Filed 4/19/17 Duckworth v. Wright CA3
NOT TO BE PUBLISHED


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Mono)
----




DAVID G. DUCKWORTH et al.,

Plaintiffs and Appellants,

v.

JEREMY WRIGHT et al.,

Defendants and Respondents.


C076720

(Super. Ct. No. CV120032)







David G. and Cathaleen Duckworth sued Jeremy Wright (Wright) and JP Wright Construction, Inc. (the corporation) for negligence, strict liability, and breach of warranty. The Duckworths now challenge the trial court’s order striking the corporation from the complaint. We will reverse the trial court’s order.
BACKGROUND
The following allegations are asserted in the complaint.
Wright is a licensed general contractor whose contractor’s license was reissued to the corporation on November 5, 2010. Wright is the sole shareholder and officer of the corporation, and the corporation is the successor in interest to the rights and obligations of Wright.
Wright entered into a written agreement in 2006 to build a house in accordance with certain construction plans and specifications. A certificate of occupancy for the house was issued in October 2007 and the Duckworths purchased the house in November 2010. The Duckworths also received by assignment all rights and benefits under the agreement, including all warranties. Eventually latent defects and deficiencies in the property became evident, caused by work that did not comply with the architectural plans and specifications.
The Duckworths sued Wright and the corporation for negligence, strict liability, and breach of warranty. Wright and the corporation, represented by the Law Offices of Frederick G. Wood, filed an answer to the complaint. Although there is no withdrawal of counsel in the record on appeal, Wright subsequently filed in pro per a motion to strike the corporation as a defendant in the case, arguing the corporation could not be liable under the contract he executed and for the work he performed as a sole proprietor. The Duckworths opposed the motion, arguing among other things that the motion was improper because it was filed by a non-attorney on behalf of a corporation. The trial court denied the motion without prejudice, directing the corporation to appear through an attorney but permitting the corporation to refile the motion after it had consulted with counsel. The trial court vacated the trial date and continued the matter for further hearing on a motion to be filed by the corporation.
There is no indication in the record on appeal that the corporation filed a new motion or a substitution of counsel. However, Gerald McNally with McNally & Associates, P.C. represented the corporation at a subsequent hearing on the motion to strike. The trial court granted the motion to strike the corporation, concluding the corporation is not a proper defendant. The trial court noted the complaint against Wright was stayed pursuant to his bankruptcy petition, but Wright states on appeal that the bankruptcy court discharged his debts.
DISCUSSION
Among other things, the Duckworths argue the trial court order is void because (1) Code of Civil Procedure section 436 does not authorize a motion to strike a defendant from a complaint; (2) Wright filed the motion to strike in pro per on behalf of the corporation; and (3) a motion to strike is not the proper vehicle to summarily adjudicate a claim, particularly when Wright waited over a year and a half to file the motion.
Wright and the corporation respond that the trial court allowed the corporation to appear and argue the motion, thereby ratifying it. Wright says regardless of the title of the motion, the corporation is not a proper defendant in this case.
We asked the parties to submit supplemental letter briefs regarding the validity and appealabilty of the trial court’s order. The Duckworths submitted the requested supplemental letter brief, but Wright and the corporation did not.
Wright titled his motion as a motion to strike, and it has been referenced as a motion to strike throughout the case, including on appeal. A motion to strike is generally used to reach defects in a pleading that are not subject to demurrer. (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146; Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 342 (Pierson); §§ 435, subd. (b)(1), 436, subd. (b); Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528 (Ferraro).) It is not used to attack a complaint for insufficiency of allegations, as that is a ground for general demurrer. (Pierson, supra, 216 Cal.App.3d at p. 342; Ferraro, supra, 161 Cal.App.4th at p. 529.)
A motion to strike pursuant to section 435 must be brought within the time allowed to respond to a pleading; in this case, it had to be brought within 30 days after service of the summons on the corporation. (§§ 412.20, subd. (a)(3), 435, subd. (b)(1).) But here, the motion to strike was filed more than 30 days after the corporation was served with the summons, and after Wright and the corporation filed their answer to the complaint.
Under the circumstances, the trial court’s order is appealable but void and we must reverse it. (Wilson v. Sharp (1954) 42 Cal.2d 675, 677 [order granting motion to strike which leaves no issues to be determined between plaintiff and moving defendant is appealable as a final judgment]; People v. Alanis (2008) 158 Cal.App.4th 1467, 1476-1477 [an appeal lies from a final judgment of conviction even though the judgment is void; the proper procedure is to reverse the void judgment rather than dismiss the appeal]; Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907 [“A party may appeal from a purportedly void judgment in order to clear the record.”]; In re Marriage of Micalizio (1988) 199 Cal.App.3d 662, 670, fn. 2 [“A judgment is appealable, even though void.”]; Adohr Milk Farms, Inc. v. Love (1967) 255 Cal.App.2d 366, 370-372 [minute order granting motion to strike is void where motion was brought after the defendant answered the complaint]; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 93, p. 156 [the correct procedure is to reverse the void judgment]; but see Ferraro, supra, 161 Cal.App.4th at p. 527, fn. 13 [order granting a motion to strike is not itself appealable; the correct procedure was to follow the order with a judgment of dismissal and appeal from that judgment].)
DISPOSITION
The order granting the motion to strike the corporation from the complaint is reversed and the trial court is directed to enter a new order denying the motion. The Duckworths shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)



/S/
MAURO, Acting P. J.



We concur:



/S/
DUARTE, J.



/S/
HOCH, J.