Judge: Mark E. Windham, Case: 22STLC02515, Date: 2022-08-31 Tentative Ruling

Case Number: 22STLC02515    Hearing Date: August 31, 2022    Dept: 26

PROCEEDINGS:     MOTION TO VACATE ENTRY OF DEFAULT

MOVING PARTY:   Defendants Northeast Wholesale, LLC and Kevin J. O’Connor

RESP. PARTY:         Plaintiff Westlake Services, LLC

MOTION TO VACATE ENTRY OF DEFAULT

(??)

TENTATIVE RULING:

Defendants Northeast Wholesale, LLC and Kevin J. O’Connor Motion to Vacate Default is CONTINUED TO NOVEMBER 2, 2022 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURT. BY OCTOBER 10, 2022, DEFENDANTS ARE TO FILE SUPPLEMENTAL PAPERS CORRECTING THE DEFECTS NOTED HEREIN.

ORDER TO SHOW CAUSE RE DEFENDANT NORTHEAST WHOLESALE, LLC’S LEGAL REPRESENTATION IS ALSO SET FOR OCTOBER 10, 2022 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

SERVICE: 

[X] Proof of Service Timely Filed (CRC 3.1300) OK

[X] Correct Address (CCP 1013, 1013a) OK

[X] 16/21 Day Lapse (CCP 12c and 1005 (b)) OK

SUMMARY OF COMPLAINT: Action for breach of contract and common counts.

RELIEF REQUESTED: Vacate entry of default and default judgment due to Defendants’ inadvertence in not filing an Answer.

OPPOSITION: The Motion is procedurally defective. Defendant cannot meet the requirements for relief under Code of Civil Procedure section 473, subdivision (b), nor can it represent itself in pro per.   

REPLY: None filed as of August 29, 2022.   

ANALYSIS:

Plaintiff Westlake Services, LLC (“Plaintiff”) filed the instant action for breach of contract and common counts against Defendants Northeast Wholesale, LLC and Kevin J. O’Connor (“Defendants”) on April 13, 2022. Following Defendants’ failure to file a responsive pleading, the Court entered default on June 10, 2022. Plaintiff filed a request for default judgment on June 28, 2022.

Defendants filed the instant Motion to Vacate Default on July 28, 2022. Plaintiff filed an opposition on August 4, 2022.

Discussion

The Motion is apparently brought on behalf of both Defendants but is filed in pro per by Defendant O’Connor. (Motion, p. 1.) Defendant Northeast Wholesale, however, cannot be represented by a non-attorney. It is black letter law that 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.) The Motion, therefore, is improper as to Defendant Northeast Wholesale.

With respect to Defendant O’Connor, the Motion is not accompanied by a memorandum of points and authorities, as required by the California Rules of Court. “The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (CRC Rule 3.1113(b).)

Based on the foregoing, the hearing in continued to allow Defendant Northeast Wholesale to obtain legal counsel and to allow Defendants to file supplemental papers in conformity with the California Rules of Court.

Conclusion

Defendants Northeast Wholesale, LLC and Kevin J. O’Connor Motion to Vacate Default is CONTINUED TO NOVEMBER 2, 2022 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURT. BY OCTOBER 10, 2022, DEFENDANTS ARE TO FILE SUPPLEMENTAL PAPERS CORRECTING THE DEFECTS NOTED HEREIN.

ORDER TO SHOW CAUSE RE DEFENDANT NORTHEAST WHOLESALE, LLC’S LEGAL REPRESENTATION IS ALSO SET FOR OCTOBER 10, 2022 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Plaintiff to give notice.