Judge: Ashfaq G. Chowdhury, Case: 24NNCV01386, Date: 2025-02-27 Tentative Ruling

Case Number: 24NNCV01386    Hearing Date: February 27, 2025    Dept: E

Hearing Date: 2/27/2025 – 8:30am
Case No: 24NNCV01386
Trial Date: UNSET
Case Name: JOSEPH S. KUBEL, a minor individual by and through his Guardian ad Litem, JESSICA KUBEL v. MONROVIA UNIFIED SCHOOL DISTRICT, a California government entity; and DOES 1-50

TENTATIVE RULING ON DEMURRER & MOTION TO STRIKE

RELIEF REQUESTED

Defendant, Monrovia Unified School District, demurs to the FAC, generally and specially, on the following grounds:

The Defendant generally demurs to the entire FAC on grounds that the FAC fails to state facts sufficient to constitute a cause of action against MUSD in that the FAC shows on its face that any cause of action against MUSD is barred due to Plaintiff’s failure to comply with the statute of limitations for commencing suit against a Public Entity as required by Government Code § 911.2(a) as well as failing to comply with statutory requirements for filing a late claim required by Government Code §§ 911.4(a), 911.4(b), and 946.6(b). (Cal. Code Civ. Proc. § 430.10(e).)

Defendant demurs to the FAC’s first, second, third, and fourth causes of action on the grounds that Plaintiff has failed to plead sufficient facts to maintain this cause of action. (Cal. Code Civ. Proc. § 430.10(e).) “[T]o state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity.” (Lopez v. Southern Cal. Rapid Transit Dist., 40 Cal. 3d 780, 795, citing: Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal. App. 3d 814, 819.) Plaintiff’s FAC fails to state every fact material to the existence of MUSD’s government tort liability and thus fails to state facts sufficient to maintain this cause of action.

This demurrer is based upon California Code of Civil Procedure §§ 430.10, 430.30, 430.50 – 430.70, this notice, the attached memorandum of points and authorities, the Declaration of Rachel A. Mihai, Esq., the records and pleadings on file herein, and upon such other and further oral and documentary evidence as may be presented at the hearing on this matter.

PROCEDURAL

Moving Party: Defendant, Monrovia Unified School District (Defendant, Movant, or MUSD)

Responding Party: Plaintiff, Joseph Kubel, a minor by and through his Guardian ad Litem, Jessica Kubel

Moving Papers: Demurrer; Rachel A. Mihai Declaration; Request for Judicial Notice; Proposed Order

Opposing Papers: Opposition; Objection to Request for Judicial Notice

Reply Papers: Reply; Rachel Mihai Declaration; Reply to Objection to Request for Judicial Notice

PROCEDURAL
Meet and Confer
A party filing a demurrer “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) “The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., § 430.41, subd. (a)(2).)

Failure to sufficiently meet and confer is not grounds to overrule or sustain a demurrer. (CCP § 430.41(a)(4).)

Defendant’s counsel met and conferred. (Mihai Decl. ¶¶ 9-10.)

LEGAL STANDARDS FOR DEMURRERS
Demurrer – Sufficiency
A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda, (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….”  (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.  (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters; therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.  (Code Civ. Proc., §§ 430.30, 430.70.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.) 

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading … is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) 

On demurrer, a trial court has an independent duty to “determine whether or not the … complaint alleges facts sufficient to state a cause of action under any legal theory.”  (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734.) Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)  “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.”  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

Demurrer – Uncertainty
A special demurrer for uncertainty, CCP section 430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

ANALYSIS
This matter arises from an incident that occurred on April 20, 2023, at Monrovia High School, a public school operated by Defendant, Monrovia Unified School District (MUSD).  Plaintiff, a 14-year-old freshman at the time of the alleged incident, alleges that weights in the weight room were improperly secured, resulting in a 60-pound dumbbell crushing his right ring finger and amputating the tip at the distal phalanx. (See Compl. ¶ 33.)

Plaintiff filed the original Complaint on 5/6/2024.

Plaintiff filed the First Amended Complaint (FAC) on 1/14/2025.

Tort Claims Act
Defendant demurs to the entire FAC on the grounds that the action is barred due to Plaintiff’s failure to comply with the statute of limitations for commencing suit against a public entity as required by Government Code  § 911.2(a) as well as failing to comply with statutory requirements for filing a late claim required by Government Code §§ 911.4(a), 911.4(b), and 946.6(b).

Preliminary

Suits for money or damages against a public entity are regulated by statutes contained in division 3.6 of the Government Code, commonly referred to as the Government Claims Act. (DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 989.)

Section 945.4 of the California Government Code provides that no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented until a written claim has been presented to the public entity and has been rejected in whole or in part. (Dilts v. Cantua Elementary School Dist. (1987) 189 Cal.App.3d 27, 31.) Presentation of a claim, when required by law, is a mandatory prerequisite to maintenance of any cause of action against a public entity. (Dilts, supra, 189 Cal.App.3d at 31 citing State of California ex rel. Dept. of Transportation v. Superior Court (1984) 159 Cal.App.3d 331, 334.) In those circumstances in which a claim must be presented, the plaintiff must allege compliance or circumstances excusing compliance, or the complaint is subject to general demurrer. (Dilts, supra, 189 Cal.App.3d at 31 citing Snipes v. City of Bakersfield (1983) 145 Cal.App.3d 861, 865.)

As a preliminary matter, Plaintiff’s FAC refers to Exhibit A in ¶ 2 of the FAC. Plaintiff’s FAC alleges that Exhibit A is a notice of claim pursuant to the Government Claims Act, and Plaintiff alleges that it was rejected by the County of Los Angeles. The Court points this out because Exhibit A does not appear to be at issue for this demurrer. It appears that Exhibit A was a notice of claim that was improperly filed with the County of Los Angeles, who is not a Defendant in this action. Both parties’ moving, opposing, and reply papers appear to impliedly ignore Exhibit A, presumably because both parties realize the notice of claim and rejection in Exhibit A were improperly filed against the wrong Defendant, and thus not at issue in this case. Likewise, this Court will ignore Exhibit A referenced in the FAC for purposes of this hearing.

Exhibit B

Section 911.2 governs suits against public entities. (Dixon v. City of Turlock (1990) 219 Cal.App.3d 907, 909-10.) In relevant part of 911.2, “A claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action.” (Gov. Code § 911.2(a).)

Failure to timely present a claim for money or damages to a public entity bars a plaintiff from filing a lawsuit against that entity. (Olson v. Manhattan Beach Unified School Dist. (2017) 17 Cal. App.5th 1052, 1060 citing City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 738.)

Attached to the FAC is Exhibit B.

Exhibit B attached to the FAC is a letter dated June, 8, 2023 that was allegedly emailed and mailed to Defendant on June 9, 2023.

With respect to the letter contained in Exhibit B, the issue is not whether or not it was presented within six months of the accrual of the cause of action, because June 2023 is clearly within six months of when this action accrued on April 20, 2023 (when Plaintiff was allegedly injured).

The dispute with respect to Exhibit B is whether or not it should be considered a “claim” for purposes of the Government Claims Act.

Defendant argues that the June 8, 2023 letter should not be considered a “claim” for purposes of the government claims act because it is a boilerplate retention and preservation of evidence letter that is not substantially compliant with the Government Claims Act.

Plaintiff argues that the June 8, 2023 preservation of evidence letter is considered a “claim” under the Government Claims Act because it is substantially compliant with the Government Claims Act.

Substantial Compliance
The primary function of the Tort Claims Act is to apprise the governmental body of imminent legal action so that it may investigate and evaluate the claim and where appropriate avoid litigation by settling meritorious claims. (Dilts v. Cantua Elementary School Dist. (1987) 189 Cal.App.3d 27, 32.) Compliance with the claims statute is mandatory and failure to file a claim is fatal to a cause of action. (Id.) The fact that a public entity has full knowledge of the claim and related circumstances is not sufficient to excuse noncompliance. (Id.) However, the act should not be applied to snare the unwary where its purposes have been satisfied. (Id. at 33.) Consequently, courts employ the test of substantial compliance rather than strict compliance in deciding whether a plaintiff has met the requirements of the Act. (Id. at 33.)

“Under the doctrine of substantial compliance the court may conclude a claim is valid if it substantially complies with all of the statutory requirements for [a] valid claim even though it is technically deficient in one or more particulars.” (Olson v. Manhattan Beach Unified School Dist. (2017) 17 Cal. App.5th 1052, 1060 quoting Santee v. Santa Clara County Office of Education (1990) 220 Cal.App.3d 702, 713.)

The doctrine of substantial compliance is normally raised where a timely but deficient claim has been presented to the public entity. (Olson v. Manhattan Beach Unified School Dist. (2017) 17 Cal. App.5th 1052, 1060 quoting Santee v. Santa Clara County Office of Education (1990) 220 Cal.App.3d 702, 713.)

Government Code § 910 enumerates the information that must be included in a government claim. (Olson v. Manhattan Beach Unified School Dist. (2017) 17 Cal. App.5th 1052, 1060.)

Under Gov. Code § 910:

A claim shall be presented by the claimant or by a person acting on his or her behalf and shall show all of the following:

(a) The name and post office address of the claimant.

(b) The post office address to which the person presenting the claim desires notices to be sent.

(c) The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted.

(d) A general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim.

(e) The name or names of the public employee or employees causing the injury, damage, or loss, if known.

(f) The amount claimed if it totals less than ten thousand dollars ($10,000) as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. If the amount claimed exceeds ten thousand dollars ($10,000), no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case.

(Gov. Code § 910(a)-(f).)

Further, as explained in Dilts:

The test for the sufficiency of a particular claim is set forth in City of San Jose v. Superior Court, supra., at pages 456-457: “[W]e conclude that to gauge the sufficiency of a particular claim, two tests shall be applied: Is there some compliance with all of the statutory requirements; and, if so, is this compliance sufficient to constitute substantial compliance?” 

(Dilts v. Cantua Elementary School Dist. (1987) 189 Cal.App.3d 27, 33.)

Here, Plaintiff’s letter contained in Exhibit B to the FAC is not substantially compliant because there is not some compliance with all of the statutory requirements of Gov. Code § 910.

In particular, Plaintiff’s June 8, 2023 letter does not show any compliance with § 910(f).

Further, Plaintiff does not indicate the address of the claimant under § 910(a). Further, with respect to 910(d), the letter does not indicate what exactly the claim is seeking. The letter references the injury that occurred on 4/20/2023; however, it is entirely unclear if this letter is even asserting a claim for damages or loss, as the crux of what the letter demands is a preservation of the evidence on the date of the injury.

Therefore, to the extent that Plaintiff’s FAC relies on Exhibit B for its claim presentation requirement, Exhibit B does not appear to be substantially compliant, thus Exhibit B does not allow Plaintiff to proceed in this action.

Exhibit C

Attached to the FAC at Exhibit C is a claim for damages that is dated 4/11/2024 that is on Monrovia Unified School District’s official form for Claim For Damages to Person Or Property.

Defendant argues that the claim in Exhibit C is not compliant with the six-month claim presentation requirement under § 911.2.

In relevant part of § 911.2, “A claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action.” (Gov. Code § 911.2(a).)

Here, it is clear that the 4/11/2024 claim for damages was not presented within six months of the accrual of the cause of action because the alleged injury occurred on 4/20/2023.

Therefore, Defendant is correct to note that Plaintiff’s claim in Exhibit C is untimely under § 911.2.

Further, Defendant is correct to note that Plaintiff did not file an application to present a late claim under § 911.4.

“When a claim that is required by Section 911.2 to be presented not later than six months after the accrual of the cause of action is not presented within that time, a written application may be made to the public entity for leave to present that claim.” (Gov. Code § 911.4(a).)

However, despite Plaintiff’s 4/11/2024 claim being untimely under § 911.2, and despite Defendant not filing an application to present a late claim under § 911.4, Plaintiff’s Opposition successfully argues that Defendant waived noncompliance as a defense based on § 911.3(a)-(b).

Under § 911.3:

(a) When a claim that is required by Section 911.2 to be presented not later than six months after accrual of the cause of action is presented after such time without the application provided in Section 911.4, the board or other person designated by it may, at any time within 45 days after the claim is presented, give written notice to the person presenting the claim that the claim was not filed timely and that it is being returned without further action. The notice shall be in substantially the following form:

“The claim you presented to the (insert title of board or officer) on (indicate date) is being returned because it was not presented within six months after the event or occurrence as required by law. See Sections 901 and 911.2 of the Government Code. Because the claim was not presented within the time allowed by law, no action was taken on the claim.

Your only recourse at this time is to apply without delay to (name of public entity) for leave to present a late claim. See Sections 911.4 to 912.2, inclusive, and Section 946.6 of the Government Code. Under some circumstances, leave to present a late claim will be granted. See Section 911.6 of the Government Code.

You may seek the advice of an attorney of your choice in connection with this matter. If you desire to consult an attorney, you should do so immediately.”

(b) Any defense as to the time limit for presenting a claim described in subdivision (a) is waived by failure to give the notice set forth in subdivision (a) within 45 days after the claim is presented, except that no notice need be given and no waiver shall result when the claim as presented fails to state either an address to which the person presenting the claim desires notices to be sent or an address of the claimant.

(Gov. Code § 911.3(a)-(b).)

Here, Plaintiff presented the claim (Exhibit C to the FAC; 4/11/2024 claim) well after six months of the accrual of the cause of action and did not apply for the application under § 911.4; thus 911.3(a) is applicable.

Likewise, it appears Defendant waived the time-limit defense based on § 911.3(b) because the claim rejection in Exhibit C to the FAC does not indicate that the claim is being rejected because it was not presented within six months. In fact, the claim rejection in Exhibit C indicated that Plaintiff had six months from the date of rejection on 4/18/2024 to file a court action in a Superior Court of the State of California. Plaintiff here thus filed the original Complaint on 5/6/2024, which would be within six months of the rejection on 4/18/2024.

Additionally, Defendant’s argument that Plaintiff did not comply with § 946.6(b) is unavailing because § 946.6(b) pertains to an application for leave to present a claim, and Plaintiff did not file such an application.

Here, although Plaintiff did not comply with the six-month requirement of § 911.2, Defendant waived its timeliness argument as a defense under §§ 911.3(a)-(b) because Defendant’s notice of rejection of claim on 4/18/2024 was not compliant under § 911.3(a).

As explained in Dixon v. City of Turlock:

Section 911.3 sets forth the notice procedure the public entity must follow when it determines that a claim has not been timely filed. Prior to the Legislature's adoption of section 911.3, the public entity was not required to specify the reason for rejection when the claim was returned as untimely. (See Dujardin v. Ventura County Gen. Hosp. (1977) 69 Cal.App.3d 350, 360 [138 Cal.Rptr. 20]; McLaughlin v. Superior Court (1972) 29 Cal.App.3d 35, 38-39 [105 Cal.Rptr. 384].) In those cases, the claimant was misled as to the available remedy when the public entity returned the claim as “rejected” while in fact it was returned as untimely.

The purpose of the section 911.3 notice is to assure that the claimant distinguishes between a claim rejected on its merits and one returned as untimely. Thus, the claimant is informed as to which procedure to pursue. (Rason v. Santa Barbara City Housing Authority (1988) 201 Cal.App.3d 817, 830 [247 Cal.Rptr. 492].)

(Dixon v. City of Turlock (1990) 219 Cal.App.3d 907, 911.)

Overall
Therefore, Defendant’s argument – that the demurrer to the entire FAC should be sustained because Plaintiff did not comply with the statute of limitations for commencing suit against a Public Entity as required by Government Code § 911.2(a) as well as failing to comply with statutory requirements for filing a late claim required by Government Code §§ 911.4(a), 911.4(b), and 946.6(b) – is unavailing.

First Cause of Action – Premises Liability

Defendant demurs to Plaintiff’s first cause of action for premises liability. In relevant part, Defendant argues that Plaintiff fails to allege the elements of Gov. Code § 835.

Section 835 sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property. (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829.)

Under Gov. Code § 835:

Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

(Gov. Code § 835.)

Here, the Court fails to see how the FAC alleges “that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred.”

Further, in Plaintiff’s Opposition, Plaintiff did not address all the elements of Gov. Code § 835.

TENTATIVE RULING FIRST CAUSE OF ACTION
Defendant’s demurrer to the first cause of action in the FAC is SUSTAINED. Leave to amend is GRANTED.

TENTATIVE RULING SECOND CAUSE OF ACTION – NEGLIGENCE
Defendant argues that Plaintiff fails to allege any statute that would impose a mandatory duty upon MUSD. Defendant’s argument appears meritless.

Plaintiff’s FAC cites to §§ 815.2, 815.6, and 820. “Under section 815.2, subdivision (a) of the Government Code, a school district is vicariously liable for injuries proximately caused by such negligence.” (Acosta v. Los Angeles Unified School District (1995) 31 Cal.App.4th 471, 477.)

Defendant’s demurrer to the second cause of action is OVERRULED.

TENTATIVE RULING THIRD CAUSE OF ACTOIN – Negligent Hiring, Supervision, Training, and Retention

Defendant argues that Plaintiff failed to allege a cause of action for negligent hiring, supervision, training, and retention. Just like the second cause of action, Defendant’s arguments are confusing and borderline obfuscatory.

Defendant’s argument appears unavailing in light of C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.5th 861.

Defendant’s demurrer to the third cause of action is OVERRULED.

TENTATIVE RULING FOURTH CAUSE OF ACTION
The fourth cause of action is titled as “Negligent Failure to Warn, Train or Educate.”

Defendant argues that Plaintiff fails to allege any statute which would serve as a basis for Plaintiff’s recovery.

Plaintiff’s Opposition appears to be nonresponsive to Defendant’s argument.

The Court will hear argument.

Request for Judicial Notice
Pursuant to Evid. Code §§ 451, 452, and 453, Defendant requested judicial notice of a screenshot image from MUSD’s Director of Information Technology showing the date and time in which the claim for damages to persons or property form was published on the MUSD’s website.

Defendant’s request for judicial notice is granted.

 TENTATIVE RULING ON MOTION TO STRIKE

Moving Party: Defendant, MUSD

Responding Party: Plaintiff, JOSEPH S. KUBEL, a minor individual by and through his Guardian ad Litem, JESSICA KUBEL

Moving Papers: Notice/Motion; Mihai Declaration; Proposed Order

Opposition Papers: Opposition

Reply Papers: Reply; Mihai Declaration

RELIEF REQUESTED
“Defendant MONROVIA UNIFIED SCHOOL DISTRICT (hereinafter referred to as “Defendant” or “MUSD”) will and hereby do move to strike portions of Plaintiff JOSEPH S. KUBEL’s, a minor individual by and through his Guardian ad Litem, JESSICA KUBEL (hereinafter referred to as “Plaintiff”) First Amended Complaint (“FAC”) pursuant to Code of Civil Procedure §§ 435, 436, 1021, 1033.5(a)(10), and Civil Code section 1717 on the grounds that Plaintiff’s FAC does not meet the requisite pleading requirements to support an award of attorney’s fees. Specifically, Defendant moves to strike the following from Plaintiff’s FAC:

1. Page 19, Line 26, Plaintiff’s prayer for attorney fees, the extent permitted by law, and according to proof.

This Motion is made pursuant to Code of Civil Procedure §§ 435, 436, 1021, 1033.5(a)(10), and Civil Code section 1717 on the grounds that Plaintiff’s FAC does not allege any violation of statute that supports an award for attorneys’ fees nor the existence of any contract controlling same. Therefore, any prayer for attorney fees should be stricken.”

(Def. Mot. p. 1-2.)

PROCEDURAL
Meet and Confer
Before 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 if an agreement can be reached that resolves the objections to be raised in the motion to strike. If an amended pleading is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion to strike the amended pleading. (CCP § 435.5(a).)

“A determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion to strike.” (CCP § 435.5(a)(4).)

Here, Defendant’s counsel met and conferred. (Mihai Decl. ¶¶ 9-10.)

Legal Standard Motion to Strike
The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc. § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc. § 436(b).) A motion to strike cannot be based upon the grounds that a complaint fails to state facts sufficient to constitute a cause of action, but instead is properly based on grounds of superfluous or abusive allegations, or improprieties in form or procedure. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528-29.)   

The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code. Civ. Proc. § 437; Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63 [“judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth”].)   

Further, CCP §431.10(a)-(c) states as follows:

(a) A material allegation in a pleading is one essential to the claim or defense and which could not be stricken from the pleading without leaving it insufficient as to that claim or defense.

(b) An immaterial allegation in a pleading is any of the following:

(1) An allegation that is not essential to the statement of a claim or defense.

(2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense.

(3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.

(c) An “immaterial allegation” means “irrelevant matter” as that term is used in Section 436.

(CCP § 431.10(a)-(c).)

TENTATIVE RULING MOTION TO STRIKE
“Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.” (CCP § 1021.)

“California follows what is commonly referred to as the American rule, which provides that each party to a lawsuit must ordinarily pay his own attorney fees. [Citation.] The Legislature codified the American rule in 1872 when it enacted Code of Civil Procedure section 1021[.]” (Trope v. Katz (1995) 11 Cal.4th 274, 278,)

Defendant argues that Plaintiff’s request for attorney’s fees in the Prayer for Relief of the FAC should be stricken because the FAC does not identify any valid statutory or contractual basis to request attorney’s fees.

In Opposition, Plaintiff argues it can recover attorney’s fees under CCP § 1021.5.

CCP § 1021.5 states:

Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any. With respect to actions involving public entities, this section applies to allowances against, but not in favor of, public entities, and no claim shall be required to be filed therefor, unless one or more successful parties and one or more opposing parties are public entities, in which case no claim shall be required to be filed therefor under Part 3 (commencing with Section 900) of Division 3.6 of Title 1 of the Government Code.

Attorneys’ fees awarded to a public entity pursuant to this section shall not be increased or decreased by a multiplier based upon extrinsic circumstances, as discussed in Serrano v. Priest, 20 Cal. 3d 25, 49.

(CCP § 1021.5.)

Opposition also cites to Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553 to argue that attorney’s fees may be awarded under CCP § 1021.5 in cases that confer a significant benefit on the public or a large class of persons.

The Court notes that Plaintiff provides no explanation as to how Graham is applicable here.

Plaintiff also argues that the motion to strike is premature at this stage in the litigation because if Plaintiff proves his case, § 1021.5 may support an award for attorney’s fees. Plaintiff also argues granting the motion to strike would unfairly prejudice Plaintiff by limiting his full ability to seek full relief for the injuries and damages.

Defendant’s reply argues that CCP § 1021.5 was not designed for personal-injury actions, that § 1021.5 is not a basis for attorney’s fees until “upon motion,” and that there is nothing in the FAC that indicates any important right affecting the public interest.

Further, Defendant’s reply cites to Woodland Hills Residents Assn., Inc. v. City Council:

…[T]he Legislature adopted section 1021.5 as a codification of the “private attorney general” attorney fee doctrine that had been developed in numerous prior judicial decisions. As we explained in Serrano III, the fundamental objective of the private attorney general doctrine of attorney fees is “‘to encourage suits effectuating a strong [public] policy by awarding substantial attorney's fees ... to those who successfully bring such suits and thereby bring about benefits to a broad class of citizens.”’ 

(Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 933.)

Here, the Court will hear argument.