Judge: John J. Kralik, Case: 22BBCV00978, Date: 2023-04-28 Tentative Ruling

Case Number: 22BBCV00978    Hearing Date: April 28, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Medical Diagnostic Laboratory (“Plaintiff”) alleges that a breach of contract against Defendants Zeb Medical Corp, SuperClinic, Archie Mays, John Bohm, Dr. Java, Mario Rosenberg, John Kowalczyk, Hossein Dehghani, and Elika Derek (“Defendants”).  (Compl., §8.)  Plaintiff seeks damages in the amount of $45,000 and 20% late fees per year and court fees.  (Id., §10.)  Plaintiff attached an Exemplary Damages page, alleging Defendants were guilty of malice and fraud.  Plaintiff alleges that Zeb Medical and SuperClinic with its owner and doctors opened an account with Plaintiff with the intent to commit fraud with malice. 

            The complaint was filed on November 15, 2022 by Plaintiff and signed by Alexis Palacio.  The Court notes that Plaintiff is a corporate entity but is not represented by counsel. 

B.     Motion on Calendar

On January 6, 2023, Defendants Zeb Medical Corp., Inc., SuperClinic, Archie Mays, John Bohn, Dr. Java, Mario Rosenberg, John Kowalczky, Hossein Dehghani, and Elka Derek filed a motion to strike Plaintiff’s complaint. 

On April 19, 2023, Plaintiff filed an untimely opposition brief. 

LEGAL STANDARD

            CCP § 436 states:

The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

(a) Strike out any irrelevant, false, or improper matter inserted in any pleading.

(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.

(CCP § 436.) 

REQUEST FOR JUDICIAL NOTICE

            Defendants seek judicial notice of Plaintiff’s Statement of Information filed with the California Secretary of State.  The request is granted. 

DISCUSSION

            Defendants move to strike the entirety of Plaintiff’s complaint on the grounds that Plaintiff has not provided any attachment for the breach of contract claim it is allegedly bringing, the exemplary damages page does not have a cause of action upon which it is based, and Plaintiff is a corporate entity that is not represented by counsel. 

            There are many defects with respect to the complaint, as pointed out by Defendants.  First and foremost, Plaintiff is a corporate entity, such that it cannot represent itself in propria persona.  (See Rogers v. Municipal Court (1988) 197 Cal.App.3d 1314, 1318.)  As shown in the Statement of Information, Plaintiff appears to be a limited liability company.  The complaint was filed by Plaintiff without any attorney.  Though the complaint is signed by Alexis Palacio, it is unknown to the Court whether Ms. Palacio is an attorney.

            Plaintiff filed an opposition brief, which is signed by an attorney Jesse Gessin.  Counsel states that Plaintiff is now being represented by counsel such that the demurrer is moot.  The Court notes that no substitution of attorney was filed on behalf of Plaintiff such that Plaintiff continues to be an unrepresented entity according to court records.

Second, even if the issues regarding the unrepresented nature of Plaintiff were cured, there are no allegations regarding the elements of breach of contract, what contract was at issue between the parties, the material terms or a copy of the written agreement, or whether the contract was oral or written.  This would be a ground the motion to strike with leave to amend.   

Third, without an underlying cause of action, the punitive damages request would fail.  Standing alone, the exemplary damages attachment would not be sufficient to state a cause of action by Plaintiff against Defendants. 

            For these reasons, the Court grants the motion to strike the complaint.   

CONCLUSION AND ORDER

            The motion to strike the complaint is granted.  The Court will allow Plaintiff 20 days leave to amend commencing with the date of this order, upon the condition that Plaintiff properly retain counsel.  As noted above, no substitution of counsel has been filed with the Court to show that Plaintiff is a represented entity. If Plaintiff does not retain substitute counsel within 20 days of this order, the motion to strike will be granted without leave to amend.

            Defendants shall provide notice of this order.