Julianne Wurm v. James Pitkow et al

and/or manager of one or more of the stores. (See id. at ¶¶ 72-73, 82, 121-122, 132-133.) Mr. Al Ghazali fails to suggest that any of these alleged fiduciary duties are at issue in the family law action.

Finally, the Court notes that the original Complaint in the action was filed nearly three years ago. Particularly in light of suggestions that discovery has not yet commenced, the Court is growing concerned about the age of the action. (See, for example, Code Civ. Proc., § 583.410, et seq.)

For the forgoing reasons, the Motion is DENIED.

Julianne Wurm v. James Pitkow et al 24CV000921

MOTION FOR ORDER SUBSTITUTING SUCCESSOR IN INTEREST FOR DECEASED DEFENDANT AND CROSS-COMPLAINANT JAMES PITKOW

TENTATIVE RULING: The motion is GRANTED.

The moving party fails to include, in the notice of this motion, the current version of the Tentative Ruling notice required by Local Rule 2.9, effective 1/1/26. The current version allows a party or counsel to request a hearing by calling the Court or emailing the Court, at JudicialReception2@napa.courts.ca.gov and providing specified information set out in Local Rule 2.9. The moving party is therefore directed to immediately provide, by telephone call AND email, the current Tentative Ruling notice explicitly required by Local Rule 2.9 to opposing party/ies forthwith.

The requirements for requesting oral argument under Local Rule 2.9 remain in effect. However, the Court may grant belated requests for oral argument or continuance of hearing, made by any party who represents it did not timely receive the required notice, regardless of whether or not moving party is present at the hearing.

A. PROCEDURAL MATTER

Defendants and Cross-Complainants Wild Horse Valley Property LLC and James Pitkow (“Decedent”), by and through their attorney of record, Flash Gordon, move, pursuant to Code of Civil Procedure sections 377.11, 377.31, 377.32, and 377.41, 1 and Probate Code sections 19001 and 19008, for an order substituting Martin B. Pitkow Jr., as successor in interest to Decedent for all purposes in the proceedings pending before this Court, including Decedent’s defense of Plaintiff’s complaint and Decedent’s cross-complaint.

B. PARTIES’ CONTENTIONS

Decedent died on July 14, 2026. (Declaration of Martin B. Pitkow Jr. (“M. Pitkow Decl.”), filed July 31, 2026, ¶ 3.) Defendants argue that Decedent’s brother, Martin B. Pitkow Jr., as successor trustee of the James E. Pitkow Trust, dated November 19, 2022, is Decedent’s

1 All subsequent statutory references are to the Code of Civil Procedure unless otherwise specified.

successor in interest for all purposes in the proceedings pending before the Court, including both his capacity as a Defendant and Cross-Complainant. (Id., ¶¶ 4-7.) Defendants clarify that they do not seek an order substituting Martin B. Pitkow Jr. as a party to the pending appeal, as Defendants note that they are separately moving for such relief in the Court of Appeal, pursuant to Rules of Court, rule 8.36(a). (Mem., 8:11-17.)

Plaintiff filed a “Limited Opposition.” Plaintiff argues that the motion should be denied without prejudice because the M. Pitkow Decl. does not comply with section 377.32 because (1) it is not signed under penalty of perjury, and (2) it does not establish that Martin Pitkow Jr. succeeded to the claims because copies of James Pitkow’s estate planning documents are not attached. Alternatively, Plaintiff requests the Court defer ruling on the motion and require Defendants to file a code-compliant declaration and competent evidence establishing the claimed succession. Finally, Plaintiff takes issue with the proposed order’s language stating that Martin B. Pitkow Jr. is substituted as successor in interest for purposes of the pending appeal.

C. DISCUSSION

As an initial matter, the proposed order filed with the Court contains no language regarding Martin B. Pitkow Jr. being substituted in for purposes of the appeal. Rather, the proposed order expressly provides: “This order does not effect substitution of parties for purposes of the pending appeal (Court of Appeal No. A176402). Substitution for that purpose is being sought separately by motion in the Court of Appeal pursuant to California Rules of Court, rule 8.36(a).” (7/31/26 Proposed Order, ¶ 4.) Thus, Plaintiff’s purported challenge to any such language is moot.

“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.” (§ 377.31. Emphasis added.) Likewise, “[o]n motion, the court shall allow a pending action or proceeding against the decedent that does not abate to be continued against the decedent’s personal representative or, to the extent provided by statute, against the decedent’s successor in interest.” (§ 377.41.

Emphasis added.) A “‘decedent’s successor in interest’ means the beneficiary of the decedent’s estate or other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of a cause of action.” (§ 377.11.) Section 377.32 provides the contents that are required to be in a declaration by a decedent’s successor in interest, in order to establish that capacity.

Thus, Section 377.31 mandates the Court to allow Decedent’s cross-complaint to continue by successor in interest Martin B. Pitkow Jr. upon sufficient showing under section 377.32. (See Cal. Law Revision Com. com., Code Civ. Proc., § 377.31 [“the personal representative or successor in interest has an absolute right to be substituted for the decedent”]; Pepper v. Sup. Ct. (1977) 76 Cal.App.3d 252, 260-61 [right of substitution “is absolute if the cause of action survives death”; trial court abused its discretion in refusing to permit a decedent’s personal representative to continue a pending action].)

Here, while Plaintiff is correct that the M. Pitkow Decl., filed on July 31, 2026 with the moving papers, omits the required “penalty of perjury” language, the M. Pitkow Decl., previously filed and served on July 29, 2026 (containing the same substantive information as that included in the July 31 declaration) includes the “penalty of perjury” language. Moreover, Defendants submitted, in Reply, an amended declaration which contains the “penalty of perjury” language. For these reasons, the Court does not find that the M. Pitkow Decl. fails to comply with section 377.32 because it is not signed under penalty of perjury.

With respect to Plaintiff’s second argument, the Court finds that the M. Pitkow Decl., filed on July 27 and August 20, sufficiently establish Martin B. Pitkow Jr.’s entitlement to substitution. Moreover, the Amended M. Pitkow Decl. submitted in Reply attaches as Exhibit B a copy of James Pitkow’s Certification of Trust, in case there was any doubt as to the facts contained within the prior declaration.

Based on the foregoing, the Court is compelled to allow Decedent’s cross-complaint to continue by his successor in interest Martin B. Pitkow Jr.

Section 377.41 mandates the Court to allow Martin B. Pitkow Jr. to continue Decedent’s defense to Plaintiff’s complaint “to the extent provided by statute.” Here, the applicable statute is Probate Code section 19001. “Upon the death of a settlor, the property of the deceased settlor that was subject to the power of revocation at the time of the settlor’s death is subject to the claims of creditors of the deceased settlor’s probate estate and to the expenses of administration of the probate estate to the extent that the deceased settlor’s probate estate is inadequate to satisfy those claims and expenses.” (Prob. Code, § 19001, subd. (a).)

Here, Defendants show that Decedent’s trust was revocable until he passed. (See Reply M. Pitkow Decl., filed 8/20/26, Exh. B.) Moreover, Defendants show that no administration of Decedent’s estate has been opened, and Decedent’s last will was a pour-over will directing that all of Decedent’s individually held assets and liabilities, including Decedent’s sole membership interest in Wild Horse Valley Property LLC, pass to the trust upon Decedent’s death. (Id., ¶ 5.) Together, this establishes that there are no estate assets, such that Decedent’s estate is inadequate to satisfy any creditor’s claims and expenses, and that Decedent’s trust assets are subject to the claims of creditors.

Based on the foregoing, the Court is compelled to allow Martin B. Pitkow Jr. to continue Decedent’s defense to Plaintiff’s complaint.

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