NOWAK V. TRAVEL INN, et al.

on the demurrer. "It is well settled that a court has the inherent power to correct [a] clerical error in its judgment so that the judgment will reflect the true facts. [Citation.] The power of a court to correct clerical mistakes in judgments is also a statutory power pursuant to section 473. . . . A clerical error in the judgment includes inadvertent errors made by the court which cannot reasonably be attributed to the exercise of judicial consideration or discretion." (Estate of Douglas (2022) 83 Cal.App.5th 690, 695 [internal citation and quotations omitted]; Code Civ.

Proc., Sec. 473, subd. (d) ["The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order"].) Assuming Defendant relied upon a favorable ruling on the unopposed demurer thereby allowing further time to respond (albeit based on an assumed appearance by Simmons on the hearing), the court concludes any notice regarding an obligation to answer extended pending notice.

Accordingly, the Court grants the motion to set aside default.

Conclusion

Defendant Madelyn Martinez's motion to set aside default is GRANTED. The default entered on December 26, 2025, is set aside and vacated. Defendant Madelyn Martinez is granted leave to file an Answer by October 2, 2026, end of business day.

al. CASE NO.: 25NWCV00805 HEARING: 09/3/2026 @ 9:30 a.m. #26 TENTATIVE ORDER Defendants Premo, LLC dba Bellflower Travel Inn and Dilipbhai Karshanbhai Bhakta's unopposed motion for summary judgment is GRANTED. Moving party to give notice.

Background

On March 9, 2023, Decedent Allen Novak was an invitee of Defendants premises located at 16400 Lakewood Blvd., Bellflower. Plaintiff was somewhere on the second story of the building when Allen fell over a barrier alleged as "dangerously low," thereby allowing Plaintiff to fall to the first floor and die as a result of the impact. On March 7, 2025, Plaintiff Steven Novak filed a complaint for General Negligence, Premises Liability and Wrongful Death. Defendants answered the complaint on May 27, 2025.

Legal Standard

The pleadings frame the issues for motions, "since it is those allegations to which the motion must respond. (Citation.)" (Scolinos v. Kolts (1995) 37 Cal. App. 4th 635, 640-641; FPI Development,

Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382-383; Jordan-Lyon Prods., LTD. v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459, 1472.) The purpose of a motion for summary judgment or summary adjudication "is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) "Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and 'all inferences reasonably deducible from the evidence' and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Adler v.

Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) "On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact." (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment "has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established." (Code Civ.

Proc., Sec. 437c, subd. (p)(2).) "Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto." (Ibid.) "When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inference that may be drawn form that evidence, in the light most favorable to the party opposing summary judgment." (Avivi v.

Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467; see also Code Civ. Proc., Sec. 437c, subd. (c).) "An issue of fact can only be created by a conflict in the evidence. It is not created by speculation, conjecture, imagination or guesswork." (Lyons v. Security Pacific National Bank (1995) 40 Cal.App.4th 1001, 1014 (citation omitted).) Analysis 1 st Cause of Action: General Negligence 2 nd Cause of Action: Premises Liability Defendants Premo, LLC dba Bellflower Travel Inn and Dilipbhai Karshanbhai Bhakta move for summary judgment on grounds of lack of standing.

According to Defendants, Plaintiff brings this action as the sibling to Decedent, but their mother remains alive. Decedent's mother is the only proper person, since Decedent died without offspring. The 25 th

affirmative defense specifically preserves the standing issue. "A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent's successor in interest, ... and an action may be commenced by the decedent's personal representative or, if none, by the decedent's successor in interest. (Code Civ. Proc., Sec. 377.30.) "[A] survivor cause of action is distinct from a cause of action for wrongful death. Unlike a cause of action for wrongful death, a survivor cause of action is not a new cause of action that vests in the heirs on the death of the decedent, but is instead a separate and distinct cause of action that belonged to the decedent before death, but by statute, survives that event. (Citation.)

These claims are technically asserted by different plaintiffs and seek compensation for different injuries than the injury asserted in a wrongful death cause of action. (Citation.) The survival statutes do not create a cause of action, but provide for the post death enforcement of a cause of action on behalf of the decedent. Damages for a survivor cause of action are limited to those sustained by the decedent or incurred before death. (Citation.) (Brenner v. Universal Health Services of Rancho Springs, Inc. (2017) 12 Cal.App.5th 589, 605 (footnote 9).)

The first two causes of action clearly constitute survivor actions. The complaint and court file shows no appointment of Plaintiff as successor in interest or as an estate representative of Allen. Plaintiff presents no position justifying any representative capacity. The existence of a surviving parent requires at a minimum acknowledgment and potential joinder of an indispensable party. (See Code Civ. Proc., Sec. 389, Prob. Code, Sec. 6402; Countrywide Home Loans v. Sup. Ct. (1999) 69 Cal. App. 4th 785, 794.)

To the extent Plaintiff lacks any showing of standing to proceed on behalf of the estate, and the existence of a living parent, Defendants shift the burden regarding Plaintiff's lack of standing to proceed on the negligence and premises liability causes of action. [Declaration of Jennifer Kaufman, Index, Ex. E: Responses to Special Interrogatories (set one), numbers 9, 62 & 63.] (Code Civ. Proc., Sec. 377.32; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590-593; Brenner v. Universal Health Services of Rancho Springs, Inc. (2017) 12 Cal.App.5th 589, 604-605.)

Under the wrongful death statute, the unidentified persons are clearly indispensable parties and should be joined as new plaintiffs or nominal defendants via amended complaint. (Smith v. Premier Alliance Ins. Co. (1995) 41 Cal.App.4th 691, 697.) "Defendants facing a wrongful death action in which all the heirs should have, but have not, been joined are entitled to move to abate the action." (Adams v. Superior Court (2011) 196 Cal.App.4th 71, 77.) Plaintiff presents no opposition and therefore fails to raise any triable issues of material fact regarding the propriety of the action and ability to accord relief among all parties. 3 rd Cause of Action: Wrongful Death "A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent's personal representative on their behalf: (a) The

decedent's surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession..." (Code Civ. Proc., Sec. 377.60.) The third cause of action also lacks a showing of standing and/or joinder of indispensable parties. Defendants therefore again shift the burden regarding standing and complete relief among all parties. Plaintiff presents no opposition establishing triable issues of material fact. Accordingly, Defendant's unopposed motion for summary judgment is GRANTED.

Conclusion

The motion for summary judgment is GRANTED. | Home -->)" -->