Judge Gail Killefer, Case Number: 23STCV13464, Date: 2024-01-04 Tentative Ruling

TENTATIVE: Plaintiff’s Motion to Strike Aquaco’s Answer is granted with leave to amend. Defendant Aquaco is given 30 days to find licensed counsel. The court sets an OSC re Defendant’s Counsel for February 9, 2024, at 8:30 a.m.

On June 13, 2023, Paul Dodds (“Plaintiff”) filed a Complaint against Aquaco Resources, Inc. (“Aquaco”); Patrick R. McEntee (“McEntee”); and Does 1 to 100. The Complaint alleges two causes of action: (1) Breach of Contract; and (2) Conversion.

On September 26, 2023, Defendant McEntee, in pro per, filed a Response to Lawsuit. Plaintiff now moves to strike the answer and an order directing Aquaco to designate a licensed attorney within 30 days or that default be entered against Aquaco.

MOtion to strike[1]

¿Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); CRC, rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP § 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)¿¿¿¿

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿¿

Plaintiff moves to strike Defendant Aquaco’s Answer in its entirety because it was filed by a pro per party, Defendant McEntee.

“[U]nder 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. It must be represented by licensed counsel in proceedings before courts of record.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145.) The rationale for this rule is that “a corporation, as an artificial entity created by law, can only act in its affairs through its natural person agents and representatives. If the corporate agent who would likely appear on behalf of the corporation in court proceedings, e.g., an officer or director, is not an attorney, that person would be engaged in the unlicensed practice of law.” (Id. at p. 1146.) For this reason, a corporation cannot file a pleading in propria persona.

When a corporation seeks to appear without the benefit of counsel in other than small claims cases, it is the duty of the trial court to advise the representative of the corporation of the necessity to be represented by a licensed lawyer. If no such licensed representative is present, appearing for the corporation, the court may:

For the reasons stated above, Plaintiff’s motion to strike Aquaco’s Answer is granted. “[I]t is more appropriate and just to treat a corporation's failure to be represented by an attorney as a defect that may be corrected, on such terms as are just in the sound discretion of the court” and for this reason, the court grants the motion with leave to amend. (CLD Construction, Inc., supra, 120 Cal.App.4th at p. 1149.) “[T]he court retains authority to dismiss an action if an unrepresented corporation does not obtain counsel within reasonable time. (Id. at p. 1150.)

The court gives Defendant Aquaco 30 days leave to seek representation from licensed counsel, otherwise, the court will enter default against Defendant.

Plaintiff’s Motion to Strike Aquaco’s Answer is granted with leave to amend. Defendant Aquaco

is given 30 days to find licensed counsel. The court sets an OSC re Proof of Service for February

[1] Pursuant to CCP § 435.5(a), Plaintiff’s counsel unsuccessfully attempted to meet and confer with Defendant McEntee prior to filing this Motion. (Schell Decl. ¶ 4, Ex. C.) “A determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion to strike.” (CCP § 435.5(a)(4).) Therefore, the court continues to the merits of the motion.