ADAN PARTIDA VS YANG KYUN KIM

Tentative Rulings

Case Number: 18STLC15101    Hearing Date: July 21, 2020    Dept: 25

MOTION TO DISMISS

(CCP § 581)

TENTATIVE RULING:

Defendant Yang Kyun Kim’s Motion for Order Dismissing Action Due to Lack of Proper Party is DENIED.

The Court sets an OSC re Substitution of Successor or Party Representative for Decedent Plaintiff for October 13, 2020 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. Failure to appear or file the appropriate motion may result in Plaintiff’s Complaint being stricken.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of July 17, 2020 [ ] Late [X] None

REPLY: None filed as of July 17, 2020 [ ] Late [X] None

ANALYSIS:

1. Background

On December 19, 2018, Plaintiff Adan Partida (“Plaintiff”) filed an action for motor vehicle negligence and general negligence against Defendant Yang Kyun Kim (“Defendant”). On May 31, 2019, Defendant filed an Answer.

On January 24, 2020, Defendant filed the instant Motion for Order Dismissing Action Due to Lack of Proper Party (the “Motion”). To date, no opposition has been filed.

1. Legal Standard & Discussion

Defendant moves to dismiss this action on the basis that Plaintiff is deceased and there is no proper real party in interest presently maintaining this action. (Mot., p. 3:12-14.)

Motions to dismiss are statutorily authorized on specific grounds, including, but not limited to, nonjoinder of necessary parties, failure to prosecute, inconvenient forum, and lack of personal jurisdiction. (Code Civ. Proc., §§ 396, subd. (b); 581, subds. (b)-(h), (l).) Apart from statutory grounds to dismiss, the Court has the inherent authority to dismiss an action, but this discretion has generally been confined to actions where no valid cause of action or defense is stated, where a complaint is filed without the authority of some of the named plaintiffs, for “sham” actions where the causes of action are fictitious or otherwise invalid, and where there has been a delay in prosecution for less than the statutory periods for dismissal. (Code Civ. Proc., §§ 581, subd. (m), 583.150; Baker v. Boxx (1991) 226 Cal.App.3d 1303, 1312; Lyons v. Wickhorst (1986) 42 Cal.3d 911, 915.) None of these instances apply in this case.

However, it is true that “[e]very action must be prosecuted in the name of the real party in interest.” (Code Civ. Proc., § 367.) A “real party in interest” is the person who has the right to sue under substantive law. (Gantman v. United Pacific Ins. Co. (1991) 232 Cal.App.3d 1560, 1566.) After the death of a party who commenced an action, the court may allow the action to continue if the decedent’s successor-in-interest or personal representative files a motion to do so. (Code Civ. Proc., § 377.31.) The person seeking to continue the action must file a statement in accordance with Code of Civil Procedure section 377.32.

Here, Plaintiff’s counsel informed Defendant’s counsel via email that Plaintiff had passed away on June 10, 2019. (Mot., Stevens Decl., ¶ 3, Exh. A.) That same day, Defendant’s counsel responded and asked whether the Complaint would be dismissed. (Id.) In addition, on July 17, 2019, Defendant’s counsel sent Plaintiff’s counsel a letter asking for a dismissal or an amended Complaint by July 24, 2019. (Id. at ¶ 4, Exh. B.) As of the date of this Motion, Defendant’s counsel has not received any documents or pleadings that reflect Plaintiff’s counsel has taken any steps to substitute a successor-in-interest or personal representative in this action. (Id. at ¶ 5.) Indeed, the general rule is that a judgment should not be rendered for or against a decedent plaintiff unless the decedent’s personal representative is made a party to the action. (Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 957.)

Relying on In re Cazaurang’s Estate (1935) 35 Cal.App.2d 556, 558, Defendant argues that this case should be immediately dismissed because “[a] court is without jurisdiction to proceed when one of the parties before it has died and there has been no substitution of any representative of the deceased.” (Mot., pp. 3:24-4:3.) However, subsequent decisions have noted that this general proposition “has not been applied blindly, but rather has acted to prevent prejudice to the parties because of a lack of notice, lack of proper representation, or some other disadvantage.” (Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 957.)

Here, the Court has not rendered a judgment yet and trial is not scheduled until December 2, 2021, giving Plaintiff sufficient time to substitute decedent Plaintiff’s successor-in-interest or party representative should they wish to do so. Notably, Code of Civil Procedure section 377.31 does not contain a specific time limit within which a motion to substitute a decedent’s successor-in-interest or party representative must be filed.

In light of current conditions, including the COVID-19 pandemic, the Court finds it is in the interest of justice to allow Plaintiff one last opportunity to file a request to continue the action pursuant to Code of Civil Procedure section 377.31. Accordingly, the Court sets an OSC re Substitution of Successor or Party Representative for Decedent Plaintiff. Failure to appear or file the appropriate motion may result in Plaintiff’s Complaint being stricken.

1. Conclusion & Order

For the foregoing reasons, Defendant Yang Kyun Kim’s Motion for Order Dismissing Action Due to Lack of Proper Party is DENIED.

The Court sets an OSC re Substitution of Successor or Party Representative for Decedent Plaintiff for October 13, 2020 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. Failure to appear or file the appropriate motion may result in Plaintiff’s Complaint being stricken.

Moving party is ordered to give notice.