Judge: Michael Shultz, Case: 22CMCV00067, Date: 2022-08-16 Tentative Ruling

Case Number: 22CMCV00067    Hearing Date: August 16, 2022    Dept: A

22CMCV00067 Batchelor Family Trust v. Section 8 Management, Inc. and Timothy McDaniel

Tuesday, August 16, 2022 at 8:30 a.m.




The complaint, filed on March 15, 2022, alleges claims for intentional misrepresentation and breach of contract. Plaintiff alleges that Defendants illegally collected funding intended for rental payments for Plaintiff’s real property issued by the Los Angeles County Development Authority (“Development Authority”). Defendants purportedly agreed to manage Plaintiff’s real property and act as Plaintiff’s liaison with the Development Authority.

Defendant, Timothy McDaniel (“McDaniel”), filed his answer on May 3, 2022, as a self-represented litigant. Defendant, Section 8 Management, Inc. (“Section 8”) filed an answer on the same day, purporting to represent itself. However, the court struck Section 8’s answer, because California law firmly establishes that a corporation cannot represent itself in a court of record either in propria persona or through an officer or agent who is not an attorney. Caressa Camille, Inc. v. Alcoholic Beverage Control Appeals Bd. (2002) 99 Cal.App.4th 1094, 1101.

      The striking of Section 8’s answer renders the Defendant’s answer a nullity, as though it had never been filed. Brown v. Ridgeway (1983) 149 Cal.App.3d 732-738. Under these circumstances, Plaintiff may proceed pursuant to Code of Civil Procedure section 585 governing default judgments as if Defendant had failed to answer. Brown at page 738; Code Civ. Proc., § 586. Accordingly, Plaintiff’s request for discovery responses from Defendant Section 8 is DENIED as procedurally improper. 

Plaintiff filed this motion on July 29, 2022, and on August 1, 2022, for an order compelling McDaniel to appear for a deposition and to provide responses to Form Interrogatories served on May 9, 2022. Plaintiff’s counsel attempted to meet and confer with Defendant with respect to the Form Interrogatories, however, Defendant did not respond. Declaration of Joshua Tey, ¶ 7.

Plaintiff asserts that McDaniel agreed to appear for deposition on May 18, 2022, which he later cancelled, citing an absence due to a “sabbatical.” Declaration of Joshua Tey, ¶ 5. McDaniel later informed Plaintiff of his ability for deposition during the week of July 11, 2022. Tey Declaration, ¶ 6. However, McDaniel subsequently failed to respond to Plaintiff’s counsel’s requests for confirmation. Tey Declaration, ¶ 6.

Where a party fails to timely respond to a request for response to interrogatories, the court has authority to compel a response. Code Civ. Proc., § 2030.290 (b). Untimely responses result in a waiver of objections. Code Civ. Proc., § 2030.290(a), § 2031.300(a). Defendant did not serve responses to Form Interrogatories. Tey Declaration, ¶ 6. While Mr. Tey’s declaration refers to exhibits, none have been provided to the court.

Plaintiff is not statutorily required to meet and confer where a party fails to respond at all to written discovery. However, there is no evidence of the discovery served on Defendant or Plaintiff’s purported emails requesting responses.

If a party fails to appear for a deposition after service of a deposition notice, the party giving notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document or tangible thing described in the notice. Code Civ. Proc. § 2025.450(a). However, the moving party must show good cause for the deposition and attempt to meet and confer. Code Civ. Proc. §2025.450(b)(2). Plaintiff did not provide any documentary evidence of the deposition notice served on Defendant, or Plaintiff’s counsel’s attempts to meet and confer.

Given these procedural defects, Plaintiff’s motion is denied without prejudice. The court sets an OSC Why Default Should Not be Entered against Defendant, Section 8, for failure to retain counsel and file a proper answer through counsel.  The OSC shall take place on October 18, 2022, at 8:30 a.m. in Department A of the Compton courthouse.