Judge: Mark E. Windham, Case: 24NWLC08148, Date: 2024-10-01 Tentative Ruling

Case Number: 24NWLC08148    Hearing Date: October 1, 2024    Dept: 26

Mariscos Bahia, Inc. v. Alvarez, et al.

MOTION TO STRIKE

(CCP §§ 435, 436)

TENTATIVE RULING:

Defendant Mariscos El Chaparrito, Inc.’s Motion to Strike Portions of the Complaint is PLACED OFF CALENDAR.

ORDER TO SHOW CAUSE REGARDING STRIKING DEFENDANT EL CHAPARRITO, INC.’S MOTION TO STRIKE IS SET FOR DECEMBER 10, 2024 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

On March 4, 2024, Plaintiff Mariscos Bahia, Inc. (“Plaintiff”) filed this action for breach of contract and common counts against Defendants Mariscos El Chaparrito, Inc. (“Defendant El Chaparrito”) and John Alvarez (“Defendant Alvarez”). Defendant Alvarez filed an answer on May 22, 2024.

Defendant El Chaparrito filed the instant Motion to Strike on June 4, 2024. Plaintiff filed an opposition on June 17, 2024 and Defendant El Chaparrito replied on June 24, 2024. The Motion was set for hearing on June 27, 2024 but was then transferred to Department 26 in the Spring Street Courthouse. (Minute Order, 06/27/24.) After the action was transferred, Defendant El Chaparrito refiled the Motion and Plaintiff refiled its opposition.

Discussion

Defendant El Chaparrito bring the instant Motion to Strike Plaintiff’s request for attorney’s fees pursuant to Code of Civil Procedure section 436. The Motion is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 435.5. (Motion, Grijalba Decl., ¶2 and Exh. A.) Defendant El Chaparrito moves to strike request for attorney’s fees on the grounds that they do not meet the statutory requirements.

In opposition, Plaintiff points out that Defendant El Chaparrito is a suspended corporation, and as such, cannot defend this action. The Court takes judicial notice of the records of the Secretary of State, pursuant to Plaintiff’s request under Evidence Code sections 452 and 453. These records confirm Defendant El Chaparrito’s suspended status as of June 17, 2024. (Opp., RJN, Exhs. A-B.)

Defendant El Chaparrito’s reply concedes that it is suspended but claims to be in the process of reviving itself. However, since the Motion was brought on June 4, 2024, no papers have been filed indicating any change in Defendant El Chaparrito’s status. To the extent Defendant El Chaparrito seeks a continuance of the hearing date to correct its corporate status, this hearing was already delayed by three months after the case was transferred. Accordingly, the Court places the hearing on the Motion to Strike off calendar.

Conclusion

Defendant Mariscos El Chaparrito, Inc.’s Motion to Strike Portions of the Complaint is PLACED OFF CALENDAR.

ORDER TO SHOW CAUSE REGARDING STRIKING DEFENDANT EL CHAPARRITO, INC.’S MOTION TO STRIKE IS SET FOR DECEMBER 10, 2024 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Court clerk to give notice.