In Estate of O’Shea v. Am. Solar Sols., Inc., No. 14cv894-L-RBB, 2021 U.S. Dist. LEXIS 199171 (S.D. Cal. Oct. 15, 2021), Judge Lorenz substituted a deceased TCPA Plaintiff’s estate as Class Representative.
Next, substitution may be made by a successor only if the claim is not extinguished by the death of the named party. Fed.R.Civ.P. 25(a)(1). The issue of survivability is a matter of federal law. Servidone Constr. Corp. v. Levine, 156 F.3d 414 (2nd Cir. 1998); Wright v. USAA Savings Bank, 2019 U.S. Dist. LEXIS 206478, 2019 WL 6341174 *1 (E.D.Cal. Nov. 27, 2019). Courts which have examined the survivability of TCPA claims have determined that because the TCPA is a remedial statute, claims under this statute are not extinguished by a plaintiff’s death. See Sharp v. Ally Financial, Inc., 328 F.Supp. 3d 81, 97 (W.D. New York, Sept. 10, 2018)(holding that claims brought pursuant to TCPA did not extinguish upon plaintiff’s death because TCPA is primarily remedial in nature); Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037, 1047 (9th Cir. 2017)(“Because the TCPA is a remedial statute intended to protect consumers from unwanted automated telephone calls and messages, it should be construed in accordance with that purpose.”) Finally, the Estate of Kerry O’Shea, through Sharlene O’Shea, is the proper party for substitution. The Court looks to California law to determine whether a party is proper for substitution. Chalfant v. United of Omaha Life Insurance Company, 2016 U.S. Dist. LEXIS 117644, 2016 WL 4539453 *2 (N.D. Cal. 2016)(“Although Rule 25 (a) is a procedural rule dictating the manner by which substitution may occur in federal courts, ‘[t]he question of who is a proper party… is a substantive issue, for which we must rely upon state law.'”) Under California Code of Civil Procedure § 377.11, 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.” C.C.P. § 377.11. A party may demonstrate that a successor in interest is the proper beneficiary by providing a declaration. Willis v. Barnhart, 2005 U.S. Dist. LEXIS 15267, 2005 WL 1082757 at *4 (N.D. Cal. May 9, 2005). “[A]ll property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.” Cal. Fam. Code § 760; see also Cal. Fam. Code § 780 (Settlements or awards from personal injury lawsuits are classified as community property in California if the lawsuit was initiated during the marriage.) The surviving spouse is entitled to his or her share of community property when a decedent dies intestate in California. Cal. Prob. Code § 6401(a). Sharlene O’Shea filed a declaration in which she states she was legally married to Kerry O’Shea at the time the lawsuit was initiated, and at the time of his passing. (Declaration of Sharlene O’Shea Doc No. 163-1). Kerry O’Shea did not have any children, accordingly, Sharlene O’Shea is the sole beneficiary of the community property interests and is the successor in interest to his claims in the present action. C.C.P. § 377.11. Accordingly, Sharlene O’Shea, as the representative of the Estate of Kerry O’Shea, is the proper party to substitute for Kerry O’Shea. The Court further finds that Sharlene O’Shea, as the representative of the Estate of Kerry O’Shea, meets the typicality and adequacy requirements of Rule 23(a). The typicality requirement can be met if “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Castillo v. Bank of America, NA, 980 F.3d 723, 729 (9th Cir. 2020)(citing Fed.R.Civ.P. 23(a)(3)). “Under the rule’s permissive standards, representative claims are ‘typical’ if they are reasonably co-extensive with those of absent class members; they need not be substantially identical.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998), overruled on other grounds by Wal-Mart Stores, Inc., v. Dukes, 564 U.S. 338, 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011). The Court previously determined that Kerry O’Shea’s claims were typical of the entire class, and no substantive changes were made to those claims, therefore the claims meet the typicality requirement if Sharlene O’Shea steps into his position in the action. See Hilao, 103 F.3d at 766. When considering the adequacy of a class representative, the Court must determine whether “the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). “The proper resolution of this issue requires that two questions be addressed: (a) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (b) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?” In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 462 (9th Cir.2000). Sharlene O’Shea stated in her declaration that she wishes “to proceed with [her] late spouse’s claim as the class representative, and will assume all roles and responsibilities of said duties.” (Sharlene O’Shea Declaration ¶5.) There is no evidence to suggest that she and her counsel have any conflicts of interest with other class members. The case has been vigorously litigated, with over eighteen settlement related conferences resulting in the pending class action settlement. (Renewed Joint Motion for Prelim. Approval of Amended Class Action Settlement at 5 [Doc No. 171-1.]) There is no indication that substitution of the Estate of Kerry O’Shea through Sharlene O’Shea in place of Kerry O’Shea will change the vigor with which the parties will continue to litigate this case. Accordingly, the Court finds that Sharlene O’Shea acting through the Estate of Kerry O’Shea satisfies the requirements of both Rule 25(a) and the typicality and adequacy requirements of Rule 23(a).