Judge: Joel L. Lofton, Case: 21GDCV00784, Date: 2022-10-13 Tentative Ruling
Case Number: 21GDCV00784 Hearing Date: October 13, 2022 Dept: X
Tentative Ruling
Judge Joel L. Lofton,
Department X
HEARING DATE: October
13, 2022 TRIAL DATE: October 25, 2022
CASE: MAXIMEDI, LTD., a
UK private limited company, v. BLUE FLAME MEDICAL LLC, a Delaware limited
liability corporation; JOHN THOMAS, an individual; MIKE GULA, an individual;
and DOES 1 through 10.
CROSS: BLUE FLAME MEDICAL
LLC, a Delaware limited liability corporation, v. MAXIMEDI, LTD., a UK private
limited company; CREIGHTON GROUP, LLC, a Florida limited liability company;
ANDREW CREIGHTON, an individual; and DOES 11 through 20,
inclusive.
CASE NO.: 21GDCV00784
MOTION
TO STRIKE
MOVING PARTY: Defendant Blue Flame
Medical LLC
RESPONDING PARTY: No response filed.
SERVICE: Filed
September 8, 2022
RELIEF
REQUESTED
Defendant Blue Flame
Medical LLC moves to strike Plaintiff’s complaint and answer to Defendant’s second
amended cross-complaint.
BACKGROUND
Plaintiff Maximedi, LTD (“Plaintiff”) brings this claim based on
the allegations that defendants Blue Flame Medical LLC (“Blue Flame”), John
Thomas (“Thomas”), and Mike Gula (“Gula”), (collectively “Defendants”) failed
to pay for 1,550,000 N95 masks at $2.05 per unit for a total of $3,177,500 and
1200 cartons of nitrile gloves. Plaintiff alleges that Defendants entered into
a $12.5 million contract with the state of Maryland (“Maryland”) to deliver
ventilators and 1,550,000 N95 masks with a $6,271,000 down payment. Plaintiff
alleges that Defendants paid Plaintiff $1,00,000 while the shipment was in
transit but failed to pay the remaining $2,304,940 outstanding.
Plaintiff filed this complaint on June 2, 2021, alleging six
causes of action for (1) breach of contract, (2) breach of the covenant of good
faith and fair dealing, (3) fraud – false promise, (4) intentional
misrepresentation/concealment, (5) negligent misrepresentation, and (6) common
counts. Blue Flame Medical filed an amended cross-complaint on November 10,
2021.
TENTATIVE RULING
Defendant’s
motion to strike is granted with leave to amend.
Plaintiff
has 10 days to demonstrate it has obtained representation and restored its
corporate status.
REQUEST FOR JUDICIAL NOTICE
Defendant’s
request for judicial notice for Exhibit A is granted pursuant to Evidence Code
section 452, subdivision (h).
Defendant’s
request for judicial notice for Exhibits B, C, and D is granted pursuant to
Evidence Code section 452, subdivision (f).
LEGAL STANDARD
Any
party, within the time allowed to respond to a pleading may serve and file a
notice of motion to strike a pleading or any part thereof. (Code Civ.
Proc., § 435, subd. (b)(1).) The court may, upon a motion, or at any
time in its discretion, and upon terms it deems proper, strike any irrelevant,
false, or improper matter inserted in any pleading. (Code Civ. Proc., §
436, subd. (a).) The court may also strike all or any part of any
pleading not drawn or filed in conformity with California law, a court rule, or
an order of the court. (Code Civ. Proc., § 436, subd. (b).)
DISCUSSION
Defendant brings this motion to strike on the
basis that Plaintiff is an unrepresented corporation that has been dissolved in
the United Kingdom.
On July 18,
2022, Plaintiff’s counsel’s motion to be relieved as counsel was granted. Defendant’s
counsel provides she contacted Cross-Defendants asking who would be
representing Maximedi but received no response as of August 3, 2022. (Hamill
Decl. ¶¶ 6-7.) Defendant’s counsel
further provides that the First Gazette Notice for Maximedi Limited in the UK
shows that Plaintiff would be struck off the register and dissolved not less
than two months from May 7, 2022. (Id. ¶ 3, Exhibit A.) Defendant
provides that Maximedi was dissolved on September 20, 2022. (Hamill
Supplemental Decl. ¶ 5.)
“A corporation has the capacity to bring a lawsuit
because it has all the powers of a natural person in carrying out its business.
[Citations.] However, 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. It must be
represented by licensed counsel in proceedings before courts of record.” (CLD
Construction, Inc. v. City of San Roman (2004) 120 Cal.App.4th 1141, 1145.)
“A motion to
strike under section 435 et seq. is
traditionally used to reach pleading defects that are not subject to demurrer.”
(CLD Construction, Inc. v. City of San Roman, supra, 120 Cal.App.4th at
p. 1146.) The Court in CLD stated that it was “more appropriate and just
to treat a corporation's failure to be represented by an attorney as a defect
that may be corrected”. (Id. at p. 1149.)
In the
present instance, Plaintiff is at the very least an unrepresented corporation. Additionally,
Plaintiff is a dissolved corporation. “Incapacity, on the other hand, is merely
a legal disability . . . that can be cured during the pendency of the litigation.
[Citation.] ‘Suspension of corporation powers results in a lack of capacity
to sue, not a lack of standing to
sue.’ ” (The Rossdale Group, LLC v.
Walton (2017) 12 Cal.App.5th 936,
945.)
Thus,
because Plaintiff lacks representation and capacity to sue, defects that are
possible to remedy, Defendant’s motion to strike is granted with leave to
amend.
CONCLUSION
Defendant’s motion to strike is granted with leave to amend.
Plaintiff has 10 days from notice
of this ruling to demonstrate it has obtained representation and restored its
corporate status.
Dated: October 13,
2022 ___________________________________
Joel
L. Lofton
Judge
of the Superior Court
Parties who intend to submit on this tentative must send an email to the court
indicating their
intention to submit.
Parties intending to appear are strongly encouraged to appear remotely. alhdeptx@lacourt.org