Dwain as a

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“successor,” there is no indication that he was named as a

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beneficiary in Gipson’s will.

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intestate.

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two children,

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apart from Dwain.

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under California’s law of intestate succession, it does not appear

It is unclear whether Gipson died

Gipson’s deposition testimony suggests that Gipson has
a surviving parent, and at least one other sibling
(Declaration of Justin W. Clark, Ex. A.)

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that Dwain is Gipson’s successor in interest.

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§ 6402.

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III.

Thus,

See Cal. Prob. Code

CONCLUSION

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Because Dwain has not established that he is either Gipson’s

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personal representative or successor in interest, Plaintiffs have

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not carried their burden to show that Dwain is a “proper party” for

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purposes of substitution under FRCP 25(a).

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application is, therefore, DENIED.2

The ex parte

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IT IS SO ORDERED.

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Dated: June 20, 2014
DEAN D. PREGERSON
United States District Judge

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Rule 25(a)(1) also states that claims must be dismissed if
a motion for substitution is not filed within 90 days of a
statement noting the Plaintiff’s death. Defendant appears to
suggest that a motion for substitution cannot be filed until the
ninety day period begins. Having denied the ex parte application,
the court does not address this additional argument, which, in any
event, has not been fully developed by the parties.
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