Judge: Michael Shultz, Case: 20CMCV00304, Date: 2022-08-23 Tentative Ruling
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If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on.
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Case Number: 20CMCV00304 Hearing Date: August 23, 2022 Dept: A
20CMCV00304
Alpha Real Estate Investment & Development v. Life is Amazing, LLC, et al.
[TENTATIVE] ORDER
I.
BACKGROUND
Plaintiff, Alpha Real Estate Investment
(“Alpha”), filed this action on November 19, 2020, against Defendants, Life is
Amazing, LLC (“LIA”) and Ashwood TD Services. The complaint alleges that
Plaintiff bought real property on February 16, 2018, pursuant to a grant deed.
On October 19, 2019, Plaintiff signed a promissory note for a construction loan
that was secured by a Deed of Trust in favor of LIA. Plaintiff alleges
Defendants foreclosed on the property although Plaintiff repaid the loan.
Plaintiff alleges claims for (1) Usury, (2) Breach of the Covenant of Good
Faith and Fair Dealing, (3) Violation of Bus. & Prof. Code § 17200 (4)
Wrongful Foreclosure, (5) Breach of Contract, (6) Declaratory Relief, (7)
Fraud, (8) Cancellation of Instruments and (9) Quiet Title.
II.
ARGUMENTS
A.
Demurrer filed July 22, 2022
Defendant
LIA argues that the complaint is barred by Corporations Code section 2105. Plaintiff
lacks capacity to bring this action because it is a foreign corporation that is
not registered to do business in the State of California. Plaintiff’s corporate
status is revoked in its home state of Arkansas which precludes it from
registering in this state. The court should dismiss the action.
B.
Opposition filed August 10, 2022
Plaintiff argues that its standing
is not a fact alleged in the pleading. Notwithstanding, Defendant’s evidence is
stale. Plaintiff requests judicial notice of the records of the Arkansas
Secretary of State which reflects that Plaintiff has been in good standing
since February 10, 2022. Plaintiff filed its Statement of Information with the
California Secretary of State on August 4, 2022. Plaintiff’s status is shown as
“active”. Plaintiff argues that the demurrer is rendered moot and should be
withdrawn or overruled.
The court’s file does not reflect
that Defendant filed a Reply brief due on August 16, 2022 (five court days
before the hearing). Code Civ. Proc., § 1005(b).
III.
LEGAL STANDARDS
A demurrer tests the sufficiency
of a complaint as a matter of law and raises only questions of law. Schmidt
v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706. In testing the
sufficiency of the complaint, the court must assume the truth of (1) the
properly pleaded factual allegations; (2) facts that can be reasonably inferred
from those expressly pleaded; and (3) judicially noticed matters. Blank v.
Kirwan (1985) 39 Cal.3d 311, 318.
The court may not
consider contentions, deductions, or conclusions of fact or law. Moore v.
Conliffe (1994) 7 Cal.App.4th 634, 638. Because a demurrer tests the legal
sufficiency of a complaint, the plaintiff must show that the complaint alleges
facts sufficient to establish every element of each cause of action. Rakestraw
v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the
complaint fails to state facts sufficient to constitute a cause of action,
courts should sustain the demurrer. Code Civ. Proc., § 430.10(e); Zelig v.
County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.
Sufficient facts
are the essential facts of the case "with reasonable precision and with
particularity sufficiently specific to acquaint the defendant with the nature,
source, and extent of his cause of action.” Gressley v. Williams (1961)
193 Cal.App.2d 636, 643-644. Whether the Plaintiff will be able to prove the
pleaded facts is irrelevant. Stevens
v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.
A demurrer may
also be sustained if a complaint is “uncertain.” Uncertainty exists where a
complaint’s factual allegations are so confusing, they do not sufficiently
apprise a defendant of the issues it is being asked to meet. Williams v.
Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2; Code Civ.
Proc., § 430.10(f).
IV.
DISCUSSION
Defendant attempted to meet and
confer with Plaintiff prior to filing the demurrer in compliance with Code of
Civil Procedure section 430.41. Declaration of Julian Bach. The court grants
both parties’ request for judicial notice of the records of the California and
Arkansas Secretary of State. Evid. Code, § 452(c) [official acts of the
legislative, judicial, and executive depts of any state of the United States.].
A foreign corporation may not
transact intrastate business without having first obtained a certificate of
qualification from the Secretary of State by providing a statement of
information as required by Corporations Code section 2105. Plaintiff’s evidence reflects
that Plaintiff has filed the required Statement of Information with the
California Secretary of State on August 4, 2022. Plaintiff’s RJN, Ex. 3, .pdf
page 12. The Secretary of State issued a certificate on August 5, 2022, stating
that Plaintiff is active and qualified to transact intrastate business. Id.,
.pdf page 11.
V.
CONCLUSION
Plaintiff has established that it
is required to transact intrastate business in this state. Accordingly, the
demurrer is OVERRULED. Defendant is ordered to file an answer to the complaint
within 10 days. Cal Rules of Court, Rule
3.1320.
As the court previously granted
Defendant’s Motion to Vacate Default on July 12, 2022, the Order to Show Cause
re: Dismissal for failure to obtain a default judgment set for December 14, 2022,
is advanced and vacated. The court sets a CMC for
_______________________________ at 8:30 a.m. in Department A of the Compton
courthouse.