Judge Daniel M. Crowley, Case Number: 23NWC01342, Date: 2023-08-16 Tentative Ruling

Defendants Xchange Logistics Corporation’s, Xchange USA, Inc.’s, and Skye Xu’s unopposed motion to strike portions of pro per Plaintiff HK Trans LLC’s complaint is granted without leave to amend.

Defendants Xchange Logistics Corporation (“Xchange Corp.”), Xchange USA, Inc. (“Xchange USA”), and Skye Xu aka Jianghan Xu aka Skye Jianghan Xu aka Jianghan Skye Xu (“Xu”) (collectively, “Defendants”) move unopposed to strike portions of pro per Plaintiff HK Trans LLC’s (“HK Trans”) (“Plaintiff”) complaint (“Complaint”) on the ground they are irrelevant, false, or improper matters and not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Notice of Motion, pg. 1; C.C.P. §§436(a), (b).)

Plaintiff filed the operative Complaint on May 4, 2023, against Defendants alleging five causes of action: (1) breach of contract; (2) common count: good and services rendered; (3) common count: open book account; (4) common count: account stated; and (5) declaratory relief.

On June 22, 2023, Defendants filed the instant motion. As of the date of this hearing no opposition has been filed.

On August 22, 2023, this Court granted Plaintiff’s counsel’s motion to be relieved as counsel.

Before filing a motion to strike, moving party’s counsel must meet and confer, in person or by telephone, with counsel for the party who filed the pleading in an attempt to reach an agreement that would resolve the objections to the pleading and obviate the need for filing a motion to strike. (C.C.P. §435.5.) A declaration must be filed with the motion to strike regarding the results of the meet and confer process. (C.C.P. §435.5(a)(3).)

Defendants’ counsel declares that on June 12, 2023, he met and conferred with Plaintiff’s counsel by written letter regarding the deficiencies addressed in the instant motion, and the parties were unable to come to an agreement. (Decl. of Ching ¶¶3-5, Exhs. 1-2.) Defendants’ counsel failed to meet and confer in person or by telephone with Plaintiff’s counsel, and therefore has not sufficiently met the requirements in C.C.P. §435.5. However, failure to sufficiently meet and confer is not a ground to grant or deny the motion to strike. (C.C.P. § 435.5(a)(4).) Accordingly, the Court will consider Defendants’ motion.

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, “strike out any irrelevant, false, or improper matter inserted in any pleading.” (C.C.P. §436(a).) A motion to strike can be used where the complaint or other pleading has not been drawn or filed in conformity with applicable rules or court orders. (C.C.P. §436(b).)

Defendants move to strike the following sections and prayers for relief from the Complaint pertaining to attorneys’ fees on the basis they are not permitted by law: (1) ¶37 (“Attorneys fees are requested pursuant to Section 1717.5 of the Civil Code.”; (2) ¶45 (“Attorneys fees are requested pursuant to Section 1717.5 of the Civil Code.”); and (3) Prayer ¶3 (“For reasonable attorney’s fees”). (Motion, pg. 2.)

(a) Except as otherwise provided by law or where waived by the parties to an agreement, in any action on a contract based on a book account, as defined in Section 337a of the Code of Civil Procedure, entered into on or after January 1, 1987, which does not provide for attorney’s fees and costs, as provided in Section 1717, the party who is determined to be the party prevailing on the contract shall be entitled to reasonable attorney’s fees, as provided below, in addition to other costs. The prevailing party on the contract shall be the party who recovered a greater relief in the action on the contract. The court may determine that there is no party prevailing on the contract for purposes of this section.

Reasonable attorney’s fees awarded pursuant to this section for the prevailing party bringing the action on the book account shall be fixed by the court in an amount that shall not exceed the lesser of: (1) nine hundred sixty dollars ($960) for book accounts based upon an obligation owing by a natural person for goods, moneys, or services which were primarily for personal, family, or household purposes; and one thousand two hundred dollars ($1,200) for all other book accounts to which this section applies; or (2) 25 percent of the principal obligation owing under the contract.

For the party against whom the obligation on the book account was asserted in the action subject to this section, if that party is found to have no obligation owing on a book account, the court shall award that prevailing party reasonable attorney’s fees not to exceed nine hundred sixty dollars ($960) for book accounts based upon an obligation owing by a natural person for goods, moneys, or services which were primarily for personal, family, or household purposes, and one thousand two hundred dollars ($1,200) for all other book accounts to which this section applies. These attorney’s fees shall be an element of the costs of the suit.

If there is a written agreement between the parties signed by the person to be charged, the fees provided by this section may not be imposed unless that agreement contains a statement that the prevailing party in any action between the parties is entitled to the fees provided by this section.

Here, Plaintiff alleges there is a written agreement between Xchange Corp. and HK Trans. (See Complaint ¶¶18, 19, 20, Exhs. A, B, C.). Further this cause of action is alleged against Xchange Logistics Corporation. Therefore, this attorneys’ fees clause does not apply.

Accordingly, Defendants’ motion to strike Plaintiff’s request for attorneys’ fees is granted without leave to amend.

The Court, sua sponte, strikes Plaintiff’s Complaint as not drawn or filed in conformity with applicable rules or court orders. (C.C.P. §436(b).) Plaintiff is an LLC.

Here, Plaintiff is currently not represented by counsel and has not been since their prior counsel’s motion to be relieved was granted on August 22, 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. v. Municipal Court (1978) 21 Cal.3d 724, 729; see also Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284 n.5; Ferruzzo v. Superior Court (1980) 104 Cal.App.3d 501, 503.)

Hon. Daniel M. Crowley

Judge of the Superior Court