Judge Daniel M. Crowley, Case Number: 22STCV30195, Date: 2023-10-23 Tentative Ruling

The Court, sua sponte, strikes Defendants Hollywood Playnight, LLC’s, Perfect Image, Inc.’s, and BJ’s Printing Emporium, Inc.’s answer to Plaintiff’s complaint, and enters default against Defendants Hollywood Playnight, LLC, Perfect Image, Inc., and BJ’s Printing Emporium, Inc.

Plaintiff Dytanian Stringfellow (“Stringfellow”) (“Plaintiff”) moves unopposed to strike pro per Defendants Hollywood Playnight, LLC’s (“Hollywood Playnight”), Perfect Image, Inc.’s (“Perfect Image”), and BJ’s Printing Emporium, Inc.’s (“BJ’s Printing”) (collectively, “Defendants”) answer to Plaintiff’s complaint on the ground that a corporation may not appear in properia persona and can only appear through an attorney. (Notice of Motion, pg. 2; Bus. & Prof. Code §§6125 et seq.; Merco Construction Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 729-730.) Plaintiff also moves this Court for an entry of Default against Defendants on the grounds that it has failed to answer since its answer must be stricken on the grounds that it is not represented by counsel. (Notice of Motion, pg. 2.)

Plaintiff filed his operative Complaint on September 15, 2022, against Defendants alleging nine causes of action: (1) failure to pay minimum wages; (2) failure to pay overtime wages; (3) failure to provide meal periods; (4) failure to authorize or permit rest periods; (5) failure to indemnify for all employment related losses/expenditures; (6) failure to timely pay final wages; (7) failure to provide adequate pay stubs; (8) unfair competition (Bus. & Prof. Code §§17200 et seq.); and (9) breach of contract. On November 7, 2022, Defendants filed their answer. On July 17, 2023, Defendants’ counsel’s motions to be relieved as counsel were granted. To date, no attorneys purport to represent Defendants. (See Decl. of Shahabi ¶2.)

On September 6, 2023, Plaintiff filed the instant motion. As of the date of this hearing no opposition has been filed.

C.C.P. §436 provides that the Court may, upon a motion made pursuant to C.C.P. §435, or at any time within its discretion and upon terms it deems proper, “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (C.C.P. §436(b).)

Plaintiff moves to strike Defendants’ answer on the basis that a corporation may not appear in properia persona. (Motion, pg. 4; see Merco Construction Engineers, Inc., 21 Cal.3d at pg. 729; see also Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284 n.5 [“In California a corporation may not represent itself, except in a small claims proceeding.”]; Ferruzzo v. Superior Court of Orange County (1980) 104 Cal.App.3d 501, 503 [“The rule is clear in this state that . . . a corporation cannot act in properia persona in a California state court.”].)

Plaintiff argues a corporation cannot represent itself in a California court, either in properia persona or through an agent who is not an attorney. (See Merco Constr. Engineers, Inc., 21 Cal.3d at pg. 729.) However, at the time Defendants’ answer was filed, Defendants were properly represented by an attorney. Plaintiff fails to cite case law in support of the proposition that this Court has authority pursuant to C.C.P. §435 to strike a properly filed answer. Further, a motion to strike an answer must be filed within 10 days after the answer is served. (C.C.P. §§430.40(b), 435(b)(1).) Plaintiff’s motion is therefore untimely pursuant to C.C.P. §§430.40(b), 435(b)(1).

However, pursuant to C.C.P. §436(b), this Court may “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”

Here, Defendants are currently not represented by counsel and have not been since their prior counsel’s motion to be relieved was granted on July 17, 2023. A corporation cannot represent itself in a California court, either in properia persona or through an agent who is not an attorney. (Bus. & Prof. Code §§6125 et seq.; see Merco Construction Engineers, Inc., 21 Cal.3d at pg. 729; see also Gamet, 91 Cal.App.4th 1284 n.5; Ferruzzo, 104 Cal.App.3d at pg. 503.)

Accordingly, Plaintiff’s motion to strike is denied as untimely. (C.C.P. §§430.40(b), 435(b)(1).) Nonetheless, this Court, sua sponte, strikes Defendants’ answer as not drawn or filed in conformity with the laws of this state.

If a defendant fails to answer after a motion to strike its answer is granted, it is as if the defendant failed to answer. (C.C.P. §586(a)(7).) If a defendant fails to answer the complaint, a court shall enter the default of the defendant. (C.C.P. §585(a).)

A court has the discretion to enter a corporation’s default for nonappearance if that corporation is without representation of a licensed attorney. (See Van Gundy v. Camelot Resorts, Inc. (1983) 152 Cal.App.3d Supp 29, 32.)

Here, Defendants are unable to take any action in this matter, including responding to the complaint, because they are not represented by a licensed attorney admitted to practice before this Court.

Plaintiff’s motion to strike is denied, however, the Court, sua sponte, Strikes Defendants’ Answer and enters default against Defendants.

Hon. Daniel M. Crowley

Judge of the Superior Court