California Commercial Code. California
Чтение книги онлайн.

Читать онлайн книгу California Commercial Code - California страница 50

Название: California Commercial Code

Автор: California

Издательство: Проспект

Жанр: Юриспруденция, право

Серия:

isbn: 9785392105366

isbn:

СКАЧАТЬ custody, or control of the child brings the action, the parent who has care, custody, or control of the child shall be served with the summons either in the manner provided by law for the serving of a summons in a civil action or by sending a copy of the summons and complaint by registered mail, with proper postage prepaid, addressed to the last known address of that parent, with request for a return receipt. If service is made by registered mail, the production of a return receipt purporting to be signed by the addressee creates a rebuttable presumption that the summons and complaint have been duly served. The presumption established by this section is a presumption affecting the burden of producing evidence. The respective rights of the parents to any award shall be determined by the court.

      (c) The father of an illegitimate child who maintains an action under this section shall have acknowledged in writing prior to the child's injury, in the presence of a competent witness, that he is the father of the child, or, prior to the child's injury, have been judicially determined to be the father of the child.

      (d) A parent of an illegitimate child who does not maintain an action under this section may be joined as a party thereto.

      (e) A guardian may maintain an action for such an injury to his or her ward.

      (f) An action under this section may be maintained against the person causing the injury. If any other person is responsible for the wrongful act or neglect, the action may also be maintained against the other person. The death of the child or ward does not abate the parents' or guardian's cause of action for the child's injury as to damages accruing before the child's death.

      (g) In an action under this section, damages may be awarded that, under all of the circumstances of the case, may be just, except that:

      (1) In an action maintained after the death of the child, the damages recoverable are as provided in Section 377.34.

      (2) Where the person causing the injury is deceased, the damages recoverable in an action against the decedent's personal representative are as provided in Section 377.42.

      (h) If an action arising out of the same wrongful act or neglect may be maintained pursuant to Section 377.60 for wrongful death of a child described in this section, the action authorized by this section may be consolidated therewith for trial as provided in Section 1048.

      CHAPTER 4

      EFFECT OF DEATH

      Article 1. Definitions

      377.10. For the purposes of this chapter, "beneficiary of the decedent's estate" means:

      (a) If the decedent died leaving a will, the sole beneficiary or all of the beneficiaries who succeed to a cause of action, or to a particular item of property that is the subject of a cause of action, under the decedent's will.

      (b) If the decedent died without leaving a will, the sole person or all of the persons who succeed to a cause of action, or to a particular item of property that is the subject of a cause of action, under Sections 6401 and 6402 of the Probate Code or, if the law of a sister state or foreign nation governs succession to the cause of action or particular item of property, under the law of the sister state or foreign nation.

      377.11. For the purposes of this chapter, "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.

      Article 2. Survival and Continuation

      377.20. (a) Except as otherwise provided by statute, 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.

      (b) This section applies even though a loss or damage occurs simultaneously with or after the death of a person who would have been liable if the person's death had not preceded or occurred simultaneously with the loss or damage.

      377.21. A pending action or proceeding does not abate by the death of a party if the cause of action survives.

      377.22. Nothing in this chapter shall be construed as affecting the assignability of causes of action.

      Article 3. Decedent's Cause of Action

      377.30. 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.

      377.31. 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.

      377.32. (a) The person who seeks to commence an action or proceeding or to continue a pending action or proceeding as the decedent's successor in interest under this article, shall execute and file an affidavit or a declaration under penalty of perjury under the laws of this state stating all of the following:

      (1) The decedent's name.

      (2) The date and place of the decedent's death.

      (3) "No proceeding is now pending in California for administration of the decedent's estate."

      (4) If the decedent's estate was administered, a copy of the final order showing the distribution of the decedent's cause of action to the successor in interest.

      (5) Either of the following, as appropriate, with facts in support thereof:

      (A) "The affiant or declarant is the decedent's successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) and succeeds to the decedent's interest in the action or proceeding."

      (B) "The affiant or declarant is authorized to act on behalf of the decedent's successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) with respect to the decedent' s interest in the action or proceeding."

      (6) "No other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding."

      (7) "The affiant or declarant affirms or declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct."

      (b) Where more than one person executes the affidavit or declaration under this section, the statements required by subdivision (a) shall be modified as appropriate to reflect that fact.

      (c) A certified copy of the decedent's death certificate shall be attached to the affidavit or declaration.

      377.33. The 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.

      377.34. In an action or proceeding by a decedent's personal representative or successor in interest on the decedent's cause of action, the damages recoverable are limited to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary СКАЧАТЬ