never mind..found it. wow, is mczeal a clown. you would think a professional attorney would file an answer in time and know that a corp can't defend itself pro se!
"The court rules as follows on Defendant PGI Energy, Inc.’s motion to quash service of summons –
Facts/Overview:
This is a business dispute. The complaint alleges that Plaintiffs Pipeline Global International Trading Company and Monarch Media Fund LLC entered into a contract with Defendant PGI Energy, Inc., for the purchase of diesel fuel. Under the terms of the contract, Defendant was to provide Plaintiffs with proof-of-product (“POP”) at the time the contract was executed but failed to do so despite multiple requests from Plaintiffs. Consequently, Plaintiffs were forced to breach a different contract with a third party. The third-party contract was dependent on Plaintiffs’ purchase of diesel fuel from Defendant. The complaint alleges six causes of action:
breach of contract;
fraud (negligent misrepresentation);
fraud (intentional misrepresentation);
fraud (concealment);
negligent interference with contract; and
intentional interference with contract.
According to the proof of service of the summons and complaint, the summons and complaint were served on Marcellous McZeal, the CEO and general counsel of PGI Energy, Inc., on July 13, 2011. No responsive pleading was filed; thus, on September 1, 2011, default against PGI Energy, Inc., was requested and entered.
On September 9, 2011, the motion at bar was filed. As part of its motion, Defendant also filed an answer to the complaint.
Defendant PGI Energy, Inc., moves to quash service of the summons and complaint based on lack of jurisdiction or, alternatively, to dismiss or stay based on forum non conveniens.
Analysis:
There are significant procedural problems with this motion that prevent the court from ruling on its merits. First, default against moving defendant has already been entered in this case. “Entry of default ousts the court of jurisdiction to consider any motion other than a motion for relief from default [citations]” Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial § 5:7 (The Rutter Group 2011). See also W. A. Rose Co. vs. Mun. Court for Oakland-Piedmont Judicial Dist., Alameda County (1959), 176 Cal. App. 2d 67, 72.
Second, the motion to quash was filed by Marcellous McZeal, a Texas attorney who is not licensed to practice in California. There is no pro hac vice application in this case for Mr. McZeal. The court cannot treat the document as a filing in propria persona because Defendant PGI Energy, Inc. is a corporation. See CLD Const., Inc. vs. City of San Ramon (2004), 120 Cal. App. 4th 1141, 1145 (“[U]nder 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. It must be represented by licensed counsel in proceedings before courts of record.”)
For the foregoing reasons, the court must disregard not only the motion itself, but also the answer included in the motion. The motion, including the attached answer to the complaint, is ordered STRICKEN.
This ruling is without prejudice to Defendant’s filing a motion to set aside its default."
