Judge: Michael Shultz, Case: 21CMCV00247, Date: 2023-10-27 Tentative Ruling
INSTRUCTIONS: If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must:
1. Contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling.
2. No later than 4:00 p.m. on the court day before the hearing, call the Courtroom (310-761-4302) advising that all parties will submit on the tentative ruling and waive hearing; and
3. Serve notice of the Court's ruling on all parties entitled to receive service.
If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on.
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Case Number: 21CMCV00247 Hearing Date: January 9, 2024 Dept: A
[TENTATIVE] ORDER
I.
FACTS
The
complaint alleges that Defendant, James H. Cloudman, who owns the real property
at issue, failed to remedy conditions on the property, creating a nuisance. Plaintiff
alleges claims for public nuisance per se and public nuisance. Defendant
Bank of New York Mellon (“Bank”) is Trustee with a beneficial interest in the
real property. (Complaint ¶ 11.) Defendant, MTC Financial became the
substituted trustee. (Complaint, ¶ 12.)
Bank filed
its amended answer to the complaint on December 2, 2021. The clerk entered
default against Defendant, Advantix Lending, Inc. and Ditech Financial LLC, December
10, 2021. Plaintiff dismissed MTC Financial on October 13, 2021.
Plaintiff
moves for summary judgment or summary adjudication in its favor against
Defendant, James H. Cloudman, the property owner. The motion was timely served
on all parties and Mr. Cloudman did not file an opposition. However, at the
time of the hearing on October 27, 2023, Plaintiff informed the Court that Mr. Cloudman
passed away on July 11, 2023. The Court continued the hearing on this motion to
permit Plaintiff to file supplemental briefing and submit Cloudman’s death
certificate.
As Mr. Cloudman is deceased, he lacks capacity to be sued. The
Court may, upon motion, allow a pending action to continue against the
decedent’s successor-in-interest if the action does not abate. (Code
Civ. Proc., § 377.41.) Plaintiff can continue the action against Mr.
Cloudman’s personal representatives after Plaintiff provides proof of
compliance with Probate Code Section 9000, by filing a creditor’s claim with
the estate. (Prob.
Code, § 9370.) A “claim” includes a demand for payment for the liability of
the decedent, “whether arising in contract, tort, or otherwise.” (Prob.
Code, § 9000). The complaint seeks injunctive relief and recovery of costs,
attorneys’ fees, and investigation costs. (Complaint, ¶ 3.)
If the claim is rejected, Plaintiff has three months to apply with
the Court for an order to substitute Mr. Cloudman’s personal representative as
the real party in interest. (Prob.
Code, § 9370.)
Accordingly, the Court continues the hearing to