Jacobson v. Tardibuono CA1/3 filed 7/23/26

Filed 7/23/26 Jacobson v. Tardibuono CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

MARK V. JACOBSON, et al.,
Plaintiffs and Respondents,
v.
LYNN TARDIBUONO, et al.,
Defendants and Appellants.

A173273

(Marin County
Super. Ct. No. CIV2001451)

The sole issue on appeal is whether the judgment in favor of plaintiff Arthur Jacobson must be reversed because the statutory procedures for substituting him into this action for his deceased brother, Mark Jacobson, were not followed. Though plaintiffs did not file a formal motion or submit the supporting documentation called for by statute, the trial court had entered an order on the parties’ stipulation acknowledging Arthur’s appearance as the decedent’s personal representative and successor in interest, and defendants fully litigated the decedent’s surviving claims with Arthur. As defendants have shown no prejudice resulting from Arthur’s substitution or the manner in which it occurred, reversal is not warranted. The judgment is affirmed.
Factual and Procedural Background
Our factual recitation draws from the trial court’s October 14, 2024 statement of decision and the court’s December 4, 2023 order accepting the parties’ stipulation to various undisputed and admitted facts as evidentiary facts in the matter.
The 13 plaintiffs in this action invested in a planned residential project by making loans to Rodney Henderson, who was the proposed developer of the project. Sun Pacific Mortgage & Real Estate (“Sun Pacific”) and Forest Tardibuono were the loan brokers who represented plaintiffs in the loan transactions.
As relevant here, plaintiffs brought claims against defendants Sun Pacific and Tardibuono for financial elder abuse; constructive fraud/breach of fiduciary duty; negligence; and intentional misrepresentation. On January 12, 2022, during the pendency of the action, plaintiff Mark Jacobson died. In September 2022, plaintiffs filed and served a document captioned “NOTICE OF SUBSTITUTION OF PERSONAL REPRESENTATIVE FOR DECEASED PLAINTIFF MARK V. JACOBSON,” which attached a signed order in which the Sonoma County superior court approved and ordered Arthur’s appointment “as Trustee of The 2007 Mark V. Jacobson Trust dated January 5, 2007, as amended and restated.” In December 2023, the parties jointly sought the trial court’s entry of an order on their stipulation to various undisputed and admitted facts. The stipulation named “Arthur Jacobson obo Mark Jacobson” as a plaintiff and recited that Arthur “appears in this action as [Mark’s] successor in interest and his personal representative.” Attached to the stipulation was a table reflecting each plaintiff’s ownership interests of the parcels in the subject subdivision following foreclosure proceedings, including those for which Arthur acted on behalf of Mark. The court found good cause to enter an order deeming the stipulated facts as “evidentiary facts” in the case.
The trial was bifurcated into two phases, the first of which was a bench trial that commenced in April 2024 and concerned plaintiffs’ four causes of action against Sun Pacific and Tardibuono. As described by the trial court in its October 14, 2024 statement of decision, the case turned “in large measure on the information Defendants provided to Plaintiffs in connection with the loans.” Based on its consideration of all the evidence, the court found in favor of the 13 plaintiffs on their causes of action for constructive fraud/breach of fiduciary duty and negligence. The court, however, ruled in defendants’ favor on plaintiffs’ financial elder abuse and intentional misrepresentation claims. The court awarded damages to each of the plaintiffs based on their individual investments, collectively amounting to $2,713,145.81.
On December 20, 2024, defendants filed a “Statement in Compliance with the Court’s Order to Show Cause as directed at the Case Management Conference on December 3, 2024.” The referenced court order is not included in the record on appeal, but defendants’ statement for the first time contended plaintiffs’ purported substitution of Arthur in place of his deceased brother Mark was ineffective for failure to comply with procedures outlined in the Code of Civil Procedure. On January 8, 2025, the trial court entered judgment in conformance with its statement of decision.
Defendants thereafter filed a motion for a new trial in which they again contended Arthur’s substitution into the case was ineffective. The trial court disagreed, finding defendants had waived any alleged procedural defect in the substitution by stipulating to Arthur’s appearance. The court additionally found that none of the issues raised by defendants implicated a “ ‘miscarriage of justice.’ ”
Defendants appealed.
Discussion
This appeal concerns the validity of the judgment in favor of Arthur Jacobson. In defendants’ view, that judgment is void because Arthur’s substitution into the action in place of his deceased brother Mark was ineffective under provisions of the Code of Civil Procedure. Defendants request that we either strike the portion of the judgment in Arthur’s favor or reverse with directions for proper disposition.
We start our analysis with the relevant statutes. Section 377.20 provides that, generally, “a cause of action for or against a person is not lost by reason of the person’s death but survives subject to the applicable limitations period.” (§ 377.20, subd. (a).) Pursuant to section 377.31, the court, on motion, “shall allow” a pending action that survives the death of the decedent “to be continued by the decedent’s personal representative or, if none, by the decedent’s successor in interest.”
As pertinent here, section 377.32 provides that a “person who seeks . . . to continue a pending action . . . as the decedent’s successor in interest . . . shall execute and file an affidavit or a declaration under penalty of perjury” stating, among other things, “ ‘[n]o proceeding is now pending in California for administration of the decedent’s estate’ ” (id., subd. (a)(3)); the declarant “is the decedent’s successor in interest” (id., subd. (a)(5)(A)); and “ ‘[n]o other person has a superior right . . . to be substituted for the decedent in the pending action’ ” (id., subd. (a)(6)). “A certified copy of the decedent’s death certificate shall be attached to the affidavit or declaration.” (§ 377.32, subd. (c).)
Meanwhile, section 377.33 provides “[t]he court in which an action is commenced or continued under this article may make any order concerning parties that is appropriate to ensure proper administration of justice in the case, including appointment of the decedent’s successor in interest as a special administrator or guardian ad litem.” (Italics added.)
Defendants contend Arthur was not properly substituted as Mark’s personal representative because plaintiffs failed to document that Mark’s estate was probated and that Arthur was appointed as the personal representative. They also contend Arthur was not properly substituted as a successor in interest because plaintiffs failed to file a declaration with supporting facts as required by section 377.32. Finally, because section 377.31 directs the court to allow the continuation of a pending action by a decedent’s personal representative or successor in interest “[o]n motionafter the death of a person who commenced an action” (italics added), they contend Arthur’s failure to formally file a motion for substitution deprived the court of jurisdiction over Mark’s causes of action and rendered the judgment void. We cannot agree.
That plaintiffs did not bring a motion or make the showings required in sections 377.31 and 377.32 when seeking Arthur’s substitution in place of the decedent is of no consequence on this record. As recounted above, the parties had stipulated to the following facts as undisputed and admitted: “Mark Jacobson died on January 12, 2022. His brother, Arthur Jacobson, appears in this action as his successor in interest and his personal representative.” Notably, the parties submitted this stipulation to the trial court for its review and approval as an order. Based on that stipulation and finding “good cause appearing therefore,” the court entered an order specifying “[t]he undisputed and admitted facts set forth in the parties’ stipulation are deemed evidentiary facts in this matter.” On this record, it appears reasonable to view the parties’ stipulation as tantamount to a joint motion for Arthur’s substitutioninto the case, and the court’s action on the stipulation as an order granting the jointly requested substitution. In this regard, the court’s action appears statutorily authorized as an “order concerning parties that is appropriate to ensure proper administration of justice in the case.” (§ 377.33.)
Setting aside the parties’ stipulation to Arthur’s appearance, we observe a long line of cases establishes that a judgment or order entered without a formal substitution is not void, but merely voidable upon a showing of prejudice due to lack of notice, lack of proper presentation, or some other disadvantage. (E.g., Sacks v. FSR Brokerage, Inc.(1992) 7 Cal.App.4th 950, 957–959 (Sacks);Machado v. Flores(1946) 75 Cal.App.2d 759, 761–763(Machado); see also Collison v. Thomas (1961) 55 Cal.2d 490, 496 [citing Machado, among other decisions]; Smith v. Bear Valley Milling & Lumber Co. (1945) 26 Cal.2d 590, 602; Leavitt v. Gibson (1935) 3 Cal.2d 90, 103–107; see also Parsons v. Tickner (1995) 31 Cal.App.4th 1513, 1523–1524 & fn. 4 [appellant had standing to pursue decedent’s action as a successor in interest, though she had not yet complied with section 377.32’s declaration requirement when the appellate decision filed]; cf. Grappo v. McMills (2017) 11 Cal.App.5th 996, 1004–1005, 1009 [applying Sacks and finding prejudice sufficient to set aside default judgment against deceased defendant].)
Sacks, supra, 7 Cal.App.4th 950, is instructive. In Sacks, a plaintiff home purchaser had sued the defendant realtor and its salespeople for fraud, misrepresentation, breaches of fiduciary duty and contract, negligence and intentional infliction of emotional distress. (Sacks, at p. 953.) The trial court granted summary judgment in favor of the defendants, and the plaintiff appealed the judgment as to one of the defendants who had died more than a year before the summary judgment motion was filed. (Id. at pp. 955–956 & fn. 3.) Sacks affirmed, rejecting the plaintiff’s contention that “the trial court had no jurisdiction to enter any judgment as to [the decedent].” (Id. at p. 956.) In doing so, the appellate court first acknowledged that under then-effective Probate Code provisions, “judgment cannot be rendered for or against a decedent, nor can it be rendered for or against a personal representative of a decedent’s estate, until the representative has been made a party by substitution.” (Sacks, at p. 957.) But Sacks proceeded to highlight the California Supreme Court’s adoption of a harmless error analysis for situations in which no substitution has occurred. (Id. at pp. 958–959, relying in part on Collison and Smith; see alsoMachado, supra, 75 Cal.App.2d at pp. 761–763.) As Sacks and this line of decisions exemplify, a failure to substitute does not require reversal of a judgment unless it has causedprejudice to the party challenging the judgment. If a complete failure to substitute does not result in a void judgment requiring reversal, then by parity of reasoning a substitution that does not comply with the formal statutory process likewise does not.
Consequently, even assuming the parties’ stipulation and resulting court order did not effectuate a substitution per the terms of sections 377.31 and 377.32, reversal of the judgment is not warranted without a showing of resulting prejudice. Here, defendants make no attempt to show how their interests were harmed by plaintiffs’ failure to follow the statutory motion procedures. Nor, as we explain below, is any harm evident.
As the record reflects, defendants were put on notice in September 2022 that Arthur had been appointed as the trustee of Mark’s 2007 trust and that he would be appearing in the instant action as the personal representative for “deceased plaintiff Mark V. Jacobson.” In December 2023, the court entered the order on the parties’ stipulation referring to Arthur as a plaintiff and acknowledging his appearance in the action. Thus, defendants knew long before trial began in April 2024 that Arthur would be litigating Mark’s claims against them, and they conducted their defense accordingly. Indeed, defendants engaged in discovery with “Plaintiff Arthur I. Jacobson” by serving written discovery requests on him and taking his deposition in May 2023. And despite knowing full well that Arthur’s appearance in the case had been prompted by Mark’s death, defendants took no issue with Arthur’s participation until after the trial court awarded substantial damages to the 13 plaintiffs, including Arthur. In sum, defendants have not demonstrated how Arthur’s substitution or the manner in which it occurred caused any disadvantage to their case or otherwise resulted in a “ ‘miscarriage of justice’ ” so as to warrant the judgment’s reversal. (In re Marriage of Goddard (2004) 33 Cal.4th 49, 56.)
In resisting this conclusion, defendants rely on California decisions that predate Sacks,supra, 7 Cal.App.4th 950. (E.g., Johnson v. Simonelli (1991) 231 Cal.App.3d 105; Estate of Edwards (1978) 82 Cal.App.3d 885; Bliss v. Speier (1961) 193 Cal.App.2d 125; Lee v. Small Claims Court of Judicial Township No. 4, Imperial County (1941) 46 Cal.App.2d 530; Boyd v. Lancaster (1939) 32 Cal.App.2d 574, 579–581.) Defendants otherwise fail to grapple with Sacks’s analysis of Supreme Court authority holding that a judgment need not be reversed unless the failure to substitute has causedprejudice. Defendants’ federal authorities—concluding section 377.32 is a substantive state law that must be followed in federal cases—likewise fail to address Sacks. And significantly, none of defendant’s authorities implicated a situation where, as here, the parties litigated an action in reliance on a stipulation and court order accepting an individual’s appearance in the action as the decedent’s personal representative and successor in interest.
Finally, defendants cite no legal authority for their suggestion that Arthur could not appear both as Mark’s personal representative and as his successor in interest. Though section 377.30 specifies an action surviving the death of a person passes to the decedent’s successor in interest if there is no personal representative, the statute contains no suggestion that an individual who qualifies in both capacities somehow lacks standing to bring or continue such an action.
Disposition
The judgment is affirmed. Plaintiffs are entitled to their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)

_________________________
Fujisaki, J.

WE CONCUR:

_________________________
Tucher, P.J.

_________________________
Petrou, J.

Jacobson v. Tardibuono(A173273)