Judge: Michael Shultz, Case: 21STCV42379, Date: 2025-06-10 Tentative Ruling
DEPARTMENT 40 - MICHAEL J. SHULTZ - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call.
Case Number: 21STCV42379 Hearing Date: June 10, 2025 Dept: 40
21STCV42379
Nelya Dervi v. Thibiant Beverly Hills Med Spa
[TENTATIVE] ORDER DENYING PLAINTIFF’S
MOTION TO STRIKE DEFENDANT’S ANSWER AND ENTER DEFAULT
I.
BACKGROUND
The complaint alleges that Plaintiff was
subjected to racial discrimination and harassment while employed by Defendant.
Plaintiff alleges claims in violation of the Fair Employment and Housing Act,
wage and hour violations under the Labor Code, and tort claims for wrongful
termination in violation of public policy.
II. DISCUSSION
Plaintiff
moves to strike Defendant’s answer because Defendant is not currently
represented by counsel and has not retained counsel for eight months. Plaintiff asks for an order directing the
clerk to enter Defendant’s default.
At an order
to show cause hearing regarding the status of Defendant’s bankruptcy, the court
ordered Plaintiff to file supplemental briefing. (M.O. 5/29/25.)
Plaintiff’s
supplemental briefing cites CLD
Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th
1141
for the proposition that the court “retains authority to consider a terminating
step” and strike the answer if a corporation fails to obtain counsel within a
reasonable time. (Supp. 2:13-16, filed
6/4/25.)
However, CLD
involved a corporation who filed a complaint in propria persona. The
plaintiff corporation subsequently retained counsel who substituted in as
counsel. (CLD
Construction at 1144.) The Defendant
moved to strike the complaint without leave to amend, which the trial court
granted finding the complaint was a “nullity” because counsel for Defendant
substituted in after the statute of limitations had run, depriving the trial
court of “original jurisdiction.” (Id. at 1145.)
The Court of
Appeal reversed and remanded to permit the corporation to file an amended
complaint finding that a "corporation should not be foreclosed from going
forward with its legal right to sue because of a defective complaint that can
be readily and easily cured without prejudice to either its opponent or the
court." (Id. at 1152.) Plaintiff cites the court’s observation that
the court retains authority to dismiss an action if an unrepresented
corporation does not obtain counsel within a reasonable time. (Id. at
1150.) But there, an unrepresented corporation was pursuing an action without
retaining an attorney.
The case is
distinguishable because here, Defendant’s answer was filed by counsel, who was subsequently
relieved as counsel for Defendant. The issue in CLD was whether the
complaint was a nullity since the complaint was not signed by an attorney.
Plaintiff
also cites two federal district court cases where in the trial court struck a
defendant’s answer for failure to retain counsel within a reasonable time. The
authority to strike the answer was set forth by Local Rule 83-2.2.2. The Ninth Circuit
recognized that default as a sanction was permissible for not complying with
federal court local rules requiring representation by counsel. (Softketeers,
Inc. v. Regal West Corporation (C.D. Cal., June 26, 2020, No.
SACV19519JVSJDEX) 2020 WL 5498074, at *1.) There is no similar local rule
at issue here.
Plaintiff
also relies on a second federal trial court’s order striking the corporate
defendants’ answer and entering default. That case relied on another district
court case that entered default for failure to comply with a federal statute. (Adobe
Systems Incorporated v. Software Tech (N.D. Cal., Nov. 10, 2015,
No. 5:14-CV-02140-RMW) 2015 WL 6956632, at *1, relying on U.S.
v. High Country Broadcasting Co., Inc. (9th Cir. 1993) 3 F.3d
1244
["In all courts of the United States the parties may plead and conduct
their own cases personally or by counsel as, by the rules of such courts,
respectively, are permitted to manage and conduct causes therein." (28
U.S.C.A. § 1654 (West).].) The cases are not persuasive in the
context at issue here.
Plaintiff
also cites Van
Gundy v. Camelot Resorts, Inc. (1983) 152 Cal.App.3d
Supp. 29, wherein the court of appeal reversed a judgment entered
against a corporation who was represented through the proceeding by a
non-attorney. The Van Gundy court observed the general principle that
the Legislature may not permit a corporation to proceed in propria persona except
in small claims court. (Id. at 31.) Van Gundy stated that where a
corporation attempts to appear without the benefit of counsel "it is the
duty of the trial court to advise the representative of the corporation of the
necessity to be represented by a licensed lawyer. If no such licensed
representative is present, appearing for the corporation, the court may: (1)
hear a motion for continuance; or (2) enter the corporation's default for
nonappearance at trial." (Id. at 31–32.) Striking
the answer does not appear to be an appropriate remedy.
Moreover, the
court’s file reflects this action is stayed pursuant to Defendant’s Chapter 7
bankruptcy proceeding. (Ntc. filed 2/24/23.) The petition operates as a stay
against the continuation of an action or proceeding. (11 U.S.C.A. § 362; Pioneer
Construction, Inc. v. Global Investment Corp. (2011) 202
Cal.App.4th 161, 167.)
III. CONCLUSION
Based on the
foregoing, Plaintiff’s motion to strike is DENIED.