These Motions:  Defendant Jose Marron’s demurrer and motion to strike the complaint.

TENTATIVE RULING

Defendant Jose Marron’s Demurrer to Complaint is OVERRULED.

Defendant Jose Marron’s Motion to Strike Portions of the Complaint is DENIED.

Defendant Jose Marron shall file and serve an answer to Plaintiff ARI Advisors LLC’s Complaint within ten (10) days of entry of this order. (Cal. Rules of Court, rule 3.1320(j).)

Defendant Jose Marron to give notice. 

REASONING

Request for Judicial Notice

Defendant Jose Marron (“Defendant”) requests judicial notice of the California Secretary of State Business search results showing that Plaintiff ARI Advisors, LLC (“Plaintiff”) is not qualified to do business in California. Plaintiff’s request is DENIED, as the search results show only that Plaintiff does not appear as a qualified business in the search results, and the Court will not use the search results as definitive evidence.

Plaintiff requests judicial notice of a Certificate of Qualification issued to Plaintiff by the California Secretary of State on February 1, 2024. Plaintiff’s request is GRANTED pursuant to Evidence Code section 452, subdivisions (c) and (h). Defendant’s objection to the Court taking judicial notice of this document is OVERRULED.

Legal Standard

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) 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. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967), but the Court does not “assume the truth of contentions, deductions, or conclusions of fact or law” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125).

Further, the court may, upon 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 the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Demurrer

Defendant demurs to Plaintiff’s complaint on the ground that Plaintiff does not have the legal capacity to sue. Defendant points to the California Secretary of State Business search results, which do not show Plaintiff as a business qualified to do business in California, Corporations Code section 2105, subdivision (a), which states that “[a] foreign corporation shall not transact intrastate business without having first obtained from the Secretary of State a certificate of qualification,” and Corporations Code section 2233, subdivision (c), which requires compliance with statutory requirements and payment of certain fees to be able to maintain an action upon any intrastate business. Notably, Plaintiff does not state in the complaint that it conducts intrastate business, and Defendant has not provided evidence that Plaintiff conducts intrastate business in California. (See Corp. Code, § 191 [defining intrastate business].) Plaintiff also provides evidence of a Certificate of Qualification, which states that Plaintiff has complied with the requirements to transact intrastate business. Defendant takes issue with the authenticity of this certificate, but this is a matter that is best considered with additional evidence outside the context of a demurrer. Accordingly, Defendant Jose Marron’s Demurrer to Complaint is OVERRULED.

Motion to Strike

Defendant moves to strike Plaintiff’s request and prayer for treble damages and Plaintiff’s prayer for attorney fees. Defendant argues that Plaintiff has not alleged any damages in the complaint and limits its claim for a single cause of action for disgorgement, and there is no basis to order treble disgorgement. The Court is not so convinced, as Plaintiff seeks actual damages, specifically the fees, costs, and award made to Defendant in the worker’s compensation case. (Compl. ¶ 18.) Defendant also argues that Plaintiff does not include any facts supporting its claim for attorney fees. An award of attorney’s fees is proper when authorized by contract, statute, or law. (Code Civ. Proc., §§ 1032, subd. (b), 1033.5, subd. (a)(10).) Code of Civil Procedure section 1029.8, subdivision (a), allows the Court to award attorney fees and costs to a prevailing party in an action arising from injury due to lack of a license, as is the case here. Thus, Defendant Jose Marron’s Motion to Strike Portions of the Complaint is DENIED. Defendant Jose Marron shall file and serve an answer to Plaintiff ARI Advisors LLC’s Complaint within ten (10) days of entry of this order. (Cal. Rules of Court, rule 3.1320(j).)