Judge: John C. Gastelum, Case: 21-01202707, Date: 2023-03-27 Tentative Ruling

(1) Motion to Strike Answer (2) CMC

Tentative Ruling:   Plaintiff Merchant Capital Source, LLC moves to strike Defendant All Capital Services Corp. dba All Capital Services Corp’s Answer to the Complaint on the basis it cannot represent itself and that Genoveza Yurbaez Perez (identified in the Substitution of Attorney) is not a licensed attorney.  The motion is GRANTED.

On 1-5-22, Defendant All Capital Services Corp. dba All Capital Services Corp filed a Substitution of Attorney indicating that it would be representing itself via Genoveza Yurbaez Perez.  (ROA 41.)  Plaintiff moves to strike Defendant All Capital Services Corp. dba All Capital Services Corp’s Answer to the Complaint on the basis that it cannot represent itself and that Genoveza Yurbaez Perez (identified in the Substitution of Attorney) is not a licensed attorney.

“A corporation not itself being a natural person, can make a court appearance only through a natural person - obviously a person other than the corporate person.”  (Merco Const. Engineers, Inc. v. Superior Court (1978) 21 Cal.3d 724, 731. ) A corporation can only appear through counsel.  “It is settled that an unincorporated association must be represented by a person licensed in this state to practice law.”  (Albion River Watershed Protection Assn. v. Department of Forestry & Fire Protection (1993) 20 Cal.App.4th 34, 37.)

Since the corporate representative who would likely appear on behalf of the corporation would be engaged in the unlicensed practice of law, neither Genoveza Yurbaez Perez nor any other non-attorney can represent Defendant All Capital Services Corp. in litigation.  (Garnet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284.)

CLD Const., Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1149-1150, held the court should have allowed an opportunity to correct the defect. “[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.”

Here, Defendant’s attorney substituted out of this case on 1-5-22 and on 1-14-22, in compliance with the meet and confer requirement, Plaintiff’s counsel sent correspondence to Defendants informing them that All Capital Services must be represented by counsel and that Plaintiff would move to strike its Answer if they did not retain counsel. 

Since then, Defendant has had ample opportunity to obtain counsel – nearly a year – and has failed to do so.  Accordingly, the Court is inclined to GRANT the motion and strike Defendant All Capital Services Corp.’s Answer to the Complaint.

Therefore, the Court ORDERS Defendant All Capital Services Corp.’s Answer to the Complaint filed 11-29-21, under ROA 23, STRICKEN. 

Moving Party to give notice.