Case Name: Tim Devine v. Scayl, Inc. a/k/a Nexo, et al.

Case No.: 17CV319725

Plaintiff’s Motion to Strike Defendant Scayl, Inc.’s Answer to Complaint

Factual and Procedural Background

On April 18, 2017, plaintiff Tim Devine (“Devine”) filed a complaint in Los Angeles County Superior Court against defendants Scayl, Inc. (“Scayl”) and Stephen Douty (“Douty”) asserting, among others, claims for breach of contract and various Labor Code violations.

On August 3, 2017, the Los Angeles County Superior Court (Hon. Ruth Ann Kwan) granted defendant Scayl’s motion to transfer venue to Santa Clara County. On November 27, 2017, Santa Clara County Superior Court assumed jurisdiction.

On December 22, 2017, defendant Scayl filed notice of Chapter 7 Bankruptcy case closure.

On December 28, 2017, defendant Scayl filed an answer to plaintiff Devine’s complaint.

On December 29, 2017, defendant Douty filed an answer to plaintiff Devine’s complaint.

On January 31, 2018, defendant Scayl filed a substitution of attorney naming Douty as its new legal representative.

On February 16, 2018, plaintiff Devine filed the motion now before the court, a motion to strike defendant Scayl’s answer.

On May 8, 2018, defendant Douty filed a response to plaintiff Devine’s motion to strike.

II. Plaintiff Devine’s motion to strike defendant Scayl’s answer is DENIED.

Under general rules of civil procedure, a motion to strike could be brought on the following two grounds:

a. Strike out any irrelevant, false, or improper matter inserted in any pleading.
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.)

A corporation cannot appear in propria persona and can only appear by and through an attorney of record. (Merco Construction Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 731.) The prohibition is meant to prevent the unlicensed practice of law by a representative that would likely appear on behalf of the corporation. (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284, fn. 5 (Gamet).)

Plaintiff Devine asks this court to strike Scayl’s answer on the basis that Douty, who is not a licensed attorney, may not represent the corporate defendant. However, Scayl was represented by counsel when it filed its answer. Thus, Scayl’s answer was filed in conformity with the law. (Cf. CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141—reversing dismissal and allowing leave to file amended complaint after trial court granted a motion to strike a complaint filed by a corporate entity in propria persona without leave to amend.)

Accordingly, plaintiff Devine’s motion to strike defendant Scayl, Inc.’s answer to complaint is DENIED.

Nevertheless, a corporation cannot act in propria persona. Defendant Scayl is hereby placed on notice that failure to obtain legal representation for further defense of the complaint may lead to serious legal consequences, including, but not limited to, summary judgment and/or dismissal. (See Merco Construction Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724; Ferruzzo v. Superior Court (1980) 104 Cal.App.3d 501; Van Gundy v. Camelot Resorts, Inc. (1983) 152 Cal.App.3d Supp. 29; Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284; CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141; Code Civ. Proc. §581, subds. (b)(3 – 5).)