Judge: Robert B. Broadbelt, Case: 22STCV12986, Date: 2023-01-09 Tentative Ruling

Case Number: 22STCV12986    Hearing Date: January 9, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Defendant Northeast Agencies, Inc., dba Northeast Agency Insurance Services

RESPONDING PARTY:        Unopposed

Demurrer to Complaint

The court considered the moving papers filed in connection with this motion.  No opposition papers were filed.  

BACKGROUND

Plaintiff Buy Sell Prophet, LLC (“Plaintiff”) filed this professional negligence action against defendants Northeast Agencies, Inc., dba Northeast Agency Insurance Services, Marc St. Julien, and Randy Alcazar on April 18, 2022.

Defendant Northeast Agencies, Inc., dba Northeast Agency Insurance Services (“Defendant”) moves the court for an order sustaining its demurrer to Plaintiff’s Complaint without leave to amend.

REQUEST FOR JUDICIAL NOTICE

The court grants Defendant’s request for judicial notice.  (Evid. Code, § 452, subd. (c).)

DEMURRER

The court sustains Defendant’s demurrer to Plaintiff’s Complaint because the judicially noticed matters establish that Plaintiff does not have the legal capacity to sue.  (Code Civ. Proc., § 430.10, subd. (b).)  

A suspended entity, during the period that it is suspended for failure to pay taxes, “may not prosecute or defend an action [citation], appeal from an adverse judgment [citation], seek a writ of mandate [citation], or renew a judgment obtained prior to suspension [citation].”  (Cal-Western Business Services, Inc. v. Corning Capital Group (2013) 221 Cal.App.4th 304, 310.)  Defendant has established, through judicially noticed matters, that Plaintiff has been suspended by the Franchise Tax Board since December 3, 2018.  (RJN Ex. A.)  The court therefore finds that Plaintiff, as a suspended LLC, does not have the legal capacity to bring this action.  (Cal-Western Business Services, Inc., supra, 221 Cal.App.4th at p. 310; Code Civ. Proc., § 430.10, subd. (b).)

The burden is on the plaintiff “to articulate how it could amend its pleading to render it sufficient.”¿ (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)¿ To satisfy that burden, a plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.”¿ (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)  The court finds that Plaintiff has not met its burden to show that it could cure the defect as to its legal capacity to bring this action, and therefore sustains Defendant’s demurrer without leave to amend. 

ORDER

            The court sustains defendant Northeast Agencies, Inc., dba Northeast Agency Insurance Services’ demurrer to plaintiff Buy Sell Prophet, LLC’s Complaint without leave to amend.  

            The court orders defendant Northeast Agencies, Inc., dba Northeast Agency Insurance Services to lodge and serve a proposed order of dismissal from the Complaint filed by plaintiff Buy Sell Prophet, LLC within 10 days of the date of this order pursuant to Code of Civil Procedure section 581, subdivision (f)(1).

The court orders defendant Northeast Agencies, Inc., dba Northeast Agency Insurance Services to give notice of this order.

IT IS SO ORDERED.

DATED:  January 9, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court