Cooley v. City of Vallejo et al

Filing 62

ORDER signed by Magistrate Judge Kendall J. Newman on 6/19/15 DENYING 58 Motion for Substitution. (Meuleman, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FREDERICK MARCELES COOLEY,

No. 2:14-cv-0620 TLN KJN PS

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Plaintiff,

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ORDER
v.

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CITY OF VALLEJO, et al.,

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Defendants.

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Presently pending before the court is a motion filed by Frederick Marc Cooley, the

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biological father of now-deceased plaintiff Frederick Marceles Cooley, to be substituted as the

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plaintiff in this action. (ECF No. 58.)1 Defendants filed an opposition to the motion, and Mr.

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Cooley2 filed a reply brief. (ECF Nos. 59, 60.)3
For the reasons discussed below, the court DENIES the motion without prejudice.

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This case proceeds before the undersigned pursuant to E.D. Cal. L.R. 302(c)(21) and 28 U.S.C.
§ 636(b)(1).

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Due to the similarity in names, the court, for purposes of this order, refers to now-deceased
plaintiff Frederick Marceles Cooley as “Decedent,” and to his father Frederick Marc Cooley as
“Mr. Cooley.”
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The motion was deemed suitable for resolution without oral argument, and was submitted on the
record and written briefing pursuant to Local Rule 230(g). (ECF No. 61.)
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Federal Rule of Civil Procedure 25 provides, in part, that:

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If a party dies and the claim is not extinguished, the court may
order substitution of the proper party. A motion for substitution
may be made by any party or by the decedent’s successor or
representative. If the motion is not made within 90 days after
service of a statement noting the death, the action by or against the
decedent must be dismissed.

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

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In this case, the parties do not dispute that Decedent died. On April 23, 2015, defendants

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filed and served a statement of death, indicating that Decedent died on April 22, 2015. (ECF No.

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56.) Mr. Cooley states that, although a death certificate has not yet been issued, he agrees with

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defendants that Decedent died on April 22, 2015. (ECF No. 58-2, ¶ 4; ECF No. 60 at 7.)
Additionally, the parties agree that Decedent’s claims were not extinguished by his death.

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Decedent’s operative first amended complaint asserts 42 U.S.C. § 1983 claims for excessive force

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in violation of the Fourth Amendment against the police officer defendants, as well as a Monell

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claim against defendant City of Vallejo. (ECF No. 20.) “A claim under 42 U.S.C. § 1983

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survives the decedent if the claim accrued before the decedent’s death, and if state law authorizes

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a survival action.” Tatum v. City and County of San Francisco, 441 F.3d 1090, 1094 n.2 (9th Cir.

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2006). Generally, under California law, “a cause of action for or against a person is not lost by

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reason of the person’s death, but survives subject to the applicable limitations period.” Cal. Civ.

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Proc. Code § 377.20(a). Therefore, Decedent’s claims survive.

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Furthermore, the parties do not dispute that Mr. Cooley’s motion was timely. On April

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24, 2015, the court, pursuant to Federal Rule of Civil Procedure 25(a), ordered that Decedent’s

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“successor or representative shall file a motion for substitution within ninety (90) days from the

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date of this order.” (ECF No. 57.) Mr. Cooley’s motion, filed on May 28, 2015, was thus clearly

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timely.

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However, the pertinent question in this case is whether Mr. Cooley has satisfactorily

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shown that he is the proper party for substitution. Notably, the court’s April 24, 2015 order

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specifically directed that any motion for substitution “shall be supported by briefing and adequate

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supporting documentation permitting the court to ascertain and verify that the movant is the
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proper successor or representative under applicable probate or intestate succession law.” (ECF

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No. 57.)

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Under California law, a surviving cause of action passes to the decedent’s estate. Tatum,

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441 F.3d at 1094 n.2 (citing Cal. Civ. Proc. Code § 377.30). Pursuant to California Code of Civil

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Procedure section 377.30, the surviving cause of action may be prosecuted by the decedent’s

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personal representative or, if none, by the decedent’s successor in interest. Cal. Civ. Proc. Code §

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377.30. “The ‘personal representative’ is the person or firm appointed by the probate court to

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administer the probate of a decedent’s estate. The personal representative may be the executor,

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who is the person named as such in the decedent’s will, or it may be the successor to the executor,

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or an administrator appointed by the court where the decedent died without a will naming an

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executor.” Miller v. Campbell, Warburton, Fitzsimmons, Smith, Mendel & Pastore, 162 Cal.

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App. 4th 1331, 1340 n.2 (2008). Here, Mr. Cooley does not claim to be an appointed executor or

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administrator of Decedent’s estate—indeed, he represents that no proceeding is presently pending

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in California for administration of Decedent’s estate. (ECF No. 60 at 6.) As such, the present

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record does not show that Mr. Cooley qualifies as a personal representative of Decedent’s estate.

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Nevertheless, as noted above, “[w]here there is no personal representative for the estate,

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the decedent’s ‘successor in interest’ may prosecute the survival action if the person purporting to

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act as successor in interest satisfies the requirements of California law….” Tatum, 441 F.3d at

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1094 n.2. California Code of Civil Procedure section 377.32 provides that “[t]he person who

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seeks to…continue a pending action or proceeding as the decedent’s successor in interest under

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this article, shall execute and file an affidavit or a declaration under penalty of perjury” providing

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specific types of information. Cal. Civ. Proc. Code § 377.32(a). Such required information

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includes a statement, “with facts in support thereof,” that “[t]he affiant or declarant is the

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decedent’s successor in interest (as defined in Section 377.11 of the California Code of Civil

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Procedure) and succeeds to the decedent’s interest in the action or proceeding.” Id. §

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377.32(a)(5)(A) (emphasis added).

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Here, Mr. Cooley’s motion and supporting declarations fail to comply with that

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requirement, because they provide no factual basis for Mr. Cooley’s mere conclusory assertion
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that he is Decedent’s successor in interest. Such failure does not simply amount to

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noncompliance with a minor technicality – in the absence of an appointed representative of

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Decedent’s estate, it is vitally important for the court to ascertain and verify that Mr. Cooley is

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indeed a proper successor in interest and that there are no other potential successors in interest

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whose rights have to be considered. Such verification is not possible without a proper factual

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showing by Mr. Cooley.4

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A decedent’s successor in interest is defined as “the beneficiary of the decedent’s estate or

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other successor in interest who succeeds to a cause of action or to a particular item of the property

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that is the subject of a cause of action.” Cal. Civ. Proc. Code § 377.11. In turn, the term

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“beneficiary of the decedent’s estate” means:

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(a) If 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.

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(b) If 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 of
action, under Sections 6401 and 6402 of the Probate Code….

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Cal. Civ. Proc. Code § 377.10. Under the California Probate Code, parents of a decedent who

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died intestate inherit only if the decedent has no surviving spouse/domestic partner and no issue

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(children), in which case the parents take equally. Cal. Prob. Code § 6402(a)-(b). If Mr. Cooley

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wishes to renew his motion to substitute, such a motion shall include, inter alia, a declaration

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under penalty of perjury sufficiently addressing the above matters.

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As an initial matter, Mr. Cooley shall indicate whether or not Decedent had a will, as well

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as his factual basis for that knowledge. A mere conclusory statement that Mr. Cooley was

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Decedent’s father is insufficient. Mr. Cooley shall set forth what specific efforts he made to

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ascertain whether a will exists, including who he spoke with and what searches he conducted.

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Mr. Cooley appears to suggest that his previous assistance to Decedent with the litigation
(acting as his non-lawyer “legal assistant”) somehow qualifies Mr. Cooley as a successor in
interest. (ECF No. 60.) That contention is unsupported by any legal authority and is simply
incorrect.

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In the event that Decedent did not leave a will, Mr. Cooley shall state whether or not

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Decedent has a surviving spouse, domestic partner, or any children, along with a sufficient factual

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basis for such knowledge. Again, given that Decedent was a young adult, a mere conclusory

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statement that Mr. Cooley has such knowledge because he was Decedent’s father is insufficient.

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Mr. Cooley shall outline specific facts regarding the inquiries he made and the investigation he

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conducted; for example, whether a public records search revealed the existence of any surviving

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spouse, domestic partner, or children.

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Finally, in the event that no surviving spouse, domestic partner, or any children exist, the
court notes that Decedent’s birth certificate provided by Mr. Cooley lists Decedent’s father as Mr.

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Cooley and Decedent’s mother as “Celestein Lavonda Tyson.” (ECF No. 58 at 4.) Unless Ms.

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Tyson has died or disclaims any interest in Decedent’s claims in this litigation, Ms. Tyson and

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Mr. Cooley would both be successors in interest, and would both have to substitute in as

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plaintiffs. Therefore, Mr. Cooley shall specifically state whether or not Ms. Tyson is still alive

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and the factual basis for such knowledge (i.e., specific facts regarding the inquiries he made and

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the investigation he conducted). If Ms. Tyson is still alive, she shall either join in any motion to

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substitute, or Mr. Cooley shall submit a declaration from Ms. Tyson under penalty of perjury

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stating that she disclaims any interest she may have with respect to Decedent’s claims in this

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litigation.

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If Mr. Cooley elects to file a renewed motion to substitute, it shall strictly comply with the

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above requirements and shall be filed within the timeframe outlined in the court’s prior April 24,

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2015 order.

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Accordingly, IT IS HEREBY ORDERED that Mr. Cooley’s motion to substitute (ECF

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No. 58) is DENIED without prejudice.

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Dated: June 19, 2015

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