Judge: Mark E. Windham, Case: 21STLC07880, Date: 2023-10-03 Tentative Ruling

Case Number: 21STLC07880    Hearing Date: October 3, 2023    Dept: 26

Hardy Bros. Equipment Co., Inc. v. 3531 Trucking, Inc., et al.

MOTION TO VACATE JUDGMENT; QUASH SERVICE OF SUMMONS

(CCP §§ 473.5, 473(b), (d), 418.10)

TENTATIVE RULING:

Defendant 3531 Trucking, Inc.’s Motion to Vacate Default and Default Judgment; and Quash Service of Summons is DENIED.

ANALYSIS:

Plaintiff Hardy Bros Equipment Co., Inc., (“Plaintiff”) filed the instant action for breach of contract against Defendants 3531 Trucking Inc. (“Defendant”), Miguel Miranda, Peter Cruz, Jr., and Peter Cruz (“the individual Defendants”) on November 3, 2021. The individual Defendants were dismissed on October 13, 2022. Following Defendant’s failure to file a responsive pleading, the Court entered its default on October 13, 2022 and default judgment on November 8, 2022.

Defendant filed the instant Motion to Vacate Default Judgment, additionally seeking to quash service of the Summons, on May 4, 2023. The Motion came for hearing on June 6, 2023 at which time the Court continued the matter to allow Defendant to serve the papers on Plaintiff and obtain counsel. (Minute Order, 06/06/23.)

To date, no substitution of attorney nor proof of service of the motion papers has been filed by Defendant.

Discussion

As the Court previously noted, the Motion involves procedural defects that must be corrected before it can be heard on the merits.

First, the Motion was filed by Defendant, a corporation, in properia persona through its agent for service of process, the now-dismissed Defendant Miguel Miranda. (Motion, p. 1; Miranda Decl., ¶7.) However, it is black letter law that a corporation cannot represent itself in court. (Clean Air Transport Systems v. San Mateo County Transit Dist. (1988) 198 Cal.App.3d 576, 578 (citing Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 729-730).) This rule applies to all entities regarded as separate from their owners, including partnerships and unincorporated associations. (See Clean Air Transport Systems, supra, 19 Cal.App.3d at 578.) Defendant filed the instant Motion without proper legal representation, and it must appear through an attorney going forward.

Second, the Motion is not accompanied by a proof of service demonstrating that it, or notice of the hearing date, was served on Plaintiff. Failure to give notice of a motion is not only a violation of the statutory requirements but of due process. (Code Civ. Proc., § 1005; Jones v. Otero (1984) 156 Cal.App.3d 754, 757.)

Despite a four-month opportunity to correct these defects, Defendant has not done so.

Conclusion

Therefore, Defendant 3531 Trucking, Inc.’s Motion to Vacate Default and Default Judgment; and Quash Service of Summons is DENIED.

Court clerk to give notice.