Judge: Elaine Lu, Case: 22STCV09507, Date: 2025-02-25 Tentative Ruling

Case Number: 22STCV09507    Hearing Date: February 25, 2025    Dept: 9

Superior Court of California

County of Los Angeles

Spring Street Courthouse, Department 9

On December 6, 2024, Attorneys Matthew B. Golper and Keith Rossman (jointly “Counsel”), filed the instant motion to be relieved as counsel for defendants 101 Restaurant Group, Inc. and John Peña. (jointly “Client”).

Counsel has filed a form MC051 and MC-052 and has lodged with the Court a copy of the proposed order on form MC-053 pursuant to CRC Rule 3.1362. 

The MC-052 form states that Counsel served Client via mail at Client’s last known mailing address, which Counsel states she has confirmed as current within 30 days of the motion by telephone and through email. 

Counsel states that “[i]rreconcilable differences have arisen between counsel and [Client] regarding [Counsel’s] firm's further handling of this matter, including differences in the handling of the matter and [Client’s] failure to fulfill certain obligations to [Counsel’s] firm.” 

Counsel is ordered to electronically file a new and revised proposed order on form MC-053 by 12 noon on February 25, 2025.  Provided that such new and revised proposed order is electronically filed before the hearing, the Court is inclined to grant the motions based on the declaration Counsel has filed. 

1.     Box 3(b) should be checked off (“served client by mail and submitted a declaration establishing that the service requirements of California Rules of Court, rule 3.1362, have been satisfied.”).

2.     Box 5(a) should be checked off (“effective upon the filing of the proof of service of this signed order upon the client”).

3.     In item 6, add a telephone number and email address for Client if possible.

4.     The Court’s records show the following upcoming hearings, which must all be listed in the new and revised proposed order (MC-053): In item 7(a), replace with: “July 23, 2025 at 8:30 am, Spring Street Courthouse, 312 N. Spring Street, Dept. 9, L.A., CA 90012.”  In item 7(b), add:  “Non-Appearance Case Review Re: Filing of Motion for Class Certification.”

5.     In Item 13 add: “A corporation or LLC must be represented by licensed counsel in proceedings before this Court. 101 Restaurant Group, Inc. is ordered to file a substitution of counsel by no later than March 27, 2025 and to appear on April 10, 2025 at 8:30 am in Department 9 with its new counsel.  101 Restaurant Group, Inc.’s failure to timely retain new counsel by March 27, 2025 or failure to appear on April 10, 2025 may result in the answer being stricken, the entry of default and default judgment against 101 Restaurant Group, Inc.  Moving Counsel is ordered to file proof of service of this signed order and the accompanying signed order on all parties within 3 days.”

Counsel is responsible for determining if there are any other hearings scheduled or due dates for discovery for this case, including any motions hearings, which must all be listed in the proposed order. 

As to defendant 101 Restaurant Group, Inc., the Court notes that while a corporation has the capacity to bring a lawsuit because it has all the powers of a natural person in carrying out its business, under a long-standing common law rule of procedure, a corporation, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director or other employee who is not an attorney.  (CLD Const., Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145.)  “[A Corporation] must be represented by licensed counsel in proceedings before courts of record.  (Id.; Gutierrez v. G & M Oil Co., Inc. (2010) 184 Cal.App.4th 551, 564; Thomas G. Ferruzzo, Inc. v. Superior Court (1980) 104 Cal.App.3d 501, 503.) However, “[a]n attorney may be allowed to withdraw without offending the rule against corporate self-representation.” (Thomas G. Ferruzzo, Inc., supra, 104 Cal.App.3d at 504.)

In light of these authorities, the Court will require that 101 Restaurant Group, Inc. timely retain new counsel and file a substitution of counsel by no later than March 27, 2025.  The Court hereby sets an OSC regarding status of 101 Restaurant Group, Inc.’s representation for April 10, 2025 at 8:30 am in Department 9.  101 Restaurant Group, Inc. is ordered to appear on April 10, 2025 with its new counsel.

If 101 Restaurant Group, Inc. fails to file a substitution of counsel by no later than March 27, 2025, 101 Restaurant Group, Inc. is ordered to appear on April 10, 2025 at 8:30 am in Department 9 and show cause why 101 Restaurant Group, Inc.’s answer should not be stricken, and why default and default judgment should not be entered against 101 Restaurant Group, Inc. on Plaintiff’s Complaint.  101 Restaurant Group, Inc.’s failure to appear on April 10, 2025 at 8:30 am in Department 9 shall be deemed consent to: striking of 101 Restaurant Group, Inc.’s answer, and entry of default and default judgment against 101 Restaurant Group, Inc. on Plaintiff’s Complaint.

The proposed order (MC-053) is corrected to add the April 10, 2025 OSC hearing to items 8 and 13.

The corrected Order is signed and filed, and Counsel is relieved as counsel of record for 101 Restaurant Group, Inc. and John Peña, effective only upon Counsel’s filing of the proof of service of the signed Order (MC-053) and the instant order upon 101 Restaurant Group, Inc. and John Peña.  Counsel will remain the attorney of record until Counsel files proof of service of the signed order (MC-053) and the instant order on all parties, including 101 Restaurant Group, Inc. and John Peña.  

Counsel is ordered to serve copies of the instant order and the signed form MC-053 order on all parties, including 101 Restaurant Group, Inc. and John Peña, and file proof of service of such within 3 days.

DATED: February 25, 2025                     ___________________________

                                          Elaine Lu

                                          Judge of the Superior Court