Judge: Lee W. Tsao, Case: 23NWCV00888, Date: 2024-01-09 Tentative Ruling

Case Number: 23NWCV00888    Hearing Date: April 10, 2024    Dept: C

HO KAP HO v. HYUNDAI MOTOR AMERICA

CASE NO.:  23NWCV00888

HEARING:  4/10/24 @ 9:30 A.M.

#5

TENTATIVE RULING

Plaintiff Ho Kap Ho’s motion to substitute Elaine Kim in place of deceased plaintiff is GRANTED.

Moving Party to give NOTICE.

The motion is unopposed as of April 8, 2024.

Background

This is a Song-Beverly action. On March 23, 2023, plaintiff Ho Kap Ho filed this action against Hyundai Motor America. On October 11, 2023, the plaintiff died. His daughter Elaine Kim seeks to substitute as plaintiff in this action.

Legal Standard

“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 . . . and an action may be commenced by the decedent’s personal representatives or, if none, by the decedent’s successor in interest.”  (Code Civ. Proc., § 377.30.)  After the death of a plaintiff, the court, on motion, shall allow a pending action that does not abate to be continued by the decedent’s personal representative or successor-in-interest.  (Code Civ. Proc., § 377.31.) 

The person who seeks to commence or continue a pending action as the decedent’s successor-in-interest shall execute and file an affidavit or declaration stating: (1) the decedent’s name, (2) the date and place of decedent’s death, (3) “No proceeding is now pending in California for administration of the decedent’s estate,” (4) a copy of the final order showing the distribution of the decedent’s cause of action to the successor-in-interest, if the decedent’s estate was administered, (5) either the affiant or declarant is the decedent’s successor in interest or the affiant or declarant is authorized to act on behalf of the decedent’s successor in interest, with facts in support thereof, (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,” and (7) the statements are true, under penalty of perjury.  (Code Civ. Proc., § 377.32.) 

Substitute Plaintiff

Elaine Kim submitted a declaration that meets the above requirements.  

Thus, Plaintiff’s motion to substitute is GRANTED.