Case Number: BC634262 Hearing Date: November 27, 2018 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

CONNIE MARSIK;

Plaintiff,

vs.

ACCESS SERVICES, et al.;

Defendants.

Case No.: BC634262

Hearing Date: November 27, 2018

[TENTATIVE] order RE:

Defendants ACCESS SERVICES and SAN GABRIEL TRANSIT INC.’S motion for Judgment on the Pleadings

Background

On September 16, 2016, Plaintiff Connie Marsik (“Decedent”) filed a complaint against Defendants Access Services, Andre Williams, San Gabriel Transit, Inc., and Does 1-20 alleging a cause of action for motor vehicle negligence. The complaint seeks damages for personal injury. (Complaint p.3 ¶ 11(c),(d).)

The form complaint alleges that the defendants were negligent in operating a motor vehicle thereby proximately causing Decedent injury. (Complaint p. 4 MV-1 -2.)

On November 21, 2017, Decedent’s successors in interest, Amanda Shushanyan and Alisha Fern (“Plaintiffs”) filed an ex parte motion seeking to substitute in for the deceased Decedent. Defendant Access Services opposed the ex parte motion. The ex parte motion was denied on the ground that the proper method of seeking relief was by a noticed motion. On April 24, 2018, defendants Access Services and San Gabriel Transit, Inc. (“Moving Defendants”) filed their answer to the complaint. On May 1, 2018, Plaintiffs filed a noticed motion seeking to substitute into the action for Decedent. Moving Defendants opposed on procedural grounds, specifically, failure to comply with CCP § 377.32. The Court denied the motion without prejudice for failure to follow the requirements of CCP § 377.32. On July 18, 2018, Plaintiffs filed another motion seeking to substitute Plaintiffs for Decedent. Defendants did not file any opposition. On September 24, 2018, the Court granted Plaintiff’s unopposed motion.

Moving Defendants filed the instant motion for judgment on the pleadings on October 25, 2018. Plaintiffs oppose.

Judicial Notice

Moving Defendant’s Request

Moving Defendants request judicial notice of (1) the complaint and (2) Plaintiffs’ motion seeking to substitute in for Decedent. Moving Defendants seek to establish via judicial notice that the complaint alleges that Decedent was initially injured on September 16, 2014 and that Plaintiff’s motion papers and the attached certificate of death establish that Decedent died on July 20, 2016. Because these papers are in the Court’s record and because Plaintiffs have failed to object to the request, the Court grants the request for judicial notice pursuant to Evidence Code section 452(d)(h). (See also (See People v. Terry (1974) 38 Cal.App.3d 432, 439 [“Judicial notice may be taken of a death certificate.”].)

Legal Standard

A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired. (Code Civ. Proc., § 438, subd. (f).) Except as provided by statute, the rules governing demurrers apply. (Civic Partners Stockton, LLC v. Youssefi (2013) 218 Cal.App.4th 1005, 1012.) “Like a demurrer, the grounds for the motion [for judgment on the pleadings] must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Id. at 1013.) In ruling on a motion for judgment on the pleadings, “[a]ll allegations in the complaint and matters upon which judicial notice may be taken are assumed to be true.” (Rippon v. Bowen (2008) 160 Cal.App.4th 1308, 1313.)

Discussion

Moving Defendants move for judgment on the pleadings on the ground that the Court no longer has jurisdiction over this action. Specifically, Moving Defendants contend that this action was improperly commenced because Decedent was deceased when the complaint was filed in solely Decedent’s name. Moving Defendants further argue that the substitution of Plaintiffs in place of Decedent was untimely and void per Code of Civil Procedure section 366.1.

Plaintiffs oppose on the ground that because the original complaint was filed within two years of Decedent’s injury, Plaintiffs’ claims are not barred because as successors in interest, their claims relate back to the original filing date. Plaintiffs contend that Code of Civil Procedure section 377.31 allows a pending action to be continued by the decedent’s successors in interest, and thus, Plaintiffs may continue this action.

Meet and Confer Requirement

Before filing a motion for judgment on the pleadings, the moving party is required to meet and confer with the party who filed the pleading in person or by telephone to attempt to informally resolve the issues. (CCP § 439, subd. (a).)

Here, the Moving Defendants have satisfied the meet and confer requirements by filing a declaration which complies with the requirements of CCP § 439(a). (Ip Decl., ¶¶ 2-3.)

Analysis

The complaint alleges that Decedent was injured by Defendants’ negligence on September 16, 2014. (Complaint MV-1 p. 4.) This action was commenced in Decedent’s name on September 16, 2016. Decedent had passed away on July 20, 2016 — before the complaint was filed. (RJN Ex. 2.)

Moving Defendants are essentially arguing that the initial complaint was void because Decedent was deceased at the time the complaint was filed in Decedent’s name. Moving Defendants contend that because the initial complaint was void, Plaintiffs (Decedent’s successors in interest) cannot rely on the old complaint for statute of limitation purposes. Thus, Moving Defendants argue that because Plaintiffs were substituted into the action after the relevant statute of limitations period passed, Plaintiffs are barred from maintaining this lawsuit.

In reviewing the moving papers, Moving Defendants fail to provide authority to support their contention that a complaint commenced in the name of a deceased person is void such that the Court should disregard it. Defendants correctly point out that CCP section 367 provides that “every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.” (CCP § 367.) Thus, it appears that the complaint may have been voidable and subject to a challenge by a demurrer or a motion to strike prior to Plaintiffs’ substitution in the case because the action was not being pursued at that time by a real party in interest as Decedent was deceased at the time the complaint was filed.

However, the Court notes that Moving Defendants did not challenge the complaint by a demurrer or a motion to strike prior to Plaintiffs’ substitution into the case. In fact, Moving Defendants did not file the instant motion for judgment on the pleadings until after Plaintiffs were substituted into this action. The Court further notes that after the Court denied Plaintiffs’ initial motion to substitute into the action (which Moving Defendants opposed primarily on procedural grounds i.e. lack of compliance with CCP section 377.32), Moving Defendants did not oppose Plaintiffs’ subsequent motion to substitute into the current action, which corrected the procedural errors noted by the Court in its previous ruling. By the time Defendants filed the instant motion for judgment on the pleadings, the action was being pursued by real parties as Plaintiffs had already substituted into the case.

As to heirs or representatives continuing actions, CCP section 377.31 states: “[o]n 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.”

As noted previously, no actual authority (except for the statutes themselves) is cited by Moving Defendants to support the contention that the initially filed complaint was void such that CCP section 377.31 does not apply. Thus, the Court is not persuaded that CCP section 377.31 does not apply in this matter. Thus, pursuant to CCP section 377.31, Plaintiffs, by substituting themselves in for Decedent by a noticed motion may continue prosecuting the instant action as the original complaint was timely filed.

Conclusion and Order

For the foregoing reasons, Moving Defendants’ motion for judgment on the pleadings is denied.

Moving Defendants are ordered to provide notice of this ruling.

DATED: November 27, 2018

___________________________

Elaine Lu

Judge of the Superior Court