Judge: Olivia Rosales, Case: 19NWCV00876, Date: 2023-01-23 Tentative Ruling

Case Number: 19NWCV00876    Hearing Date: January 23, 2023    Dept: SEF

TERASTVATSATRYAN v. MERCEDES-BENZ USA, LLC

CASE NO.:  19NWCV00876

HEARING: 01/23/23

JUDGE:  OLIVIA ROSALES

#13

TENTATIVE ORDER

Defendant MERCEDES-BENZ USA, LLC; KEYES EUROPEAN; and MERCEDES-BENZ FINANCIAL, LLC’s unopposed Motion to Dismiss Plaintiff’s Complaint for Failure to Appoint a Successor-in-Interest is GRANTED. Plaintiff’s Complaint is DISMISSED without prejudice.

Moving Party to give notice.

No Opposition filed as of January 19, 2023. Due by January 9, 2023. (CCP §1005(b).)

Plaintiff filed this breach of warranty action on November 14, 2019, and then passed away on June 19, 2020. (McClendon Decl., Exs. B-C.) Since Plaintiff’s death, Plaintiff’s Counsel has made a number of appearances, and has made representations to this Court that he would try to locate a personal representative or successor-in-interest to prosecute Plaintiff’s case.

A Mandatory Settlement Conference was held on August 16, 2022, Plaintiff’s Counsel did not appear. The Mandatory Settlement Conference, Final Status Conference, and Trial dates were advanced and vacated. An OSC Re: Dismissal was scheduled for October 20, 2022.

On October 20, 2022, Plaintiff’s Counsel did appear and requested to reset all trial dates. Defendants requested a dismissal of this action as no personal representative/successor in interest had been appointed. On its own Motion, this Court specially set a hearing on Defendants’ Motion to Dismiss for January 23, 2023.

Consequently, Defendants move to dismiss this action on the ground that a new plaintiff has not been named. This Motion is unopposed.

A cause of action does not abate by reason of the plaintiff’s death. (CCP §377.21.) The Court may make appropriate orders substituting the decedent’s personal representative or successor in interest as the plaintiff on claims belonging to the decedent. (CCP §377.33.) The successor in interest must execute and file a declaration in statutory form. (CCP §377.32.) Nothing in the statute (or the Moving Party’s papers) specifies a timeline pursuant to which the foregoing acts must be taken. However, “[t]he court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case.” (CCP §583.410(a).)

According to the Moving Papers, and the Court file, it is clear that Plaintiff passed away on June 19, 2020 and no one to date has sought to prosecute the action as Plaintiff’s successor in interest. Moreover, the instant Motion is unopposed. It does not appear what steps are being taken (if any) to appoint a successor in interest, or when resolution of this issue can be expected. The unopposed Motion is GRANTED. Plaintiff’s Complaint is DISMISSED without prejudice. (See CCP §581(m).