Judge: Michael E. Whitaker, Case: 21STCV28055, Date: 2023-01-27 Tentative Ruling

Case Number: 21STCV28055    Hearing Date: January 27, 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

            Counsel for Plaintiff Irene V. Ramirez (Decedent) filed a Complaint against Defendant Los Angeles County Metropolitan Transportation Authority (Defendant) after Decedent had already passed away.  Defendant moves to dismiss this action in light of the death of Decedent and failure of Decedent’s heirs or estate to substitute into litigation. 

            Preliminarily, the Court notes this hearing has previously been continued from its original date on December 6, 2022, to the present.  During the original hearing, the Court pointed out that Defendant had failed to file a proof of service of the instant motion establishing service or attempted service on Plaintiff.  The Court thus continued the hearing to allow time for Defendant to file with the Court a declaration of Counsel describing Defendant’s efforts to serve the instant motion on Plaintiff’s last known address.  The Court finds that Defendant has sufficiently cured this service defect by advancing the declarations of Szu Pei Lu, counsel for Defendant, as well as Kimberley L. Rumsey, a private investigator.  The declarations describe Defendant’s efforts to serve the subject motion at Plaintiff’s last known address, as well as Defendant’s efforts to locate Plaintiff, and determine next of kin.

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.)  

            On July 11, 2021, Decedent passed away.  To date, no party has filed a motion to substitute Decedent’s successor in interest as the plaintiff, nor has any party opposed this motion to show that Decedent’s action should not abate.

            As such, the Court grants Defendant’s motion to dismiss is granted 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”].)  Further, the Court orders the action dismissed without prejudice. 

The Clerk of the Court shall provide notice of the Court’s ruling.