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California: if the 2nd amended complaint names a plaintiff as a successor in interest to a decedent (death occurring before action), and the complaint fails to comply with CCP 337.32, can this be fixed by declaration or must there be a hearing on a motion
answer today would be great!!!!!!!!
To comply with 337.32, you simply need to file the Declaration.
But in regard to your complaint, did the other side object or otherwise demurr to it and ask for it to be struck? How did this question come up?
Thanks much ZDN. This issue first came up in Defendant's motion for summary judgment.
I think all you need to do to remedy the objection is file the Declaration.
Also, I'm pretty sure that you are referring to 377.32, not 337.32 (that section is not in the Code).
§ 377.32. Affidavit or declaration by person commencing or continuing action as decedent's successor in interest
(a) The person who seeks to commence an action or proceeding or to continue a pending action or proceeding as the decedent's successor in interest under this article, shall execute and file an affidavit or a declaration under penalty of perjury under the laws of this state stating all of the following:
(1) The decedent's name.
(2) The date and place of the decedent's death.
(3) "No proceeding is now pending in California for administration of the decedent's estate."
(4) If the decedent's estate was administered, a copy of the final order showing the distribution of the decedent's cause of action to the successor in interest.
(5) Either of the following, as appropriate, with facts in support thereof:
(A) "The affiant or declarant is the decedent's successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) and succeeds to the decedent's interest in the action or proceeding."
(B) "The affiant or declarant is authorized to act on behalf of the decedent's successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) with respect to the decedent's interest in the action or proceeding."
(6) "No other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding."
(7) "The affiant or declarant affirms or declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct."
(b) Where more than one person executes the affidavit or declaration under this section, the statements required by subdivision (a) shall be modified as appropriate to reflect that fact.
(c) A certified copy of the decedent's death certificate shall be attached to the affidavit or declaration.
Thanks much, I think you're right... I've been looking all day and cannot find a rule that says all that's required is the declaration. But the policy seems to support it because it's a simple procedural issue. Thanks again
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