Judge: Michael E. Whitaker, Case: 21STCV28055, Date: 2022-12-06 Tentative Ruling

Case Number: 21STCV28055    Hearing Date: December 6, 2022    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

            Counsel for Plaintiff Irene V. Ramirez (Plaintiff) filed a Complaint against Defendant Los Angeles County Metropolitan Transportation Authority (Defendant).  Defendant moves to dismiss this action due to the purported death of Plaintiff and failure of Plaintiff’s heirs or estate to substitute into litigation. 

            Foremost, the Court notes Defendant has failed to file a proof of service of the instant motion establishing service or attempted service on Plaintiff.  Notwithstanding, Defendant explains that Defendant previously “served” Plaintiff at her last known address (with what is unclear), and sent mail to the last known address which was returned to Defendant Counsel’s office indicating that the address/unit was vacant. 

            Per Defendant, the returned mail prompted an investigation with results that were apparently set forth in a Declaration of Kimberly Rumsey that was neither filed with the Court nor attached to the moving papers.  Moreover, the supplemental declaration of Defendant’s Counsel does not address Defendant’s efforts to serve the instant motion on Plaintiff’s last known address and whether such service was returned with no forwarding address available to the United States Postal Service.  In addition, neither moving papers nor the supplemental declaration details any efforts by Defendant to personally serve Plaintiff at her last known address and what may have resulted from any attempt to do so.

            In short, the Court finds that Defendant has failed to advance sufficient, competent proof of its service or attempted service of the instant motion, thereby depriving Plaintiff of her procedural due process rights to notice and an opportunity to be heard.  Although Defendant may be correct that Plaintiff is now deceased with no next of kin, the Court cannot accept Defendant’s representations as they lack evidentiary competency, including lack of foundation, lack of personal knowledge and inadmissible hearsay. 

            As such, the Court denies the motion without prejudice as procedurally defective.