Tentative Rulings

Case Number: ****3237    Hearing Date: February 02, 2021    Dept: 26

IN ORDER TO IMPLEMENT PHYSICAL DISTANCING AND UNTIL FURTHER NOTICE, THE COURT STRONGLY ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR REMOTELY FOR NON-TRIAL AND NON-EVIDENTIARY MATTERS, INCLUDING THIS MOTION.

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

On November 13, 2017, Plaintiff Lycia Faith Lucas (“Plaintiff”) filed the instant action for negligence against Camille Nix (“Nix”), Chelsea Clark, Virtuoso Entertainment, Inc., and Virtuoso Fest (collectively “Defendants”). The Complaint alleges two causes of action for (1) Negligence per se under Penal Code ; 647.6, and (2) Negligence Per Se under Penal Code ;; 311-312.7.

On March 19, 2019, the Court imposed sanctions of $50.00 against Plaintiff’s counsel for failure to comply with this Court's order of March 1, 2019.

On May 21, 2019, the Court imposed sanctions of $150.00 against Plaintiff and Plaintiff’s counsel for failure to comply with this Court's order of March 19, 2019. The Court also set an Order to Show Cause Re: sanctions and/or dismissal for Plaintiff's failure to appear on May 21, 2019, for failure to file proof of service of summons and complaint, and for failure to prosecute. The Court ordered Plaintiff to appear on July 23, 2019, at 8:30 a.m. in Department 26 and show cause why sanctions, including further monetary sanctions and dismissal, should not be imposed for failure (1) to appear on May 21, 2019, (2) to file proof of service of summons and complaint, and (3) to prosecute. The Court further ordered that no later than five days prior to the 07/23/19 hearing, Plaintiff was to file a declaration (1) explaining Plaintiff’s failure to appear on May 21, 2019, (2) setting forth all efforts to serve defendants since the filing of the complaint and explaining why no proof of service has been filed, and (3) setting forth what, if any, diligence Plaintiff has undertaken to prosecute this matter since the filing of the complaint on 11/13/17. The Court ordered Counsel for plaintiff to personally appear on 07/23/19 at 08:30 AM. The Court Clerk timely served notice of the May 21, 2019 order on Plaintiff’s Counsel. On July 23, 2019, after counsel again did not appear, the Court ordered a dismissal for failure to prosecute.

On January 22, 2020, Plaintiff filed a motion to vacate the dismissal entered on July 23, 2019. The court granted Plaintiff’s motion and vacated the dismissal on September 3, 2020. On November 17, 2020, as more than three years had elapsed since the filing of the complaint on November 13, 2017, and as there was no proof of service for Chelsea Clark or Virtuoso Fest. Defendants Chelsea Clark and Virtuoso Fest were dismissed pursuant to Code of Civil Procedure section 583.210(a).

On December 8, 2020, Defendant Nix filed a motion to strike. At the case management conference on December 17, 2020, Nix represented that a demurrer and motion to strike was filed. The Court noted that only a Motion to strike had been filed. On December 18, 2020, Defendant filed a demurrer. No opposition has been filed. However, on February 1, 2021, Plaintiff filed an amended complaint.

Improper Self-Representation of a Corporation

Both the motion to strike and the demurrer brought in propria persona state that the motion is on behalf of Nix, Chelsea Clark, Virtuoso Entertainment, Inc., and Virtuoso Fest. However, as noted above, Chelsea Clark and Virtuoso Fest have been dismissed.

As to Defendant Virtuoso Entertainment, Inc., the Court notes that while a corporation has the capacity to bring a lawsuit because it has all the powers of a natural person in carrying out its business, under a long-standing common law rule of procedure, a corporation, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director or other employee who is not an attorney. (CLD Const., Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145.) “[A corporation] must be represented by licensed counsel in proceedings before courts of record. (Id.)

Accordingly, the demurrer and motion to strike are stricken as to Defendant Virtuoso Entertainment, Inc. In light of these authorities, the Court will require that Defendant Virtuoso Entertainment, Inc. timely retain new counsel and file a responsive pleading. The court hereby sets an OSC regarding the status of Defendant Virtuoso Entertainment, Inc.’s representation for March 2, 2021 at 8:30 am in Department 26. Virtuoso Entertainment, Inc. is ordered to appear on March 2, 2021 with its new counsel. Failure to do so may result in default being entered against Defendant Virtuoso Entertainment, Inc.

Factual Background

The complaint alleges that “[o]n July 20, 2014, Virtuoso Entertainment, Inc., was hosting Virtuoso Fest at the Avalon Hollywood, located at 1735 Vine Street, Los Angeles, California.” (Complaint ¶ 7.) Plaintiff was invited to this event by Defendants. (Id. ¶ 8.) Plaintiff was a minor at the time. (Id. ¶ 10.) “[O]n at least two separate occasions at Virtuoso Fest in 2014 photographs depicting her topless were exhibited on the big screen at the festival. The photographs were posted in a mixture of side -by -side photographs of her fully dressed along the topless photographs. The topless photographs were faked by photoshopping [Plaintiff’s] head onto several topless photographs to depict that the topless photographs were of her.” (Id. ¶ 11.)

Legal Standard

Demurrer Standard 

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal 3d 311, 318.) No other extrinsic evidence can be considered. (i.e., no “speaking demurrers”).

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dep’t of Water & Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”  (SKF Farms v. Superior Ct. (1984) 153 Cal. App. 3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  (Hahn, supra, 147 Cal.App.4th at 747.) 

Motion to Strike Standard

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer (i.e., words, phrases, prayer for damages, etc.). (See CCP ;; 435-437.) A party may file a motion to strike in whole or in part within the time allowed to respond to a pleading, however, if a party serves and files a motion to strike without demurring to the complaint, the time to answer is extended. (CCP ;; 435(b)(1), 435(c).)

A motion to strike lies only where the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (CCP ; 436.) The grounds for moving to strike must appear on the face of the pleadings or by way of judicial notice. (CCP ; 437.)

Demurrer Discussion

Meet and Confer Requirement

Code of Civil Procedure section 430.41, subdivision (a) requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer ;in person or by telephone ;with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” The parties are to meet and confer at least five days before the date the responsive pleading is due and if they are unable to meet the demurring party shall be granted an automatic 30-day extension.  (CCP ; 430.41(a)(2).)  The demurring party must also file and serve a declaration detailing the meet and confer efforts.  (Id. ;at (a)(3).) ; If an amended pleading is filed, the parties must meet and confer again before a demurrer may be filed to the amended pleading.  (Id. ;at (a).)  There is a similar meet and confer requirement for motions to strike. (CCP ; 435.5.)

The Court notes that Defendant Nix has fulfilled the meet and confer requirement. (Nix and Clark Decl. ¶¶ 3-5.)

Effect of Filing of First Amended Complaint

Plaintiff is entitled to amend at least once without leave to court before the answer or demurrer is filed; or if Defendant demurs, before the opposition is due on the hearing on the demurrer. (CCP ; 472(a).)

Here, Plaintiff delayed until February 1, 2021 -- the day before the hearing on this demurrer -- to file her First Amended Complaint. Plaintiff’s amended complaint was untimely as it was not filed before Plaintiff’s opposition to Defendant’s demurrer was due. Thus, Plaintiff’s filing of her amended complaint does not moot the instant demurrer.

First and Second Causes of Action: Negligence

Defendant Nix contends that the first and second causes of action fail because they are barred by the statute of limitations.

Negligence Per Se

Negligence per se is not a separate cause of action, but an evidentiary doctrine that creates an evidentiary presumption that affects the standard of care in a cause of action for negligence. (Johnson v. Honeywell International, Inc. (2009) 179 Cal.App.4th 549, 555; Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1353 n.2; see also Evid. Code ; 669.) Instead, a cause of action for negligence may be based on this theory. (See e.g., Randi W. v. Muroc Joint Unified School Dist. (1997) 14 Cal.4th 1066, 1086-87.)

Accordingly, the first and second causes of action are merely claims for negligence.

Statute of Limitations

“A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. In order for the bar ... to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.” (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42, [internal citations omitted].)

“The limitations period for a cause of action for ordinary negligence is two years.” (So v. Shin (2013) 212 Cal.App.4th 652, 662; see also CCP ;;335, 335.1.) “The statute of limitations usually commences when a cause of action ‘accrues,’ and it is generally said that ‘an action accrues on the date of injury.’” (Vaca v. Wachovia Mortgage Corp. (2011) 198 Cal.App.4th 737, 743, [internal citations omitted].)

Here, the alleged wrongful conduct occurred on July 20, 2014. (Complaint ¶ 7.) However, the complaint was not filed until more three years later -- on November 13, 2017. Accordingly, the entire action is clearly barred by the statute of limitations. Therefore, Defendant Nix’s demurrer to the complaint is SUSTAINED.

As the statute of limitations is dispositive of the entire complaint, the Court does not address Defendant Nix’s additional arguments.

Leave to Amend

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Goodman v. Kennedy, supra, 18 Cal.3d at p. 348; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.)

Here, there is no possibility of reasonable amendment as the action is barred by the statute of limitations.

Conclusion and ORDER

Based on the forgoing, Defendant Camille Nix’s demurrer to the Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

Defendant Camille Nix’s motion to strike is denied as MOOT.

As to Defendant Virtuoso Entertainment, Inc., the Court notes that while a corporation has the capacity to bring a lawsuit because it has all the powers of a natural person in carrying out its business, under a long-standing common law rule of procedure, a corporation, unlike a natural person, cannot represent itself before courts of record in propria persona. Nor can it represent itself through a corporate officer, director or other employee who is not an attorney. (CLD Const., Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145.) “[A corporation] must be represented by licensed counsel in proceedings before courts of record. (Id.)

Accordingly, the demurrer and motion to strike are stricken as to Defendant Virtuoso Entertainment, Inc. In light of these authorities, the Court will require that Defendant Virtuoso Entertainment, Inc. timely retain new counsel and file a responsive pleading. The court hereby sets an OSC regarding status of Defendant Virtuoso Entertainment, Inc.’s representation for March 2, 2021 at 8:30 am in Department 26. Virtuoso Entertainment, Inc. is ordered to appear on March 2, 2021 with its new counsel. Failure to do so may result in default being entered against Defendant Virtuoso Entertainment, Inc.

The Court Clerk is to give notice to all parties.

DATED: February 2, 2021 ___________________________

Elaine Lu

Judge of the Superior Court

Case Number: ****3237    Hearing Date: September 03, 2020    Dept: 26

IN ORDER TO IMPLEMENT PHYSICAL DISTANCING AND UNTIL FURTHER NOTICE, THE COURT STRONGLY ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR REMOTELY FOR NON-TRIAL AND NON-EVIDENTIARY MATTERS, INCLUDING THIS MOTION.

Plaintiff Lycia Faith Lucas’s motion to set aside dismissal is GRANTED. The dismissal entered on July 23, 2019 is vacated.

The court notes that the Complaint was filed on November 13, 2017 – more than two years and nine months ago. Yet, Plaintiff has failed to file proof of service of the Summons and Complaint on any defendant.

The court hereby sets an OSC re dismissal for failure to file proof of service for November 17, 2020 at 8:30 am.  Plaintiff’s Counsel is ordered to appear on November 17, 2020 at 8:30 am and show cause why this action should not be imposed for failure to serve all named defendants, in compliance with Code of Civil Procedure, sections 583.210 and 583.250.

The Case Management Conference is set for November 17, 2020 at 8:30 am.

Any defendant for whom Plaintiff has failed to file proof of service of the summons and complaint on or before November 13, 2020 will be dismissed at the OSC hearing.

Failure of Plaintiff to appear at the next hearing will be deemed by the court to be Plaintiff’s consent to dismiss the entire case.

Court’s Judicial Assistant is to give notice.