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
[TENTATIVE] ORDER
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.