# (PC) Rojas v. Kernan > District Court, E.D. California · January 26, 2023 URL: https://www.frixlaw.com/law-library/cases/10050133 ## Case - **Court:** District Court, E.D. California - **Decided:** January 26, 2023 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10050133 ## Opinion text 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STACY ROJAS, et al. Case No. 1:17-cv-01514-ADA-CDB 12 Plaintiffs, ORDER GRANTING PLAINTIFFS’ UNOPPOSED MOTION TO SUBSTITUTE 13 v. PARTY 14 EDMUND G. BROWN, JR., (Doc. 118) 15 Defendants. 16 17 18 Plaintiffs Sarah Lara, Stacy Rojas and Ivett Ayestas commenced this action on November 19 9, 2017, seeking damages and injunctive relief pursuant to 42 U.S.C. § 1983. (Doc. 1). Plaintiffs 20 filed a first amended complaint on May 1, 2018, and a second amended complaint on April 4, 21 2019. (Docs. 24, 57). On August 17, 2022, Sarah Lara passed away in Fresno County. (Doc. 22 118-1). 23 On September 20, 2022, Plaintiffs’ attorney EmilyRose Johns filed a suggestion of death 24 as to Sarah Lara. (Doc. 108). Attorney EmilyRose Johns served a true copy of the statement of 25 fact of death of Sarah Lara by U.S. mail to Sarah Lara’s successor in interest, Priscilla Lara on 26 27 1 October 12, 2022. (Doc. 111). On January 10, 2023, counsel for Sarah Lara filed the instant 2 motion to substitute party. Id. No party filed an opposition and the time to do so has passed.1 3 Legal Standard 4 Federal Rule of Civil Procedure 25(a)(1) provides: if a party dies and the claim is not 5 extinguished, the court may order substitution of the proper party. Fed. R. Civ. P. 25(a)(1). A 6 motion for substitution may be made by any party or by the decedent’s successor or 7 representative. Id. If any such motion for substitution is made more than 90 days after service of 8 a statement noting the death, the action by or against the decedent must be dismissed. Id. 9 In evaluating a Rule 25(a)(1) motion, the Court must consider whether: (1) the motion is 10 timely; (2) the claims pled are extinguished; and (3) the person being substituted is a proper party. 11 Maseda v. Saul, No. 1:20-cv-01657-JLT, 2021 WL 2268871, at *1 (E.D. Cal. June 3, 2021). If 12 the requirements of Rule 25(a)(1) are met, “[t]he substituted party steps into the same position as 13 [the] original party.” Id. (quoting Hilao v. Estate of Marcos, 103 F.3d 762, 766 (9th Cir. 1996)). 14 “Rule 25(a) should be applied flexibly and liberally to permit substitution of the party or parties 15 who…would adequately represent [the decedent’s] interests.” Id. (quoting In re Baycol Prods. 16 Litig., 616 F.3d 778, 789 (8th Cir. 2010)). 17 Discussion and Analysis 18 Plaintiffs’ motion was timely filed because counsel for Sarah Lara filed the request for 19 substitution within 90 days of service of the statement of death. (Docs. 111, 118); see Barlow v. 20 Ground, 39 F.3d 231, 233 (9th Cir. 1994). 21 The question of whether an action survives the death of a party “must be determined by 22 looking towards the law, state or federal, under which the cause of action arose.” Stribling v. 23 Lucero, No. 2:16-cv-01438-TLN-JDP, 2021 WL 516849, at *1 (E.D. Cal. Feb. 11, 2021) (citation 24 omitted). Here, Sarah Lara filed this lawsuit to pursue violations of her constitutional rights 25 pursuant to 42 U.S.C. § 1983. (Doc. 57 at 17-19). A claim under 42 U.S.C. § 1983 survives the 26 decedent if the claim accrued before the decedent’s death and if state law authorizes a survival 27 1 Defendants’ failure to file an opposition to Plaintiffs’ motion is construed as a non- opposition. See Local Rule 230(c) (“A failure to file a timely opposition may also be construed 1 action. Tatum v. City & Cnty. of San Francisco, 441 F.3d 1090, 1094 n.2 (9th Cir. 2006); Hayes 2 v. County of San Diego, 736 F.3d 1223, 1228 (9th Cir. 2013). 3 Under California law, if an injury giving rise to liability occurs before a decedent’s death, 4 then the claim survives to the decedent’s estate. Cal. Code Civ. P. § 377.30. California Code of 5 Civil Procedure § 377.11 defines a successor in interest as (1) “the beneficiary of decedent's 6 estate” or (2) any “other successor in interest who succeeds to a cause of action....” In the context 7 of an intestate decedent, the “beneficiary of the decedent’s estate” is “a person who succeeds to 8 claims or property under Probate Code sections 6401 and 6402.” Cal. Code Civ. Proc. § 9 377.10(b). If an individual dies intestate without a surviving spouse, the decedent’s estate passes 10 to “the issue of the decedent.” Cal. Prob Code § 6402(a). In the event the decedent has no 11 surviving issue, the estate passes “to the decedent’s parent or parents equally.” Cal. Prob Code § 12 6402(b). Sarah Lara is survived by her mother Priscilla Lara. (Doc. 118-1). Thus, the claims 13 raised by Sara Lara have not been extinguished. 14 “The question of who is a proper party is a substantive issue, for which we must rely upon 15 state law.” Fox v. County of Tulare, No. 1:11-cv-00520-AWI-SMS, 2014 WL 897040, at *6 16 (E.D. Cal. Mar. 6, 2014) (citing In re Baycol Products Litig., 616 F.3d at 787-88). A person 17 seeking to substitute for a deceased plaintiff meets their burden by filing an affidavit and certified 18 death certificate that complies with Cal. Code Civ. Proc. § 377.32. Decedent’s mother Priscilla 19 Lara submitted a declaration that met the requirements of § 377.32 and included a certified copy 20 of Sarah Lara’s death certificate. (Doc. 118-1, Ex. A). Accordingly, as the successor of interest 21 of Sarah Lara’s estate, Priscilla Lara is the proper party for Sarah Lara’s claims. 22 Conclusion and Order 23 Priscilla Lara has presented evidence that establishes that the requirements of Rule 24 25(a)(1) are satisfied as to Sarah Lara’s § 1983 claims against Defendants. Accordingly, the 25 Court HEREBY ORDERS: 26 1. The motion to substitute (Doc. 118) is GRANTED and the motion hearing noticed for 27 February 27, 2023, is VACATED; 1 3. The Clerk of Court is DIRECTED to add Priscilla Lara as a party plaintiff in place of 2 Sarah Lara, and acknowledge on the docket Anne Butterfield Weills, EmilyRose Johns, 3 and Dan Siegel, as counsel of record for Priscilla Lara. 4 | IT IS SO ORDERED. > | Dated: _ January 26, 2023 | Word 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10050133. Public record. Not legal advice.