Judge: Teresa A. Beaudet, Case: 20STCV21370, Date: 2024-01-12 Tentative Ruling

Case Number: 20STCV21370    Hearing Date: February 13, 2024    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Consumer Advocacy Group, Inc. filed this Proposition 65 action on June 5, 2020 against Defendant Pegasus Trucking, LLC dba Fallas Discount Stores (“Pegasus”). 

On March 12, 2021, Pegasus filed a Cross-Complaint in this action against a number of Cross-Defendants, including Orly Shoe Corp. (“Orly”). On September 9, 2021, Pegasus filed the operative First Amended Cross-Complaint (“FACC”), alleging causes of action for (1) breach of express warranty, (2) breach of warranty of merchantability, (3) breach of warranty of fitness for a particular purpose, (4) breach of contract to indemnity, (5) implied contractual indemnity,

(6) contribution, and (7) apportionment of fault.

Orly now moves to dismiss Pegasus’s FACC, and/or to enter judgment in favor of Orly regarding Pegasus’s FACC. The motion is unopposed.

Discussion

As noted by Orly, on April 25, 2023, the Court granted the motion of Michael B. Adreani and Burton E. Falk of Roxborough, Pomerance, Nye & Adreani, LLP to be relieved as counsel of record for Pegasus. The Court’s April 25, 2023 Order provides, inter alia, that “Orly believes that if no new counsel appears on behalf of Pegasus at the April 25, 2023 continued Case Management Conference…and hearing on RPNA’s Motion to Withdraw, the Court can and should dismiss Pegasus’s Cross-Complaint, and enter its default as to the Complaint of Consumer Advocacy Group, Inc. (‘CAG’) against Pegasus…’” (April 25, 2023 Order at p. 2:4-8.) The Court’s April 25, 2023 Order further provides as follows:

“The Court declines to dismiss Pegasus’s First Amended Cross-Complaint or enter Pegasus’s default as to CAG’s Complaint. The Court must give Pegasus a reasonable time to locate counsel. The Court finds that 30 days is a reasonable period of time. If Pegasus does not obtain counsel within the next 30 days, Orly (and/or any other party in the action) may file a regularly noticed motion directed to the issue of lack of representation.” (April 25, 2023 Order at p. 2:14-18.)

On April 27, 2023, Roxborough, Pomerance, Nye & Adreani, LLP filed a notice of ruling indicating that on April 25, 2023, the motion to be relieved as counsel was granted. The proof of service attached to the notice of ruling indicates that the notice was served on, inter alia, Pegasus.

In the instant motion, Orly states that “[s]ince its prior counsel’s Motion to Withdraw as Counsel was granted on April 25, 2023, Pegasus has failed to enter the appearance of substitute counsel, and has failed to appear at no less than (4) scheduled Case Management Conferences…over the last eight (8) months.” (Mot. at p. 3:9-11.)[1] Orly notes that “[a] corporation cannot represent itself in court, either in propria persona or through an officer or agent who is not an attorney.” ((Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 729 [internal quotations omitted].) Orly asserts that accordingly, the Court should dismiss Pegasus’s FACC “and/or…enter judgment in favor of [Orly] regarding Pegasus’s [FACC].” (Notice of Motion at p. 2:4-7.)

The Court notes that in CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1144, the Court of Appeal found that “[r]elying on long-standing authority holding that a complaint filed by a corporate party in propria persona is void, or a nullity, the trial court granted a motion to strike the complaint of CLD Construction, Inc…against the City of San Ramon…for breach of contract without leave to amend. We conclude respondent City’s objection to the complaint filed by the self-represented corporation raises a curable defect, and dismissal without leave to amend is not mandated. Accordingly, we reverse the judgment of dismissal.” The Court of Appeal in CLD Construction Court noted that it is “appropriate and just to treat a corporation’s failure to be represented by an attorney as a defect that may be corrected, on such terms as are just in the sound discretion of the court.” ((Id. at p. 1149.) The Court of Appeal also found that “the flexible rule we articulate in no way impairs the court’s ability to assure that trained legal professionals participate in the presentation of the corporation’s case. The rule’s pragmatic purpose of protecting against the distractions and potentially harmful results that can arise from the unlicensed practice of law will still be served because the court retains authority to dismiss an action if an unrepresented corporation does not obtain counsel within reasonable time.” ((Id. at p. 1150.)

As set forth above, the Court’s April 25, 2023 Order provides that “[t]he Court must give Pegasus a reasonable time to locate counsel. The Court finds that 30 days is a reasonable period of time. If Pegasus does not obtain counsel within the next 30 days, Orly (and/or any other party in the action) may file a regularly noticed motion directed to the issue of lack of representation.” (April 23, 2023 Order at p. 2:15-18.) As noted by Orly, it does not appear that Pegasus has entered the appearance of substitute counsel. The Court thus does not find that Pegasus has shown that it obtained counsel within a reasonable time. Moreover, Pegasus does not oppose the instant motion to dismiss. As noted by Orly, California Rules of Court, rule 8.54, subdivision (c) provides that “[a] failure to oppose a motion may be deemed a consent to the granting of the motion.”

Based on the foregoing, the Court grants Orly’s motion to dismiss.

Conclusion

For the reasons set forth above, the Court grants Orly’s motion to dismiss Pegasus’s FACC. The Court orders Orly to file and serve a proposed judgment of dismissal within 10 days of the date of this order.¿ 

The Court orders Orly to give notice of this order.

DATED:  February 13, 2024                          ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court