Judge Kerry Bensinger, Case 20STCV03960 2023-01-18 Tentative Ruling

On January 30, 2020, plaintiff Jeffrey Whang (“Plaintiff or Decedent”) filed this action against defendants Focus Properties Services Inc., Nelson Lee, Armen Ohanian, and Does 1 through 100, inclusive, asserting causes of action for (1) negligence, (2) premises liability, (3) violation of Title III of the ADA, (4) violation of California Unruh Civil Rights Act, (5) violation of California Public Accommodations Law, (6) unfair business practices, and (7) negligent infliction of emotional distress.

On or around April 26, 2022, Decedent died at the age of 63 with the cause of death listed as cardiac arrest.

On December 15, 2022, counsel for Plaintiff filed this instant motion to have Crystal Rand be appointed the successor in interest to Decedent, to allow the underlying action to continue.

On January 4, 2023, defendant Armen Ohanian (“Defendant”) filed an opposition.

“A pending action or proceeding does not abate by the death of a party if the cause of action survives.” (Code Civ. Proc., § 377.21.) “On motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent’s personal representative or, if none, by the decedent’s successor in interest.” (Code Civ. Proc., § 377.31.)

Code of Civil Procedure section 377.32 provides the requirements for the successor in interest who seeks to be substituted as plaintiff in place of decedent, requiring the individual to execute and file a declaration in statutory form:

(a) 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, shall execute and file an affidavit or a declaration under penalty of perjury under the laws of this state stating all of the following:

(3) “No proceeding is now pending in California for administration of the decedent’s estate.”

(4) If the decedent's estate was administered, a copy of the final order showing the distribution of the decedent’s cause of action to the successor in interest.

(A) “The affiant or declarant is the decedent’s successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) and succeeds to the decedent's interest in the action or proceeding.”

(B) “The affiant or declarant is authorized to act on behalf of the decedent’s successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) with respect to the decedent's interest in the action or proceeding.”

(6) “No other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding.”

(7) “The affiant or declarant affirms or declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct.”

(b) Where more than one person executes the affidavit or declaration under this section, the statements required by subdivision (a) shall be modified as appropriate to reflect that fact.

“Substitution of parties in an appeal or original proceeding must be made by serving and filing a motion in the reviewing court. The clerk of that court must notify the superior court of any ruling on the motion.” (Cal. Rules of Court, 8.36.)

Plaintiff argues Crystal Rand satisfies all the requirements under CCP § 377.32 for the successor in interest because she is his daughter and sole living survivor. Defendant opposes the instant motion, claiming that Crystal Rand does not qualify as Decedent’s successor in interest because she is neither Decedent’s daughter nor wife. In support, Defendant points to Plaintiff’s discovery responses in which he referred to Rand as his “partner,” and “fiancée.” (Opp., Exhs. 1, 2, 3 p. 6:21-24, p. 7:1, p. 10:18-19.) Defendant argues that Plaintiff’s sworn testimony refutes Rand’s claims that she is Decedent’s daughter and successor in interest. The Court finds Defendant’s arguments to have merit.

Here, Defendant presents sufficient evidence to call into question of whether Rand is actually Decedent’s successor in interest. Code of Civil Procedure section 377.32 (a)(5)(A) requires facts to be supported in support of the declaration that: “The affiant or declarant is the decedent’s successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) and succeeds to the decedent's interest in the action or proceeding.” Although Plaintiff’s counsel initially made a sufficient showing that Rand was Decedent’s successor in interest, Defendant has provided facts which call into question the claims made in this instant motion. If Plaintiff’s counsel provides evidence to show that Rand is Decedent’s successor in interest, such as a birth certificate, marriage license, or any other document, Defendant’s claims may be overcome. However, there is sufficient evidence that Plaintiff’s evidence is not credible

In light of the foregoing, Plaintiff shall file any supplemental information or exhibit by January 31, 2023.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Kerry Bensinger

Judge of the Superior Court