Filed 7/23/26 Jacobson v. Tardibuono CA1/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
MARK V. JACOBSON, et al.,
Plaintiffs and Respondents,
A173273
v.
LYNN TARDIBUONO, et al., (Marin County
Super. Ct. No. CIV2001451)
Defendants and Appellants.
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.1 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.
1 As Arthur Jacobson and Mark Jacobson share the same last name, we
will refer to them by their first names for clarity and brevity; no disrespect is
intended.
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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.2
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
Tardibuono3 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
2 Plaintiffs filed a motion for judicial notice of two grant deeds recorded
in July 2023 that purport to show the transfer of title involving the subject
real estate parcels owned by Mark and the order of the Sonoma County
Superior Court approving Arthur’s appointment as “Trustee of The 2007
Mark V. Jacobson Trust dated January 5, 2007, as amended and restated.”
We deny the motion in full. The two grant deeds were not presented to the
trial court and are in any event unnecessary and irrelevant to our resolution
of the appeal. (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison
(1998) 18 Cal.4th 739, 748, fn. 6.) Judicial notice of the court order is
unnecessary since it is already included in the record on appeal.
3 After Tardibuono died, his wife Lynn Tardibuono was substituted into
the action as his successor in interest. We use the name Tardibuono to refer
to either Forest Tardibuono or Lynn Tardibuono, as appropriate in context.
2
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
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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.4 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
4 All statutory references are to this code.
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decedent “to be continued by the decedent’s personal representative or, if
none, by the decedent’s successor in interest.”5
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
5 A “ ‘decedent’s successor in interest’ ” is defined as “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.) A “personal representative” includes an executor,
administrator, administrator with the will annexed, special administrator,
successor personal representative, and a public administrator. (Prob. Code,
§ 58, subd. (a).)
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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 motion after
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
substitution into 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
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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
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situations in which no substitution has occurred. (Id. at pp. 958–959, relying
in part on Collison and Smith; see also Machado, 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 caused
prejudice 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
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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.)6 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 caused
prejudice. 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
6 Defendants also cite Crookshanks v. Dermendzhyan (2021 L.A. Super.
Ct. 2021 Cal. Super. Lexis 96911), which appears to be a superior court order
that carries no weight as authority.
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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)
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