Bloom v. City of San Diego

• Court: District Court, S.D. California
• Decided: August 25, 2021
• Docket: 3:17-cv-02324
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ESTATE OF MICHAEL BLOOM, Case No.: 3:17-cv-02324-AJB-MSB STEPHEN CHATZKY, TONY DIAZ, 12 VALERIE GRISCHY, PENNY HELMS, ORDER DENYING WITHOUT 13 BENJAMIN HERNANDEZ, DOUG PREJUDICE PLAINTIFFS’ MOTION HIGGINS, SUZONNE KEITH, GERALD FOR SUBSTITUTION OF DECEASED 14 STARK, ANNA STARK, and DAVID PARTY AND REQUEST FOR 15 WILSON, individually and on behalf of APPOINTMENT OF SPECIAL themselves and all others similarly ADMINISTRATOR OF ESTATE 16 situated, 17 Plaintiffs, (Doc. No. 185) 18 v. 19 CITY OF SAN DIEGO, Defendants. 20 21 Before the Court is Plaintiffs’ motion for substitution of deceased party, and for 22 appointment of special administrator of estate. (Doc. No. 185.) No opposition has been 23 filed. For the reasons stated herein, the Court DENIES WITHOUT PREJUDICE the 24 motion, and hereby VACATES the currently scheduled September 9, 2021, hearing. 25 On June 3, 2021, Plaintiff Michael Bloom was found deceased in his vehicle. 26 Plaintiffs seek substitution of the Estate of Michael Bloom into this matter in the place of 27 Plaintiff Michael Bloom. Also, Plaintiffs request that William Bloom, Michael Bloom’s 28 brother, be appointed Special Administrator of the Estate under Federal Rule of Civil 1 Procedure 25(a)(1), for the limited purpose of pursuing Michael Bloom’s claims for actual 2 damages, restitution, and attorneys’ fees. Plaintiffs explain they are not attempting to 3 substitute William Bloom as a class representative in the matter. 4 I. DISCUSSION 5 Rule 25(a)(1) provides, “[i]f a party dies and the claim is not extinguished, the court 6 may order substitution of the proper party. A motion for substitution may be made by any 7 party or by the decedent’s successor or representative.” In deciding a motion to substitute 8 under Rule 25(a)(1), a court must consider whether: (1) the motion is timely; (2) the claims 9 pled are extinguished; and (3) the person being substituted is a proper party. Id. If Rule 10 25(a) (1) is met, “[t]he substituted party steps into the same position as [the] original party.” 11 Hilao v. Estate of Marcos, 103 F.3d 762, 766 (9th Cir. 1996). 12 The capacity of a decedent’s estate to litigate in federal court is designated by 13 California law. See Fed. R. Civ. P. 17(b)(3). California law also identifies those individuals 14 that can represent an estate in court. “A cause of action that survives the death of the person 15 entitled to commence [it] . . . may be commenced by the decedent’s personal representative, 16 or, if none, by the decedent’s successor in interest.” Cal. Civ. Proc. Code § 377.30. A 17 “personal representative” is an “executor, administrator, administrator with the will 18 annexed, special administrator, successor personal representative, public administrator 19 acting pursuant to [Probate Code] section 7660, or a person who performs substantially the 20 same function of another jurisdiction governing the person’s status.” Cal. Prob. Code 21 § 58(a). An individual seeking to file an action as a decedent’s successor in interest must 22 attest to certain facts showing that the person is, in fact, entitled to maintain the action on 23 behalf of the decedent’s estate. See Cal. Civ. Proc. Code § 377.32; Tatum v. City & County 24 of San Francisco, 441 F.3d 1090, 1094 n.2 (9th Cir. 2006). 25 The proposed “successor in interest” must execute and file an affidavit or declaration 26 under penalty of perjury, which states: (1) the decedent’s name; (2) the date and place of 27 decedent’s death; (3) that no proceedings are pending in California for the administration 28 of the decedent’s estate; (4) either that the declarant is the decedent’s successor in interest 1 or is authorized to act on behalf of the decedent’s successor in interest; and (5) that no other 2 person has a superior right to commence the action or proceeding for the decedent. Cal. 3 Civ. Proc. Code § 377.32(a). Moreover, the declarant must attach a certified copy of the 4 death certificate, and if the decedent’s estate was administered, the declarant must produce 5 a copy of the final order showing distribution of the decedent’s cause of action to the 6 successor in interest. Id. 7 Based on William Bloom’s declaration, the Court finds that Plaintiffs have not made 8 the appropriate showing that William Bloom is the successor in interest or representative. 9 William Bloom filed a declaration in support of the pending motion. He declares that he is 10 the “brother of Michael Bloom” and “Michael passed away on June 3, 2021 in San Diego.” 11 (Declaration of William Bloom ¶ 3.) William Bloom provides that “Michael died without 12 leaving a will. He is divorced and his only family consists of myself and his adult son, 13 Matthew Bloom, who lives out of state.” The declaration also sets forth that “[w]ith the 14 consent of his son,” William Bloom has “taken possession of these items and took care of 15 Michael’s final arrangements.” (Id. ¶ 4.) William Bloom also attests that “[n]o proceeding 16 is pending in California for administration of Michael’s estate” and he has “spoken to 17 [Michael’s son] and he has no ability or interest in taking on any responsibility with regard 18 to Michael’s estate or this litigation.” (Id. ¶¶ 5–6.) 19 However, Plaintiffs have not made an adequate showing that William Bloom is the 20 decedent’s successor in interest, or personal representative as deemed by a court of 21 competent jurisdiction. Furthermore, Plaintiffs have not established that William Bloom 22 has a superior right to commence the action or proceeding for the decedent. Here, the 23 declaration demonstrates that there may be other individuals with superior rights to 24 maintain the action, namely, Michael Bloom’s son. Although the declaration provides that 25 the son may not be interested in pursuing his father’s claims, no showing has been proffered 26 by Plaintiffs that William Bloom has been found by a court to have superior rights. 27 Therefore, Plaintiffs’ motion to substitute party must be DENIED WITHOUT 28 PREJUDICE at this time. l Plaintiffs also seek for the Court to appoint William Bloom as the special 2 ||administrator of Michael Bloom’s estate. (Doc. No. 185-1.) But Plaintiffs provide no 3 authority showing that the Court is authorized to appoint a “special administrator” of an 4 estate. The ability to appoint such a special administrator or executor is within the province 5 state court. Accordingly, this request is DENIED WITHOUT PREJUDICE, and may 6 || be renewed with the proper showing. 7 CONCLUSION 8 Having considered Plaintiffs’ motion for substitution and request for appointment of 9 special administrator of estate, and the declarations filed in support, the Court DENIES 10 || WITHOUT PREJUDICE the motion to substitute and appoint special administrator. If 11 || Plaintiffs wish for William Bloom to be appointed as a special administrator, they must 12 || proceed in state court. 13 14 IT IS SO ORDERED. 15 Dated: August 25, 2021 © 16 Hon, Anthony J.Battaglia 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28