Judge: Robert S. Draper, Case: 20STCV31091, Date: 2022-09-06 Tentative Ruling

Case Number: 20STCV31091    Hearing Date: September 6, 2022    Dept: 78

Superior Court of California 

County of Los Angeles 

Department 78 

Plaintiff Chenlu Nie’s Motion to Strike Defendant Apex Resources, Inc.’s Answer is GRANTED.

FACTUAL BACKGROUND

This is a wage and hour action. The Complaint alleges as follows.

Plaintiff Chenlu Nie (“Nie”) was employed by Defendants Apex Data Center, Inc. (“Apex Data”), Jacky Lo (“Lo”), Linda Bao (“Bao”), and Bo Qian (“Qian”) from August 1, 2018 to September 16, 2019. (Compl. ¶ 1.) The parties executed an employment agreement for Nie. In exchange for Nie’s services, Nie was to be paid a salary of $120,000 per year, payable at $10,000 per month beginning August 1, 2018 on a W-2 basis. (Compl. ¶ 14.) Nie began working upon execution of the agreement and worked 50 hours per week, however, Nie was not paid any wages and on September 16, 2019, Defendants terminated Nie. (Compl. ¶¶ 17-20.)

PROCEDURAL HISTORY 

On August 14, 2020, Nie filed the Complaint alleging six causes of action:

1.    Failure to pay minimum wages in violation of Labor Code §§ 1194, 201, 218.5;

2.    Failure to reimburse business expenditure in violation of Labor Code § 2802;

3.    Failure to provide accurate wage statements in violation of Labor Code § 226;

4.    Liquidated damages in violation of Labor Code § 11904.2;

5.    Waiting time penalties in violation of Labor Code §§ 201 and 203; and,

6.    Breach of Contract

On December 9, 2020, Nie dismissed Qian and Defendant Apex Data Center Inc, a Washington Corporation.

On December 11, 2020, Apex Resources, Lo, and Bao filed a Demurrer.

On February 23, 2021, the Court overruled that Demurrer.

On March 15, 2021, Apex Resources, Jacky Lo, and Linda Bao filed an Answer.

On May 17, 2021, Attorney Hubert Kuo filed a Motion to be Relieved as Counsel for Defendants Apex Resources and Jacky Lo. Kuo noted that Defendant Jacky Lo had passed away, and that her successor-in-interest expressed no interest in retaining Kuo to represent the estate.

On June 28, 2021, the Court granted Kuo’s Motion to be Relieved.

On January 6, 2022, Bao once again hired Kuo to represent her.

On March 11, 2022, Nie dismissed Bao.

On August 3, 2022, Nie filed the instant Motion to Strike.

No Opposition has been filed.

DISCUSSION 

I.               MOTION TO STRIKE

Nie moves to Strike Defendant Apex Resources, Inc.’s Answer.

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer (i.e., words, phrases, prayer for damages, etc.). (See CCP §§435, 436 & 437.) A motion to strike must be filed within the time allowed to respond (e.g., 30 days after service of the complaint or cross-complaint) unless extended by court order. Where there are grounds for a demurrer and a motion to strike, they must be filed together and noticed for hearing at the same time. (CCP §435(b)(3) and CRC Rule 329.) A motion to strike can be made to strike irrelevant, false or improper matter inserted in any pleading or to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of the court. (CCP §436.)  

Here, Nie argues the Court should strike Apex Resources answer as it is a corporate defendant that has been without representation since June 28, 2021.

“A corporation cannot appear in court by an officer who is not an attorney and it cannot appear in propria persona.” (Paradise v. Nowlin (1948) 86 Cal.App.2d 897, 898; see also Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284 n.5.) 

As corporate Defendant Apex Resources, Inc. has been without counsel for over a year, and as Apex has failed to file an Opposition or provide any indication that it intends to defend itself in this matter moving forward, Plaintiff Chenlu Nie’s Motion to Strike Defendant Apex Resources, Inc.’s Answer is GRANTED.

DATED:  September 6, 2022

___________________________

Hon. Robert S. Draper 

Judge of the Superior Court