Judge Kerry Bensinger, Case 20STCV03960 2023-02-28 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 a motion to have Crystal Rand appointed as the successor in interest to Decedent, to allow the underlying action to continue. Plaintiff argued that Crystal Rand was Decedent’s daughter and sole living survivor. Defendant Armen Ohanian (“Defendant”) filed an opposition to Plaintiff’s motion to appoint Crystal Rand (“Rand”) on January 4, 2023.

On January 18, 2023, the Court found that Defendant submitted sufficient evidence to call into question whether Rand was actually Decedent’s successor in interest and continued the hearing for Plaintiff’s motion. The Court directed Plaintiff to file any supplemental information or exhibit by January 31, 2023 to show that Rand is Decedent’s successor in interest.

Instead of filing supplemental information, on January 31, 2023, counsel for Plaintiff filed the instant motion to have Lawrence Koh appointed successor in interest. Defendant filed an opposition and Plaintiff filed a reply.

“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. (5) Either of the following, as appropriate, with facts in support thereof:

(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, Rule 8.36.) ¿

As a threshold matter, Plaintiff’s motion for an order to appoint Rand as Decedent’s successor in interest is moot.

Plaintiff argues Lawrence Koh (“Koh”) satisfies all the requirements under CCP § 377.32 for the successor in interest because Koh is Decedent’s brother and Koh’s birth certificate shows that he and the Decedent have the same father.

Defendant opposes the instant motion. Defendant argues Koh’s declaration is inconsistent with Rand’s declaration. Defendant further points out that (1) Decedent’s death certificate identifies Rand as his daughter and does not mention Koh; (2) Koh’s birth certificate states “Ruby Whang” as his mother whereas Decedent’s death certificate states his mother was “Bong Su Whang”; (3) Decedent and Koh do not share the same last name; and (4) Koh does not mention anything about his upbringing with his brothers, whether Decedent wished for Koh to be his successor in interest, nor provide family photographs or stories involving Decedent. The Court finds Defendant’s arguments lack merit.

Here, Defendant cites Dang v. Smith (2010) 190 Cal.App.4th 646 and Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, for the proposition that statements in a pleading are always admissible against the pleader to prove the matter asserted; a pleader cannot blow hot or cold as to facts positively stated. Thus, Defendant argues counsel prior representation that Rand was Decedent’s “sole living heir” should preclude Koh from now claiming to be Decedent’s successor in interest.

Defendant’s reliance on Dang and Myers is misplaced. The court in Dang considered whether a plaintiff’s repeated assertions in discovery were judicial admissions that could be conclusively deemed as true against the pleader just like a pleaded fact. (Dang, at p. 657.) The court in Myers considered whether a party’s statement of undisputed facts accompanying their motion for summary judgment may be treated as a judicial admission of the facts contained therein. (Myers, at p. 746.) Neither case concerned the present issue whether representations made in a prior motion to appoint a successor in interest may preclude a later motion to appoint a different person as a successor in interest, especially where the difference are found in the various declarations. Neither case stands for the proposition that a declaration signed by one person precludes consideration of statements made by different person in a separate declaration. The Court is not precluded from considering Mr. Koh’s declaration because counsel sought to appoint Ms. Rand previously as the successor in interest. The fact Ms. Rand submitted a declaration inconsistent with Mr. Koh’s does not preclude the court from considering Mr. Koh’s statements.

Nor are Defendant’s objections to Mr. Koh’s declaration persuasive. There is no requirement in CCP § 377.32 that a person seeking to be appointed as successor in interest provide an explanation why their mothers’ names differ or why the Decedent and the declarant’s last names differ, or to provide photographs and family stories that establish a relationship between the Decedent. Rather, review of Mr. Koh’s declaration reveals that it complies with the requirements of CCP § 377.32.

Moreover, there are facts that corroborate Mr. Koh’s claim. Mr. Koh and Mr. Whang were both born in Washington, D.C. in the 1950’s. They have the same father – Byon Choll Koh. Mr. Koh’s mother’s name was Ruby Whang and Mr. Whang’s mother’s name was Bong Sue Whang. Unlike the prior motion to appoint Ms. Rand as successor in interest, there are no internally inconsistent facts that cast doubt on Mr. Koh’s representations.

The motion to appoint Lawrence Koh as successor in interest to Decedent Jeffrey Whang is granted. Lawrence Koh is substituted as plaintiff in place of Decedent Jeffrey Whang.

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 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