Judge Gail Killefer, Case Number: 23STCV26434, Date: 2024-12-13 Tentative Ruling

Judge: Gail Killefer, Case: 23STCV26434, Date: 2024-12-13 Tentative Ruling

Case Number: 23STCV26434 Hearing Date: December 13, 2024 Dept: 37

HEARING DATE: Friday, December 13, 2024

CASE NUMBER: 23STCV26434

CASE NAME: Jessica Marrow v. Open Stage Inc., et al.

MOVING PARTY: Plaintiff Jessica Morrow

OPPOSING PARTY: None.

TRIAL DATE: 13 May 2025

PROOF OF SERVICE: OK

PROCEEDING: Motion to Strike Answer

OPPOSITION: None.

REPLY: Notice of non-opposition filed.

TENTATIVE: Plaintiff’s Motion to Strike Open Stage Inc. ’s Answer is granted with leave to amend. Defendant Open Stage Inc. is given 30 days to find licensed counsel. The court sets the OSC RE: Answer or Default for January 30, 2025, at 8:30 a.m. Plaintiff to give notice.

Background

On October 30, 2023, Jessica Marrow (“Plaintiff”) filed a Complaint against Open Stage Inc. and Bernard Alimi (collectively “Defendants”) for late payment of wages and waiting time penalties (Lab. Code, § 203).

On January 29, 2024, Defendants filed an Answer.

On July 24, 2024, Defense counsel moved to be relieved as counsel for the Defendants. On August 28, 2024, the court granted Defense counsel’s motion.

Plaintiff now moves to strike Open Stage Inc.’s Answer as it is a self-represented corporation.

I. Legal Standard

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.)¿¿¿¿

II. Discussion

Plaintiff presents evidence that since August 28, 2024, Defendant Open Stage Inc. has been a registered California corporation that is unrepresented by counsel. (Hall Decl., ¶¶ 3, 6, Exs. C, D.)

“[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:¿

(1) hear a motion for continuance; or¿

(2) enter the corporation's default for nonappearance at trial.

(Van Gundy v. Camelot Resorts, Inc. (1983) 152 Cal.App.3d Supp. 29, 31–32.)

For the reasons stated above, Plaintiff’s motion to strike Open Stage Inc.’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 Open Stage Inc. 30 days leave to seek representation from licensed counsel, otherwise, the court will enter default against Defendant Open Stage Inc.

Conclusion

Plaintiff’s Motion to Strike Open Stage Inc. ’s Answer is granted with leave to amend.

Defendant Open Stage Inc. is given 30 days to find licensed counsel. The court sets the OSC

RE: Answer or Default for January 30, 2025, at 8:30 a.m. Plaintiff to give notice.