Constantino Frangos vs First American Specialty Insurance Company

Case Number

22CV00882

Case Type

Hearing Date / Time

Fri, 11/22/2024 - 10:00

Nature of Proceedings

CMC; Motion for Order Substituting Personal Representative for Plaintiff

Tentative Ruling

For the reasons set forth herein, Zacharias N. Tripodes’ motion for order continuing action by personal representative for deceased plaintiff Constantino Frangos is granted.

Background:

The first amended complaint (“FAC”), by plaintiff Constantino Frangos (“Frangos”) against defendant First American Specialty Insurance Company (“FASIC”), filed on March 21, 2023, is the operative complaint. The FAC contains causes of action for Breach of Contract, Declaratory Relief, and Bad Faith Breach of Insurance Agreement.

As alleged in the FAC:

Frangos was the owner of and residing at 3099 Foothill Road, Santa Barbara (the “property”). (FAC, ¶ 1.) Prior to August 12, 2003, Mary Frangos was the owner of the property, and, on that date, she transferred the property to the Mary Z. Frangos Trust, of which Frangos was the beneficiary. (FAC, ¶ 10.) Also on that date, Mary Frangos executed a Last Will and Testament, in which she acknowledged the establishment of her trust and stated that any personal property that was not transferred to her trust would become part of her trust estate upon her death. (Ibid.) FASIC insured the property. (FAC, ¶ 11 & Exh. A.)

On June 11, 2018, Mary Frangos amended her trust to designate Frangos as the current trustee as well as the successor trustee. Thus, as of that date Frangos, as trustee, was the owner of the property. (FAC, ¶ 14.)

On September 1, 2018, while the insurance policy was in effect, a fire occurred in a bathroom of the property and caused damage. (FAC, ¶¶ 15, 16.) Frangos alleges that FASIC underpaid what was due under the policy for various recoverable amounts.

Mary Frangos passed away on June 5, 2019. (FAC, ¶ 34.)

Frangos passed away on November 18, 2023, in Santa Barbara. (Tripodes Decl., ¶ 5 & Exh. A.)

Zacharias N. Tripodes (“Tripodes”) now moves for an order continuing this action by Tripodes as Frangos’ personal representative.

FASIC opposes the motion.

Analysis:

“A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent’s successor in interest, subject to Chapter 1 (commencing with Section 7000) of Part 1 of Division 7 of the Probate Code, and an action may be commenced by the decedent’s personal representative or, if none, by the decedent’s successor in interest.” (Code Civ. Proc., § 377.30.)

“On motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent’s personal representative or, if none, by the decedent’s successor in interest.” (Code Civ. Proc., § 377.31.)

FASIC argues that Tripodes’ declaration does not comply with the requirements of Code of Civil Procedure section 377.32. The argument is based on the incorrect assumption that Tripodes is seeking to continue the action as Frangos’ successor in interest. He is not claiming to be a successor in interest. Rather, Tripodes’, pursuant to the letters testamentary, filed on May 8, 2024, that give Tripodes full authority to administer Frangos’ estate, proceeds as Frangos’ personal representative. Code of Civil Procedure section 377.32 only requires a successor in interest to file a declaration, and makes no mention of a personal representative. A personal representative is not required to file a declaration containing the language in that Code section.

FASIC next argues that the motion should be denied because Tripodes would have no personal knowledge relating to the claim and would be limited in the damages he could recover as the personal representative. Neither of the arguments would allow the court to deny a properly brought request, such as is the case here, for a personal representative to continue the action in place of a deceased plaintiff.

The motion will be granted.