Judge: Randy Rhodes, Case: 20CHCV00591, Date: 2023-01-06 Tentative Ruling

Case Number: 20CHCV00591    Hearing Date: January 6, 2023    Dept: F51

Dept. F-51 

Date: 1/6/23 

Case #20CHCV00591 

MOTION TO DISMISS 

Motion filed on 4/26/22. 

MOVING PARTY: Defendant/Cross-Complainant Shervin Taheri 

RESPONDING PARTY: Plaintiff Arash Nikaeen 

NOTICE: OK

RELIEF REQUESTED: An order dismissing the Complaint of Plaintiff Arash Nikaeen without prejudice as to Plaintiff, or any representative of Plaintiff’s estate.   

TENTATIVE RULING: Defendant’s motion to dismiss the action without prejudice is denied. Plaintiff’s request to submit the matter to binding arbitration is denied.

The parties are reminded to review the 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. When e-filing documents, parties must comply with the “TECHNICAL REQUIREMENTS” which are set forth at page 4, line 4 through page 5, line 12 of the Court’s 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil (particularly bookmarking declarations and exhibits). (CRC 3.1110(f)(4).) Failure to comply with these requirements in the future may result in papers being rejected, matters being placed off calendar, matters being continued so documents can be resubmitted in compliance with these requirements, documents not being considered and/or the imposition of sanctions.

BACKGROUND

This action arises out of a business dispute between Plaintiff Arash Nikaeen (Plaintiff) and Defendant/Cross-Complainant Shervin Taheri (Defendant). On 10/6/20, Plaintiff filed this action for: (1) Fraud, (2) Breach of Contract, (3) Conversion and (4) Defamation against Defendant.  On 10/26/20, Defendant filed a cross-complaint against Plaintiff and others for various causes of action. Plaintiff’s operative complaint is the Second Amended Complaint, filed on 2/16/21, which alleges the same four causes of action as the original complaint. 

On 5/25/21, Plaintiff died while he was in Iran. (4/26/22 Castellanos Decl. ¶ 4; 8/26/22 Nishiyama Decl. ¶ 3). Thereafter, on 4/26/22, Defendant filed and served the instant motion seeking an order dismissing the Complaint of Plaintiff without prejudice as to Plaintiff, or any representative of Plaintiff’s estate. The sole basis for Defendant’s motion was no successor in interest to prosecute the case following Plaintiff’s death. (Mot. to Dismiss, Mem. of P. & A., 1:3–4.) At the time, no representative of Plaintiff’s estate had been appointed by the Probate Court nor had a potential successor in interest filed an affidavit or declaration certifying his/her interest and right to continue the proceeding with the court. 

On 9/9/22, the Court continued the hearing on the instant motion and ordered Plaintiff’s counsel to file and serve: (1) a declaration with properly authenticated evidence explaining what steps have been taken for this action to be able to proceed in the face of Plaintiff’s death; and (2) a brief arguing why the motion should be denied.

On 10/28/22, Plaintiff’s sister Shirin Nikayin (Nikayin) filed with the Court an application to serve as Plaintiff’s representative in the present action, pursuant to Code of Civil Procedure section 377.32. Defendant filed his objections to Nikayin’s application on 11/9/22.

On 11/10/22, this Court heard the instant motion and continued the hearing pending its review of Defendant’s 11/9/22 objections. On 12/12/22 and 12/14/22, Plaintiff respectively filed Nikayin’s declaration, then counsel’s declaration, in opposition to the instant motion. On 12/15/22, Defendant filed his objections and his attorney’s declaration in support thereof.

ANALYSIS

Motion to Dismiss

Nikayin Petition

Defendant challenges Nikayin’s petition to serve as Plaintiff’s representative in the present action, arguing that Nikayin lacks the requisite authority to do so. “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.) The decedent plaintiff’s potential successor in interest must file an affidavit or declaration under penalty of perjury under law and attach a copy of the decedent’s death certificate thereto. (Code Civ. Proc. § 377.32.) Under Code of Civil Procedure section 377.32, subdivision (a) sets forth a list of substantive requirements for the affidavit or declaration. (Ibid.)

The first three requirements under the statute direct the declarant to state the decedent’s name, the date and place of his death, and that “No proceeding is now pending in California for administration of the decedent’s estate.” (Id., subd. (a)(1)–(3).) Here, Nikayin’s declaration accordingly states Plaintiff’s name, and that he died on May 25, 2021 in Iran. (10/28/22 Decl. of Shirin Nikayin ¶¶ 1–2.) She also declares that “No proceeding is now pending in California for administration of the decedent’s estate.” (Id., ¶ 5.)

The statute also requires that, if the estate was administered, the copy of the final order showing the distribution of the decedent’s cause of action to the successor in interest must be attached. (Code Civ. Proc. § 377.32, subd. (a)(3)–(4).) If the declarant is not the successor in interest to the decedent’s estate, she must declare that she “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.” (Id., subd. (a)(5)(B).) Here, Nikayin attached to her declaration a copy of a certificate documenting that Plaintiff’s estate was administered in Iran to his parents as his heirs. (Id., ¶ 3; Exhibit “B” to 10/28/22 Nikayin Decl.) She also declares that her parents reside in Iran and do not speak English, and that her father has authorized her to act as Plaintiff’s successor in interest in this action, as required under Code of Civil Procedure section 377.32, subdivision (a)(5)(B). (10/28/22 Nikayin Decl., ¶ 6.)

Defendant argues in opposition that Nikayin lacks the authority to act as Plaintiff’s successor in interest absent any “documentation or verified fact” that Plaintiff’s parents gave her such authority. (Def.’s Obj., 5:11.) Defendant concludes that the petition therefore falls short of the factual showing required under Code of Civil Procedure section 377.32, subdivision (a)(5). (Ibid.) According to Defendant, “if one of the actual beneficiaries of the Plaintiff has authorized Ms. Nikayin to continue to prosecute the case on their behalf, any document of authorization, such as a power of attorney or equivalent, must accompany the claim.” (Id. at 5:15–17.)

However, the statute imposes no such evidentiary requirement, and Defendant points to no authority establishing as such. (Code Civ. Proc. § 377.32, subd. (a)(5).) In support of her petition, Nikayin stated under penalty of perjury that her father authorized her to act as Plaintiff’s successor in interest. (10/28/22 Nikayin Decl., ¶ 6.) The Court finds this sufficient to satisfy the statutory requirements of Code of Civil Procedure section 377.32, subdivision (a)(5).

The final recitals required under Code of Civil Procedure section 377.32, subdivision (a) are: “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”; and “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, subd. (a)(6)–(7).) Nikayin has made these recitals in her declaration. (10/28/22 Nikayin Decl., ¶¶ 7–8.) She also attaches a certified copy of Plaintiff’s Iranian death certificate as Exhibit “A” to her declaration. (Id., ¶ 2.)

Accordingly, the Court appoints Plaintiff’s successor in interest in this action as Shirin Nikayin, and Defendant’s motion to dismiss the action without prejudice for lack of a prosecuting party is denied on this ground.

Evidentiary Objections

Defendant objects to Nikayin’s proffer of foreign documents on the basis that they are not properly authenticated. “Under the Evidence Code, a writing in the custody of a public entity, or an entry in such a writing, may be proved by a copy purporting to be published by the authority of the nation or state, or public entity therein in which the writing is kept.” (31 Cal. Jur. 3d Evidence § 387; Evid. Code § 1530, subd. (a)(1).)

If the copy of the document is kept outside of the United States or certain other territories, it must be “attested as a correct copy of the writing or entry by a person having authority to make attestation. The attestation must be accompanied by a final statement certifying the genuineness of the signature and the official position of (i) the person who attested the copy as a correct copy or (ii) any foreign official who has certified either the genuineness of the signature and official position of the person attesting the copy or the genuineness of the signature and official position of another foreign official who has executed a similar certificate in a chain of such certificates beginning with a certificate of the genuineness of the signature and official position of the person attesting the copy.” (Evid. Code § 1530, subd. (a)(3).) If the statement is made after January 1, 1971, it must be made by “a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States.” (Ibid.)

“If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of the documents, the court may, for good cause shown, (i) admit an attested copy without the final statement or (ii) permit the writing or entry in foreign custody to be evidenced by an attested summary with or without a final statement.” (Ibid.) Satisfaction of the statutory requirements establishes “prima facie evidence of the existence and content of such writing or entry.” (Id., subd. (a).) However, “certification only establishes a presumption of authenticity and is not the sine qua non of admissibility of official writings.” (People v. Skiles (2011) 51 Cal.4th 1178, 1186.)

Here, Defendant argues that “the documents provided are copies of copies of Iranian documents with no certification or attestations which can confirm the genuine status of the documents. They are therefore unreliable and inadmissible.” (Def.’s Obj., 6:7–9.) However, Defendant does not dispute the truth of the matters contained in the documents, which purport to confirm Plaintiff’s death and the administration of his estate to his parents as his heirs. (Exhibits “A” and “B” to 10/28/22 Nikayin Decl.) Furthermore, each of the proffered foreign documents bears a signature and seal certifying its authenticity and the accuracy of its English translation. (Ibid.) However, the documents do not contain any additional final statement made by an authorized official pursuant to Evidence Code section 1530, subdivision (a)(3).

Notwithstanding the forgoing, the Court finds that the foreign documents bear official signatures of certified court translators which are sufficient attestations to the authenticity of the documents. (Evid. Code § 1530, subd. (a)(3).) While the documents do not contain final statements made by officials confirming the authenticity of the documents, the Court notes that they were filed on 10/28/22, over two months prior to the instant proceeding, offering Defendant a reasonable opportunity to investigate their authenticity. (Ibid.) Therefore, the Court exercises its discretion under the statute to admit the copies without their corresponding final statements. (Ibid.) Accordingly, Defendant’s objections are overruled, and the motion is denied on this ground.

Request for Arbitration

Plaintiff’s counsel requests that the Court refer this matter to a binding arbitration before a Court-appointed arbitrator. (12/14/22 Nishiyama Decl., 2:17–19.) The party moving to compel arbitration must establish the existence of a written arbitration agreement between the parties. (Code of Civ. Proc. § 1281.2.) This is usually done by presenting a copy of the signed, written agreement to the court. “A petition to compel arbitration or to stay proceedings pursuant to Code of Civil Procedure sections 1281.2 and 1281.4 must state, in addition to other required allegations, the provisions of the written agreement and the paragraph that provides for arbitration. The provisions must be stated verbatim or a copy must be physically or electronically attached to the petition and incorporated by reference.” (Cal. Rules of Court, rule 3.1330.) The moving party must also establish the other party’s refusal to arbitrate the controversy. (Code of Civ. Proc. § 1281.2.)

Here, Nikayin attaches to her declaration a copy of an unsigned shareholder agreement between the parties, which contains an arbitration provision, incorporating it by reference in her 12/12/22 declaration. (12/12/22 Nikayin Decl. ¶ 6; Exhibit 2 to 12/12/22 Nikayin Decl., ¶ 26.) Defendant does not dispute the existence of a written agreement between the parties, but instead argues that Plaintiff waived his right to compel arbitration thereunder.

Waiver of Arbitration Requirement

Contractual arbitration rights are subject to waiver, and waiver may be expressed or implied from the parties' conduct. (Code Civ. Proc. § 1281.2, subd. (a).) “The relevant factors establishing waiver include whether the party's actions are inconsistent with the right to arbitrate; whether the litigation machinery has been substantially invoked and the parties were well into preparation of a lawsuit before the party notified the opposing party of an intent to arbitrate; whether a party delayed for a long period before seeking a stay; whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place; and whether the delay affected, misled, or prejudiced the opposing party.” (Fleming Distribution Company v. Younan (2020) 49 Cal.App.5th 73, 80.)

Here, Defendant argues that Plaintiff waived his right to compel arbitration under the agreement by invoking the “litigation machinery” through his conduct in filing of two amended complaints and a response to a demurrer, appearing at multiple hearings, and engaging in the judicial discovery process prior to his death. (Def.’s Obj., 7:14–18.) Defendant asserts that “the continued delay in prosecution of the matter has continued to cause [him] hardship.” (Id. at 7:18–19.) The Court finds that Plaintiff’s continued litigation of this action for over two years prior to the instant request for arbitration shows that he implicitly waived his right to arbitrate the matter under the proffered agreement. Accordingly, Plaintiff’s request to submit the matter to binding arbitration is denied.

CONCLUSION

Defendant’s motion to dismiss the action without prejudice is denied. Plaintiff’s request to submit the matter to binding arbitration is denied.