Kirby v. AT&T Corp.

• Court: District Court, S.D. California
• Decided: April 26, 2022
• Docket: 3:21-cv-01680
• Status: Unknown

Opinion

1 2

8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

11 JAMES KIRBY and SARAH JEAN Case No.: 3:21-cv-01680-BEN-BGS 12 KIRBY-GONZALEZ AS CO- TRUSTEES OF WILLIAM WARNER ORDER ON DEFENDANTS’ 13 KIRBY 2014 TRUST, MOTION TO DISMISS 14 Plaintiff, [ECF No. 9] 15 v. 16 AT&T CORP. aka AT&T MOBILITY 17 LLC; and DOES 1-10 inclusive,

18 Defendants.

19 James Kirby and Sarah Jean Kirby-Gonzalez, as co-trustees of William Warner 20 Kirby’s 2014 Trust (“Plaintiff”) are suing Defendants AT&T and Does 1-10 21 (“Defendants”) as a result of financial damages Plaintiff suffered following a “SIM card 22 swap” that resulted in unknown individuals getting access to the decedent’s accounts and 23 using this access to wrongfully acquire money belonging to the Kirby Trust. Plaintiff’s 24 complaint cites fourteen claims for relief, all but one of which are based on California 25 state law. See generally Complaint, ECF No. 1. The suit, originally filed in the Superior 26 Court for the County of San Diego, was removed by Defendants based on diversity 27 jurisdiction pursuant to 28 U.S.C. §§ 1332, 1441(a) and (b), and 1446. ECF No. 1. 28 1 Defendants subsequently filed the Motion to Dismiss now before the Court. ECF No. 9. 2 For the reasons set forth below, the motion is GRANTED. 3 The co-trustees filed this suit in state court ostensibly as the putative successors-in- 4 interest. In order to resolve the present motion, the facts of this case are not relevant 5 beyond the commencement of Plaintiff’s suit. Defendants seek dismissal of all claims 6 based on Plaintiff’s failure to comply with California Code of Civil Procedure § 377.32. 7 This section requires persons seeking to commence an action as a decedent’s successor- 8 in-interest to “execute and file an affidavit or a declaration” averring several facts 9 outlined by the statute. Defendants argue that as Plaintiff has not filed the affidavit or 10 declaration in question, the case must be dismissed in its entirety. Plaintiff responds that 11 the requirement of Section 377.32 is procedural, rather than substantive, and under the 12 Erie Railroad doctrine, this Court follows federal procedural rules and is not bound by 13 California’s procedural requirement. Opp’n, ECF No. 10 at 11-12. 14 This Court finds that even if the process of submitting the affidavit is procedural, 15 the content is substantive. Section 377.32 requires a plaintiff to avow, under penalty of 16 perjury, among other items, that they are the true successor in interest to decedent’s 17 estate, no other person has a superior right to commence a proceeding, and that there is 18 no proceeding then currently pending in California for the administration of the 19 decedent’s estate. Cal. Code Civ. Proc. § 377.32. These requirements suggest the 20 existence of substantive, rather than procedural rules. See Exarhos v. Exarhos, 159 21 Cal.App.4th 898, 901-902, (2008) (noting that trial court had dismissed action where 22 plaintiff sought to commence suit as a successor-in-interest but was barred from doing so 23 because of a pending probate proceeding). Federal courts addressing the issue have also 24 found the requirement to be substantive vice procedural. See Anderson v. Hickman, No. 25 CIV. S-07-1466LKKDAD, 2008 WL 2397470, at *1 (E.D. Cal. June 11, 2008), Lopez v. 26 County of Los Angeles, No. CV 15-01745 MMM MANX, 2015 WL 3913263, at *6, n. 21 27 (C.D. Cal., June 25, 2015). 28 Because this Court finds the affidavit requirement of Section 377.32 to be 1 || substantive, Plaintiff must demonstrate compliance with Section 377.32 for this suit to 2 proceed. As Plaintiff has failed to do so, the Court must dismiss the case. 3 CONCLUSION 4 Defendants’ motion to dismiss is GRANTED. Plaintiff may file a First Amended 5 || Complaint within twenty-one (21) days that cures the pleading deficiencies identified in 6 || this Order. 7 IT IS SO ORDERED. 8 || Dated: April 26, 2022 9 ON. ROGER T. BENIT United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28