Michael Goldberg vs Surveillance Security Inc
Case No: 18CV05244
Hearing Date: Wed Sep 18, 2019 9:30

Nature of Proceedings: Motion to Strike Answer

TENTATIVE RULING:

For the reasons set forth herein, the motion (filed July 31, 2019) of plaintiff Michael Goldberg to strike the answer of defendant Surveillance Security, Inc., is continued to October 23, 2019, at 9:30 a.m. Plaintiff shall serve (1) notice of this ruling, (2) notice of the continued hearing, and (3) all moving and supporting papers previously filed with the court with respect to this motion on defendant Surveillance Security, Inc., on or before September 25, 2019, and shall file proof of service of such documents on or before September 27, 2019. The hearing on the motion shall be ordered off calendar and no appearances are required if, on or before noon on October 21, 2019, Surveillance Security, Inc., files a substitution of attorney identifying an attorney appearing for Surveillance Security, Inc. Otherwise, opposition shall be filed and served on or before October 9, 2019, and reply shall be filed and served on or before October 16, 2019.

Background:

On October 25, 2018, plaintiff Michael Goldberg filed his complaint in this action against defendant Surveillance Security, Inc., (SSI) asserting wage and hour claims.

On January 7, 2019, SSI, through its counsel, filed its answer to the complaint, generally denying the allegations thereof and asserting 20 affirmative defenses.

On March 29, 2019, counsel for SSI filed their motion to be relieved as counsel. The motion noticed a hearing date of April 24, 2019. The motion was served on Brendan Waller on behalf of SSI. (Motion, filed Apr. 24, 2019, proof of service.) The declaration in support of the motion states that the next scheduled hearing is the case management conference also set for April 24.

On April 9, 2019, plaintiff filed two motions to compel further responses to discovery. The motions were served on counsel for SSI. The motions to compel were noticed for hearing on May 22.

On April 24, 2019, the court heard and granted the motion of counsel for SSI to be relieved as counsel. The court also set a case management conference for May 22, 2019. As set forth in the court’s minute order, counsel for plaintiff and counsel moving to be relieved as counsel were present at the hearing. SSI did not otherwise appear. The court’s minute order states that both sides waived notice and that “Plaintiff will give notice if new counsel comes in.” (Minute Order, filed Apr. 24, 2019.)

On April 24, 2019, plaintiff’s counsel served notice of the case management order on outgoing counsel for SSI and on “Brendan Walter” (misspelling “Brendan Waller”) for SSI.

On April 26, 2019, the court entered the written order granting the motion of counsel for SSI to be relieved as counsel. The proposed order had been submitted by counsel for SSI to the court and served on counsel for plaintiff and on Brendan Waller of SSI on April 8. The order, as submitted and as signed by the court, states: “Attorney is relieved as counsel for client [¶] a. [x] effective upon the filing of the proof of service of this signed order upon the client.” (Order, filed Apr. 26, 2019, ¶ 5a.) The order as submitted identified the next scheduled hearing as the April 24 case management order; the court interlineated in the signed order that the next scheduled hearing was the motion to compel set for May 22, 2019.

No proof of service of the April 26, 2019, written order was then filed with the court.

No opposition or other response was filed to the motions to compel set for May 22, 2019. On May 22, the court heard and granted the motions to compel; there was no appearance for SSI.

Following the hearing on May 22, 2019, counsel for plaintiff served “Brendan Walter” of SSI by mail with notice of the court’s ruling on the motions to compel, that the court ordered compliance by June 5, that counsel for the parties are to return for a case management conference on August 28, and that counsel for plaintiff was to give notice. The notice of ruling was filed with the court on June 24.

On July 24, 2019, plaintiff filed his motion to compel compliance with the court’s order of May 22 by terminating sanctions, or, alternatively, for an evidence, issue, or monetary sanction. The notice and motion were served by mail on “Brendan Walter” of SSI on July 24.

On July 31, 2019, plaintiff filed this motion to strike the answer of SSI on the grounds that SSI is now an improperly self-represented corporate defendant. This motion was originally set for hearing on September 4. At the case management conference in this matter on August 28, the court continued the motion to strike to September 18, 2019, but did not continue the motion to compel.

On September 4, 2019, the court ordered plaintiff’s motion’s to compel compliance with this court’s order of May 22 off calendar. In its written tentative, which became the order of the court, the court identified that the court’s order relieving SSI’s counsel had not by its terms become effective. Consequently, service of the motion to compel was ineffective as having been served on SSI directly instead of on SSI’s counsel. The court also ordered that notice of its ruling be served on counsel for SSI.

On September 4, 2019, counsel for SSI filed its proof of service of the court’s order relieving them as counsel for SSI. The proof of service states that service was made on April 30, 2019.

On September 5, 2019, plaintiff filed his notice of the court’s order of September 4, with proof of service on both SSI’s now-former counsel and on SSI.

No opposition or other response has been filed by SSI to this motion.

Analysis:

This is a motion to strike the answer of SSI because SSI is an improperly self-represented corporation. This motion suffers from two procedural problems, both of which prevent the motion from being ruled upon now. The first procedural problem is identical to the problem that required the court to order plaintiff’s motion to compel off calendar on September 4, 2019. This motion was served on plaintiff and not his then-counsel, rendering service ineffective. (See Code Civ. Proc., § 1015; Urethane Foam Experts, Inc. v. Latimer (1995) 31 Cal.App.4th 763, 767.) Both at the time this motion was served and at the time of its continuance, SSI was still represented by counsel and the court’s order relieving such counsel had not yet become effective.

The second procedural problem is that until September 4, 2019, the motion was without merit. At the time the motion was made and until September 4, 2019, SSI was represented by counsel and therefore not an improperly self-represented corporation.

Although both procedural problems prevent the court from ruling on this motion now, both procedural problems can be cured. The court will therefore continue the hearing to permit notice of this motion to be properly served. The court notes that SSI is now an improperly self-represented corporation. (See Merco Construction Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 729 [“ ‘A corporation cannot represent itself in court, either in propria persona or through an officer or agent who is not an attorney.’ ”].) Where a corporation is impermissibly self-represented, the court is authorized to strike its pleading. (See CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1149.) At the continued hearing, the court will consider whether to strike SSI’s answer as requested by the motion. Insofar as this defect may be cured by the appearance of counsel for SSI, if counsel appears for SSI by the filing of a substitution of attorney prior to the hearing on the motion, the motion will be moot and no appearance required.