Judge: Michael E. Whitaker, Case: 22STCV20016, Date: 2023-02-01 Tentative Ruling

Case Number: 22STCV20016    Hearing Date: February 1, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

NOTE:  2 TENTATIVE RULINGS BELOW

TENTATIVE RULING - NO. 1

Plaintiffs Yaroslava Voronkov, Dimitry Voronkov, and Daria Lukonina (collectively, Plaintiffs) sued Defendants Little Bee Day Care, Inc., Alina Stolyarova, and Evgeny Nagovitsyn as the Trustee of Nagovitsyn Family Trust (collectively, Defendants) based on a leg injury Plaintiff Yaroslava Voronkov allegedly sustained while she was under the care of Defendants at Little Bee Day Care center.  Defendants demur to Plaintiffs’ Complaint.  Plaintiffs have not filed an opposition.

The Court notes that Defendants have appeared in pro per in filing the instant demurrer, including Defendant Little Bee Day Care, Inc., a corporation.  The Court notes that “a corporation has the capacity to bring a lawsuit because it has all the powers of a natural person in carrying out its business.  However, under a long-standing common law rule of procedure, a corporation, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director or other employee who is not an attorney. It must be represented by licensed counsel in proceedings before courts of record.”  (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145 [cleaned up].) 

Because Defendant Little Bee Day Care, Inc. is a corporation and thus cannot be represent itself nor be represented by an employee who is not an attorney, the Court will overrule the demurrer as to Defendant Little Bee Day Care, Inc. and assess the instant demurrer regarding Defendants Alina Stolyarova and Evgeny Nagovitsyn as the Trustee of Nagovitsyn Family Trust.  

Furthermore, under Code of Civil Procedure sections 430.41, “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.”  (Code Civ. Proc., § 430.41, subd. (a).)   In addition, “[t]he demurring party shall file and serve with the demurrer a declaration stating either of the following:  (A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer.  (B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.”  (Code Civ. Proc., § 430.41, subd. (a)(3).) 

Here, Defendants have failed to establish compliance with the meet and confer requirements of Section 430.41.  Defendants have not proffered any evidence to establish that the parties met and conferred, as required.  But Defendants’ failure to sufficiently meet and confer is not grounds to either overrule or sustain a demurrer. (Code Civ. Proc., §§ 430.41, subd. (a)(4); Dumas v. Los Angeles County Board of Supervisors (2020) 45 Cal.App.5th 348, 355.)  

Therefore, the Court shall continue the hearing on the demurrer to March 6, 2023 at 1:30 PM in Department 32.  Further, the Court orders Defendants to comply with Code of Civil Procedure section 430.41 and to file a declaration in conformance with Section 430.41, subdivision (a)(3) on or before February 28, 2023.

Defendants shall provide notice of the Court’s orders and file a proof of service of such.

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING - NO. 2

Plaintiffs Yaroslava Voronkov (Yaroslava), Dimitry Voronkov, and Daria Lukonina (collectively, Plaintiffs) sued Defendants Little Bee Day Care, Inc., Alina Stolyarova, and Evgeny Nagovitsyn as the Trustee of Nagovitsyn Family Trust (collectively, Defendants) based on a leg injury Yaroslava allegedly sustained while she was under the care of Defendants at Little Bee Day Care center.  Plaintiffs move to strike Defendants’ Answer.  Defendants have not filed an opposition to motion to strike.

The Court finds Plaintiffs has failed to advance a proof of service establishing proper service of the subject notice of motion and motion to strike on Defendants per Code of Civil Procedure section 1005.  (See Code Civ. Proc., § 1005, subd. (b).)  More important, the Court finds that Plaintiffs’ motion is not justiciable because Defendants have not filed an Answer to the complaint.  Instead, Defendants filed a demurrer to the complaint.

The Court therefore denies the motion without prejudice. Yaroslava shall provide notice of the Court’s ruling and file a proof of service of such.