Judge Lee S. Arian, Case Number: 22STCV13368, Date: 2024-01-22 Tentative Ruling

This is an action arising from a motor vehicle accident which occurred on October 7, 2021. On April 21, 2022, Plaintiff Charles Arnold Thomas (“Plaintiff”) filed a complaint against Defendants HK Logistics Corporation, HK Trans LLC, Miguel Angel Roque, Miguel Angel Roque II (collectively, “Defendants”), and Does 1 to 50 alleging a sole cause of action for motor vehicle.

On September 29, 2022, Defendants filed an answer to the complaint. The answer indicated that Miguel Angel Roque is also known as Miguel Angel Roque II.

On September 27, 2023, the Court granted the motions to be relieved as counsel filed by Ira N. Katz as to Defendants HK Logistics Corporation, HK Trans LLC, and Miguel Angel Roque. (09/27/23 Minute Order.) The Court indicated that “[t]he [m]otions are granted and effective upon the filing of the proof of service of these signed orders upon the Defendants.” (09/27/23 Minute Order.)

On September 27, 2023, Plaintiff filed and served notice of service of the signed orders on Defendants.

On December 4, 2023, Plaintiff filed and served motions to strike the answers of, and enter default against, HK Logistics Corporation and HK Trans LLC, as well as a request for monetary sanctions against each entity. The motions are made on the grounds that a corporation may not appear in pro per and HK Logistics Corporation and HK Trans LLC have had ample time to obtain counsel but have failed to retain counsel.

Also, on December 4, 2023, Plaintiff filed and served a motion to continue trial and the final status conference 120 days, to dates in June of 2024, or to a time thereafter convenient to the Court. Non-jury trial in this action is currently scheduled to commence on February 14, 2024.

The Court will address the respective motions filed by Plaintiff in this one ruling.

The motions are all unopposed. Any opposition was required to have been filed and served at least nine court days prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).)

Plaintiff seeks to strike the answers of, and enter default against, Defendants HK Logistics Corporation and HK Trans LLC. Plaintiff also seeks monetary sanctions against each entity in the amount of $1,061.65. The motions to strike are substantively identical and therefore the Court will address such motions collectively.

“The qualifications of the human representing a corporation-or for that matter any other person or entity-in court is one of vital judicial concern.” (Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 730.) “Such a person is clearly engaged in the practice of law in a representative capacity. The practice of law is the doing and performing services in a court of justice in any matter depending therein through its various stages.” (Ibid., citations omitted, internal quotations omitted.) “A corporation cannot appear in court by an officer who is not an attorney and it cannot appear in propria persona.” (Paradise v. Nowlin (1948) 86 Cal.App.2d 897, 898, citations omitted.)

In support of the motions, Plaintiff’s counsel, Mitra Chegini (“Chegini”), states that since September 27, 2023, none of the Defendants have been represented by counsel. (Chegini Decls., ¶ 4.) The corporate defendants have had a reasonable time and ample opportunity to retain counsel but there is no indication that any defendant has retained counsel. (Chegini Decls., ¶ 5.) Counsel declares that her hourly rate is $450.00 per hour, and she spent 3 hours each per motion, and incurred a filing fee of $61.65 per motion. (Chegini Decls., ¶ 6.) Plaintiff seeks sanctions against HK Logistics Corporation and HK Trans LLC in the amount of $1,061.65 each pursuant to Code Civ. Proc., § 128.7(b)(1). (Chegini Decls., ¶ 6.)

The Court finds that Plaintiff’s reliance on Merco Construction Engineers, supra, 21 Cal.3d 724 is inapposite. Merco Construction Engineers, supra, 21 Cal.3d 724 does not address striking the answer of a corporate defendant. Moreover, when Defendants’ answer was filed, both HK Logistics Corporation and HK Trans LLC were represented by counsel. Thus, the Court finds that Plaintiff has not provided the Court with applicable legal authority to strike the answers of, and enter default against, Defendants HK Logistics Corporation and HK Trans LLC.

As to Plaintiff’s respective requests for monetary sanctions against Defendants HK Logistics Corporation and HK Trans LLC, the Court finds that Plaintiff’s request for monetary sanctions is procedurally improper and unsupported. Plaintiff moves for sanctions pursuant to Code Civ. Proc., § 128.7, subd. (b)(1). A motion for sanctions under Code of Civil Procedure section 128.7, however, “shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b).” (Code Civ. Proc., § 128.7, subd. (c)(1).) Thus, the requests for monetary sanctions against HK Logistics Corporation and HK Trans LLC is procedurally improper as Plaintiff failed to request sanctions in a separate motion.

Plaintiff’s request for sanctions against HK Logistics and HK Trans LLC is made pursuant to Code of Civil Procedure section 128.7(b)(1). Code Civ. Proc., § 128.7, subd. (b)(1) provides that “[b]y presenting to the court . . . a pleading . . . or other similar paper, an attorney or unrepresented party is certifying that . . . [i]t is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” The Court fails any basis for sanctions under Code Civ. Proc., § 128.7, subd. (b)(1). As stated above, when the answer of HK Logistics Corporation and HK Trans LLC was filed, such parties were represented by counsel. Plaintiff presents no indication that the answer of such parties was presented for an improper purpose. The Court therefore DENIES Plaintiff’s request for monetary sanctions against Defendants HK Logistics Corporation and HK Trans LLC.

Accordingly, the Court DENIES Plaintiff’s motions to strike the answers of, and enter default against, Defendants HK Logistics Corporation and HK Trans LLC. The Court DENIES Plaintiff’s request for monetary sanctions against Defendants HK Logistics Corporation and HK Trans LLC.

The Court, however, finds it appropriate to ascertain the status of Defendants HK Logistics Corporation and HK Trans LLC retaining counsel. Defendants HK Logistics Corporation and HK Trans LLC are corporate entities and therefore cannot appear in this action without an attorney.

For this reason, the Court orders Plaintiff to notify Defendants HK Logistics Corporation and HK Trans LLC of this fact, and of the setting on the Court’s own motion of an OSC re: HK Logistics Corporation and HK Trans LLC retaining new counsel for February 14, 2024, at 8:30 AM in this department.

Code Civ. Proc. § 128(a)(8) provides that the court has the power to “amend and control its process and orders so as to make them conform to law and justice.” “[T]he power to determine when a continuance should be granted is within the discretion of the trial court.” (Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1603.) A trial court has wide latitude in the matter of calendar control including the granting or denying of continuances. (Park Motors, Inc. v. Cozens (1975) 49 Cal.App.3d 12, 18.)

A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated by the parties, must make the request for a continuance by a noticed motion or ex parte application, with supporting declarations. (Cal. Rules of Court, Rule 3.1332(b).) The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered. (Ibid.)

Each request for a continuance must be considered on its own merits according to California Rules of Court, Rule 3.1332(c). The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. (Cal. Rules of Court, Rule 3.1332(c).) Good cause may be present where a party has not been unable “to obtain essential testimony, documents, or other material evidence despite diligent efforts” or there has been a “significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.” (Cal. Rules of Court, Rule 3.1332(c)(6)-(7).)

California Rules of Court, Rule 3.1332 sets forth a list of non-exhaustive factors to be analyzed when determining whether good cause for a trial continuance is present. A court considers factors such as: (1) the proximity of the trial date; (2) whether there was any previous continuance, extension of time, or delay of trial due to any party; (3) the length of the continuance requested; (4) the availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) the prejudice that parties or witnesses will suffer as a result of the continuance; (6) if the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) the court’s calendar and the impact of granting a continuance on other pending trials; (8) whether trial counsel is engaged in another trial; (9) whether all parties have stipulated to a continuance; (10) whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) any other fact or circumstance relevant to the fair determination of the motion or application. (Cal. Rules of Court, Rule 3.1332(d).)

Plaintiff moves to continue trial and the final status conference on the grounds that Defendants HK Logistics Corporation and HK Trans LLC are not represented by counsel. Plaintiff contends that a trial continuance will allow Defendants HK Logistics Corporation and HK Trans LLC to obtain counsel.

In support of the motion to continue trial, counsel for Plaintiff, Mitra Chegini (“Chegini”), declares that since September 27, 2023, none of the Defendants have been represented by counsel. (Chegini Decl., ¶ 2.) The FSC and trial dates of this case are approaching. (Chegini Decl., ¶ 3.) The FSC date is currently set for January 31, 2024, and the trial is set for February 14, 2024. (Chegini Decl., ¶ 4.) One prior continuance has been granted and a stipulation to continue the FSC and trial is currently not possible. (Chegini Decl., ¶ 6.) The requested continuance will allow the corporate defendants ample opportunity to obtain counsel. (Chegini Decl., ¶ 7.)

Given that Defendants HK Logistics Corporation and HK Trans LLC are currently unrepresented by counsel, the Court finds it appropriate to continue trial so that Defendants HK Logistics Corporation and HK Trans LLC to retain counsel. Allowing trial to proceed as scheduled—when the corporate defendants are unrepresented—would deprive such parties of the opportunity to present a defense at trial given that corporations cannot appear in propria persona. (Paradise v. Nowlin, supra, 86 Cal.App.2d 897, 898, citations omitted.)

The Court therefore finds that there is good cause to continue trial and, exercising its discretion under Park Motors, Inc. v. Cozens, supra, 49 Cal.App.3d 12, 18, the Court GRANTS Plaintiff’s motion to continue the final status conference and trial of this action.

The Court continues non-jury trial in this action from February 14, 2024 to Monday, July 1, 2024 at 8:30 AM in this department. All trial-related dates, including the final status conference, discovery, and motion cut-off dates, are based on the continued trial date.

The Court DENIES Plaintiff’s motions to strike the answers and enter default against Defendants HK Logistics Corporation and HK Trans LLC.

The Court GRANTS Plaintiff’s motion to continue the final status conference and trial. The Court continues non-jury trial in this action from February 14, 2024 to Monday, July 1, 2024 at 8:30AM in this department. All trial-related dates, including the final status conference, discovery, and motion cut-off dates, are based on the continued trial date.

On the Court’s own motion, the Court sets an OSC re: HK Logistics Corporation and HK Trans LLC retaining new counsel for February 14, 2024 at 8:30 AM in this department.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Lee S. Arian

Judge of the Superior Court