TCR SERVICES, INC. VS GREAT AMERICAN INSURANCE COMPANY, ET AL.

Tentative Rulings

Case Number: 20STLC02864    Hearing Date: October 07, 2020    Dept: 26

TCR Services, Inc. v. Great American Ins. Co., et al.

MOTION TO STRIKE

(CCP §§ 435, et seq., 92)

TENTATIVE RULING:

Defendants AWI Builders, Inc., Great American Insurance Company and The Hanover Insurance Company’s Motion to Strike the Complaint is CONTINUED TO DECEMBER 9, 2020 AT 10:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

Plaintiff TCR Services, Inc. (“Plaintiff”) filed the instant action for breach of construction contract and related claims against Defendants AWI Builders, Inc., Great American Insurance Company and The Hanover Insurance Company (“Defendants”) on March 30, 2020. Defendants filed the instant Motion to Strike on June 29, 2020. To date, no opposition has been filed.

Discussion

As an initial matter, there is no proof of service of the notice of hearing on Plaintiff. The Court set the Motion to Strike for hearing on June 29, 2020 and instructed moving party to give notice. (Minute Order, 6/29/20.) The Court’s minute order was served only on Defendants. (Certificate of Mailing, 6/29/20.) Notice of the hearing must be provided to Plaintiff and proof of service of the same filed with the Court.

Regarding the merits, the Motion to Strike the Complaint is brought pursuant to Code of Civil Procedure section 436 on the grounds that Plaintiff, was a dissolved corporation as of the date the alleged breach of contract and a dissolved corporation is not permitted to conduct any business after dissolution.

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper. (Code Civ. Proc., §§ 435; 436, subd. (a).) Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders. (Code Civ. Proc., § 436, subd. (b).) Motions to strike in limited jurisdiction courts may only challenge pleadings on the basis that “the damages or relief sought are not supported by the allegations of the complaint.” (Code Civ. Proc., § 92, subd. (d).)

Finally, Code Civ. Procedure section 435.5 requires that “[b]efore filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining whether an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a).) The Motion to Strike is accompanied by a meet and confer declaration as required. (Motion, Sire Decl., ¶7.)

Pursuant to Cal. Evidence Code section 452, subdivision (d), the Court takes judicial notice of Plaintiff’s filings with the California Secretary of State, which demonstrate that a certificate of dissolution was filed for Plaintiff on January 7, 2019. (Motion, Sire Decl., Exhs. A and B.) Additionally, Plaintiff’s Contractors State License Board License was suspended on May 15, 2019 due to its dissolution. (Id. at Exh. C.)

Despite having been dissolved effective January 7, 2019, Plaintiff filed the instant action for breach of construction contract and related claims in March 2020. The Complaint appears to improperly allege that Plaintiffs are owed damages under the agreement starting from August 23, 2019. (Compl., ¶¶11, 12, 17 and 32.) The damages sought in this action are allegedly for a time after the dissolution of Plaintiff’s corporate form, which is not permitted by law. “It is settled beyond question that, except as otherwise provided by statute, the effect of the dissolution of a corporation is to terminate its existence as a legal entity, and render it incapable of suing or being sued as a corporate body or in its corporate name.” (Emphasis added.) (J. C. Peacock, Inc. v. Hasko (1960) 184 Cal.App.2d 142, 150-151.) The only exception is for a dissolved corporation’s pending claims. (Ibid.) Therefore, not only do the allegations regarding Plaintiff’s damages fail to support the claims against Defendant, the Complaint itself was apparently filed after Plaintiff’s dissolution.

Conclusion

Defendants AWI Builders, Inc., Great American Insurance Company and The Hanover Insurance Company’s Motion to Strike the Complaint is CONTINUED TO DECEMBER 9, 2020 AT 10:30AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. AT LEAST 16 COURT DAYS PRIOR TO THE HEARING DATE, DEFENDANTS ARE TO SERVE NOTICE OF THE NEW HEARING DATE AND FILE PROOF OF SERVICE OF THE SAME.

Moving party to give notice.