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.