Case Name: Harel v. Sprieker Companies, Inc., et al.
Case No.: 1-14-CV-271546
After defendant Co-Operative Adjustment Bureau, Inc. (“COAB”) filed an answer to the complaint, plaintiff Jean Claude Harel (“Plaintiff”) filed the first amended complaint (“FAC”), alleging that COAB is a suspended corporation. Plaintiff moves to strike COAB’s answer on the ground that it is not filed in conformity with the law. (See Code. Civ. Proc., § 436, subd. (b).)
Plaintiff requests judicial notice of the Secretary of State’s Business Entity Detail for COAB, but does not make the request in a separate document as required by California Rules of Court (“CRC”), rule 3.1113(l). Moreover, judicial notice “is always confined to those matters which are relevant to the issue at hand.” (See Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [“Gbur”].) This record shows COAB’s status as of November 7, 2014, but its status before it filed the answer on November 14, 2014, is immaterial. Thus, Plaintiff’s request for judicial notice is DENIED.
In opposition, COAB requests judicial notice of a small claims judgment, but the request does not comply with CRC, rules 3.1113(l) and/or 3.1306(c) (requiring copies of the documents to be filed with the court or otherwise made available at the hearing) and the judgment is not relevant (see Gbur, supra, at p. 301). COAB’s request for judicial notice is accordingly DENIED.
Plaintiff argues that the answer should be stricken because COAB’s corporate status is suspended. A corporation cannot defend itself against a lawsuit while the Franchise Tax Board has suspended its corporate status for failure to pay taxes, subject to revivor upon the corporation’s application and payment of delinquent taxes to the Franchise Tax Board. (Rev. & Tax. Code, § 23301; Grell v. Laci Le Beau Corp. (1999) 73 Cal.App.4th 1300, 1306.) A motion to strike an answer may be granted where the Secretary of State’s certificate shows that the defendant’s corporate powers are suspended for failure to pay taxes. (The Alhambra-Shumway Mines, Inc. v. Alhabra Gold Mine Corp. (1957) 155 Cal.App.2d 46, 50-51.) COAB submits a declaration stating that the Secretary of State revived its active status as of January 13, 2015, but such disputable evidence is improper and cannot be considered on a motion to strike. (See Mediterranean Exports, Inc. v. Super. Ct. (1981) 119 Cal.App.3d 605, 615-616 & fn.6 [evidence other than the Secretary of State’s records is improper on a motion to strike].) Moreover, COAB’s assertion that this motion is moot because the FAC supersedes the complaint is unavailing because this is a motion to strike the answer, not the complaint. That being said, Plaintiff has not submitted a certificate showing that COAB’s status is suspended for failing to pay taxes, or that it was suspended when it filed the answer. Plaintiff therefore has not shown that COAB lacks the capacity to defend such that its answer should be stricken.
Accordingly, the motion to strike the answer is DENIED.