Judge: Erick L. Larsh, Case: 2019-01063271, Date: 2023-08-24 Tentative Ruling

At the hearing on August 17, 2024, Mr. Franke represented to the court that he was appearing pro per.  Mr. Franke represented that he could not find an attorney to represent him or Enviro-Holdings, LLC, unless the trial date was continued.  The court is unwilling to continue the trial date for Enviro-Holdings, LLC, without an attorney representing the corporation. 

The court set the matter for OSC to strike Enviro-Holding, LLC’s pleadings unless an attorney appears to represent Enviro-Holdings. 

If Enviro-Holdings, LLC, has not retained representation the court will strike Enviro-Holdings, LLC’s pleading. Moreover, “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 Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145.) “It must be represented by licensed counsel in proceedings before courts of record.” (Ibid.) 

The Court’s tentative ruling as to Mr. Frankie is as follows.

The Court is inclined to continue the Motion to Compel brought by Plaintiff W.D. Shock Corp. on July 12, 2023 (ROA Nos. 514 and 520), given the recent disbarment of Defense Counsel Gregory Ricks and resulting concerns regarding service. The Court requests that the parties appear at the hearing, prepared to discuss the length of the necessary continuance.

On August 9, 2023, Defendant John Franke filed a Declaration with the Court, in a pro per capacity. (ROA No. 594). The Declaration indicates Mr. Franke recently became aware that his attorney (as well as the attorney for Enviro-Holdings) was disbarred on July 1, 2023. (¶2(A) and ¶20 of Franke Declaration.) This declaration, however, does not comply with Code of Civil Procedure section 2015.5, as it is not executed under penalty of perjury under the laws of the State of California. (Code Civ. Proc., §2015.5.) As a result, it is inadmissible. (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 612.)

Despite the same, an earlier filed Declaration by Mr. Franke, executed under penalty of perjury and filed in connection with a prior Ex Parte Application, indicates he confirmed that Mr. Ricks can no longer practice law. (¶4 of Franke Declaration (ROA No. 538).) Similar information is provided in a recent Declaration from Counsel Brianna Milligan, attached to a Motion to Continue Trial. (¶12 of Milligan Declaration and Exhibit 2 thereto [ROA No. 584].) The above documents are court records, subject to judicial notice pursuant to Evidence Code section 452, subsection (d). Additionally, the Court may take judicial notice on its own motion, of the State Bar Attorney Profile for Gregory Paul Ricks (Bar No. 140538), which indicates that, as of July 1, 2023, Mr. Ricks is not eligible to practice law in California. (See  https://apps.calbar.ca.gov/attorney/Licensee/Detail/140538). This record is judicially noticeable as an item “not reasonably subject to dispute and…capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code §452, subd. (h).)

Given the above, service of the instant motions appears defective. While Plaintiff’s Counsel reasonably served the instant motion on the then-stated attorney of record for Defendants Franke and Enviro-Holdings, LLC, judicially noticeable documents demonstrate Mr. Ricks became ineligible to practice law, 11-days prior to the service of this motion. (ROA No. 520.) While service on Mr. Ricks prior to July 1st would unquestionably be appropriate, the service completed after disbarment appears insufficient. The Court is inclined to find that Defendants became unrepresented parties at the time of disbarment.

Notably, responding to discovery requests has been found to constitute the unauthorized practice of law. (Benninghoff v. Superior Court (2006) 136 Cal.App.4th 61, 69.) Additionally, responding to motions would unquestionably constitute the unauthorized practice of law, as it would effectively consist of the “holding out by a layman that he is practicing or is entitled to practice law.” (Bluestein v. State Bar (1974) 13 Cal.3d 162, 175, fn. 13.) Based on the above, while Plaintiff completed service on Mr. Ricks, at the time in which this service was completed, Mr. Ricks was wholly incapable of responding on behalf of Defendants.

Additionally, while Mr. Franke has attempted to file an opposition to these motions – a fact which demonstrates his awareness of the pending motions – it is unclear whether he is properly in receipt of the motion itself.

Based on all of the above, there has been no clear showing the instant motions were properly served; however, as this lack of service is through no-fault of any party herein, the Court is inclined to continue the hearing, to permit corrected service.

Additionally, while trial is scheduled for September 11, 2023, the Court finds that the disbarment of Defense Counsel constitutes sufficient “good cause” to justify a continuance.