Judge: Stephen I. Goorvitch, Case: 21STCV03365, Date: 2022-09-12 Tentative Ruling

Case Number: 21STCV03365    Hearing Date: September 12, 2022    Dept: 39

Daniel Mellinkoff v. Al L. Mizrahie, et al.

Case No. 21STCV03365

Motion to Substitute Plaintiff

            Plaintiff Daniel Mellinkoff, as Trustee of the Daniel Mellinkoff Trust, dated June 9, 1995 (“Plaintiff”) filed this action against Plaintiff and Defendants Al L. Mizrahie and Alma R. Mizrahie, doing business as “McGibbons Body & Repair” (collectively, “Defendants”).  The complaint alleges that the parties entered into a lease on or about December 31, 2018.  The complaint alleges that Defendants breached the lease and owed a sum in excess of $100,000, as of November 1, 2020.  Now, Plaintiff seeks to substitute Otter Lake Farm, LLC (“Otter”) as the plaintiff in this matter. 

Per Code of Civil Procedure section 368.5, if an interest in a lawsuit is transferred, the action may continue in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted.  (Code Civ. Proc., § 368.5.)  The instant motion seeks to substitute Otter as the plaintiff because the property at issue was sold to Otter on or about January 4, 2022.  This is not a sufficient basis to substitute a new plaintiff.  The complaint asserts a breach of contract, and Plaintiff and Defendants are the parties to the lease, and therefore, they are the real parties in interest.  (See Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 54-55.)  Absent evidence of an assignment of Plaintiff’s right of action against Defendants, there is no basis to substitute a new plaintiff.  Regardless, there is no admissible evidence that Plaintiff has sold the property, as a declaration from counsel lacks personal knowledge on this issue.  (See Evid. Code, § 702.)

            Based upon the foregoing, the motion to substitute a new plaintiff is denied without prejudice.  Plaintiff’s counsel shall provide notice and file proof of such with the Court.