Judge: Daniel M. Crowley, Case: 23STCV00634, Date: 2023-08-04 Tentative Ruling

Case Number: 23STCV00634    Hearing Date: August 4, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT
71

TENTATIVE RULING

Defendant
Center for Family & Health Education’s motion to strike Plaintiff Technology
Insurance Company’s claims for attorneys’ fees in its complaint is granted without
leave to amend.

Defendant Center for Family & Health Education (“CFFHAE”) (“Defendant”)
moves to strike portions of Plaintiff Technology Insurance Company’s (“TIC”)
(“Plaintiff”) complaint (“Complaint”), specifically the prayer for attorneys’
fees on the ground the Complaint fails to set forth a claim for attorney’s fees
including any allegations supporting such a prayer.  (Notice of Motion, pg. 2; C.C.P. §§436, 437.)  

Defendant filed the instant motion on February 27, 2023.  Plaintiff filed its opposition on March 25,
2023.  Defendant filed its reply on July
21, 2023.

Request for Judicial Notice

Defendant’s 2/27/23 request for judicial notice of Insurance
policy number TWC3835689 issued by Plaintiff alleged in the Complaint is
granted.  (Decl. of Gagnon, Exh. A.)

Motion to Strike

Legal Standard

C.C.P. §436 provides that the Court may, upon a motion made
pursuant to C.C.P. §435, or at any time within its discretion and upon terms it
deems proper, “strike out any irrelevant, false, or improper matter inserted in
any pleading.”  (C.C.P. §436(a).)

Summary of Motion

Defendant moves to strike the following prayers for relief from
the Complaint: Prayer ¶2.

Attorneys’ Fees

Under
California law, absent a statutory basis, an agreement between the parties, or
certain equitable exceptions a party may not recover attorneys’ fees. (C.C.P.
§1021; Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244,
1248; see also Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th
1582, 1601 [“Unless a contract or statute provides otherwise, each party to a
lawsuit must pay its own attorney fees.”].)

C.C.P.
§1033.5 provides that attorney’s fees are recoverable as costs by a prevailing
party, under C.C.P. §1032, only when authorized by contract, statute, or law.  (C.C.P. §1033.5(a)(10).) Civil Code §1717
provides that parties to an action on contract may recover attorney’s fees when
the contract between the parties specifically provides for such fees and costs
to be awarded. Thus, attorney’s fees are not recoverable unless specifically
authorized by contract, statute or law, which contract, statute, or law must
necessarily be pled.

Plaintiff’s
Complaint lacks in any allegations underlying its prayer for attorney’s fees as
part of the relief sought for the alleged breach of contract by Defendant.  (See Complaint.)  The Complaint does not plead a contractual
provision or a statute or law authorizing the recovery of its attorney’s fees,
and Plaintiff makes no allegation at all pertaining to attorney’s fees.

Further,
there is no provision in the insurance policy at issue that provides for
attorneys’ fees.  (Decl. of Gagnon ¶3,
Exh. A.)

Accordingly, Defendant’s motion to strike Plaintiff’s request for attorneys’
fees is granted without leave to amend. 

Conclusion

Defendant’s motion to strike is granted without leave to
amend.

Moving Party to give notice.

Dated:  August _____, 2023