Judge: Virginia Keeny, Case: 22VECV00917, Date: 2022-10-26 Tentative Ruling

Case Number: 22VECV00917    Hearing Date: October 26, 2022    Dept: W

RAUL AGUILA, et al. v. hunt properties inc., et al.

MOTION to set aside entry of default

Date of Hearing:          October 26, 2022                    Trial Date:       None Set.

Department:               W                                             Case No.:         22VECV00917

Moving Party:             Defendant, Hunt Properties, Inc.

Responding Party:       Plaintiffs, Raul Aguila and Orley Onofre

BACKGROUND

Hunt Properties, Inc. (“Defendant Hunt”) is the owner of the commercial real property located at approximately 7108 De Soto Avenue in Canoga Park, California (“Subject Property”).  Henry Becker (“Defendant Becker”) is a manager and/or employee of Defendant Hunt.  Since about 2015, Raul Aguila (“Plaintiff Aguila”) was a tenant of the Subject Property.  Orley Onofre (“Plaintiff Onofre”) is an employee of Plaintiff Aguila.  Plaintiffs Aguila and Onofre (collectively, “Plaintiffs”), allege, beginning in January of 2022, Defendant Becker has engaged in pattern of racist and harassing behavior in an effort to drive Plaintiffs from the Subject Premises, and force Plaintiffs to terminate the governing lease agreement.  Defendant Becker’s harassment included physical harassment, and verbal harassment.  When Plaintiffs made clear they refused to vacate the Subject Property despite Defendant Becker’s harassing behavior, Plaintiffs allege Defendant Becker then served Plaintiffs with a 30-day Notice to Quit, notifying Plaintiffs the tenancy had ended and Plaintiffs would be required to vacate the Subject Property within thirty days.  Plaintiffs allege Defendant Hunt’s employment and failure to properly train Defendant Becker constitutes negligence.  Plaintiffs further allege Defendant Becker’s conduct caused Plaintiffs’ emotional distress.

On July 5, 2022, Plaintiffs initiated the present action by filing a Complaint against Defendant Hunt and Defendant Becker (collectively, “Defendants”).  Plaintiff’s Complaint alleges the following causes of action: (1) Negligence; (2) Negligent Retention and Supervision; (3) Threats of Violence in Violation of Cal. Civ. Code §§ 51.7(B); and (4) Intentional Infliction of Emotional Distress.

On July 14, 2022, Plaintiffs filed a Proof of Service, stating Defendant Hunt’s Agent for Service of Process (John Hamilton) was served with a copy of the Summons and Complaint by personal service on July 7, 2022.

Also on July 14, 2022, Plaintiffs filed an additional Proof of Service, stating Defendant Becker was served with a copy of the Summons and Complaint by personal service on July 13, 2022.

On September 8, 2022, Defendant Becker, in propria persona, filed an Answer and a Cross-Complaint against Plaintiffs and Does 1 through 10.  Defendant Becker’s Cross-Complaint alleges the following causes of action: (1) Nuisance; (2) Intentional Infliction of Emotional Distress; and (3) Negligence.

On September 13, 2022, pursuant to Plaintiffs’ filing of a Request for Entry of Default, this Court entered default against Defendant Hunt.

On September 22, 2022, Defendant Hunt filed a Motion to Set Aside Entry of Default.

On October 6, 2022, Plaintiffs filed an Opposition to Defendant Hunt’s Motion to Set Aside Entry of Default.

[Tentative] Ruling

Defendant Hunt Properties, Inc.’s Motion to Set Aside Entry of Default is DENIED.

LEGAL STANDARD

“When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action.  The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.”  (Code Civ. Proc., § 473.5, subd. (a).) 

“A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.”  (Code Civ. Proc., § 473.5, subd. (b).)

“Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.”  (Code Civ. Proc., § 473.5, subd. (c).)

ANALYSIS

Defendant Hunt moves for an Order setting aside the Court’s entry of default on September 13, 2022, pursuant to Code of Civil Procedure section 473.5, arguing Plaintiff’s service of the Summons and Complaint upon Defendant Hunt’s Agent for Service of Process did not result in actual notice of the lawsuit to Defendant Hunt in time to defend against this action.  (Code Civ. Proc., § 473.5, subd. (a).)

Procedural Violations

Preliminarily, the Court concludes Defendant Hunt’s Motion to Set Aside Entry of Default is procedurally improper, and the Court is unable to entertain Defendant Hunt’s request. 

“[U]nder a long-standing common law rule of procedure, a corporation, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director or other employee who is not an attorney.  It must be represented by licensed counsel in proceedings before courts of record.”  (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145; Paradise v. Nowlin (1948) 86 Cal.App.2d 897, 898 [“A composite rule in the decided cases, overwhelmingly sustained by the authorities, be thus stated: A natural person may represent himself and present his own case to the court although he is not a licensed attorney.  A corporation is not a natural person.  It is an artificial entity created by law and as such it can neither practice law nor appear or act in person. . . . [I]n matters in court it can act only through licensed attorneys.  A corporation cannot appear in court by an officer who is not an attorney and it cannot appear in propria persona.” ].) 

Defendant Hunt is a corporate entity.  Defendant Hunt is not represented by an attorney.  Rather, Defendant Hunt purportedly intends to be represented by an officer of the corporation, Defendant Becker, who is not an attorney.  Indeed, the Court observes Defendant Hunt’s present Motion to Set Aside Entry of Default has been filed by “Defendant In Pro Per as Henry Becker[,] Owner of H.U.N.T. Properties, Inc.”  (Mot., at p. 1.)  Defendant Becker’s attempt to appear on behalf of Defendant Hunt is improper as, while Defendant Becker is an officer of the corporation, Defendant Becker is not an attorney and, thus, may not appear on Defendant Hunt’s behalf.  (CLD Construction, Inc., supra, 120 Cal.App.4th at p. 1145.)  Defendant Hunt must be represented by an attorney in order to defend this action.  As Defendant Hunt is not represented by counsel, the Court may not properly consider Defendant Hunt’s Motion to Set Aside Entry of Default.

CONCLUSION

Defendant Hunt Properties, Inc.’s Motion to Set Aside Entry of Default is DENIED.