Cooley v. City of Vallejo et al

Filing 17

ORDER signed by Magistrate Judge Allison Claire on 6/23/15 ORDERING that Mr. Cooley's 13 motion to substitute is DENIED without prejudice. Plaintiff has until 7/24/15, to file an amended motion for substitution. (Kastilahn, 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,

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Plaintiff,

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No. 2:14-cv-02824-TLN-AC

v.

ORDER

CITY OF VALLEJO, et al.,

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Defendants.

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This matter is before the undersigned pursuant to Local Rule 302(c)(21). Currently before

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the court is a motion for substitution filed on May 29, 2015, by Frederick Marc Cooley, the

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biological father of the now-deceased plaintiff Frederick Marceles Cooley.1 ECF No. 13.

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Defendants filed an opposition to that motion on June 5, 2015, ECF No. 15, and Mr. Cooley filed

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a reply on June 10, 2015, ECF No. 16.

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According to Federal Rule of Civil Procedure 25(a) when a party dies a motion for

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substitution may be made by the decedent’s successor or representative within 90 days as long as

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the claim is not extinguished. Fed. R. Civ. P. 25(a). Defendants’ opposition does not argue that

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Decedent’s claims were extinguished, or that Mr. Cooley’s motion was not timely. Instead,

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In light of the similarities between the names of the now-deceased plaintiff and Frederick Marc
Cooley, the court will refer to the former as “Decedent” and the latter as “Mr. Cooley” for the
remainder of this order.
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defendants argue that Mr. Cooley is not the proper legal representative for Decedent’s claims.

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ECF No. 15 at 1.

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The party seeking to bring a survival action bears the burden of establishing that he is a

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proper party under California law. See Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d

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365, 369–70 (9th Cir. 1998), as amended (Nov. 24, 1998). California Civil Procedure Code §

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377.30 addresses who is a proper party in the following terms:

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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, subject to [the California Probate Code] . . .
and an action may be commenced by the decedent’s personal
representative or, if none, by the decedent's successor in interest.

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In other words, the proper party is the personal representative for the estate, unless there is no

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personal representative, in which case the proper party is the decedent’s successor in interest.

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Tatum v. City & Cnty. of San Francisco, 441 F.3d 1090, 1093 n.2 (9th Cir. 2006) (citing Cal.

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Code Civ. Proc. §§ 377.20, 377.32 ). “The ‘personal representative’ is the person or firm

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appointed by the probate court to administer the probate of a decedent’s estate. The personal

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

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may be the successor to the executor, or an administrator appointed by the court where the

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decedent died without a will naming an executor.” Miller v. Campbell, Warburton, Fitzsimmons,

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Smith, Mendel & Pastore, 76 Cal. Rptr. 3d 649, 658 n.2 (2008).

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A successor in interest, on the other hand, is (1) “the beneficiary of decedent’s estate” or

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(2) any “other successor in interest who succeeds to a particular item of the property that is the

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subject of a cause of action.” Cal. Code of Civ. P. § 377.11. California law defines “beneficiary

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of the decedent’s estate” itself in the following manner:

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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.
(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. Parents of a decedent who died intestate inherit only if the

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decedent has no surviving spouse/domestic partner and no issue (children), in which case the

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parents take equally. Cal. Prob. Code § 6402(a)–(b).

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In order to establish that he is a proper party in accordance with the foregoing, a movant

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must “execute and file an affidavit or a declaration under penalty of perjury” providing specific

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types of information. Cal. Code of Civ. P. § 377.32(a). Such required information must include a

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statement, “with facts in support thereof,” that “[t]he affiant or declaration is the decedent’s

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successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) and

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succeeds to the decedent’s interest in the action or proceeding.” Id. § 377.32(a)(5)(A).

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The court finds that although Mr. Cooley’s motion does include some relevant

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information it is ultimately insufficient to establish that he is a proper party. Mr. Cooley states in

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his motion that there is currently no proceeding pending for the administration of plaintiff’s estate

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in California Probate Court, and does not claim to be Decedent’s personal representative. ECF

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No. 13-2 at 1. Instead, Mr. Cooley asserts that he is “Decedent’s successor in interest []as defined

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in Section 377.11 of the California Code of Civil Procedure.” Id. However, Mr. Cooley does not

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include the facts required to show he is Decedent’s successor in interest. First, Mr. Cooley does

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not state whether Decedent died with a will. Even if the court inferred an assertion on Mr.

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Cooley’s part that Decedent died intestate, he does not include any facts showing that he made an

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effort to find whether a will actually exists. In addition, although Mr. Cooley states that he was

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Decedent’s father he does not include any information on other family members that would stand

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to benefit from Decedent’s estate before him, such as a surviving spouse, domestic partner, or any

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children. The court also notes that Decedent’s birth certificate lists Decedent’s mother as

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“Celestein Lavonda Tyson.” ECF No. 13 at 4. Unless Ms. Tyson has died or disclaims any

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interest in Decedent’s claims in this litigation, Ms. Tyson and Mr. Cooley would both be

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successors in interest, and would both have to substitute in as plaintiffs.

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The court will deny Mr. Cooley’s motion and give him an opportunity to file an amended

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motion for substitution. However, any amended motion should include not only a statement

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showing that Mr. Cooley is Decedent’s successor in interest, but facts in support of that assertion.
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For example, Mr. Cooley’s contentions concerning Decedent’s surviving family members should

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include details regarding a public records search. Mr. Cooley should also specifically state

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whether or not Ms. Tyson is still alive and the factual basis for such knowledge. If Ms. Tyson is

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still alive, she must either join in any motion to substitute, or Mr. Cooley must submit a

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declaration from Ms. Tyson under penalty of perjury stating that she disclaims any interest she

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may have with respect to Decedent’s claims in this litigation.

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In accordance with the foregoing, THE COURT HEREBY ORDERS that Mr. Cooley’s

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motion to substitute, ECF No. 13, is DENIED without prejudice. Plaintiff has until July 24, 2015,

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to file an amended motion for substitution.

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DATED: June 23, 2015

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