Brignac v. Yelp Inc.

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 JARON LAMAR BRIGNAC, Case No. 19-cv-01188-EMC 8 Plaintiff, ORDER GRANTING DEFENDANT’S 9 v. MOTION TO DISMISS 10 YELP INC., Docket No. 64 11 Defendant. [13] 14 I. INTRODUCTION 15 Pro se Plaintiff Jaron Brignac brings this suit against Defendant Yelp, Inc. (“Yelp”) 16 alleging that Yelp discriminated against him on the basis of race in violation of 42 U.S.C. § 1981 . 17 Pending before the Court is Yelp’s Motion to Dismiss Mr. Brignac’s Second Amended Complaint 18 (“Mot.”), Docket No. 64, which the Court previously determined it would hear—in part—as a 19 motion under Federal Rule of Civil Procedure 56. Principally, the question currently before the 20 Court is whether Mr. Brignac brings this suit on behalf of a corporation or whether he brings it on 21 behalf of a sole proprietorship. If the former, the corporation must comply with Local Civil Rule 22 3-9(b), which requires that a corporation appearing before the Court be represented by counsel. 23 The Motion to Dismiss on the merits was stayed, pending resolution of this issue. 24 II. BACKGROUND 25 A. Factual Background 26 As alleged in his Second Amended Complaint, Mr. Brignac is the “sole proprietor of 27 BPCS Law Evictions,” which is a sole proprietorship. Second Amended Complaint (“SAC”) ¶ 5, 1 EVICTIONS is a Black American owned business.” Id. ¶ 6 . 2 Mr. Brignac alleges that Yelp “offers contracts to business owners to advertise on Yelp’s 3 platform” and that these contracts “specifically determine[] the ranking position for business 4 owners.” Id. ¶ 7 . Mr. Brignac further alleges that there are two types of contracts. Id. ¶ 7 –8. One 5 type of contract is free and requires the “click of a hyperlink button,” which links to a page where 6 a business owner can “confirm their business information.” Id. ¶ 8 (a). Using that type of contract, 7 Mr. Brignac alleges that a user “must follow Yelp’s algorithm in order [to] obtain a user ranking 8 that can rank the business owner in a number one or two position on the first page.” Id. The other 9 type of contract is a “paid advertising contract.” Id. ¶ 8 (b). This is “a separate contract” from the 10 first service, which Yelp offers to business owners for free. Id. ¶ 12 . 11 Mr. Brignac alleges that he first “took advantage of the free contract” and was advised by a 12 Yelp representative about how to “help his ranking and user views.” Id. ¶ 9 . Plaintiff attempted to 13 follow this advice for months, but “did not notice any change in his ranking or user views.” Id. ¶ 14 10. However, during that same time period, he “noticed other non-black business owners, who 15 were offering the same service as Plaintiff ranking above Plaintiff.” Id. Because Mr. Brignac 16 “wasn’t seeing any progress in free advertising,” he “explored the paid contract” option and “on or 17 about October of 2017, Plaintiff and Yelp executed a paid advertising contract.” Id. ¶ 10 –11. 18 After executing the paid contract, “Plaintiff did not notice his ads ranking above his 19 competitors, rather Plaintiff continued to see other non-black business owners offering the same 20 service ads as him ranking above him.” Id. ¶ 13 . As a result, Mr. Brignac believes that “Yelp 21 intentionally did not uphold their promise in his paid advertising contract, but did uphold their 22 contract promises to other nonblack business owners” and that this “explains why the nonblack 23 business owners of legal services ads were and are continuously ranking above Plaintiff’s ads.” [24] Id. ¶ 18 . In addition, Mr. Brignac believes that “all non-paid ads of Plaintiff are intentionally 25 placed in lower rankings below nonblack business owners despite Plaintiff’s efforts in following 26 all of Yelp’s advice for optimizing his page on their platform” and that “Yelp offered different 27 advertising performance contracts to other nonblack business owners similarly situated in the 1 owners providing the same services.” Id. ¶ 19, 20 . 2 He asserts a claim for discrimination in the making and enforcement of contracts under 42 3 U.S.C. § 1981 . Mot. at 6–7. 4 B. Procedural Background 5 On November 19, 2018, Mr. Brignac filed a lawsuit (naming himself, as an individual, as 6 the plaintiff) against Yelp. See Complaint for Damages and Equitable Relief (“Original 7 Complaint”), Docket No. 1. That complaint identified Mr. Brignac as the “sole business owner of 8 BPCS LAW which was founded by Plaintiff and licensed on August 04, 2015.” Id. ¶ 5 . It also 9 highlighted his successful online presence as “a Corporation providing legal services for law 10 firms, and attorneys,” id. ¶ 6 , and noted that BPCS Law sometimes did business at BPCS Law 11 Evictions, id. ¶¶ 15, 21 . That complaint alleged violations of the Sherman Act based on Mr. 12 Brignac’s allegation that Yelp had “created a monopoly in the [Search Engine Optimization] 13 market and a monopoly on GOOLGLE’S first page ranking.” Id. ¶ 14 . After the case was 14 removed to federal court by defendants, see Notice of Removal, Docket No. 1, Mr. Brignac filed 15 an amended complaint (also naming himself, as an individual, as the plaintiff), see First Amended 16 Complaint (“FAC”), Docket No. 17. That amended complaint also described Mr. Brignac as “the 17 sole business owner of BPCS LAW” and noted his online presence “as a Corporation providing 18 legal services for law firms, and attorneys.” Id. ¶¶ 5–6. The case was then transferred to the 19 Northern District of California. See Order Granting Defendant’s Motion to Transfer Venue, 20 Docket No. 26. 21 On June 5, 2019, the Court granted Yelp’s Motion to Dismiss Mr. Brignac’s First 22 Amended Complaint, dismissing his Sherman Act claim with prejudice and his § 1981 claim with 23 leave to amend. Order Granting Defendant’s Motion to Dismiss (“Dismissal Order”) at 8, 10, 24 Docket No. 62. As to the § 1981 claim, the Court noted, “Yelp argues that Brignac lacks statutory 25 standing to bring a § 1981 claim because the contract that is being allegedly impaired is between 26 BPCS Law and Yelp, not Brignac and Yelp. Assuming that BPCS Law is a corporation, Yelp 27 would be correct.” Dismissal Order at 9 (internal citations omitted). However, the Court also 1 corporation” which would mean that “Brignac . . . [would have] standing to bring a § 1981 claim.” 2 Id. The Court encouraged Mr. Brignac to “clarify the status of his business,” should he decide to 3 amend his complaint. Id. at 6. 4 On July 1, 2019, Mr. Brignac filed a Second Amended Complaint. See SAC. That 5 Complaint names “JARON BRIGNAC, an individual and sole proprietor of BPCS LAW 6 EVICTIONS” as the plaintiff. Id. at 1. In the complaint, Mr. Brignac states, “Plaintiff, JARON 7 BRIGNAC, is the sole proprietor of BPCS LAW EVICTIONS, and BPCS LAW EVICTIONS is a 8 sole proprietorship.” SAC ¶ 5. The Second Amended Complaint does not mention the entity 9 “BPCS Law”; it only mentions “BPCS Law Evictions.” Id. The only cause of action contained in 10 the Second Amended Complaint is a violation of 42 U.S.C. § 1981 , alleging intentional or 11 purposeful racial discrimination against Mr. Brignac, who is a “black American male individual.” [12] Id. ¶ 24 –33. More specifically, Mr. Brignac contends (1) that “Yelp intentionally did not uphold 13 their promise in his paid advertising contract, but did uphold their contract promises to other 14 nonblack business owners,” (2) that “all non-paid ads of Plaintiff are intentionally placed in lower 15 rankings below nonblack business owners,” and (3) that “Yelp offered different advertising 16 performance contracts to other nonblack business owners similarly situated in the same locality as 17 Plaintiff.” Id. ¶¶ 27–31. 18 On July 15, 2019, Yelp filed a Motion to Dismiss Mr. Brignac’s Second Amended 19 Complaint. See Motion to Dismiss Second Amended Complaint (“Mot.”), Docket No. 64. The 20 motion alleges that the “advertising agreement between BPCS Law and Yelp . . . shows that 21 ‘BPCS Law,’ a corporation, was the contracting ‘Client’ under the parties’ advertising agreement. 22 Therefore, Brignac has no standing to assert a claim for racial discrimination in contracting or 23 enforcement of contracts under 42 U.S.C. § 1981 .” Mot. at 1. To support that contention, Yelp 24 has provided four records from the California Secretary of State, offering them as proof that Mr. 25 Brignac’s business—identified by Yelp as BPCS Law—was a corporation. Mot. at 10; see also 26 Request for Judicial Notice (“RJN”), Exs. A–D, Docket No. 65. Yelp also submitted a declaration 27 from Yelp’s Director of User Operations indicating that it was BPCS Law—and not BPCS Law 1 (“MacBean Decl.”) at 1; Docket No. 64-1; see also Mot. at 9. 2 On July 23, 2019, Mr. Brignac filed a Motion to Treat Defendant’s Motion to Dismiss as a 3 Motion for Summary Judgment (“Mot. for SJ”) at 2, Docket No. 66. In that Motion, Mr. Brignac 4 noted, “Plaintiff respectfully request [sic] the court to convert or treat Defendant’s motion to 5 dismiss as a motion for summary judgment due to their motion to dismiss relying upon matters 6 presented outside of the pleading that were always in dispute.” Mot. for SJ at 2. Rule 12(d) of the 7 Federal Rules of Civil Procedure requires that when, “on a motion under Rule 12(b)(6) or 12(c), 8 matters outside the pleadings are presented to and not excluded by the court, the motion must be 9 treated as one for summary judgment under Rule 56.” Fed. R. Civ. Pro. 12(d). Because Yelp 10 provided public records, a declaration, and an email exchange between Yelp and Mr. Brignac 11 together with their Motion to Dismiss, the Court granted Plaintiff’s Motion in part. See Order 12 Granting in Part Plaintiff’s Motion to Treat Defendant’s Motion to Dismiss as a Motion for 13 Summary Judgment (“SJ Order”) at 1, Docket No. 70. The Court explained that it would 14 specifically hear “as a motion under Federal Rule of Civil Procedure 56, the question whether Mr. 15 Brignac complies with Local Civil Rule 3-9(b) – whether the plaintiff brings this suit on behalf of 16 a corporation or only as a sole proprietorship.” SJ Order at 1. It further explained that “the nature 17 of Mr. Brignac’s business in this suit is a threshold matter for the Court to resolve.” Id. at 3 . 18 The Court’s Order also permitted Mr. Brignac an extra week to file his Opposition to 19 Defendant’s Motion to Dismiss and permitted Yelp a week after the submission of Mr. Brignac’s 20 Opposition to file their Reply. Id. at 3 . The hearing on the Rule 56 Motion was rescheduled for 21 September 24, 2019, nearly one month after the original hearing date for the Motion to Dismiss. [22] Id. at 3–4. The Court believes this afforded both parties adequate notice of the Motion for 23 Summary Judgment and a sufficient opportunity to be heard, as Federal Rule of Civil Procedure 24 56 Requires. See Fed. R. Civ. Pro 56. 25 III. DISCUSSION 26 A. Legal Standard 27 Federal Rule of Civil Procedure 56 provides that a “court shall grant summary judgment 1 the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). An issue of fact is 2 genuine only if there is sufficient evidence for a reasonable jury to find for the nonmoving party. 3 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 248–49 (1986). “The mere existence of a 4 scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could 5 reasonably find for the [nonmoving party].” Id. at 252 . At the summary judgment stage, evidence 6 must be viewed in the light most favorable to the nonmoving party and all justifiable inferences 7 are to be drawn in the nonmovant’s favor. See id. at 255 .1 8 Although Defendant Yelp did not move the Court for summary judgment, the Court, at Mr. 9 Brignac’s invitation and upon notice to the parties, has elected to treat its Motion to Dismiss as 10 one for summary judgment. Thus, the rules and principles that apply to a defendant’s motion for 11 summary judgment govern this stage of the proceedings. Where a defendant moves for summary 12 judgment based on a claim for which the plaintiff bears the burden of proof, the defendant need 13 only point to the plaintiff’s failure “to make a showing sufficient to establish the existence of an 14 element essential to [the plaintiff’s] case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see 15 also Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (stating that, “if the movant 16 bears the burden of proof on an issue, either because he is the plaintiff or as a defendant he is 17 asserting an affirmative defense, he must establish beyond peradventure all of the essential 18 elements of the claim or defense to warrant judgment in his favor” (emphasis omitted)). 19 As the Court noted in a previous order, “only the issue of whether Mr. Brignac is acting on 20 behalf of a corporation or a sole proprietorship shall be converted to a Rule 56 motion for partial 21 summary adjudication.” SJ Order at 3. See 28 U.S.C. § 1654 . The Court further explained: 22 “Civil Local Rule 3-9(b) states: ‘A corporation, unincorporated association, partnership or other 23 such entity may appear only through a member of the bar of this Court.’ As Mr. Brignac is not [25] 1 Evidence may be presented in a form that is not admissible at trial so long as it could ultimately be capable of being put in admissible form. See Fed. R. Civ. P. 56(c)(2) (providing that “[a] party [26] may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence”); see also, e.g., Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 27 F.3d 840, 846 (9th Cir. 2004) (stating that “[e]ven the declarations that do contain hearsay are 1 represented by counsel, the nature of Mr. Brignac’s business in this suit is a threshold matter for 2 the Court to resolve.” Id.; see also Dr. JKL Ltd. v. HPC IT Educ. Ctr., 749 F. Supp. 2d 1038 , 3 1046 (N.D. Cal. 2010) (“A corporation or other artificial entity must be represented by licensed 4 counsel.” (citing Rowland v. California Men’s Colony, 506 U.S. 194 , 201–02 (1993) for the 5 proposition that “28 U.S.C. § 1654 does not allow corporations, partnerships, or associations to 6 appear in federal court other than through a licensed attorney”)); see also Precision Pay Phones v. 7 Qwest Commc’ns Corp., 210 F. Supp. 2d 1106, 1119 (N.D. Cal. 2002) (citing National 8 Independent Theatre Exhibitors, Inc. v. Buena Vista Distribution Co., 748 F.2d 602 , 609–10 (11th 9 Cir. 1984) for the proposition that “pursuant to 28 U.S.C. § 1654 , a sole proprietor c[an] appear in 10 federal court pro se”). 11 B. Analysis 12 1. Real Party in Interest 13 The first question to resolve is which entity is the real party in interest in this case. Federal 14 Rule of Civil Procedure 17 requires that an action “be prosecuted in the name of the real party in 15 interest.” Fed. R. Civ. P. 17(a); see U-Haul Int’l, Inc. v. Jartran, Inc., 793 F.2d 1034, 1038 (9th 16 Cir. 1986). Various documents filed by Mr. Brignac have identified Jaron Brignac (as an 17 individual), BPCS Law, and BPCS Law Evictions as the relevant party. See, e.g., Original 18 Complaint at 1; id. ¶ 5; SAC at 1. Yelp, on the other hand, insists that the relevant entity is BPCS 19 Law. See Mot. at 15. 20 The essential question is which entity was party to the Advertising Agreement with Yelp 21 and/or has the right to enforce that contract. As the Supreme Court has held: “a plaintiff cannot 22 state a claim under § 1981 unless he has (or would have) rights under the existing (or proposed) 23 contract that he wishes ‘to make and enforce.’ Section 1981 plaintiffs must identify injuries 24 flowing from a racially motivated breach of their own contractual relationship . . . .” Domino’s 25 Pizza, Inc. v. McDonald, 546 U.S. 470 , 479–80 (2006) (emphasis added). Thus, Mr. Brignac will 26 not have standing to bring this case if BPCS Law is the party that contracted with Yelp and if 27 BPCS Law is a corporation as opposed to a sole proprietorship. See Dismissal Order at 9. 1 allegedly impaired is between BPCS Law and Yelp, not Brignac and Yelp.” Mot. at 15; see also 2 Reply at 1, Docket No. 72 (“plaintiff Jaron Brignac brought this suit based on claimed injury to 3 BPCS Law”). In support of that contention, Yelp has provided a copy of the Advertising 4 Agreement that Mr. Brignac entered into with Yelp on October 5, 2017.2 See MacBean Decl., Ex. 5 1 (“Ad. Agreement”). That Agreement states: 6 To enroll BPCS Law in Yelp’s Advertising Program, please reply to this email with ‘I AGREE, Jaron Brignac’ in the Subject line or 7 body of the email. By responding to this email with the phrase ‘I agree’ you agree that you have read, accept, and agree to the 8 Advertising Agreement on behalf of, and as an authorized representative of, the Client identified. [9] 10 Id. at 1. Below that text, the Agreement lists the “Client Name and Address” as “BPCS Law” at 11 “9107 Wilshire Blvd Ste 450, Beverly Hills, CA 90210.” Id. at 1–2. Mr. Brignac responded to 12 that email approximately ten minutes after it was first sent with the phrase, “I agree.” Id. at 1. 13 While the text of the contractual agreement provides strong evidence that BPCS Law is the 14 real party in interest, the Court considers three additional points. First, Mr. Brignac asserts that 15 “[a]ll contracts that were created with Yelp were signed by me as an individual, not as a 16 corporation.” Brignac Declaration in Support of Opposition to Defendant’s Motion to Dismiss 17 (“Brignac Opp. Dec.”) ¶¶ 8, 12, Docket No. 71-1. However, to the extent that Mr. Brignac argues 18 that his signature on the Advertising Agreement (and other documents) makes him a party to the 19 Agreement, see, e.g., Brignac Opp. Dec. ¶¶ 8, 12, Yelp is correct in noting that “a corporation is a 20 legal entity that, by definition, can only act through its agents.” Reply at 6 (citing Martinez v. 21 Caribbean, 764 F.3d 1062, 1068 (9th Cir. 2014)). Thus, the fact that Mr. Brignac provided his 22 own signature on the Advertising Agreement does not undermine the claim that BPCS Law is the 23 entity that is party to the contract. In fact, the Advertising Agreement specifically explained that [25] 2 Mr. Brignac alleges that the “contracts which Yelp presents as an attachment to Ian MacBean’s declaration is [sic] not authentic.” Brignac Declaration in Support of Motion to Treat Defendant’s [26] Motion to Dismiss as a Motion for Summary Judgment (“Brignac SJ Dec.”) at 2, Docket No. 66-1. However, his objection is confined to “the terms and conditions as it [sic] relates to ad placement, [27] cost per click, and performance programs” for “non-black business owners.” Id. It does not 1 BPCS Law was the Client and that Mr. Brignac was acting on its behalf. Id. 2 Second, Mr. Brignac also emphasizes the fact that he filed this suit in an individual 3 capacity and suggests—through somewhat circular reasoning—that his filing of the suit is 4 evidence that he has standing to bring the suit. See Brignac Opp. Dec. ¶¶ 10 (“I filed this current 5 law suit against Yelp as an individual, not as BPCS LAW.”); see also Opp. at 2 (“Plaintiff sued 6 Yelp as an individual business owner, and listed Jaron Brignac as the Plaintiff.”). However, the 7 fact that Mr. Brignac has filed this suit is not evidence that he is the appropriate party to bring the 8 § 1981 claim he seeks to bring. As Yelp notes in its Reply, Domino’s Pizza indicates that where 9 an individual attempts to bring a claim that should instead by brought by a corporation, that claim 10 is properly dismissed for lack of standing. See Domino’s Pizza, 546 U.S. at 477–80; Reply at 2, 6. 11 Thus, Mr. Brignac’s assertion that he brought the suit as an individual against Yelp is unavailing 12 and not dispositive to the question at bar. 13 Third, Mr. Brignac notes that BPCS Law has sometimes done business as BPCS Law 14 Evictions. See, e.g., Original Complaint ¶¶ 7, 15, 21; FAC ¶¶ 7, 15, 26. As early as November 15 2018, Mr. Brignac stated that he had “recently started doing business online as BPCS LAW 16 EVICTIONS” for the purpose of search engine optimization. See Original Complaint ¶ 7 17 (emphasis added). However, it does not appear that Mr. Brignac registered this name as a 18 fictitious business name until February 1, 2019, well after the Yelp contract was signed. See 19 Brignac Opp. Dec., Ex. C. In addition, Mr. Brignac indicated on that fictitious business name 20 form that—as of February 2019—he had not yet started to transact business under the fictitious 21 business name BPCS Law Evictions. Id. To the extent that Mr. Brignac now attempts to “argue 22 that BPCS Law Evictions is a different entity than BPCS Law,” he cannot do so without 23 “improperly contradicting his prior allegations” that BPCS Law Evictions was simply an alias he 24 was using for the purpose of maximizing search engine optimization. Mot. at 8. In addition, even 25 if BPCS Law Evictions was a separate entity from BPCS Law, Mr. Brignac has stated that BPCS 26 LAW Evictions was only founded in February of 2019. Brignac Opp. Dec. ¶ 11 (consistent with 27 the date on the fictitious business name form he submitted, see Brignac Opp. Dec., Ex. C). 1 that BPCS Law Evictions was the entity that was party to that contract; it simply did not exist at 2 the time. 3 As a result of the foregoing analysis, the Court finds that BPCS Law is the real party in 4 interest for this case. Mr. Brignac has failed to raise a disputed issue of fact to the contrary. The 5 Court next considers what type of business BPCS Law is. 6 2. Type of Business 7 Since BPCS Law is the proper plaintiff to bring this § 1981 claim, whether the case can 8 remain in court depends on what type of business BPCS Law is. If it is a corporation, the case 9 must be dismissed because a corporation cannot appear pro se, and no lawyer is currently 10 representing Plaintiff. If it is a sole proprietorship, Mr. Brignac would have standing to bring the 11 claim because a sole proprietorship may proceed pro se. See National Independent Theatre 12 Exhibitors, 748 F.2d at 609–10; see also Dismissal Order at 9. It should be noted that Mr. Brignac 13 referred to BPCS Law as a corporation in his first two complaints. Original Complaint ¶ 6; FAC 14 ¶¶ 5–6. However, the Court acknowledged that Mr. Brignac, as a pro se plaintiff, “may not have 15 been aware of the technical differences between a corporation and a sole proprietorship,” so it did 16 not assign dispositive weight to Mr. Brignac’s choice of words. Dismissal Order at 5. It is, 17 however, some evidence. 18 Mr. Brignac now explicitly states that he “founded BPCS LAW as a sole proprietorship” 19 and was acting as a sole proprietorship when he entered into contacts with Yelp. Brignac Opp. 20 Dec. ¶ 4; see also Opp. at 2 (“BPCS Law was licensed as a sole proprietorship, not a corporation 21 upon signing the purported contract with Yelp.”); id. (“Plaintiff acted as an individual sole 22 proprietorship, not as BPCS LAW corporation, upon engaging in any contracts with Yelp prior to 23 BPCS LAW coming into existence.”). In support of that contention, Mr. Brignac offers a 24 fictitious business name statement filed on June 20, 2014. Brignac Opp. Dec., Ex. A, Docket No. 25 71-1. That document lists BPCS Law as the entity utilizing a fictitious business name, indicates 26 that BPCS Law is conducted by an individual, and lists Jaron Brignac as the sole proprietor. Id. It 27 also lists the address for the sole proprietorship as 11331 Ventura Blvd, Studio City, CA 91604. 1 LAW (which were filed with the California Secretary of State on August 4, 2015), two of BPCS 2 Law’s Corporate Statements of Information (filed in 2016 and 2019), and a copy of the California 3 Secretary of State’s Business Search webpage showing the “Entity Detail” page for BPCS Law, 4 which lists the company’s business type as “Domestic Stock.” See RJN, Exs. A–D. 5 In responding to the documents submitted by Yelp, Mr. Brignac contends that there are 6 actually two BPCS Law entities: one that is a corporation and one that is a sole proprietorship. In 7 addition, Mr. Brignac argues that he was “act[ing] as an individual sole proprietorship, not as 8 BPCS LAW corporation, upon engaging in any contracts with Yelp prior to BPCS LAW coming 9 into existence.” Opp. at 2.3 Other than this statement, Mr. Brignac fails to provide any 10 corroborative evidence that BPCS Law, the sole proprietorship, engaged in any business as such 11 after BPCS Law Corporation was incorporated. Moreover, even if the entities were and remained 12 separate entities prior to BPCS Law coming into existence in August 2015, the Advertisement 13 Agreement with Yelp was formed in 2017, more than two years after BPCS Law was 14 incorporated. In addition, the BPCS Law with which Yelp formed a contract was located—as 15 specified in the contract—at 9107 Wilshire Blvd Ste 450, Beverly Hills, CA 90210. See MacBean 16 Decl., Ex. 1 (“Ad. Agreement”). Based on the documents provided by Yelp and Mr. Brignac, that 17 was the address for BPCS Law corporation. See RJN, Ex. B. The sole proprietorship had been 18 located at 11331 Ventura Blvd, Studio City, CA 91604. Brignac Opp. Dec., Ex. A. Thus, the 19 evidence demonstrates that the entity that entered into a contract with Yelp in 2017 was BPCS 20 Law the corporation and there is no material evidence to the contrary. 21 The Court concludes that it was BPCS Law, the corporation, that entered into the 22 Advertising Agreement with Yelp in 2017. The corporation BPCS Law had existed for two years 23 at the time the contract with Yelp was signed, and the address included in the contract with Yelp [25] 3 Yelp fairly notes: “To use the same name for a sole proprietorship and a corporation without disclosing to counter-parties to commercial transactions whether the counter-party is dealing with [26] an individual or corporation would be misleading, if not fraudulent. The purpose of the fictitious business name statute is ‘to protect those dealing with individuals or partnerships doing business [27] under fictitious names’ ( Cal. Bus. & Prof. Code § 17900 (emphasis added)), not to facilitate a 1 references the corporate address of BPCS Law, not that of the sole proprietorship. The only 2 || evidence that Mr. Brignac sought to bind BPCS Law the sole proprietorship rather than the 3 corporation was the contracting party to the Yelp contract is Mr. Brignac’s assertion to the Court. 4 However, this assertion does not rise to more than “bald assertions” that are “insufficient to 5 withstand summary judgment.” F.7.C. v. Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009). 6 Therefore, the Court finds that it is BPCS Law, the corporation, which must bring the § 7 1981 claims that Mr. Brignac currently seeks to assert. Mr. Brignac as an individual lacks 8 standing to bring this case. Moreover, BPCS Law is not represented by an attorney. The suit must 9 || therefore be dismissed. 10 IV. CONCLUSION 11 For the foregoing reasons, the Court GRANTS Defendant’s Motion for Summary 12 || Judgment and dismisses Mr. Brignac’s claim for lack of standing and failure to comply with Civil 5 13 || Local Rule 3-9(b). This is without prejudice for BPCS Law, the corporation, from filing suit 14 || provided it is represented by an attorney. 3 15 This order disposes of Docket No. 64. [16] = 17 IT IS SO ORDERED. [18] 19 Dated: October 17, 2019 [20] <4 ED M. CHEN 22 United States District Judge