DEMURRER TO COMPLAINT

Moving Party: Defendant Air Design Solutions, Inc.

Respondent: Plaintiff Leopoldo A. Guillen

POS: No proof of service accompanies the moving papers; Opposing papers are served by regular post contrary to CCP § 1005(c)

Plaintiff alleges in his Complaint that on or about May 7, 2013, Plaintiff entered into an agreement with Defendant wherein the parties agreed as follows: “Defendant sent its squatters to break in the building at 3629 Santa Anita Ave., El Monte, CA 91731 on May 7, 2013 and promised to pay Plaintiff or Plaintiff’s agent $5,000 per month.” Plaintiff further alleges that Defendant breached the agreement by refusing to leave or pay Plaintiff or Plaintiff’s agent and seeks $287,000.00 in damages. The Complaint, filed by Plaintiff in pro per on 11/22/13, asserts causes of action for:

1. Breach of Contract
2. Fraud

The Case Management Conference is set for 3/20/14.

Defendant Air Design Solutions, Inc., IN PRO PER, demurs to the Complaint by Plaintiff Leopoldo Guillen on the grounds that it fails to state facts sufficient to constitute a cause of action.

Plaintiff Leopoldo Guillen, opposes the demurer on the following grounds: (1) Defendant is a corporation currently suspended; (2) Defendant cannot defend itself as “in pro per” since it is a corporate entity; and (3) the demurrer raises irrelevant facts. Plaintiff also represents that he was never served with the moving papers, and that he was not aware of the demurrer until he checked the court website on or about January 21, 2014, and obtained a copy of the moving papers from the court records.

SERVICE:

Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing. (CCP § 1005(b).)

No proof of service accompanies the moving papers demonstrating that Plaintiff was timely served with the moving papers. Plaintiff, in opposition, represents that he was never served with the moving papers, and that he was not aware of the demurrer until he checked the court website on or about January 21, 2014. (Opposition, Guillen Decl. ¶ 3.)

SUSPENDED CORPORATION:

A corporation whose powers have been suspended for nonpayment of the corporate franchise tax lacks capacity to sue in California courts; and, if sued, it lacks capacity to defend. (Rev. & Tax.C. § 23301; Reed v. Norman (1957) 48 Cal.2d 338, 342; see Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1603–1604—“suspension of corporate powers results in a lack of capacity to sue, not a lack of standing to sue.”) Similarly, a corporation suspended under Corps.C. § 2205 for failure to file the biennial statement required by Corps.C. § 1502 lacks capacity to sue or defend itself. (Palm Valley Homeowners Ass’n, Inc. v. Design MTC (2000) 85 Cal.App.4th 553, 560.)

Once the delinquent taxes (plus interest and penalties) are paid, the corporation’s powers are restored, thus “reviving” its capacity to sue or defend. But such revivor is “without prejudice to any action, defense or right which has accrued by reason of the original suspension…” (Rev. & Tax.C. §§ 23305, 23305a; Friends of Shingle Springs Interchange, Inc. v. County of El Dorado (2011) 200 Cal.App.4th 1470, 1484—dismissal proper where suspended corporation did not have standing to sue when it filed mandate petition and did not satisfy revivor requirements until after statute of limitations expired.) Even before official revivor, a corporation may sue or defend after substantial compliance with the revival statute. But this requires payment of all taxes, interest and penalties due. (Sade Shoe Co., Inc. v. Oschin & Snyder (1990) 217 Cal.App.3d 1509, 1513; see Friends of Shingle Springs Interchange, Inc. v. County of El Dorado, supra, 200 Cal.App.4th at 1492—substantial compliance doctrine inapplicable where result would frustrate legislative purpose underlying shortened statutes of limitations in land use actions.)

Where the complaint is viable, it is an abuse of discretion to deny the corporation’s request for a continuance of trial in order to pay delinquent taxes and obtain a certificate of revivor. (See Color-Vue, Inc. v. Abrams, supra, 44 Cal.App.4th at 1606—defendant who delayed raising defect until time of trial waived right to object; Cadle Co. v. World Wide Hospitality Furniture, Inc. (2006) 144 Cal.App.4th 504, 512—suspended corporation that waited until filing appellate brief to reveal revivor that occurred shortly after trial and before entry of judgment, was entitled to reversal of judgment and remand for new trial.)

Plaintiff submits evidence that Defendant is a suspended corporation. (Opposition, Guillen Dec., Exh. A.) A suspended corporation cannot prosecute or defend itself in litigation.

SELF REPRESENTED CORPORATION:

Generally, a corporation may appear in a court of record only through counsel. (CLD Const., Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146; Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284, fn. 5; Merco Const. Engineers, Inc. v. Mun.Ct. (1978) 21 Cal.3d 724, 733.) A corporation, as an artificial entity, can only act through its human agents and representatives. By appearing on the corporation’s behalf, these (nonattorney) individuals would be engaging in the unauthorized practice of law. (CLD Const., Inc. v. City of San Ramon, supra, 120 Cal.App.4th at 1146.) The prohibition against a corporation’s “self-representation“ in court also furthers the efficient administration of justice by assuring that qualified professionals present the corporation’s case and assist the court in resolution of the issues; and it helps maintain the distinction between the corporation and its shareholders. (Id. at 1146.)

Defendant, a corporation, cannot be self-represented.

Based on the above, Defendant’s demurrer to the Complaint is ordered off calendar. The court declines to consider the demurrer on the merits.