Doing Business in California: Failing to Obtain a Certificate of Qualification

Doing Business in CaliforniaAs we discussed in our blog last week, a foreign corporation or other business entity transacting business within California must comply with the certification requirements of Corporations Code § 2105 and obtain a Certificate of Qualification.  As set forth in the following list, the consequences for failing to comply with the California Corporations Code (the “Code”) can be harsh.

  • A foreign entity is not permitted to maintain an action or proceeding within California regarding business transacted intrastate until it comes within compliance of the Code.

  • Transacting unauthorized intrastate business is deemed as consenting to the jurisdiction of California courts in any civil action arising in California in which the entity is named as a defendant.

  • The entity may be subject to a per diem (per day) penalty of $20.00 for each day that unauthorized intrastate business is transacted.

  • Prosecution may be brought by the California Attorney General and an additional money penalty may be sought against the entity.

The harsh consequences described above can be avoided by obtaining a Certificate of Qualification.  Under Corporations Code § 2105, in order to obtain that certificate a foreign corporation or other business entity must file a form prescribed by the Secretary of State that is signed by a corporate officer or a trustee stating, among other things:

  • Its name and the state or place of its incorporation or organization.

  • The street address of its principal executive office.

  • The street address of its principal office within California, if any.

  • The name of an agent for service of legal process located within California.

  • Irrevocable consent to service of process directed to it upon the California agent designated

  • Affirmation of compliance with certain insurance requirements, if applicable.

Once the foreign entity makes all appropriate filings and pays the associated filing fees it receives a Certificate of Qualification from the Secretary of State.

The corporation may then maintain or refile a case that had been dismissed because of its non-compliance.  However, and importantly, the corporation must be cognizant of the otherwise applicable statute of limitations and refile promptly if necessary.  If refiling an action that had previously been dismissed, the entity must file receipts and evidence of compliance (such as the Certificate of Qualification) with the clerk of the court.

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