Rodriguez v. Hubbard et al

Filing 165

ORDER DISMISSING Suit With Prejudice and Directing Clerk to Close Case, signed by District Judge Dale A. Drozd on 1/10/17. CASE CLOSED. (Marrujo, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LUIS VALENZUELA RODRIGUEZ, 12 13 14 15 No. 1:10-cv-00858-DAD-SAB Plaintiff, v. HUBBARD, et al., ORDER DISMISSING SUIT WITH PREJUDICE AND DIRECTING CLERK TO CLOSE CASE Defendants. 16 17 Plaintiff here was a state prisoner proceeding pro se and in forma pauperis in this civil 18 rights action pursuant to 42 U.S.C. § 1983. Defendants filed a statement of plaintiff’s death on 19 May 4, 2016 and represented therein that “[a] copy of this notice was being served on C. Grenot, 20 D. Rodriguez, and A. Garcia, in accordance with Rule 25(a)(3) of the Federal Rules of Civil 21 Procedure.” (Doc. No. 159 at 2.) These individuals are plaintiff’s wife, brother, and daughter, 22 respectively. (Id.) The assigned magistrate judge directed the defendants to file supporting 23 evidence of service on August 15, 2016. (Doc. No. 160.) The defendants filed a declaration with 24 supporting exhibits on August 23, 2016, showing Garcia was served but that neither Grenot nor 25 D. Rodriguez had been served. (Doc. No. 161.) On September 9, 2016, this court noted such 26 proof was insufficient given the representation that Grenot, D. Rodriguez, and Garcia had all been 27 served, and directed defendants to supplement their previously filed notice with evidence of 28 proper service upon both Grenot and D. Rodriguez. (Doc. No. 163.) 1 1 On September 29, 2016, defendants filed a declaration from their counsel, Deputy 2 Attorney General Joseph R. Wheeler. (Doc. No. 164.) Deputy Attorney General Wheeler 3 submitted proof Grenot was served on September 14, 2016. (Id. at 4.) However, Deputy 4 Attorney General Wheeler declared that service need not be effected on D. Rodriguez, because 5 Grenot is plaintiff’s wife and would be the successor to his claims under California law. (Id. at 6 ¶ 3.) “State law governs who receives a decedent’s § 1983 claim.” Estate of Cornejo ex rel. 7 8 Solis v. City of Los Angeles, 618 Fed. App’x 917, 919 (9th Cir. 2015)1 (citing 42 U.S.C. § 1988 9 and Robertson v. Wegmann, 436 U.S. 584, 589 (1978)). Under California law, Rodriguez’s claim 10 survives his death and “passes to [his] successor in interest.” Cal. Civ. Proc. Code § 377.30; see 11 also Cal. Civ. Proc. Code § 377.11 (successor in interest is “the beneficiary of the decedent’s 12 estate”). Under California law, if a person dies intestate,2 the cause of action passes to “the sole 13 person or all of the persons” dictated under California intestacy law. Cal. Civ. Proc. Code 14 § 377.10(b). Under the rules of California’s intestate succession, a surviving spouse receives all 15 community property and one-half of separate property. Cal. Prob. Code § 6401. The remaining 16 part of the estate passes first to decedent’s children. Cal. Prob. Code § 6402. Only if the 17 decedent has no surviving children or parents does the estate pass to decedent’s siblings. Id. 18 Here, Mr. Rodriguez had both a wife and a daughter, who were served with the required 19 notice on September 14, 2016 and May 7, 2016. (See Doc. Nos. 164 at 4; 161 at 4.) Mr. 20 Rodriguez’s brother has not been served, but could not succeed to the cause of action in any event 21 under California law. Given that the death of Mr. Rodriguez has been suggested on the record, 22 the suggestion of death has been served on his nonparty successors, and more than ninety days 23 ///// 24 ///// 25 ///// 26 1 27 28 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 36–3(b). 2 Nothing in the record indicates Mr. Rodriguez had a will. 2 1 has elapsed without a motion for substitution, the matter is hereby dismissed with prejudice. See 2 Fed. R. Civ. P. 25(a)(1); Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). 3 Accordingly, the Clerk of Court is directed to close this action. 4 5 IT IS SO ORDERED. Dated: January 10, 2017 UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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