Judge: Barbara M. Scheper, Case: 21STCV27073, Date: 2022-07-29 Tentative Ruling
Case Number: 21STCV27073 Hearing Date: July 29, 2022 Dept: 30
Calendar No.
Erickson vs. Coastline
Real Estate Advisors, Inc., et. al., Case No. 21STCV27073
Tentative Ruling re:
Defendants’ Motion to Strike
Defendants Ming Management, Inc.
and South Bay Highlands, LP (collectively, Defendants) move to strike the
allegations related to attorney’s fees in the Complaint of Plaintiff Amalia
Erickson (Plaintiff). The motion is granted.
Any party may file a timely notice
of a motion to strike the whole or any part of a pleading. (Code Civ. Proc., §
435, subd. (b).) The motion may seek to strike any “irrelevant, false or
improper matter inserted in any pleading” or any part of the 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.) Irrelevant allegations include
allegations that are not essential to the statement of a claim, allegations
that are not pertinent to or supported by the claim and demands for judgment
requesting relief not supported by the allegations. (Code Civ. Proc., § 431.10,
subds. (b), (c).)
“[W]hen a substantive defect is clear from the
face of a complaint, such as a violation of the applicable statute of limitations
or a purported claim of right which is legally invalid, a defendant may attack
that portion of the cause of action by filing a motion to strike.” (PH II,
Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682–1683.)
“[A]s a general rule, attorney fees
are not recoverable as costs unless they are authorized by statute or
agreement.” (People ex rel. Dept. of
Corporations v. Speedee Oil Change Systems, Inc. (2007) 147 Cal.App.4th
424, 429.) “In any action on a
contract, where the contract specifically provides that attorney’s fees and
costs, which are incurred to enforce that contract, shall be awarded either to
one of the parties or to the prevailing party, then the party who is determined
to be the party prevailing on the contract, whether he or she is the party
specified in the contract or not, shall be entitled to reasonable attorney’s
fees in addition to other costs.” (Civ. Code § 1717, subd. (a).)
In the Complaint, Plaintiff seeks
recovery of attorney’s fees under her cause of action for negligence. (Comp. ¶
43, Prayer 5.) Plaintiff’s claim arises out of allegations that Defendants knew
of unsafe conditions in the apartment unit that she rented from Defendants and
negligently failed to maintain the unit. (Comp. ¶¶ 38-42.)
Plaintiff has attached to the Complaint photographs of the written lease
agreement for the apartment unit (the Agreement). (Comp. ¶ 17, Ex. A.) Section
17 of the Agreement reads as follows:
Legal
Fees: In the event of any legal
action taken by Owner arising out of this Agreement, Resident shall pay
reasonable attorney’s fees and costs in addition to all other relief. If legal
action is commenced for nonpayment of rent and Owner agrees to accept rent at
any point during the action, Resident is responsible and must also pay
attorney’s fees, costs accrued to date in order to reinstate tenancy.
(Comp. Ex. A.)
Plaintiff seeks recovery of attorney’s fees based on the reciprocal
application of this section. (Civ.
Code § 1717, subd. (a).)
In the picture of the Agreement attached to
the Complaint, there is an “X” pencil-marked across Section 17. (Comp. Ex. A.)
Defendants argue based on this “X” that Section 17 should not be considered
part of the Agreement. The Court agrees.
While the Complaint must be construed liberally, “[w]here a written instrument is unambiguous and
incorporated by reference into a complaint, any allegations in the pleading
inconsistent with the incorporated writing may be stricken.” (Nichols v. Canoga Industries
(1978) 83 Cal.App.3d 956, 965.) Here, the alteration to Section 17 of the
Agreement appears on the face of the incorporated exhibit and contradicts
Plaintiff’s request for attorney’s fees. Because the alteration is unambiguous
and no allegations account for the alteration, contrary to Plaintiff’s
suggestion in the Opposition, the Court cannot presume here that the “X” was made
after the Agreement’s execution or without Plaintiff’s consent. (See Evid. Code
§ 1402 [“The party producing a writing as genuine which has been altered, or
appears to have been altered, after its execution, in a part material to the
question in dispute, must account for the alteration or appearance thereof”].)
The motion to strike is granted without
prejudice to Plaintiff seeking leave to amend to include a request for
attorney’s fees if facts are developed during discovery which would support
such a request.