Judge Robert B. Broadbelt, Case Number: 22STCV39547, Date: 2023-10-31 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 22STCV39547, Date: 2023-10-31 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

RESPONDING PARTIES: Defendants BJD Services, LLC, Dawn Kuykendall, Jerilyn Rivetti Kuykendall, Brian McWilliams, Rodney Owens, Villa Patrician Home Owner’s Association Inc., and Villa Patrician Home Owner’s Association Inc.

The court considered the moving, opposition, and reply papers filed in connection with this motion.

The court denies plaintiff Eduardo Luna’s request for judicial notice, filed on May 16, 2023, as to exhibit 1 because, while the court may take judicial notice of recorded CC&Rs as official acts of the executive department, plaintiff Eduardo Luna has not submitted evidence showing that these CC&Rs were recorded. (Evid. Code, §¿452, subd. (c); Eisen v. Tavangarian (2019) 36 Cal.App.5th 626, 641, n. 12.)

The court grants plaintiff and cross-defendant Eduardo Luna’s request for judicial notice as to exhibits 2-4. (Evid. Code, § 452, subd. (c).)

Plaintiff and cross-defendant Eduardo Luna (“Luna”) moves the court for an order (1) striking the answer of Villa Patrician Home Owner’s Association, Inc. (“Villa HOA”), and (2) striking the Cross-Complaint filed by Villa Patrician Home Owner’s Association, Inc., established 11/30/2022, file No. 5354171 (“Villa HOA 2”).[1] Luna filed the pending motion to strike on May 16, 2023, moving for relief on the grounds that (1) Villa HOA is a suspended California business entity and therefore cannot defend itself in this action, and (2) Villa HOA 2 is not authorized to act pursuant to the subject CC&Rs, such that it “has no basis to sue for unpaid fees and assessments.” (Notice of Mot., ¶¶ 1-2.)

In their opposition papers filed on November 9, 2023, Villa HOA and Villa HOA 2 (1) explained that there are two corporations of the same name; (2) conceded that the first entity, i.e., Villa HOA, has had its corporate status suspended; and (3) submitted the declaration of Villa HOA’s President, Dawn Kuykendall, in which Kuykendall stated that Villa HOA “has retained the Law Offices of Guenther A Richter to resolve the corporate issues pertaining to it and its suspended status.” (Opp., p. 2:17-18; Kuykendall Decl., ¶ 1.) On November 21, 2023, the court granted Villa HOA’s request that the court continue the hearing on Luna’s motion to allow Villa HOA an opportunity to obtain a certificate of revivor. However, Villa HOA has not filed a supplemental declaration or other evidence with the court establishing that it has obtained a certificate of revivor. The court therefore rules on the merits of Luna’s motion.

First, the court grants Luna’s motion to strike the answer filed by defendant Villa HOA because the judicially noticed matters establish that Villa HOA is a suspended entity and therefore cannot defend itself in this action. (Code Civ. Proc., § 436; RJN Exs. 2, 3 [Villa HOA has a status of “Suspended – FTB”]; Tabarrejo v. Superior Court (2014) 232 Cal.App.4th 849, 861 [“a corporation that has had its powers suspended ‘lacks legal capacity to prosecute or defend a civil action during its suspension’”].)

Second, the court denies Luna’s motion to strike the Cross-Complaint filed by Villa HOA 2. (Code Civ. Proc., § 436.) Although Luna contends that Villa HOA 2 “cannot advance claims based on the formation documents[,]” Luna has based this argument on materials of which the court has not taken judicial notice. (Mot., p. 3, ¶ 1 [relying on exhibit 1 to the request for judicial notice].) Thus, the court finds that Luna has not shown that Villa HOA 2’s Cross-Complaint should be stricken based on the face of the Cross-Complaint and materials of which the court has taken judicial notice.

The court grants in part plaintiff and cross-defendant Eduardo Luna’s motion to strike as follows.

The court orders that the answer, as filed by defendant “Villa Patrician Homeowner’s Association, Inc., a suspended corporation” on April 3, 2023, is stricken.

The court denies all other relief requested in plaintiff and cross-defendant Eduardo Luna’s motion.

The court orders plaintiff and cross-defendant Eduardo Luna to give notice of this ruling.

[1] The court notes that, as explained by the parties, there are two entities involved in this action that share the name of Villa Patrician Homeowner’s Association. Luna first named as a defendant in the Complaint “Villa Patrician Home Owner’s Association, Inc., a suspended California Corporation,” i.e., Villa HOA. Thereafter, on December 30, 2022, Luna filed an “Amendment to Complaint,” amending the Complaint by substituting “Villa Patrician Home Owner’s Association, Inc., established 11/30/2022, file No. 5354171,” i.e., Villa HOA 2, for the fictitious name Doe 1.

eduardo luna , et al.; Plaintiffs, vs. villa patrician home owner’s association, inc. , et al.; Defendants.	Case No.:	22STCV39547

	Hearing Date:	February 5, 2024

	Time:	10:00 a.m.

	[Tentative] Order RE: cross-defendant’s motion to strike answer and cross-complaint