On the Court’s own motion, Defendant Jeb Burton’s motion for summary judgment is continued to February 6, 2018 at 2 p.m. in this department.

As seen from Defendant’s reply, Plaintiff Cogen Power, LLC’s corporate powers were suspended as of July 3, 2017. Defendant submitted a certificate of the Secretary of State reflecting the suspension. As it stands, Plaintiff cannot oppose the instant motion until it cures the suspension.

Once a corporation has been suspended, the corporation is prohibited from exercising any corporate powers, rights, or privileges “[e]xcept for the purposes of filing an application for exempt status or amending the articles of incorporation as necessary either to perfect that application or to set forth a new name . . . .” (Rev. & Tax Code § 23301) Pursuant to Revenue and Taxation Code section 23302, subdivision (c), “[t]he certificate of the Secretary of State shall be prima facie evidence of the suspension” by the Franchise Tax Board. California Courts have consistently held that suspended corporations do not have the capacity to defend themselves in litigation. (See Boyle v. Lakeview Creamery Co. (1937) 9 Cal.2d 16, 20 [interpreted language substantially similar to Rev. & Tax. Code § 23301 in finding that a suspended corporation had no right to defend suit, and no right to appeal from an adverse decision]; Grell v. Laci Le Beau Corp.(1999) 73 Cal.App.4th 1300, 1306 [corporation may not prosecute or defend an action or appeal from an adverse judgment during period it is suspended for failure to pay taxes]; Palm Valley Homeowners Ass’n v. Design Mic (2000) 85 Cal.App.4th 553, 560 [suspended corporation is “disabled from participating in any litigation activities”].

A corporation which has no intention of paying its taxes and “getting off” suspension cannot avail itself of the power of the court. (Gar-Lo, Inc. v. Prudential Savings & Loan Assn. (1974) 41 Cal.App.3d 242, 243-244.) The Court is continuing the motion to allow Plaintiff the opportunity to cure the defect and restore its status so that the Court can consider Plaintiff’s opposition. If Plaintiff cures the defect of lack of capacity by becoming reinstated by the Secretary of State, Plaintiff shall file and serve certified documents from the Secretary of State reflecting the reinstatement, on or before February 2, 2018. The Court will issue a tentative ruling on February 5, 2018.

Analogously, it has been determined that so long as the certificate of revivor is filed prior to the entry of judgment, it is an abuse of discretion not to determine the case on the merits. See, e.g. Duncan v. Sunset Agricultural Minerals (1969) 273 Cal. App. 2d 489, 493

The Court is aware that trial is set for February 27, 2018 but good cause allows the motion to be heard less than 30 days before trial under these circumstances.