Judge Katherine Chilton, Case 22STLC04549 2023-02-23 Tentative Ruling

Judge: Katherine Chilton, Case: 22STLC04549, Date: 2023-02-23 Tentative Ruling

Case Number: 22STLC04549 Hearing Date: February 23, 2023 Dept: 25

PROCEEDINGS: MOTION FOR JUDGMENT ON THE PLEADINGS

MOVING PARTY: Plaintiff Creditors Adjustment Bureau, Inc.

RESP. PARTY: None

MOTION FOR JUDGMENT ON THE PLEADINGS

(CCP § 438, et seq.)

TENTATIVE RULING:

The Court, on its own motion, STRIKES the Answer filed by Paul Easley, on behalf of Defendant Smart Yards, Inc., on November 9, 2022.

The Court sets an Order to Show Cause Re: Properly Filed Answer or Entry of Default on April 26, 2023 at 9:30 A.M. in Department 25 at the Spring Street Courthouse.

The Motion for Judgment on the Pleadings filed by Plaintiff Creditors Adjustment Bureau, Inc. is CONTINUED to May 8, 2023 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) NOT OK

[X] Correct Address (CCP §§ 1013, 1013a) NOT OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) NOT OK

OPPOSITION: None filed as of February 21, 2023. [ ] Late [X] None

REPLY: None filed as of February 21, 2023. [ ] Late [X] None

ANALYSIS:

I. Background

On July 11, 2022, Plaintiff Creditors Adjustment Bureau, Inc. (“Plaintiff”) filed an action against Defendant Smart Yards, Inc. aka Smart Yards (“Defendant” or “Smart Yards”) for breach of contract, open book account, account stated, and reasonable value.

On November 9, 2022, Paul Easley, in propria persona, filed an Answer on behalf of Smart Yards.

On November 21, 2022, Plaintiff filed the instant Motion for Judgment on the Pleadings (“Motion”). No opposition was filed. The Court notes that the Motion was served on Defendant via email which is not permitted when a party is self-represented, unless the party expressly so consents. The Court advises Plaintiff to re-serve Defendant’s counsel if Defendant retains counsel.

On January 13, 2023, Defendant filed a Request to Continue Hearing to July due to a medical procedure. Trial is currently scheduled for January 8, 2024. (7-11-22 Third Amended Standing Order.)

II. Legal Standard

The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322, citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.) Matters which are subject to mandatory judicial notice may be treated as part of the complaint and may be considered without notice to the parties. Matters which are subject to permissive judicial notice must be specified in the notice of motion, the supporting points and authorities, or as the court otherwise permits. (Id.) “The motion is confined to the face of the pleading under attack and all facts alleged in the complaint must be accepted as true.” (Hightower v. Farmers Insurance Exchange (1995) 38 Cal.App.4th 853, 858.)

A plaintiff may move for judgment on the pleadings on the ground that “the complaint states facts sufficient to constitute a cause of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.” (Code Civ. Proc., § 438(c)(1)(A).

Additionally, Code of Civil Procedure § 439(a) states that “before filing a motion for judgment on the pleadings pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion for judgment on the pleadings for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings.” The moving party “shall file and serve with the motion for judgment on the pleadings a declaration” that either states that a meeting took place or that the non-moving party did not respond to the request. Although a determination that the meet and confer process was insufficient is not grounds to grant or deny a motion for judgment on the pleadings, that does not mean the requirement can be wholly ignored. (Code. Civ. Proc. § 439(a)(4).

III. Discussion

As a preliminary matter, the Court finds that Paul Easley has improperly filed an Answer on behalf of Defendant Smart Yards. Since the passage of the State Bar Act in 1927, persons may represent their own interests in legal proceedings, but may not represent the interests of another unless they are active members of the State Bar. [Citation.]” (Hansen v. Hansen (2003) 114 Cal.App.4th 618, 621.) An entity must be represented by a lawyer in legal proceedings and may not represent itself (either directly or through a non-lawyer agent) in litigation, as such an act would be the unauthorized practice of law. (See e.g. Caressa Camille, Inc. v. Alcoholic Beverage Control Appeals Bd. (2002) 99 Cal.App.4th 1094, 1101) (corporation); Albion River Watershed Protection Ass’n v. Department of Forestry & Fire Protection (1993) 20 Cal. App. 4th 34, 37 (unincorporated association); Aulisio v. Bancroft (2014) 230 Cal.App.4th 1518, 1519-20 (trustee for trust).)

As an entity, Defendant Smart Yards may not appear in this action except through licensed counsel. There is no indication that Paul Easley is an attorney. The Code of Civil Procedure authorizes the Court to act on its own initiative to strike matters “at any time in its discretion, and upon terms it deems proper.” (Code of Civ. Proc. § 436.). Thus, the Court strikes the Answer filed by Paul Easley, in propria persona, on November 9, 2022, on behalf of Defendant Smart Yards.

The Court sets an Order to Show Cause Re: Properly Filed Answer or Entry of Default on April 26, 2023 at 9:30 A.M. in Department 25 at the Spring Street Courthouse.

The Court also CONTINUES the hearing on the Motion for Judgment on the Pleadings.

IV. Conclusion & Order

For the foregoing reasons, the Court, on its own motion, STRIKES the Answer filed by Paul Easley, on behalf of Defendant Smart Yards, Inc., on November 9, 2022.

The Court sets an Order to Show Cause Re: Properly Filed Answer or Entry of Default on April 26, 2023 at 9:30 A.M. in Department 25 at the Spring Street Courthouse.

The Motion for Judgment on the Pleadings filed by Plaintiff Creditors Adjustment Bureau, Inc. is CONTINUED to May 8, 2023 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE.

Moving party is ordered to give notice.