Tentative Ruling: Susana Vadas v. Brent J. Kovacs, MD
Case Number
23CV02583
Case Type
Hearing Date / Time
Wed, 10/14/2026 - 10:00
Nature of Proceedings
Erika E. Szell’s Motion to Vacate and Set Aside Dismissal, Void Judgment, and Imposing Evidentiary Sanctions
Tentative Ruling
For Plaintiff Susana Vadas: Self Represented through her Guardian ad Litem Erika E. Szell
For Defendant Brent J. Kovacs, MD: James C. Schaeffer, Dana Garber
RULING
For the reasons set forth herein, Erika E. Szell’s motion is denied.
Background
This action commenced on June 15, 2023, by the filing of the complaint by plaintiff Susana Vadas (“Vadas”) against defendant Brent J. Kovacs, MD (“Dr. Kovacs”) for medical negligence.
As alleged in the complaint:
Beginning in 2012, Vadas consulted with Dr. Kovacs for the purpose of examination, diagnosis, care, and treatment. (Compl., ¶ 9.) In 2019, Dr. Kovacs performed a colonoscopy on Vadas, who was 80 years old at the time. (Id. at ¶ 10.) “The procedure was notable for a 5-millimeter precancerous polyp in the left colon. The Boston Bowel Prep Score was noted to be 5. Residual stool was noted in the Sigmoid colon with the Boston preparation score in this segment being 1. No repeat colonoscopy was recommended at this time due to Ms. Vadas’ age. On May 13, 2022, Ms. Vadas was admitted to Cottage Health Hospital with abdominal pain, nausea and vomiting. She was found to have a large bowel obstruction caused by a sigmoid mass. She underwent a total colectomy with end ileostomy. The mass was found to be colon cancer in May 2022. It is alleged that VADAS’ diagnosis of colon cancer was the result of a missed lesion on the colonoscopy performed by KOVACS in 2019 and the failure to repeat the colonoscopy in a timely manner. It has since spread and become metastatic.” (Ibid.)
On January 17, 2024, Dr. Kovacs answered the complaint with a general denial and 24 affirmative defenses.
On September 20, 2024, Vadas passed away.
On July 23, 2025, this court entered a minute order granting summary judgment in favor of Dr. Kovacs. Vadas’ daughter, and moving party, Erika E. Szell (“Szell”), filed opposition to the motion for summary judgment and argued at the hearing. The Order was executed on July 31, 2025.
On August 11, 2025, Szell, purporting to be the successor in interest for Vadas, filed a notice of appeal of the judgment after order granting summary judgment.
On September 3, 2025, Dr. Kovacs filed Judgment on his motion for summary judgment. On September 4, 2026, notice of entry of judgment was filed and served on Szell.
On May 26, 2026, the Court of Appeal for the Second Appellate District filed an order dismissing Szell’s appeal. The order reflects that the appellate court entered the order on March 20, 2026, and states the following:
“This is an appeal from a summary judgment resolving the complaint filed by Susanna M. Vadas against respondent Brent J. Kovacs. No other plaintiffs were named in the complaint or filed a complaint in this action.
On December 11, 2025, Erika A. Széll, as administrator of the Estate of Susanna M. Vadas, substituted in as the appellant in this appeal in place of the deceased Susanna M. Vadas. This court’s order of December 11, 2025, advised Ms. Széll that she may not appear in this appeal in a representative capacity in pro per. (See Hansen v. Hansen (2008) 14 Cal.App.4th 614, 619.) Our order gave Ms. Széll to and including January 26, 2026, within which to retain counsel.
After an extension of time, Ms. Széll filed a motion to proceed in pro per. In her motion, Ms. Széll states she has conducted an exhaustive search and has been unable to retain counsel. Respondent opposes the motion. The motion to proceed in pro per is denied. (See Hansen, supra, 14 Cal.App.4th at p. 619.)
Ms. Szell has failed to retain counsel and there is no indication additional time would assist Ms. Széll in her attempts to retain counsel. Accordingly, this appeal is dismissed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)”
On August 12, 2026, Szell filed the present motion to vacate and set aside dismissal, void judgment, and impose evidentiary sanctions.
Dr. Kovacs opposes the motion.
Analysis
It is unclear whether Szell is attempting to bring the present motion as the representative of Vadas’ estate or if she is attempting to bring the motion as Vadas’ successor in interest. By way of her reply to Dr. Kovacs’ opposition, Szell argues that she is proceeding as successor in interest. Either way, she is not a party to this action, and her motion must fail.
“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; italics added.)
Szell never filed a motion to continue the present action as Vadas’ successor in interest. A noticed motion is a prerequisite to Szell substituting in as successor in interest and continuing the action.
To the extent that Szell is potentially acting on behalf of the estate of Vadas, even though she claims that she is not doing so, the estate must be represented by a licensed attorney.
“No person shall practice law in California unless the person is an active licensee of the State Bar.” (Bus. & Prof. Code, § 6125.)
“[T]his rule precludes the personal representative of an estate from appearing without counsel in actions outside of the probate case.” (Estate of Sanchez (2023) 95 Cal.App.5th 331, 340.)
Because Szell is not a party to this action, and has no standing to bring the present motion, the motion will be denied on that basis.
Further, it is worth noting that even if Szell had standing to bring the present motion, which she does not, her argument that the judgment in this case is void is incorrect.
“It is settled that a judgment for or against a dead person is void only if the plaintiff or defendant was dead before the action was begun. [Citation.] It is equally well settled that where a party dies subsequent to the commencement of the action and after the court has acquired personal jurisdiction over him, the entry of judgment against him is a ‘ “mere irregularity” ’ which renders the judgment voidable only and therefore immune from collateral attack. [Citations.]” (Woolley v. Seijo (1964) 224 Cal.App.2d 615, 620-621.
Vadas was alive when this action commenced. The order is therefore not void. The motion will be denied.