Personal Injury Lawyer Blog
It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.
(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice case and its proceedings.)
Robyn Lee is not the successor-in-interest or legal personal representative of decedent’s estate: cont.
Plaintiffs’ First Amended Complaint does not allege that Robyn Lee complied with C.C.P. §377.32. No required declaration was attached as an exhibit. There is no allegation that decedent died with or without a will, or that Robyn Lee is the sole beneficiary under decedent’s will or the sole person who succeeds to his cause of action. There is no allegation that there are no other beneficiaries to decedent’s will or no other persons who succeed to decedent’s cause of action. Therefore, Robyn Lee is not the legal successor-in-interest of decedent’s estate who is allowed to assert the survival action. She thus does not have any standing or legal capacity to assert the survival action on behalf of decedent’s estate. Moreover, the First Amended Complaint does not even allege that the survival action is being brought by Robyn Lee as decedent’s successor-in-interest, but rather it alleges that it is brought by her as the representative of the estate of decedent.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
California Probate Code §58 (a) defines personal representative as the executor, administrator, administrator with the will annexed, special administrator, successor, personal representative, public administrator acting pursuant to §7660, or a person who performs substantially the same function under the law of another jurisdiction governing the person’s status.
Probate Code §58 (b) states: “General personal representative” excludes a special administrator, unless the special administrator has the powers, duties and obligations of a general personal representative under §8545. Plaintiffs’ First Amended Complaint does not allege that Robyn Lee is the personal representative of decedent’s estate as defined by Probate Code section 58 (a). Her designation as the representative of the estate is insufficient to confer standing upon her to assert the survival cause of action. Therefore, in order for the survival action to be properly plead, it must be brought either by the decedent’s successor-in-interest or by decedent’s personal representative. S ince the First Amended Complaint does not assert that the survival action is brought by either such party, the court should grant defendant’s motion for judgment on the pleadings. (See Part 6 of 9.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.