Judge Loren G. Freestone, Case Number: 37-2022-00038956-CU-MC-CTL, Date: 2024-05-02 Tentative Ruling

Judge: Loren G. Freestone, Case: 37-2022-00038956-CU-MC-CTL, Date: 2024-05-02 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 11, 2024

04/12/2024 10:30:00 AM C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited Misc Complaints - Other Demurrer / Motion to Strike 37-2022-00038956-CU-MC-CTL THE PEOPLE OF THE STATE OF CALIFORNIA VS JAX PROPERTIES LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Cross-Defendants The People of the State of California and the City of San Diego's demurrer to the first amended cross-complaint filed by Cross-Complainants JAX Properties LLC, Was Fun Realty Inc., and Jack Rafiq is OFF CALENDAR. On the court's own motion, this matter is STAYED.

A notice of death was filed indicating that Jack Rafiq 'took his life.' (ROA #91.) Rafiq is both a defendant and cross-complainant in this case. (ROA #1, 29.) '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.) 'On motion, the court shall [also] allow a pending action or proceeding against the decedent that does not abate to be continued against the decedent's personal representative or, to the extent provided by statute, against the decedent's successor in interest, except that the court may not permit an action or proceeding to be continued against the personal representative unless proof of compliance with Part 4 (commencing with Section 9000) of Division 7 of the Probate Code governing creditor claims is first made.' (Code Civ. Proc., § 377.41.) However, a 'trial court cannot proceed and judgment cannot be given for or against the decedent, nor for or against the decedent's personal representative until the latter has been made a party by substitution.' (Johnson v. Simonelli (1991) 231 Cal.App.3d 105, 107, fn. 1.) The issue is jurisdictional, and courts have an obligation to address it even when not raised by the parties. (See, e.g., Herring v. Peterson (1981) 116 Cal.App.3d 608.) In Herring, for example, the court granted the defendant's motion to dismiss the case for failure to bring it to trial within five years. (Herring, supra, 116 Cal.App.3d at p. 611.) The defendant, however, had died two years prior. (Ibid.) When the plaintiff appealed, the first issue the court of appeal addressed was 'whether the trial court had jurisdiction to hear the motion to dismiss.' (Ibid.) The court noted that even though the issue was 'not briefed by the parties, it [was] so basic to the validity of the trial court's order that it cannot be ignored.' (Ibid.) The court proceeded to explain that when 'a defendant dies and no personal representative is substituted, any judgment rendered is in excess of the court's jurisdiction to try the case.' (Herring, Calendar No.: Event ID: TENTATIVE RULINGS

3101153 34 CASE NUMBER: CASE TITLE: THE PEOPLE OF THE STATE OF CALIFORNIA VS JAX PROPERTIES 37-2022-00038956-CU-MC-CTL supra, 116 Cal.App.3d at pp. 611–612.) The court noted that although the court 'could have allowed the action to continue against her personal representative,' no such representative was ever appointed. (Id.

at p. 612.) The court further explained that 'the continued presence of the deceased defendant's attorneys' was not sufficient. (Ibid.) 'Since defendant's attorneys were neither joined as parties nor appeared on behalf of defendant's substituted representative . . . , they acted without authority and cannot be deemed to have taken the place of defendant.' (Ibid.) As such, '[t]here being no defendant in the case, the trial court's order to dismiss was in excess of its jurisdiction and void.' (Ibid.) The same rule applies when the decedent is the plaintiff, a personal representative has not been substituted in, and the defendant files a dispositive motion. (See, e.g., Johnson, supra, 231 Cal.App.3d at p. 107, fn. 5.) Any judgment the court enters against the decedent is 'in excess of its jurisdiction and void [because it is] entered against a person who was no longer a party.' (Ibid.) Rafiq's death raises the same issue. Although the notice of death indicates that 'Rafiq's sole heir has petitioned for probate' and intends to act 'as the future administrator of his estate' (ROA #91), counsel for Defendants/Cross-Complainants recently indicated that an 'Appointment of Administration' is still pending (ROA #142.) As a personal representative has not yet even been appointed, it necessarily follows that one has yet to substitute into the complaint and cross-complaint in place of Rafiq. As such, at least as to Rafiq, the court is without jurisdiction to rule on the instant demurrer, as well as the upcoming petition and motion for summary judgment.

The court presumably has jurisdiction to proceed against Was Fun and JAX to the extent they are entities separate and apart from Rafiq as an individual (although it is not clear whether there is currently someone with authority to make decisions on their behalf). However, the cross-complaint is primarily focused on allegations relating to Rafiq. The complaint also alleges that Rafiq was the President and CEO of Was Fun, and that Was Fun is the sole member of JAX. Thus, the claims by and against Rafiq are interrelated to the claims by and against the entities. Under the circumstances, the various claims should not proceed on different tracks.

For the foregoing reasons, the demurrer is off calendar and this matter is stayed pending substitution of a personal representative. The court sets a status conference for June 14, 2024 at 10:00am.

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