Judge: Lynette Gridiron Winston, Case: 21PSCV00519, Date: 2023-12-19 Tentative Ruling
Case Number: 21PSCV00519 Hearing Date: December 19, 2023 Dept: 6
CASE NAME: Daniel Caldera Salcido v. CG Integrity Investments, et al.
Order to Show Cause Re: Why Defendant CG Integrity Investments’ Answer Should Not Be Stricken Because of Suspended Status
TENTATIVE RULING
The Court STRIKES the answer of Defendant CG Integrity Investments, Inc. to the First Amended Complaint filed on August 23, 2023.
Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.
BACKGROUND
This is a breach of contract case. On June 23, 2021, plaintiff Daniel Caldera Salcido (Plaintiff) filed this action against defendants CG Integrity Investments, Inc. (CG), Claudio Vernail Gonzalez, and Cynthia Ruth Gonzalez (collectively, Defendants). On June 30, 2023, Plaintiff filed the operative First Amended Complaint against the same Defendants, alleging causes of action for breach of contract, intentional misrepresentation, negligent misrepresentation, concealment, and false promise.
On November 9, 2023, the Court set an Order to Show Cause Re: Why Defendant CG Integrity Investments’ Answer Should Not Be Stricken Because of Suspended Status and directed the parties to brief the matter per statute. On December 6, 2023, Plaintiff filed a memorandum of points and authorities. On December 8, 2023, CG opposed the motion. No reply was filed.
LEGAL STANDARD
“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out 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.)
REQUESTS FOR JUDICIAL NOTICE
The Court GRANTS Plaintiff’s requests for judicial notice as there is no objection from Defendants and no showing that Exhibits A and B are subject to reasonable dispute. (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 760-761.)
PRELIMINARY ISSUE
CG contends in its opposition that Plaintiff’s memorandum of points and authorities is untimely because it was filed on December 6, 2023. CG is correct. The Court specifically directed the parties to brief this matter per the statutory briefing schedule with Plaintiff as the moving party. (Minute Order (11/9/23).) Sixteen court days before December 19, 2023 is November 27, 2023. (See Code Civ. Proc., § 12; Id., § 1005, subd. (b).) Plaintiff’s memorandum of points and authorities is therefore untimely. Nevertheless, the Court exercises its discretion to still consider Plaintiff’s memorandum of points and authorities. (See Cal. Rules of Court, rule 3.1300, subd. (d); Juarez v. Wash Depot Holdings, Inc. (2018) 24 Cal.App.5th 1197, 1202.) The Court further admonishes the parties to comply with the requirements of the Code of Civil Procedure going forward.
DISCUSSION
Except for the purposes of filing an application for exempt status or amending the articles of incorporation as necessary either to perfect that application or to set forth a new name, the corporate powers, rights and privileges of a domestic taxpayer may be suspended, and the exercise of the corporate powers, rights and privileges of a foreign taxpayer in this state may be forfeited, if any of the following conditions occur:
(a) If any tax, penalty, or interest, or any portion thereof, that is due and payable under Chapter 4 (commencing with Section 19001) of Part 10.2, or under this part, either at the time the return is required to be filed or on or before the 15th day of the ninth month following the close of the taxable year, is not paid on or before 6 p.m. on the last day of the 12th month after the close of the taxable year.
(b) If any tax, penalty, or interest, or any portion thereof, due and payable under Chapter 4 (commencing with Section 19001) of Part 10.2, or under this part, upon notice and demand from the Franchise Tax Board, is not paid on or before 6 p.m. on the last day of the 11th month following the due date of the tax.
(c) If any liability, or any portion thereof, which is due and payable under Article 7 (commencing with Section 19131) of Chapter 4 of Part 10.2, is not paid on or before 6 p.m. on the last day of the 11th month following the date that the tax liability is due and payable.
(Rev. & Tax. Code § 23301.)
“[A] corporation that has had its powers suspended ‘lacks legal capacity to prosecute or defend a civil action during its suspension.’ [Citation.]” (Tabarrejo v. Superior Ct. (2014) 232 Cal.App.4th 849, 861.)
Plaintiff contends that CG’s answer should be stricken because CG is currently suspended by the Franchise Tax Board and therefore lacks capacity to defend itself. (Request for Judicial Notice, Ex. 3.) The Court agrees.
CG’s opposition contains no contrary arguments or evidence regarding CG’s suspended status and whether CG’s answer should be stricken. Since CG did oppose the motion but did not address this issue, the Court finds that CG tacitly admits Plaintiff’s argument is meritorious. (Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 418; C. Opposing the Motion—and Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶ 9:105.10.) The Court will entertain an offer of proof at the hearing on this matter and even a continuance if further briefing is necessary, but based on the record before the Court, CG is unable to proceed with defending itself at this time.
Based on the foregoing, the Court STRIKES CG’s answer to the First Amended Complaint filed on August 23, 2023.
CONCLUSION
The Court STRIKES the answer of Defendant CG Integrity Investments, Inc. to the First Amended Complaint filed on August 23, 2023.
Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.