Judge: Christian R. Gullon, Case: 23PSCV00492, Date: 2024-12-04 Tentative Ruling

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Case Number: 23PSCV00492    Hearing Date: December 4, 2024    Dept: O

Tentative Ruling

MOTION OF PLAINTIFF APEX LOGISTICS INTERNATIONAL, INC. TO VACATE AND STRIKE ANSWER AND ENTER DEFAULT OF DEFENDANT BLACKSERIES CAMPERS, INC. is GRANTED insofar as the court exercising its discretion to strike the answer; Defendant’s default, however, is not entered. (A proposed order has been filed.)

Background

This is a contracts case. Plaintiff APEX LOGISTICS INTERNATIONAL, INC alleges the following against Defendant BLACKSERIES CAMPERS, INC.: In December 2019, the parties entered into a written credit application and agreement wherein Plaintiff agreed to provide cargo transportation and related management and logistics services (“Services”) to Defendant in exchange for compensation. Starting in June 2022, Defendant has refused to pay the principal sum of no less than $183,704.79.

On February 21, 2023, Plaintiff filed suit for:

1.     Breach of contract

2.     Common Counts

On May 12, 2023, Defendant filed its answer.

On December 14, 2023, the court held a CMC; there was no appearance by Defendant. The court sent an Order to Show Cause Re: Defendant's Failure to Appear on December 14, 2023, is scheduled for 01/18/2024 at 10:00 AM in Department O at Pomona Courthouse South.

On January 18, 2024, the held an IDC, CMC, and OSC. The court discharged the OSC. Additionally, the minute order provides that “The Court states it has read and considered the Informal Discovery Conference filed by Plaintiff's Counsel on December 11, 2023, indicating the Defense agreed to provide responses and produce responsive documents without objection. Plaintiff's Counsel is to provide the Court with a Stipulation and Order due on or before Tuesday, January 23, 2024, of the issues discussed in today's Informal Discovery Conference (IDC). Further, Defense Counsel is to provide the agreed upon discovery due on or before February 1, 2024, to opposing Counsel.”

On May 16, 2024, the court held a CMC and IDC. According to the minute order, “Counsel are to provide the Court with a Stipulation and Order due on or before May 20, 2024, of the issues discussed in today's Informal Discovery Conference (IDC). Counsel is to provide the agreed upon discovery (responses) due on or before July 12, 2024, to opposing Counsel.”

On May 21, 2024, a stipulation regarding discovery was filed and entered.

On August 12, 2024, Defendant filed a Substitution of Attorney. The Substitution of Attorney indicates that Defendant is substituting in, to represent itself through its chief executive officer, Hongwei Qiu, who is not a licensed attorney in the State of California.

On September 25, 2024, Plaintiff’s Counsel filed a declaration RE IMPROPER SUBSTITUTION OF ATTORNEY FILED BY DEFENDANT BLACKSERIES CAMPERS, INC. 

On October 15, 2024, the court held a CMC. The previous counsel, Counsel Jin Wang, appeared at the hearing and informed the court that he is no longer representing Defendant. According to the minute order, “Order to Show Cause Re: 1) Failure to Appear at the October 15, 2024 Case Management Conference, 2) Failure to File Case Management Statement, 3) Why Sanctions Should Not be Imposed for Failure to Appear and 4) Striking of the Answer is scheduled for 12/04/2024 at 09:00 AM in Department O at Pomona Courthouse South.”

On October 22, 2024, Plaintiff filed the instant motion.

Legal Standard

Plaintiff brings forth the motion pursuant to CCP sections 435 and 436.

In turn, CCP section 435 provides the authority for a party seeking to strike an answer by, in relevant part, stating that “[t]he filing of a notice of motion to strike an answer or complaint, or portion thereof, shall not extend the time within which to demur.” (Code of Civ. Proc., § 435, subd. (d), emphasis added.) Where the plaintiff moves to strike the defendant's answer, the motion must be filed within the same time limit as that allowed in responding to a pleading, which in the case of an answer, is ten (10) days after service, unless extended by stipulation or court order. (Code. Civ. Proc. § 430.40(b).) As for CCP section 436, that provides that “[t]he court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper . . . Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state….” (emphasis added.)

Discussion

Here, Plaintiff seeks to strike Defendant’s answer because as a corporation, it needs to be represented by counsel. It is well settled that corporations may not appear in propria persona in adversary legal proceedings. (Motion p. 4, citing Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724.) According to the motion, Plaintiff’s Counsel has made various attempts to contact Mr. Qiu at the number listed on the Substitution of Attorney to meet and confer regarding Plaintiff’s intention to file a Motion to Strike Blackseries’ Answer and Enter Default, but nobody has answered. Of note, Defendant’s improper representation has been an issue since September 25, 2024. Accordingly, pursuant to CCP section 436, by exercising its discretion, the court strikes Defendant’s answer for the failure to retain corporate counsel.

Notwithstanding, as Plaintiff’s motion is untimely, the court does not automatically enter default such that Plaintiff may proceed with the necessary steps to secure a default and respective default judgment.

Conclusion

Based on the foregoing, the motion is granted insofar as Defendant’s answer is stricken.