(PC) Elder v. Joksch ( 2024 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 COREY JEROME ELDER, No. 2:16-CV-1925-DJC-DMC-P 12 Plaintiff, 13 v. ORDER 14 JOKSCH, 15 Defendant. 16 17 Plaintiff, a prisoner proceeding with limited purpose appointed counsel, brings this 18 civil rights action under 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s renewed 19 motion, ECF No. 100, for substitution of parties following the suggestion of death of Defendant 20 Joksch. A hearing was held before the undersigned via Zoom on September 18, 2024. Plaintiff 21 appeared through limited purpose appointed counsel Matthew Norris, Esq. Sarah Brattin, Esq., 22 specially appeared for Defendant Joksch. Following discussions with counsel, the matter was 23 submitted. 24 Plaintiff seeks substitution under Federal Rule of Civil Procedure 25 of Ms. 25 Banowetz in place of deceased Defendant Joksch. The parties do not dispute that Ms. Banowetz 26 is Mr. Joksch's sister. She is the only known surviving relative. The parties agree that, under 27 California law, Plaintiff's claim survives Mr. Joksch's death. See Cal. Code Civ. Pro. § 377.20; 28 see also Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1103 (9th Cir. 2014). Ms. Banowetz 1 has been served with the motion pursuant to Federal Rule of Civil Procedure 4. According to 2 Plaintiff, as his sister Ms. Banowetz is Mr. Joksch's successor-in-interest because Mr. Joksch died 3 intestate and did not leave behind a surviving spouse, children, grandchildren, or parents. See 4 Cal. Prob. Code § 8461(f). 5 Under Rule 25, both the notice of suggestion of death and the motion to substitute 6 must be served on non-parties in compliance with Federal Rule of Civil Procedure 4. See Fed. R. 7 Civ. P. 25(a)(3). In evaluating a Rule 25 motion to substitute, the Court must consider whether: 8 “(1) the motion is timely; (2) the claims pled are extinguished; and (3) the person being 9 substituted is a proper party.” Maseda v. Saul, No. 1:20-cv-01657-JLT, 2021 WL 2268871, at *1 10 (E.D. Cal. June 3, 2021). If the requirements of Rule 25(a)(1) are met, “[t]he substituted party 11 steps into the same position as [the] original party.” Id. (quoting Hilao v. Estate of Marcos, 103 12 F.3d 762, 766 (9th Cir. 1996)). “Rule 25(a) should be applied flexibly and liberally to permit 13 substitution of the party or parties who…would adequately represent [the decedent’s] interests.” 14 Id. (quoting In re Baycol Prods. Litig., 616 F.3d 778, 789 (8th Cir. 2010)). 15 California Code of Civil Procedure § 377.32 provides that a person seeking to 16 continue a pending action as a decedent's successor-in-interest must submit a declaration 17 supporting substitution. See Cal. Code Civ. Pro. § 377.32(a). Is such a declaration, the purported 18 successor-in-interest must state, among other things: (1) the decedent's name; (2) the date and 19 place of the decedent's death; (3) whether a probate was opened or administered; and (4) whether 20 the declarant is a successor-in-interest under California law. See id. Absent such a declaration, A 21 Rule 25 motion to substitute should be denied. See Ottele v. Martinez, 2023 WL 2268871, at *1 22 (E.D. Cal. 2021) (denying motion to substitute Ms. Hodges for deceased defendant where the 23 plaintiff's motion was unsupported by sworn evidence establishing the propriety of substituting 24 Ms. Hodges despite the parties' agreement that Ms. Hodges is a proper party). 25 California Probate Code § 9370 provides that an action against the decedent at the 26 time of death may not be continued against the decedent's personal representative unless: (1) a 27 claim is first filed; and (2) the claim is rejected in whole or in part. See Cal. Prob. Code § 28 9370(a). The Court may not relieve Plaintiff of the obligation to comply with the claims 1 presentation process. See Grimes v. Chisum, 2017 U.S. Dist. LEXIS 9182, at *6 (N.D. Cal. 2 2017). 3 Upon consideration of both the renewed suggestion of death filed on May 6, 2024, 4 as well as the pending renewed motion to substitute, the Court finds both to be procedurally 5 defective. First, the renewed suggestion of death has not been served on Ms. Banowetz pursuant 6 to Rule 4. Second, Plaintiff's renewed motion to substitute is not accompanied by the declaration 7 required under California Code of Civil Procedure § 377.32 or any indication of compliance with 8 the claims presentation process required under California Probate Code § 9370. For these 9 reasons, the renewed suggestion of death will be stricken and Plaintiff's renewed motion to 10 substitute will be denied. The Attorney General's Office will be directed to re-serve a notice of 11 suggestion of death on Ms. Banowetz consistent with the requirements of both Rule 25(a)(3) and 12 Rule 4. Plaintiff will be directed to file a renewed motion for substitution within the 90-day 13 period proscribed by Rule 25(a)(1). 14 At the September 18, 2024, hearing, there was some dispute as to whether the 15 obligation to comply with California Code of Civil Procedure § 377.32 and California Probate 16 Code § 9370 falls to Plaintiff or counsel for the deceased party, here the Attorney General's 17 Office by special appearance. There was also a dispute as to whether Plaintiff or decedent's 18 counsel should be required to open a probate on Mr. Joksch's behalf in order to resolve the 19 substitution issue. The Court will accept supplemental briefing on these issues and will defer a 20 final ruling on any renewed motion to substitute until such briefing is submitted. 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 | /// 2 Accordingly, IT IS HEREBY ORDERED as follows: 3 1. The renewed suggestion of death filed on May 6, 2024, ECF No. 92, is 4 || stricken for lack of evidence of service on non-party Ms. Banowetz pursuant to Federal Rule of 5 || Civil Procedure 4. 6 2. Plaintiff's renewed motion to substitute, ECF No. 100, is denied without 7 || prejudice. 8 3. The Attorney General Office is directed to re-serve the notice of suggestion 9 || of death on Ms. Banowetz consistent with the requirements of Federal Rule of Civil Procedure 10 | 25(a)(3) and Federal Rule of Civil Procedure 4 within 14 days of the date of this order. 11 4. Plaintiff's supplemental brief is due within 30 days of the date of this order. 12 5. The Attorney General Office's response is due within 20 days following 13 || service of Plaintiffs supplemental brief. 14 6. The stay of proceedings, other than those outlined above, remains in effect 15 || pending further order of the Court. 16 17 | Dated: September 19, 2024 Ss.cqo_ 18 DENNIS M. COTA 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28