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PAUL
1624
A.
Santa
WARNER,
Clara Drive,
ESQ.
Suite
(SBN
220
112168) FILED
RIOR COURT OF CALIFORNIA
SUPE COUNTY OF PLACER
Roseville, CA 95661
Telephone: (916) 996-3100 un 08 2018
Facsimile: (916) 789-7557 TERS
JAKE CHAT
EXECUTIVE OFFICER & CLERK
Attorneys for Plaintiff Voyager Restaurant Group, Inc. By: C. Waggoner, Deputy
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF PLACER
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11 VOYAGER RESTAURANT GROUP, INC., al Case No. S-CV-0035599
California corporation
12 MEMORANDUM OF POINTS AND
Plaintiff, AUTHORITIES IN SUPPORT OF
13
Vv. MOTION FOR AN ORDER TO STRIKE
14 ANSWER AND CROSS-COMPLAINT OF
SONORA GASOLINE CORPORATION, a NON-REPRESENTED CORPORATION
BS) California corporation formerly known as [CCP 436]
SONORA PETROLEUM, INC., a California
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corporation, GURRAJ SINGH GREWAL, Hearing
SABAL FINANCIAL GROUP LP, a Date: July 10, 2018
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Time: 8:30 a.m.
Delaware limited partnership; 2012-SIP-1
Dept.: 40
18 VENTURE LLC, a Delaware limited liability
company as successor to TENNESSEE
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COMMERCE BANK, a Tennessee State Trial Date: August 27, 2018
20 chartered bank, ROSEVILLE PETROLEUM,
INC., a California corporation, NIRMAL “UNLIMITED CIVIL CASE”
21 SINGH, and DOES ONE through TWENTY,
22
inclusive,
23 Defendants.
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STATEMENT OF FACTS
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The Complaint in this action on behalf of Voyager Restaurant Group, Inc., (“Voyager”) on
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December 10, 2014. The First Amended Complaint was filed on December 22, 2015. Attorney
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-1-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN ORDER TO
STRIKE ANSWER AND CROSS-COMPLAI NT OF NON-REPRESENT ED CORPORATION
Jack Burstein filed an Answer to the First Amended Complaint along with a Cross-complaint
against Voyager Restaurant Group, Inc., and others on behalf of Sonora Gasoline Corporation
(formerly known as Sonora Petroleum, Inc.) (“Sonora”) and Gurraj S. Grewal on February 24,
2016. On January 25, 2018, attorney Jack Burstein filed a First Amended Answer to the Third
Amended Complaint.
On January 26, 2018, Jack Burstein, had unexpectedly died that morning. On February 16,
2018, in response to Voyager’s query as to the status of replacement counsel, Donna Kenney of
Mr. Burstein’s administrative staff, requested an extension of time until April 3, 2018, to
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1 respond to a cross-complaint in a related matter.
12 On February 28, Voyager was provided a contact address and phone for Gurraj Singh
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Grewal. On March 1, 2018, Voyager was informed that Mr. Burstein’s clients had been notified
14
that they should seek new counsel, along with the email address for Mr. Grewal.
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Between May 4 and May 15, 2018, Voyager attempted to obtain further information on
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17 contacting Mr. Grewal, including identifying who picked up his files from Mr. Burstein’s
18 office, since no substitution of attorney had been filed, he was not responding to email, would
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not take or return counsel’s phone calls, and mail to the address provided was returned as not
20
forwarded.
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On May 4, 2018, counsel for Voyager sent a letter in accordance with CCP 286 to the
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23 registered agent for Sonora Gasoline Corporation, and possible addresses for Gurraj S. Grewal,
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including Mr. Burstein, the Tennessee address, and the attorney who previously represented Mr.
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Grewal in Ontario Canada. The letter to Tennessee was returned, unable to forward. There has
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been no response from the other addresses.
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On May 4, 2018, counsel for Voyager sent an email with a letter attached in accordance
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-2-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN ORDER TO
STRIKE ANSWER AND CROSS-COMPLAINT OF NON-REPRESENTED CORPORATION
with CCP 286 to the address provided by Marissa Buck. There has been no response and the
email delivery system provided no notification of inability to deliver.
ARGUMENT
Sonora Gasoline Corporation May Only Appear in This Matter Through Licensed
Counsel
As his last official act in this matter, attorney Jack Burstein, representing Sonora Gasoline
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11 Corporation, filed a First Amended Answer in accordance with the Court’s order, and, then,
12 unexpectedly passed the following morning. Although his clients had been notified to seek new
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counsel, and the clients’ files have been picked up, Sonora has not filed a substitution of
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attorney since Mr. Burstein’s demise almost six months ago. Accordingly, Sonora is
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unrepresented by licensed counsel, and has not responded to any communication.
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A corporation isnot a natural person, and therefore cannot appear in an action in propria
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persona. Itcan appear only through counsel. [Merco Const. Engineers, Inc. v. Mun.Ct. (Sully-
19
Miller Contracting Co.) (1978) 21 C3d 724, 731, 147 CR 631, 635]. A corporation cannot
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21 represent itself in court, either in propria persona or through an officer or agent who is not an
22 attorney.” (Vann v. Shilleh, supra, 54 Cal.App.3d 192, 199, 126 Cal.Rptr. 401, 406, see also
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Roddis v. All-Coverage Insurance Exchange (1967) 250 Cal.App.2d 304, 311, 58 Cal.Rptr. 530;
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Himmell v. City Council (1959) 169 Cal.App.2d 97, 100, 336 P.2d 996; Paradise v. Nowlin
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(1948) 86 Cal.App.2d 897, 898, 195 P.2d 867.)
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If the corporation refuses or is unable to obtain representation, the court may need to note
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-3-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN ORDER TO
STRIKE ANSWER AND CROSS-COMPLAINT OF NON-REPRESENTED CORPORATION
the corporation’s nonappearance and enter its default. [Gamet v. Blanchard, 91 CA4th 1279 at
1284, 111 CR2d at 445, fn. 5; Van Gundy v. Camelot Resorts, Inc. (1983) 152 CA3d Supp. 29,
31-32, 199 CR 771, 772]. To presume that a corporation can act without representation is
unacceptable fiction; a corporation cannot in fact appear in court except through a licensed
agent. Merco, supra.
The Court Should Strike the Answer and Cross-complaint of the Non-represented Sonora
Gasoline Corporation
California Code of Civil Procedure §436 provides:
10
rd
The court may, upon a motion made pursuant to Section 435 ,or at any time in
12 its discretion, and upon terms it deems proper:
(a) Strikeout any irrelevant, false, or improper matter inserted in any pleading.
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(b) Strike out allor any part of any pleading not drawn or filed in conformity
14 with the laws of this state, a court rule, or an order of the court.
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California Code of Civil Procedure §437 provides:
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17 (a) The grounds for a motion to strike shall appear on the face of the challenged
pleading or from any matter of which the court isrequired to take judicial notice.
18 (b) Where the motion to strike is based on matter of which the court may take
judicial notice pursuant to Section 452 or 453 of the Evidence Code ,such matter
19
shall be specified in the notice of motion, or in the supporting points and
20 authorities, except as the court may otherwise permit.
Zi
California Evidence Code §452 provides:
22
23 Judicial notice may be taken of the following matters to the extent that they are
not embraced within Section 451 :
24 (a) The decisional, constitutional, and statutory law of any state of the United
States and the resolutions and private acts of the Congress of the United States
25
and of the Legislature of this state.
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(b) Regulations and legislative enactments issued by or under the authority of
27 the United States or any public entity inthe United States.
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(c) Official acts of the legislative, executive, and judicial departments of the
United States and of any state of the United States.
-4-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN ORDER TO
STRIKE ANSWER AND CROSS-COMPLAINT OF NON-REPRESENTED CORPORATION
(d) Records of (1) any court of this state or (2) any court of record of the United
States or of any state of the United States.
(e) Rules of court of (1) any court of this state or (2) any court of record of the
United States or of any state of the United States.
(f) The law of an organization of nations and of foreign nations and public
entities in foreign nations.
(g) Facts and propositions that are of such common knowledge within the
territorial jurisdiction of the court that they cannot reasonably be the subject of
dispute.
(h) Facts and propositions that are not reasonably subject to dispute and are
capable of immediate and accurate determination by resort to sources of
reasonably indisputable accuracy.
10 Here, the facts of Mr. Burstein’s demise and the failure of Sonora Gasoline Corporation
11
to file a substitution of attorney are matters of which the Court can take judicial notice.
12
Moreover, notice has been given in accordance with CCP 286, advising itto appoint another
13
attorney since itcannot appear inpropria persona and can only appear through counsel. (See
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15 Declaration of Paul Warner in Support of Motion for an Order to Strike Answer and Cross-
16 complaint of Non-represented Corporation (“Decl. Warner’’) at paragraphs 10 and 11.)
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Courts are specifically authorized to strike a pleading “upon a motion ...or at any time
18
19 in its discretion ...”” [CCP § 436]. It istherefore proper for a court to strike a [cross-] complaint
20 [/answer] and dismiss the action entirely on its own motion. [Lodi v. Lodi (1985) 173 CA3d
21
628, 631, 219 CR 116, 118].
22
23 CONCLUSION
24 The Court has inherent power to control its docket, and, in the exercise of that power, it
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may impose sanctions, including, where appropriate, default or dismissal. For each of the
26
foregoing reasons it is respectfully requested that this Court order that Sonora Gasoline
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Corporation’s Answer to the First Amended Complaint, First Amended Answer to the Third
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN ORDER TO
STRIKE ANSWER AND CROSS-COMPLAINT OF NON-REPRESENTED CORPORATION
Amended Complaint, and Cross-complaint, on fileherein, be stricken and its default entered.
na Yo g aul A. Warner, ,
Attorney for Plainti
Voyager Restaurant Group, Inc.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN ORDER TO
STRIKE ANSWER AND CROSS-COMPLAINT OF NON-REPRESENTED CORPORATION
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PAUL 1624 A. Santa WARNER, Clara Drive, ESQ. Suite (SBN 220 112168) FILED RIOR COURT OF CALIFORNIA SUPE COUNTY OF PLACER Roseville, CA 95661 Telephone: (916) 996-3100 un 08 2018 Facsimile: (916) 789-7557 TERS JAKE CHAT EXECUTIVE OFFICER & CLERK Attorneys for Plaintiff Voyager Restaurant Group, Inc. By: C. Waggoner, Deputy IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF PLACER 10 11 VOYAGER RESTAURANT GROUP, INC., al Case No. S-CV-0035599 California corporation 12 MEMORANDUM OF POINTS AND Plaintiff, AUTHORITIES IN SUPPORT OF 13 Vv. MOTION FOR AN ORDER TO STRIKE 14 ANSWER AND CROSS-COMPLAINT OF SONORA GASOLINE CORPORATION, a NON-REPRESENTED CORPORATION BS) California corporation formerly known as [CCP 436] SONORA PETROLEUM, INC., a California 16 corporation, GURRAJ SINGH GREWAL, Hearing SABAL FINANCIAL GROUP LP, a Date: July 10, 2018 17 Time: 8:30 a.m. Delaware limited partnership; 2012-SIP-1 Dept.: 40 18 VENTURE LLC, a Delaware limited liability company as successor to TENNESSEE 19 COMMERCE BANK, a Tennessee State Trial Date: August 27, 2018 20 chartered bank, ROSEVILLE PETROLEUM, INC., a California corporation, NIRMAL “UNLIMITED CIVIL CASE” 21 SINGH, and DOES ONE through TWENTY, 22 inclusive, 23 Defendants. 24 25 STATEMENT OF FACTS 26 The Complaint in this action on behalf of Voyager Restaurant Group, Inc., (“Voyager”) on 27 December 10, 2014. The First Amended Complaint was filed on December 22, 2015. Attorney 28 -1- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN ORDER TO STRIKE ANSWER AND CROSS-COMPLAI NT OF NON-REPRESENT ED CORPORATION Jack Burstein filed an Answer to the First Amended Complaint along with a Cross-complaint against Voyager Restaurant Group, Inc., and others on behalf of Sonora Gasoline Corporation (formerly known as Sonora Petroleum, Inc.) (“Sonora”) and Gurraj S. Grewal on February 24, 2016. On January 25, 2018, attorney Jack Burstein filed a First Amended Answer to the Third Amended Complaint. On January 26, 2018, Jack Burstein, had unexpectedly died that morning. On February 16, 2018, in response to Voyager’s query as to the status of replacement counsel, Donna Kenney of Mr. Burstein’s administrative staff, requested an extension of time until April 3, 2018, to 10 1 respond to a cross-complaint in a related matter. 12 On February 28, Voyager was provided a contact address and phone for Gurraj Singh 13 Grewal. On March 1, 2018, Voyager was informed that Mr. Burstein’s clients had been notified 14 that they should seek new counsel, along with the email address for Mr. Grewal. 15 Between May 4 and May 15, 2018, Voyager attempted to obtain further information on 16 17 contacting Mr. Grewal, including identifying who picked up his files from Mr. Burstein’s 18 office, since no substitution of attorney had been filed, he was not responding to email, would 19 not take or return counsel’s phone calls, and mail to the address provided was returned as not 20 forwarded. 21 On May 4, 2018, counsel for Voyager sent a letter in accordance with CCP 286 to the 22 23 registered agent for Sonora Gasoline Corporation, and possible addresses for Gurraj S. Grewal, 24 including Mr. Burstein, the Tennessee address, and the attorney who previously represented Mr. 25 Grewal in Ontario Canada. The letter to Tennessee was returned, unable to forward. There has 26 been no response from the other addresses. 27 On May 4, 2018, counsel for Voyager sent an email with a letter attached in accordance 28 -2- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN ORDER TO STRIKE ANSWER AND CROSS-COMPLAINT OF NON-REPRESENTED CORPORATION with CCP 286 to the address provided by Marissa Buck. There has been no response and the email delivery system provided no notification of inability to deliver. ARGUMENT Sonora Gasoline Corporation May Only Appear in This Matter Through Licensed Counsel As his last official act in this matter, attorney Jack Burstein, representing Sonora Gasoline 10 11 Corporation, filed a First Amended Answer in accordance with the Court’s order, and, then, 12 unexpectedly passed the following morning. Although his clients had been notified to seek new I3 counsel, and the clients’ files have been picked up, Sonora has not filed a substitution of 14 attorney since Mr. Burstein’s demise almost six months ago. Accordingly, Sonora is 15 unrepresented by licensed counsel, and has not responded to any communication. 16 17 A corporation isnot a natural person, and therefore cannot appear in an action in propria 18 persona. Itcan appear only through counsel. [Merco Const. Engineers, Inc. v. Mun.Ct. (Sully- 19 Miller Contracting Co.) (1978) 21 C3d 724, 731, 147 CR 631, 635]. A corporation cannot 20 21 represent itself in court, either in propria persona or through an officer or agent who is not an 22 attorney.” (Vann v. Shilleh, supra, 54 Cal.App.3d 192, 199, 126 Cal.Rptr. 401, 406, see also 23 Roddis v. All-Coverage Insurance Exchange (1967) 250 Cal.App.2d 304, 311, 58 Cal.Rptr. 530; 24 Himmell v. City Council (1959) 169 Cal.App.2d 97, 100, 336 P.2d 996; Paradise v. Nowlin 25 26 (1948) 86 Cal.App.2d 897, 898, 195 P.2d 867.) 27 If the corporation refuses or is unable to obtain representation, the court may need to note 28 -3- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN ORDER TO STRIKE ANSWER AND CROSS-COMPLAINT OF NON-REPRESENTED CORPORATION the corporation’s nonappearance and enter its default. [Gamet v. Blanchard, 91 CA4th 1279 at 1284, 111 CR2d at 445, fn. 5; Van Gundy v. Camelot Resorts, Inc. (1983) 152 CA3d Supp. 29, 31-32, 199 CR 771, 772]. To presume that a corporation can act without representation is unacceptable fiction; a corporation cannot in fact appear in court except through a licensed agent. Merco, supra. The Court Should Strike the Answer and Cross-complaint of the Non-represented Sonora Gasoline Corporation California Code of Civil Procedure §436 provides: 10 rd The court may, upon a motion made pursuant to Section 435 ,or at any time in 12 its discretion, and upon terms it deems proper: (a) Strikeout any irrelevant, false, or improper matter inserted in any pleading. 13 (b) Strike out allor any part of any pleading not drawn or filed in conformity 14 with the laws of this state, a court rule, or an order of the court. 15 California Code of Civil Procedure §437 provides: 16 17 (a) The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court isrequired to take judicial notice. 18 (b) Where the motion to strike is based on matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code ,such matter 19 shall be specified in the notice of motion, or in the supporting points and 20 authorities, except as the court may otherwise permit. Zi California Evidence Code §452 provides: 22 23 Judicial notice may be taken of the following matters to the extent that they are not embraced within Section 451 : 24 (a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States 25 and of the Legislature of this state. 26 (b) Regulations and legislative enactments issued by or under the authority of 27 the United States or any public entity inthe United States. 28 (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. -4- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN ORDER TO STRIKE ANSWER AND CROSS-COMPLAINT OF NON-REPRESENTED CORPORATION (d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States. (e) Rules of court of (1) any court of this state or (2) any court of record of the United States or of any state of the United States. (f) The law of an organization of nations and of foreign nations and public entities in foreign nations. (g) Facts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute. (h) Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. 10 Here, the facts of Mr. Burstein’s demise and the failure of Sonora Gasoline Corporation 11 to file a substitution of attorney are matters of which the Court can take judicial notice. 12 Moreover, notice has been given in accordance with CCP 286, advising itto appoint another 13 attorney since itcannot appear inpropria persona and can only appear through counsel. (See 14 15 Declaration of Paul Warner in Support of Motion for an Order to Strike Answer and Cross- 16 complaint of Non-represented Corporation (“Decl. Warner’’) at paragraphs 10 and 11.) 17 Courts are specifically authorized to strike a pleading “upon a motion ...or at any time 18 19 in its discretion ...”” [CCP § 436]. It istherefore proper for a court to strike a [cross-] complaint 20 [/answer] and dismiss the action entirely on its own motion. [Lodi v. Lodi (1985) 173 CA3d 21 628, 631, 219 CR 116, 118]. 22 23 CONCLUSION 24 The Court has inherent power to control its docket, and, in the exercise of that power, it 25 may impose sanctions, including, where appropriate, default or dismissal. For each of the 26 foregoing reasons it is respectfully requested that this Court order that Sonora Gasoline 27 Corporation’s Answer to the First Amended Complaint, First Amended Answer to the Third 28 -5- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN ORDER TO STRIKE ANSWER AND CROSS-COMPLAINT OF NON-REPRESENTED CORPORATION Amended Complaint, and Cross-complaint, on fileherein, be stricken and its default entered. na Yo g aul A. Warner, , Attorney for Plainti Voyager Restaurant Group, Inc. 10 11 12 13 14 15 16 i. 18 19 20 21 22 23 24 25 26 27 28 -6- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN ORDER TO STRIKE ANSWER AND CROSS-COMPLAINT OF NON-REPRESENTED CORPORATION