Judge Michael P. Linfield, Case 20STCV31295 2022-08-29 Tentative Ruling

Judge: Michael P. Linfield, Case: 20STCV31295, Date: 2022-08-29 Tentative Ruling

Case Number: 20STCV31295 Hearing Date: August 29, 2022 Dept: 34

SUBJECT: Motion to Strike or Dismiss or for Order to Show Cause

Moving Party: Plaintiff Southern California Gas Co.

Resp. Party: Defendant Miles Construction Group, Inc.

Plaintiff SoCalGas’s motion is GRANTED. Defendant Miles Construction Group’s Answer is STRICKEN, and Miles Construction Group’s Cross-Complaint is DISMISSED.

BACKGROUND:

Plaintiff Southern California Gas Co. (“SoCalGas”) commenced this action on August 17, 2020. Defendant Miles Construction Group, Inc. filed (through its then-attorney) an Answer and a Cross-Complaint on November 12, 2020. SoCalGas filed its Answer on December 15, 2020 and its First Amended Answer on February 23, 2021.

SoCalGas filed its Motion to Strike or Dismiss or for Order to Show Cause on July 26, 2022. SoCalGas requests that the Court strike, dismiss, or order a show cause hearing on Miles Construction Group’s Answer and Cross-Complaint. The basis for these alternate requests for relief is solely on the grounds that Miles Construction Group, a corporation, has been improperly representing itself in propria persona since the Court relieved Miles Construction Group’s counsel of its representation by Order dated February 28, 2022. SoCalGas admits that it has not met and conferred with Miles Construction Group prior to filing this motion. (Mot., p. 6: 26–28.)

Miles Construction Group has failed to file an opposition or otherwise respond to the instant motion.

ANALYSIS:

I. Legal Standard

SoCalGas brings this motion to strike Miles Construction Group’s entire Answer and Cross-Complaint, or in the alternative to dismiss them, or in the alternative to issue an Order to Show Cause. (Mot., p. 3:19–24.)

Any party may file a timely notice of a motion to strike the whole or any part of a pleading. (Code Civ. Proc., § 435(b).) For the purpose of a motion to strike, the Code of Civil Procedure defines a "pleading" as a demurrer, answer, complaint, or cross- complaint. (Code Civ. Proc., § 435(a)(2).) A court may strike out any irrelevant, false, or improper matter inserted in a pleading. (Code Civ. Proc., § 436(a).) A court may also strike out all or any part of a pleading not in conformity with the laws of this state, court rule, or an order of the court. (Code Civ. Proc., § 436(b).)

II. Discussion

Aside from narrow exceptions such as in small claims court, the California Supreme Court has long held that corporations cannot represent themselves in propria persona in court. (Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d.724, 730.) In addition, the trial court may strike or dismiss the pleading filed by an unrepresented corporation, although it should liberally and routinely grant the dismissed party leave to amend where the defect is reasonably capable of cure. (CLD Constr. Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) “The rule's pragmatic purpose of protecting against the distractions and potentially harmful results that can arise from the unlicensed practice of law will still be served because the court retains authority to dismiss an action if an unrepresented corporation does not obtain counsel within reasonable time.” (Id., at 1148.) Finally, the trial court may allow a corporation’s attorney to withdraw from representation, even if that would leave the corporation without representation. (Ferruzzo v. Superior Court (1980) 104 Cal.App.3d 501, 504.) “For the uncooperative corporate client who has not been willing to bring in new counsel, granting of the withdrawal motion will put extreme pressure on it to obtain new counsel of record for should it fail to do so it risks forfeiture of its rights through nonrepresentation.” (Id.)

It is appropriate to strike and/or dismiss Miles Construction Group’s pleadings. A motion to strike normally requires that the parties meet and confer. (Code of Civ. Proc., § 435.5(a).) While the parties have not done so prior to this motion, the Court finds that it would have been impossible for Plaintiff’s counsel to meet-and-confer with Defense counsel because of Miles Construction Group’s failure to obtain counsel. (Mot., p. 6:26–28.) Further, it would not be possible for Plaintiff’s counsel to meet-and-confer with any particular person at Miles Construction Group, because Plaintiff’s counsel would not be able to determine who speaks for, and could bind, the defendant. “The law never requires impossibilities.” (Civ. Code § 3531.)

Miles Construction Group has now been unrepresented for more than six months. The Court concludes that this length of time is unreasonable, particularly considering that Miles Construction Group has not submitted to the Court any evidence that it is either actively looking for new counsel or in another way continuing its participation in this matter. Further, “…the court retains authority to dismiss an action if an unrepresented corporation does not obtain counsel within reasonable time.” (CLD, supra, 120 Cal.App.4th at p. 1148.)

III. Conclusion

SoCalGas’s motion is GRANTED. Miles Construction Group’s Answer is STRICKEN, and Miles Construction Group’s Cross-Complaint is DISMISSED.

The Court schedules an OSC re Entry of Default for Sept. ___, 2022.