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JudgmentBuy Article:

Dead Debtors

What if you have an (e.g.) Alter-Ego motion (covered by California CCP 187) scheduled soon, and the person you are trying to add (as the CEO and head of a family business) as an additional judgment debtor, has died? Most likely, the motion hearing will be postponed, and someone will be named to take the deceased person’s place in the action.

One of many judgment-related articles: I am not a lawyer, and this article is my opinion based on my experience in California, please consult with a lawyer if you need legal advice.

The question is, whether or not your cause of action against the decedent survives. Causes of action for personal torts usually do not survive the death of the defendant. You will probably have to go to the Probate Court for this matter. You will have a chance at enforcement only after you get a successful ruling on your motion there.

At probate court, you could ask that the matter be continued in the civil court. You will need to review and comply with Section 9000, of the Probate Code, per California CCP 377.41.

The relevant California laws are CCP 377.40, Part 4 (that covers section 9000, and Division 7 of the Probate Code governing creditor claims. Generally, a cause of action against a decedent that survives may be asserted against the decedent's personal representative or, to the extent provided by statute, against the decedent's successor in interest.

Also, CCP 377.41, which says that on a motion, the court shall allow a pending action or proceeding against the decedent remains against the decedent's personal representative or, to the extent provided by statute, against the decedent's successor in interest, except that the court may not permit an action or proceeding to be continued against the personal representative, unless proof of compliance with Part 4 (starting with Section 9000) of Division 7 of the Probate Code, that covers creditor claims, is first made.

Also CCP 377.42, which says “In an action or proceeding against a decedent's personal representative or, to the extent provided by statute, against the decedent's successor in interest, on a cause of action against the decedent, all damages are recoverable that might have been recovered against the decedent had the decedent lived except damages recoverable under Section 3294 of the Civil Code or other punitive or exemplary damages”.

Also, California CCP 377.43. This CCP applies to the commencement on or after January 1, 1993, of an action or proceeding against the decedent's personal representative or successor in interest, or to the making of a motion on or after January 1, 1993, to continue a pending action or proceeding against the decedent's personal representative or successor in interest, regardless of whether the decedent died before, on, or after January 1, 1993.


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