Case Name: Lewis Patrick, et al. v. Window Trim Kits, Inc., et al.

Case No.: 18CV329747

Motion to Strike Defendant’s and Cross-Complainants’ Cross-Complaint and Answer

Factual and Procedural Background

Plaintiffs Lewis Patrick (“Patrick”) and Joseph Lapham (“Lapham”) loaned a combined $50,000 to defendant Window Trim Kits, Inc. (“WTK”). (Complaint, ¶¶1 – 2.) On November 23, 2015, WTK executed a promissory note agreeing to repay plaintiffs Patrick and Lapham no later than November 22, 2016. (Complaint, ¶¶8 – 9.) Pursuant to the express language of the promissory note, the loan would be secured by all WTK company assets. (Complaint, ¶¶10 – 11.) Defendant Byron M. Phillips (“Phillips”) was president and secretary of defendant WTK. Plaintiffs discovered Phillips was draining the company funds and not paying the company’s bills. (Complaint, ¶12.)

On June 11, 2018, plaintiffs Patrick and Lewis filed a complaint against defendants WTK and Phillips asserting causes of action for:

(1) Breach of Contract
(2)
(3) Breach of Implied Covenant of Good Faith and Fair Dealing
(4)
(5) Violation of Business & Professions Code, §17200, et seq.
(6)

On September 14, 2018, defendants WTK and Phillips filed a motion to dismiss the complaint. On January 31, 2019, the court denied defendants WTK and Phillips’s motion to dismiss.

On February 25, 2019, defendants WTK and Phillips filed an answer to plaintiffs Patrick and Lapham’s complaint and also filed a cross-complaint against Patrick and Lapham asserting claims for:

(1) Conversion
(2)
(3) Conspiracy
(4)
(5) Intentional Interference with Contractual Relations with Bankers Capital
(6)
(7) Intentional Interference with Contractual Relations with Landlord
(8)
(9) Defamation Per Se
(10)
(11) Violation of Business & Professions Code, Section 17001, et seq.
(12)
(13) Declaratory Relief
(14)

On April 8, 2019, Patrick and Lapham filed the motion now before the court, a motion to strike the answer and cross-complaint of WTK.

On July 10, 2019, defendant WTK filed a substitution of attorney identifying attorney Charles Wagner as its new legal representative.

I. Code of Civil Procedure section 435.5
II.

Plaintiffs/ cross-defendants Patrick and Lapham move to strike WTK’s answer and cross-complaint. Plaintiffs/ cross-defendants Patrick and Lapham’s motion to strike is made pursuant to Code of Civil Procedure sections 435 and 436. However, “[b]efore filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike. … As part of the meet and confer process, the moving party shall identify all of the specific allegations that it believes are subject to being stricken and identify with legal support the basis of the deficiencies. The party who filed the pleading shall provide legal support for its position that the pleading is legally sufficient, or, in the alternative, how the pleading could be amended to cure any legal insufficiency.” (Code Civ. Proc., §435.5, subd. (a)(1).)

“The moving party shall file and serve with the motion to strike a declaration stating either of the following: (A) The means by which the moving party met and conferred with the party who filed the pleading subject to the motion to strike, and that the parties did not reach an agreement resolving the objections raised by the motion to strike. (B) That the party who filed the pleading subject to the motion to strike failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith.” (Code Civ. Proc., §435.5, subd. (a)(3).)

In furtherance of judicial economy, the court will overlook plaintiffs/ cross-defendants Patrick and Lapham’s failure to comply with Code of Civil Procedure section 435.5 in this instance but hereby places plaintiffs/ cross-defendants Patrick and Lapham and their counsel on notice that they are required to comply with the Code of Civil Procedure in the future.

III. Plaintiffs/cross-defendants Patrick and Lapham’s motion to strike defendant WTK’s answer and cross-complaint is DENIED.
IV.

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; see also CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1143.) 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).)

Plaintiffs/ cross-defendants Patrick and Lapham ask this court to strike WTK’s answer and cross-complaint on the basis that WTK may not represent itself without an attorney. In light of the substitution of attorney filed by WTK on July 10, 2019, plaintiffs/ cross-defendants Patrick and Lapham’s motion to strike is DENIED as moot.