Judge: Audra Mori, Case: 19STCV37297, Date: 2022-07-27 Tentative Ruling

Case Number: 19STCV37297    Hearing Date: July 27, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On October 18, 2021, Plaintiff Salvador Merchain, Jr. (“Plaintiff”) filed suit against defendants McDonald’s El Sereno 4310, McDonald’s Corporation, Marisol Doe for damages relating to Plaintiff’s alleged slip and fall inside defendants’ property. 

            At this time, Defendants P.R. Perencky Management, Corp., erroneously sued and served as McDonald’s El Sereno 4310, and Marisol De La Llava, sued and served as Marisol Doe, (collectively, “Defendants”) move to dismiss Plaintiff’s complaint for failure to prosecute. 

Defendants provide that Plaintiff passed away after this action was filed, and that although Plaintiff’s spouse appeared at a hearing on July 28, 2021, no action has been taken to substitute Plaintiff’s estate or successor in interest in this matter.  Defendants aver that Plaintiff’s estate clearly has no intention of prosecuting this case.  Any opposition to the motion was due on before July 14, 2022.  As of July 21, 2022, no opposition has been filed. 

Defendants’ proof of service attached to the motion shows that Defendants served the motion on the deceased “Plaintiff in Pro Per.”  Plaintiff’s counsel previously had a motion to be relieved as counsel granted in this matter on September 9, 2021, with the ruling to be effective upon filing of proof of service of the final order.  Plaintiff’s counsel did not file proof of service and Notice of the order relieving them as counsel until May 16, 2022.  The proof of service attached to the Notice shows that the order was served only on Defendants.  It is unclear whether Plaintiff’s counsel ever informed Plaintiff’s spouse or successor in interest that counsel was being relieved or that they had notice of the instant motion.  It is unclear whether Plaintiff’s counsel’s Notice is sufficient to relieve them as counsel, especially as the court’s records show that Plaintiff’s counsel continued to appear for Plaintiff at matters heard on March 17, 2022, and May 19, 2022. 

Before the motion is heard, the court would like to see that Plaintiff’s counsel and spouse have notice of the motion.  Defendants and Plaintiff’s counsel should anticipate that the issue of service may be raised at the time of the hearing, and they may file briefing on the issue by the deadlines set forth in Code of Civil Procedure section 1005.  The motion is continued to August 29, 2022 at 1:30 p.m.

Defendants are ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 27^th day of July 2022