Maria Teresa T. Paradela vs. Altruist Home Health Care, Inc.

Motion to Strike

Cal. Super. - 4th Dist.July 22, 2016

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AEGIS LAW FIRM, PC SAMUEL A. WONG, State Bar No. 217104 KASHIF HAQUE, State Bar No. 218672 JESSICA L. CAMPBELL, State Bar No. 280626 ALI S. CARLSEN,State Bar No. 289964 9811 Irvine Center Drive, Suite 100 Irvine, California 92618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 THE COOPER LAW FIRM, P.C. SCOTT B. COOPER, State Bar No. 174520 SAMANTHA SMITH, State Bar No. 233331 4000 Barranca Pkwy, Ste 250 Irvine, CA 92604 Telephone: (949) 724-9200 Facsimile: (949) 724-9255 scott@cooper-firm.com samantha@cooper-firm.com Attorneys for Plaintiff Maria Teresa T. Paradela, Individually and on behalf ofall others similarly situated SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE MARIA TERESA T. PARADELA, individually and on behalf of other aggrieved employees, Plaintiff, VS. ALTRUIST HOME HEALTH CARE, INC. and DOES 1 through 20, inclusive, Defendants. CASE NO.: 30-2016-00865334-CU-OE-CIJC Assignedfor all purposes to Hon. Thierry Patrick Colaw, Dept. CX105 PLAINTIFF MARIA TERESA T. PARADELA’S NOTICE OF MOTION AND MOTION TO STRIKE DEFENDANT ALTRUIST HOME CARE SERVICES, LLC’S ANSWER TO COMPLAINT; MEMORANDUM OF POINTS OF AUTHORITIES Date: February 24, 2017 Time: 10:30 a.m. Dept.: CX105 Complaintfiled: July 22,2016 -- PLAINTIFF'S NOTICE. OF MOTION AND MOTION TO STRIKE DEFENDANT’S ANSWER w n R A W N N A 10 11 12 13 14 15 16 17 18 19 20 21 5 23 24 25 26 27 28 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD HEREIN: PLEASE TAKE NOTICE that on February 24, 2017 at 10:30 a.m. or as soon thereafter as this matter may be heard in Department CX105 of the Orange County Superior Court, located at 751 West Santa Ana Blvd, Santa Ana, California 92701, Honorable Thierry Patrick Colaw presiding, Plaintiff MARIA TERESA T. PARADELA (“Plaintiff”) will and hereby move this Court for an order (1) striking Defendant ALTRUIST HOME CARE SERVICES LLC’s (“Defendant”) Answer on the ground that Defendant is attempting to appear in pro per, is a business entity, and thus, cannot appear in a court without legal counsel; and (2) entering default against Defendant. This motion is based on this notice, the accompanying memorandum of points and authorities, the declaration of Ali S. Carlsen, the Court’s file in this action, and such evidence and argument as may be heard at the time of the hearing. Dated: January 20, 2017 AEGIS LAWFIRM, PC COL AliS. Carlsen Attorneys for Plaintiff MARIA TERESA T. PARADELA -11- PIAINTIFR’S NOTICE OF MOTION AND MOTION TO STRIKF NDNEFFENDANT’S ANQWER 10 11 12 13 14 15 16 17 18 19 20 21 55 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This class and PAGA representative action alleges that Defendant ALTRUIST HOME CARE SERVICES, LLC (*Altruist” or “Defendant”) misclassified Plaintiff and other employees in caregiving positions as independent contractors and attempted to avoid compliance with multiple sections of the California Labor Code. Based on this theory, Plaintiff alleges Defendants failed to pay all wages owed (including overtime and minimum wages), failed to provide meal periods and rest breaks, failed to provide accurate itemized wage statements, failed to reimburse necessary expenses, and failed pay all wages due upon separation of employment. Plaintiff seeks unpaid wages, penalties, attorneys’ fees and costs, among other damages. Plaintiff seeks an order striking Defendant’s Answer on the grounds that it is a business entity and in pro per; and seeks an order entering default against Defendant. II. STATEMENT OF FACTS On July 22, 2016, Plaintiff filed her complaint against defendant Altruist Home Health Care, Inc. (“AHHC”). See Declaration of Ali S. Carlsen (“Carlsen Decl.”) at § 2. On August 25, 2016, Plaintiff added Altruist as DOE 1. Id. at J 3. On October 18, 2016, Plaintiff filed a First Amended Complaint adding PAGA claims. Id. at § 4. On or about November 27, 2016, Defendant was served with the First Amended Complaint. Id. at 5. On January 11, 2017, in preparing to file the Case Management Conference Statement for this matter, Plaintiff’s counsel pulled up the Court’s docket in this matter and discovered that Defendant had filed its Answer on or about December 23, 2016. Id.at § 6. Defendant did not serve its Answer on Plaintiff. /d. at § 7. Defendantis attempting to appear pro per. On January 17, 2017, Plaintiff filed a Request for Dismissal dismissing AHHC from this action without prejudice. Id. at 8. 1 1 1 MEMORANDUM OF POINTS AND AUTHORITIES 10 11 12 13 14 15 16 17 18 i9 20 21 22 23 24 25 26 27 28 III. ARGUMENT A. Defendant Is A Corporation And Cannot Participate In Litigation Without Legal Counsel As That Equates To The Unauthorized Practice Of Law Code of Civil Procedure §437(a) provides “[t]he grounds for a motion to strike shall appear on the fact of the challenged pleading or from any matter of which the court is required to take judicial notice.” California courts have consistently held fast to the common-law rule that a corporation or other business entity must be represented by an attorney (except in small claims). See Merco Constr. Engineers, Inc. v. Municipal Court, 21 Cal. 3d 724 (1978); Caressa Camille, Inc. v. Alcoholic Beverage Control Appeals Bd., 99 Cal. App. 4th 1094 (2002). Primarily, due to the nature of corporations, they can only act through its agents and representatives. Should that agent or representative appear on behalf of the corporation in a court proceeding, e.g., an officer or director, who is not an attorney, that person would be engaged in the unlicensed practice of law. Merco Constr. Engingeers, Inc., supra, 21 Cal. 3d at 730. Here, Defendantis a California limited liability company which is attempting to represent itself through agents, officers, and/or owners of the business. Because neither of the individuals purporting to represent the business are licensed attorneys, they may not appear on behalf of the entity. B. This Court Has The Authority To Strike Defendant’s Answer And Enter A Default Against It If a defendant fails to answer after a motion to strike its answer is granted,it is as if the defendant failed to answer. Code of Civil Procedure §586 (a)(7). If a defendant fails to answer the complaint, a court shall enter the default of the defendant. Code ofCivil Procedure §585 (a). Defendant is unable to take any action in this matter unless and until it retains counsel. Thus, Plaintiff requests this Court to strike Defendant’s Answer and enter a default against Defendant. 11 11 1 MEMORANDIT™M OF POINTS AND ATITHORITIES O o 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. CONCLUSION Based on the foregoing reasons, this Court should strike Defendant’s Answer and enter default against Defendant. Dated: January 20, 2017 AEGIS LAWFIRM, PC A YN S. Carlsen Attorneys for Plaintiff MARIA TERESA T. PARADELA RMMOAANAD ANNMNMIMA NAT DNTINTC AANMN ATITHNADITICC © 0 0 9 O N w n B s W N N N N N N N N N N N m = e m m E e m m E e m e e e e e e 0 N I O N W n k A W D = O N N N B W W N D = O CERTIFICATE OF SERVICE I, the undersigned, am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; am employed with Aegis Law Firm PC and my business address is 9811 Irvine Center Drive, Suite 100, Irvine, California 92618. On January 20, 2017, I served the foregoing document entitled: PLAINTIFF MARIA TERESA T. PARADELA’S NOTICE OF MOTION AND MOTION TO STRIKE DEFENDANT ALTRUIST HOME CARE SERVICES, LLC’S ANSWER TO COMPLAINT; MEMORANDUM OF POINTS OF AUTHORITIES on all the appearing and/or interested parties in this action by placing [_] the original [X] a true copy thereof enclosed in sealed envelope(s) addressed as follows: Gaudioso Lachica Noel Mayo Altruist Home Care Services, LLC 525 N Azusa Ave., Ste. 211 La Puente, CA 91744 Agentsfor Service ofProcessfor Altruist Home Care Services, LLC X (BY MAIL) I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Irvine, California in the ordinary course of business. I am aware that on motion ofthe party served, service is presumed invalid if postage cancellation date or postage meter date is more than one day after date of deposit for mailing this affidavit. (Cal Code Civ. Proc. § 1013(a); Fed. R. Civ. Proc. 5(a); Fed. R. Civ. Proc. 5(c).) [] (BY OVERNIGHT MAIL) I am personally and readily familiar with the business practice of Aegis Law Firm PC for collection and processing correspondence for overnight delivery, and I caused such document(s) described herein to be deposited for delivery to a facility regularly maintained Federal Express for overnight delivery. (Cal Code Civ. Proc. § 1013(c); Fed. R. Civ. Proc. 5(c).) [] (BY ELECTRONIC TRANSMISSION) I caused said document(s) to be served via electronic transmission to the addressee(s) listed above on the date below. (Cal. Code Civ. Proc. § 1010.6(6); Fed. R. Civ. Proc. 5(b)(2)(E); Fed. R. Civ. Proc. 5(b)(3).) [] (BY PERSONAL SERVICE) 1 delivered the foregoing document by hand delivery to the addressed named above. (Cal Code Civ. Proc. § 1011; Fed. R. Civ. Proc. 3(0)(2)(A).) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on January 20, 2017, at Irvine, California. Michael Knieling CERTIFICATE OF SERVICE