Judge: Melvin D. Sandvig, Case: 20CHCV00591, Date: 2022-09-09 Tentative Ruling

Case Number: 20CHCV00591    Hearing Date: September 9, 2022    Dept: F47

Dept. F47

Date: 9/9/22

Case #20CHCV00591

MOTION TO DISMISS

Motion filed on 4/26/22.

MOVING PARTY: Defendant/Cross-Complainant Shervin Taheri

RESPONDING PARTY: Plaintiff Arash Nikaeen

NOTICE: ok

RELIEF REQUESTED: An order dismissing the Complaint of Plaintiff Arash Nikaeen without prejudice as to Plaintiff, or any representative of Plaintiff’s estate. 

RULING: The hearing on the motion will be continued for approximately 90 days.    

The parties are reminded to review the 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil.  When e-filing documents, parties must comply with the “TECHNICAL REQUIREMENTS” which are set forth at page 4, line 4 through page 5, line 12 of the Court’s 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil.  See also CRC 3.1110(f)(4).  Defendant has failed to bookmark the declarations and exhibits attached to the motion and Plaintiff has failed to bookmark the exhibits attached to the declaration filed in opposition to the motion.  Failure to comply with these requirements in the future may result in  matters being placed off calendar, matters being continued so documents can be resubmitted in compliance with these requirements, documents not being considered and/or the imposition of sanctions. 

This action arises out of a business dispute between Plaintiff Arash Nikaeen (Plaintiff) and Defendant/Cross-Complainant Shervin Taheri (Defendant).  On 10/6/20, Plaintiff filed this action for: (1) Fraud, (2) Breach of Contract, (3) Conversion and (4) Defamation against Defendant.  On 10/26/20, Defendant filed a cross-complaint against Plaintiff and others for various causes of action.  Plaintiff’s operative complaint is the Second Amended Complaint, filed on 2/16/21, which alleges the same four causes of action as the original complaint.

On 5/25/21, Plaintiff died while he was in Iran.  (Castellanos Decl. ¶4; Nishiyama Decl. ¶3).  No representative of Plaintiff’s estate has been appointed by the Probate Court nor has a potential successor in interest filed an affidavit or declaration certifying his/her interest and right to continue the proceeding with the court.  Therefore, on 4/26/22, Defendant filed and served the instant motion seeking an order dismissing the Complaint of Plaintiff without prejudice as to Plaintiff, or any representative of Plaintiff’s estate.       

To continue to prosecute an action, a successor in interest must execute and file with the court an affidavit or declaration certifying his or her interest and right to continue the proceeding.  See CCP 377.32.  Alternatively, a representative of the Plaintiff can be appointed by the Probate Court to represent the decedent in a civil matter.  Here, no filing or appointment has been made allowing this action to continue in the face of Plaintiff’s death. 

Plaintiff’s attorney indicates that when he received notice of Plaintiff’s death, he had no contact information for any of Plaintiff’s family or friends, but he received an email communication from Plaintiff’s sister on 2/24/22.  (Nishiyama Decl.¶¶6-7).  Mr. Nishiyama then states that he is currently seeking a probate attorney to represent the interests of Plaintiff’s family members in this action.  (Id. at ¶8).  Mr. Nishiyama fails to explain why he did not seek the assistance of a probate attorney sooner, or if he had, why he has been unable to secure the services of such an attorney in the 6+ months since communicating with Plaintiff’s sister. 

The hearing on the motion will be continued for approximately 90 days.  See CRC 3.1342(f).  Ten court days before the continued hearing date, Plaintiff’s counsel is ordered to file and serve a declaration with properly authenticated evidence explaining what steps have been taken for this action to be able to proceed in the face of Plaintiff’s death.  See Evidence Code 1454.  Additionally, ten court days before the continued hearing date, Plaintiff is ordered to file and serve a brief, limited to 10 pages, as to why the motion should be denied.  Defendant may file and serve a response to Plaintiff’s supplemental declaration and brief at least 5 court days before the continued hearing date. 

The Request for Dismissal of Plaintiff’s Complaint without prejudice, submitted by Defendant, was inadvertently entered on 4/26/22.  The Court now sets aside that dismissal.