Judge: Stephen I. Goorvitch, Case: 23STCV24546, Date: 2024-01-16 Tentative Ruling

Case Number: 23STCV24546    Hearing Date: January 16, 2024    Dept: 39

Kevin Garlington for Serenity Inclusive Family Services, LLC v. Tammy Y. Wade

Case No. 23STCV24546

Motion for Judgment on the Pleadings

Plaintiff Kevin Garlington filed this action “for Serenity Inclusive Family Services, LLC.”  Mr. Garlington does not identify himself as an attorney in the complaint.  To the contrary, Mr. Garlington states that he is litigating this case “in pro per.”  (See Complaint, pp. 1, 4.)  The complaint does not assert any personal claims on behalf of Mr. Garlington.  Rather, the complaint asserts claims on behalf of Serenity Inclusive Family Services, LLC based upon allegations that the individual defendants “executed an illegal plan and operation within Serenity Inclusive Family Services LLC to defraud government-funded programs and recipients of government-funded programs directly and indirectly related to the services provided by the Plaintiff under contract with the South Central Los Angeles Regional Center for Persons with Developmental Disabilities, Inc.”  (Complaint, ¶ 7.)  Among other things, the complaint seeks relief on behalf of Serenity Inclusive Family Services, LLC: An order “removing the Defendants from Serenity Inclusive Family Services as employees . . . .”  (Complaint, p. 3.)

Mr. Garlington appears to assert derivative claims on behalf of Serenity Inclusive Family Services, LLC (“Serenity”).  However, he does not allege that he was a shareholder of Serenity during the operative time period, as required by California Corporations Code section 800(b)(1).  More important, a non-lawyer cannot maintain a derivative action.  Court have repeatedly held that the substantive right in a shareholder derivative suit is that of the corporation, not the shareholders.  (See Phillips v. Tobin, 548 F.2d 408, 411 (2d Cir. 1976); see also Ross v. Bernhard, 396 U.S. 531, 538-539 (1970).)  “Since a corporation may not appear except through an attorney, likewise the representative shareholder cannot appear without an attorney.”  (Phillips, supra, 548 F.2d at p. 411.) 

Based upon the foregoing, the Court noticed its own motion for judgment on the pleadings, per the authority of Code of Civil Procedure section 438(b)(2).  The Court issued and served a written order on December 15, 2023, and authorized Plaintiff to file a written opposition on or before January 2, 2024.  (See Court’s Minute Order, December 15, 2023, p. 2.)  The order stated:

“The Court’s tentative order is to dismiss this case because the complaint does not state that Mr. Garlington was a shareholder of Serenity during the relevant time period and is an attorney, and therefore he has no standing to pursue this action. The Court’s tentative order is to dismiss this case with prejudice unless Mr. Garlington can demonstrate that he was a shareholder of Serenity during the relevant time period and is an attorney who is licensed in the State of California or eligible for pro hac vice admission.”

(See Court’s Minute Order, December 15, 2023, p. 3.)  The Court also provided notice: “If Mr. Garlington does not appear at the hearing, either remotely or in-person, absent good cause, the Court shall adopts its tentative order and dismiss this case with prejudice.”  (Ibid.)

            Plaintiff did not file an opposition to the Court’s motion or file anything suggesting that he is an attorney or has standing to prosecute this case as a self-represented party.  Therefore, the Court orders as follows:

1.         The Court grants its own motion for judgment on the pleadings.

            2.         The Court dismisses this case with prejudice.

            3.         The Court’s clerk shall serve this order upon Plaintiff.  No further notice is required.