Q: California Civil action, Defendant dies. Case is currently in the Appellate Court
At a trial court for a civil proceeding, if a defendant dies, the onus is on the plaintiff to initiate various actions, these requirements are spelled out in:
1. Probate Codes 550-554,
2. CCP Sections 337.40-377.42, and
3. Part 4 (commencing with Section 9000) of Division 7 of the Probate Code governing creditor claims.
A Summary Judgement against the plaintiff is issued, dismissing the case, plaintiff files an appeal with the Appellate court.
QUESTION: If the defendant dies during the appeals process, are the above codes the relevant codes that are to be used and the appellant is responsible to initiate action, or are there other codes that are specific to the appellate process? If the appellate court requires a different process than the trial court, what are those codes and what are the websites where they can be found.
A:
The rules regarding practice before the Court of Appeals are located in the California Rules of Court. They are complex, and there are filing deadlines that are very strict- if you do not file on time, your appeal is dismissed. The Civil Code sections you cite are for the time to bring an action (statutes of limitation) and do not apply to an appeal. Failing to act timely may be why you lost in the first place. The Probate code sections you quote have to do with suing the insurance carrier for a defendant that is deceased before you bring the lawsuit, not after judgment is entered against you. Creditor Claims are claims brought for the first time against the estate of a deceased person.
From your facts, it appears that you sued the defendant while he was alive, and lost. The defendant subsequently died during the time you have an appeal from the judgment pending. All of the codes you cite have to do with bringing an action in the first instance, not with your rights on appeal. You should hire an Attorney that specializes in Appeals to assist you with evaluating your case and whether you are just throwing good money after bad to pursue it in the court of Appeals. Factors to consider is: If you prevail in the Court of Appeals, and it goes back to the Trial Court, how are you going to run the trial with no defendant? How are you going to collect if you ever get a judgment against the defendant?
Justia disclaimers below, incorporated herein.
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.
