Judge: Anne Hwang, Case: 22STCV16462, Date: 2024-02-21 Tentative Ruling

Case Number: 22STCV16462    Hearing Date: February 21, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

On May 18, 2022, Plaintiffs Erika Dominguez and James Roman Arevalo (“Plaintiffs”) filed a complaint against Defendants Deborah Sedarksy Nonberg (“Defendant”) for injuries related to a motor vehicle accident. On November 17, 2023, Defendant filed an answer.

Defendant now moves for judgment on the pleadings arguing that Plaintiff Erika Dominguez (“Dominguez”) was deceased before this action was filed, and thus lacks standing to sue. Alternatively, Defendant moves to strike the complaint in its entirely, or to dismiss under Code of Civil Procedure section 128. Plaintiffs oppose and Defendant replies.

LEGAL STANDARD

The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law.  (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322, citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.)  Matters which are subject to mandatory judicial notice may be treated as part of the complaint and may be considered without notice to the parties. Matters which are subject to permissive judicial notice must be specified in the notice of motion, the supporting points and authorities, or as the court otherwise permits. (Id.) The motion may not be supported by extrinsic evidence. (Barker v. Hull (1987) 191 Cal.App.3d 221, 236.) 

When the moving party is a defendant, he must demonstrate either of the following exist:  

                                            i.The court has no jurisdiction of the subject of the cause of action alleged in the complaint.  

                                          ii.The complaint does not state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Proc., § 438, subd. (c)(1)(B)(i)-(ii).)   

“[I]n order for judicial notice to support a motion for judgment on the pleadings by negating an express allegation of the pleading, the notice must be of something that cannot reasonably be controverted…The same is true of evidentiary admissions or concessions.” (Columbia Casualty Co. v. Northwestern Nat. Ins. Co. (1991) 231 Cal.App.3d 457, 468.)   

JUDICIAL NOTICE

Defendant’s request for judicial notice of Dominguez’s Certificate of Death is granted. (See People v. Terry¿(1974) 38 Cal.App.3d 432, 439 [judicial notice may be taken of a death certificate].) 

MEET AND CONFER

A motion for judgment on the pleadings must be accompanied by a meet and confer declaration demonstrating an attempt to meet and confer in person or by telephone, at least five days before the date a motion for judgment on the pleadings is filed. (Code Civ. Proc., § 439.) Here, Defendant’s counsel declares that she emailed and telephoned Plaintiffs’ counsel asking for the complaint to be amended. (Cunningham Decl. ¶ 5.) Therefore, it appears the meet and confer requirement has been met.

DISCUSSION

“Only a real party in interest has standing to prosecute an action, except as otherwise provided by statute. (Code Civ. Proc., § 367.) A party who is not the real party in interest lacks standing to sue. [Citation.] ‘A real party in interest ordinarily is defined as the person possessing the right sued upon by reason of the substantive law.’ [Citation.] A complaint filed by someone other than the real party in interest is subject to general demurrer on the ground that it fails to state a cause of action. [Citation.]” (Redevelopment Agency of San Diego v. San Diego Gas & Electric Co. (2003) 111 Cal.App.4th 912, 920–21.) “A civil action can be maintained only against a legal person, i. e., a natural person or an artificial or quasi-artificial person; a nonentity is incapable of suing or being sued.” (Oliver v. Swiss Club Tell (1963) 222 Cal.App.2d 528, 537.)

“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.” (Code Civ. Proc. § 377.30.)

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, must execute a declaration pursuant to Code of Civil Procedure section 377.32. However, this declaration is not required prior to commencing the action. (Parsons v. Tickner (1995) 31 Cal.App.4th 1513, 1523–24.)

Here, Defendant argues that Plaintiff Dominguez passed away on September 14, 2020. (Cunningham Decl. ¶ 2, Exh. A.) However, this action was filed on May 18, 2022 by Plaintiffs. Therefore, Defendant argues that Dominguez lacks standing to sue since she is essentially a “nonexistent entity” and no successor in interest has been appointed.

In opposition, Plaintiffs state that they filed a motion to appoint a successor in interest for Dominguez, which is currently scheduled on April 16, 2024. Plaintiffs also point out that the motion for judgment on the pleadings cannot be granted since Plaintiff James Roman Arevalo has standing to sue. “A motion for judgment on the pleadings is the functional equivalent of a general demurrer. [Citation.] Ordinarily, a general demurrer does not lie as to a portion of a cause of action, and if any part of a cause of action is properly pleaded, the demurrer will be overruled. [Citation.]” (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452.) In reply, Defendant does not address that a cause of action still exists as to Plaintiff James Roman Arevalo. Accordingly, the motion for judgment on the pleadings is denied.[1]

CONCLUSION AND ORDER

Accordingly, Defendant’s motion for judgment on the pleadings is DENIED.

            Defendant shall give notice of the Court’s order and file a proof of service of such.