Judge: Michelle Williams Court, Case: 21STCV01740, Date: 2022-08-15 Tentative Ruling
Case Number: 21STCV01740 Hearing Date: August 15, 2022 Dept: 74
21STCV01740 MAMDOUH
HABIB vs A.L. WILSON CHEMICAL COMPANY, INC.
Plaintiff’s Unopposed Motion to Appoint Loris Attia as
the Successor-In-Interest of Decedent, Mamdouh Habib
TENTATIVE RULING:
The motion is GRANTED.
Background
On January 12, 2021, Plaintiffs Mamdouh
Habib and Loris Attia filed a complaint against fifteen named Defendants asserting
six causes of action: (1) negligence, (2), strict liability – failure to warn,
(3) strict liability – design defect, (4) fraudulent concealment, (5) breach of
implied warranties, (6) loss of consortium. Plaintiffs
allege that while working at a spotter and dry cleaner machine operator, Habib was exposed to various chemical products, which
were toxic. As a result, Habib
sustained
various injuries, including kidney cancer.
On September
2, 2021, the clerk entered Plaintiffs’ request to dismiss Defendant Brenntag
West, Inc. On September 10, 2021, the Court entered an order of dismissal as to
Defendant Axiall, LLC. On September 15, 2021, the clerked entered Plaintiffs’
request to dismiss Defendant Kinder Morgan Terminals, Inc. On February 7, 2021,
the clerk entered Plaintiff’s request to dismiss Defendant Occidental Chemical
Corporation after the Court granted Occidental’s application for determination
of good faith settlement on January 19, 2022. On February 19, 2022, the clerk
entered Plaintiffs’ request to dismiss Defendant R.R. Street & Co., Inc. On February 28, 2022, the clerk entered
Plaintiffs’ request to dismiss Defendants’ Axiall Corporation, erroneously sued
as Axiall, LLC, PPG Industries, Inc., Westlake Chemical Corporation, and
Westlake Chemical Vinyls LLC.
On March 30, 2022, Plaintiffs filed a
Notice of Death of Plaintiff, Mamdouh Habib.
Motion
On May 19,
2022, Plaintiff Loris Attia filed the
instant motion to be substituted as the successor in interest to Plaintiff
Mamdouh Habib.
The motion is
unopposed. (Code Civ. Proc. § 1005(c).)
Motion
Standard
“Except as
otherwise provided by statute, a cause of action for or against a person is not
lost by reason of the person's death, but survives subject to the applicable
limitations period.” (Code Civ. Proc. § 377.20(a).) “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.) Pursuant to Code of Civil Procedure
section 377.11, “‘decedent’s successor in interest’ means the beneficiary of
the decedent's estate or other successor in interest who succeeds to a cause of
action or to a particular item of the property that is the subject of a cause
of action.”
A person
seeking to be appointed as successor in interest must file a declaration
pursuant to Code of Civil Procedure section 377.32 stating all of the
following:
(1)
The decedent's name.
(2)
The date and place of the decedent's death.
(3) “No proceeding is now pending in California for
administration of the decedent's estate.”
(4) If the decedent's estate was administered, a
copy of the final order showing the distribution of the decedent's cause of
action to the successor in interest.
(5)
Either of the following, as appropriate, with facts in support thereof:
(A) “The affiant or declarant is the decedent's
successor in interest (as defined in Section 377.11 of the California Code of
Civil Procedure) and succeeds to the decedent's interest in the action or
proceeding.”
(B) “The affiant or declarant is authorized to act
on behalf of the decedent's successor in interest (as defined in Section 377.11
of the California Code of Civil Procedure) with respect to the decedent's
interest in the action or proceeding.”
(6) “No other person has a superior right to
commence the action or proceeding or to be substituted for the decedent in the
pending action or proceeding.”
(7) “The affiant or declarant affirms or declares
under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.”
(Code Civ.
Proc. § 377.32(a).)
Discussion
Plaintiff’s motion is accompanied by the
declaration of Loris Attia, widow of Plaintiff Mamdouh Habib. The declaration
contains all the information required by Code of Civil Procedure section 377.32
and attaches a copy of Plaintiff Habib’s death certificate as required. (Attia
Decl. ¶¶ 4-10, Ex. A.) Plaintiff Loris Attia is appointed as the successor in
interest for deceased Plaintiff Mamdouh Habib pursuant to Code of Civil Procedure section 377.33.