Seigel v. Superior Court

Filed 4/10/06 Seigel v. Superior Court CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

ORIGINAL PROCEEDING in mandate. Ralph W. Dau, Judge. Petition granted.

Collins, Collins, Muir & Stewart, John J. Collins and Douglas Fee for Petitioner.

No appearance for Respondent or Real Party in Interest.

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INTRODUCTION

Petitioner, the defendant in a legal malpractice action, challenges an order denying his motion for summary judgment and also denying his motion to compel further responses to special interrogatories. We reject petitioner's challenge to the summary judgment order but direct the trial court to vacate part of its order as to petitioner's discovery motion.

FACTUAL AND PROCEDURAL BACKGROUND

According to the record before us, Mercantile Investment Advisors, Inc. (MIA), a Nevada corporation engaged in the business of consulting, sued its former attorney, Benjamin S. Seigel, for legal malpractice in connection with the drafting of an assignment.

Seigel moved for summary judgment on the basis that MIA lacked capacity to maintain the action because it was a corporation doing business in California, failed to pay franchise taxes, and thus its powers were forfeited under section 23301 of the Revenue and Taxation Code. The trial court denied Seigel's motion because he failed to meet his initial burden of producing evidence that MIA's corporate powers and rights were actually suspended or forfeited. (See Rev. & Tax. Code, § 23302.)^[1] The court also ruled Seigel had failed to demonstrate â€