Judge: Michelle C. Kim, Case: 20STCV04874, Date: 2023-10-25 Tentative Ruling

Case Number: 20STCV04874    Hearing Date: October 26, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

I. Background 

On February 6, 2020, Plaintiffs Evan Solanki (“Solanki”) and Wendy Kadi (collectively, “Plaintiffs”) filed this action against Defendants Kathy Mitsuye Kozai and Gerald Kozai for damages arising from an automobile collision. 

Defendant Kathy moves for judgment on the pleadings on behalf of Defendant Gerald Kozai (“Gerald” or “Decedent”) on the grounds that Gerald is now deceased and Plaintiffs have not complied with Probate Code section 9370. The motion is unopposed.  

II.  Motion to Judgment on the Pleadings 

A. Request for Judicial Notice 

Defendant Kathy requests the Court take judicial notice of a heavily redacted death certificate. The request is denied. 

B. Legal Standard 

A defendant may move for judgment on the pleadings when the “complaint does not state facts sufficient to constitute a cause of action against that defendant.”  (C.C.P. §438(b)(1) and (c)(1)(B)(ii).)  

“A motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself. [Citation.]”  (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 877.)  “A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings.”  (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999 (Citations Omitted).)  The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law.  (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322 (citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216).)    

Defendant Kathy’s motion for judgment on the pleadings is statutorily restricted to two grounds: either the Court has no jurisdiction of the subject of the cause of action alleged in the complaint, or the complaint does not state facts sufficient to constitute a cause of action against defendant. (CCP § 438(c)(1)(B).) In ruling on a motion for judgment on the pleadings, the Court is limited to considering the face of the complaint or any matter judicially noticeable.   

Defendant Kathy avers Defendant Gerald passed away on February 12, 2021, about a year after the action was filed. On September 21, 2021, defense counsel informed Plaintiffs’ counsel that Defendant Gerald had passed away, and requested either a dismissal or for Plaintiffs to properly re-name him as a deceased person. Defendant Kathy provides the issue of Gerald’s passing was brought up at the January 12, 2022 case management conference, wherein the Court ordered the parties to meet and confer. Plaintiffs did not respond to defense counsel’s multiple attempts to meet and confer. Defendant Kathy contends that, because Plaintiffs have not submitted any proof that a claim was submitted to decedent’s estate, that the estate rejected the claim, or brought a motion to substitute a personal representative or successor in interest, that Defendant Gerald is entitled to judgment on the pleadings.  

A pending action does not abate by the death of a party if the cause of action survives. (CCP § 377.21.) Unless the decedent's personal representative is made a party, a judgment should not be rendered for or against a decedent, nor for or against the representative. (See¿Sacks v. FSR Brokerage, Inc.¿(1992) 7 Cal.4th 950, 957;¿Sellery v. Cressey¿(1996) 48 Cal.4th 538, 541, fn. 2.)   

Defendant Kathy cites to Probate Code section 9370, which provides that an action or proceeding pending against the decedent at the time of death may not be continued against the decedent’s personal representative unless a claim is first filed, the claim is rejected in whole or in part, and that within three months after notice of rejection is given, the plaintiff applies to the court for an order to substitute the personal representative in the action. However, Defendant Kathy does not cite to any authority which addresses the situation presented here before the Court, nor is there any authority to suggest that this issue of failure to substitute the personal representative of Decedent may be resolved upon a motion for judgment on the pleadings. Accordingly, the motion for judgment on the pleadings is denied. 

However, in light of the contention that Plaintiffs’ counsel was aware of Defendant Gerald’s passing since September 21, 2021, the Court will set an OSC Re: substitution of Defendant Gerald’s personal representative for ________________.   If Plaintiffs’ counsel fails to appear at the OSC and fails to provide a reasonable timeline in which the personal representative or successor-in-interest will be substituted in, Plaintiffs’ counsel risks the Court dismissing the action as to Defendant Gerald. 

Moving party is ordered to give notice. 

PLEASE TAKE NOTICE: 

·         Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. 

·         If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting. 

·         Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue. 

·         If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 25^th day of October 2023