Judge: Michael E. Whitaker, Case: 20STCV30488, Date: 2023-04-12 Tentative Ruling

Case Number: 20STCV30488    Hearing Date: April 12, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

            Plaintiff Rennae Haines (“Plaintiff”) sued Defendant John Barlow (“Defendant”) based on a slip and fall.  Plaintiff, who is self-represented, subsequently died. [1] Defendant moves to dismiss this action due to Plaintiff’s death.  The motion is unopposed. 

REQUEST FOR JUDICIAL NOTICE

Under Evidence Code section 452, “[j]udicial notice may be taken of the following matters to the extent that they are not embraced within Section 451:  . . . (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States . . . .”  (Evid. Code, § 452, subd. (c).)  And pursuant to Evidence Code section 453, “the trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and:  (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and  (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.  (Evid. Code, § 453, subds. (a)-(b).) 

Here, under Evidence Code sections 452 and 453, the Court grants Defendant’s unopposed request for judicial notice of Plaintiff’s death certificate. 

ANALYSIS

             “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.)  Death of a party occurring before judgment, makes it improper to render judgment for or against the deceased party without first taking the procedural step of substituting the executor or administrator.  (See Grappo v. McMills (2017) 11 Cal.App.5th 996, 1007.)   To wit, “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.)  

            Defendant has procured Plaintiff’s death certificate.  As such, Plaintiff cannot maintain this action, and this Court has not issued an order permitting Plaintiff’s personal representative or successor in interest to prosecute the action.

            Accordingly, the Court grants Defendant’s motion to dismiss and orders the entire action dismissed with prejudice per the Court’s inherent authority to dismiss cases for failing to prosecute diligently.  (See Code Civ. Proc., § 583.150; Lyons v. Wickhorst (1986) 42 Cal.3d 911, 915 [“in the absence of express statutory authority, a trial court may, under certain circumstances, invoke its limited, inherent discretionary power to dismiss claims with prejudice”].) 

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.