Judge: Michael Shultz, Case: 24STCV28481, Date: 2025-04-21 Tentative Ruling

Case Number: 24STCV28481    Hearing Date: April 21, 2025    Dept: 40

24STCV28481 Edy Victor Ventura Garcia V. Chung Roofing, et al.

Tuesday, April 22, 2025.

[TENTATIVE] ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE ANSWER AND DENYING REQUEST FOR SANCTIONS

                                                                                        I.          BACKGROUND

This action arises out of Labor Code violations from Plaintiff Garcia’s employment with Defendants. On October 30, 2024, Plaintiff Edy Victor Ventura Garcia (“Plaintiff”) filed a Complaint against Defendants Chung Roofing, New Honest Construction, Inc., Andy Chung, Sun Shil Moon Kim, and Does 1 through 50 for: (1) failure to pay overtime compensation, (2) failure to pay timely wages, (3) failure to pay compensation due upon termination, (4) failure to provide meal breaks, (5) failure to provide rest breaks, (6) failure to provide accurate itemized wage statements, (7) willful misclassification, (8) disability discrimination, (9) failure to engage in the interactive process, (10) failure to provide reasonable accommodation, (11) failure to prevent discrimination, (12) retaliation, (13) wrongful termination in violation of public policy, and (14) unfair business practices.

On March 21, 2025, Plaintiff filed this Motion to Strike Defendant New Honest Construction, Inc.’s (“Defendant”) Answer and requests sanctions in the amount of $1,260.00 against Defendant.

No opposition was filed.

2. DISCUSSION

The Court GRANTS Plaintiff’s Motion to Strike Answer. The Court DENIES Plaintiff’s request for sanctions. 

                                                                                        III.          DISCUSSION

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).” (Code Civ. Proc., § 435, subd. (b)(1).) “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading or (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436.) It is well-established in California 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.) 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.)

Plaintiff met and conferred via telephone with Defendant Sun Shil Moon Kim regarding the impropriety of corporations appearing in pro per or otherwise through their officers but Mr. Kim did not answer. (Martirosyan Decl. ¶ 3-5.)

Plaintiff asserts that Defendant New Honest Construction, Inc.’s appearance in pro per and/or through its officer, Defendant Sun Shil Moon Kim, violates the requirement of legal representation for corporate defendants. Plaintiff asserts that “[a]ccording the. . .Statement of Information filed with the. . .Secretary of State. . .Defendant Sun Shil Moon Kim is the Chief Executive Officer, Chief Financial Officer and Secretary of Defendant New Honest Construction, Inc.” (Martirosyan Decl., ¶ 2, Ex. A.)

New Honest Construction, Inc’s First Amended Answer is STRICKEN.  As stated, a corporation cannot be represented by an officer who is not an attorney. Accordingly, the motion to strike is GRANTED with leave to amend. Defendant has 45 days to retain counsel and file their answer. 

Plaintiff cites to CLD Constr. Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1150, “To the extent the opposing party is burdened by having to bring a motion to strike the complaint of a corporation not represented by counsel, the court, as a condition for granting leave to amend, may order the corporation to pay the opposing party's expenses for bringing the motion.” Plaintiff asserts that “Plaintiff’s counsel spent two hours drafting the Motion and supporting documents. [Martirosyan Decl. ¶ 6]. Plaintiff’s counsel anticipates spending an additional hour preparing for and appearing at the hearing on the Motion. [Martirosyan Decl. ¶ 6]. Plaintiff’s counsel charges an hourly rate of $400.”

The Court declines to grant sanctions as a condition for granting leave to amend.

                                                                                           IV.          CONCLUSION

Based on the foregoing, the Court GRANTS Plaintiff’s Motion to Strike Answer. The Court DENIES Plaintiff’s request for sanctions.