Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This case arises from an attorney fee dispute.  Plaintiff Reza Safaie entered into an agreement with Defendants Law Offices of Rafi Moghadam APC and Rafi Moghadam to serve as a third party payor of attorneys’ fees of Defendants’ client, Fair Ocean Management LLC.  (Compl. ¶9.)   

Defendants submitted invoices which Plaintiff refused to pay as Plaintiff claims the services and expenses were “unconscionable and unreasonable.”  (Id. ¶10.)  Plaintiff told Defendants he no longer desired to serve as the third party payor for Defendants’ client.  (Id. ¶11.)   

Defendants advised Plaintiff that he did not have the legal right to terminate or cancel the third party payor agreement, nor did he have the right to contest or dispute any of the billing.  (Id. ¶¶ 12-13.)  Defendants also told Plaintiff that once the case was over, Defendants would seek attorneys’ fees and if the Court awarded Defendants’ fees, Defendants would be willing to negotiate Plaintiff’s liability associated with the third party payor agreement.  (Id. ¶17.)   

Plaintiff contends this advice converted Defendants’ relationship with him into one of attorney and client.  (Id. ¶23.)  Plaintiff also claims Defendants’ “advice” was both malpractice and fraud.  (Id. ¶¶ 33, 51.)   

Based on these allegations, Plaintiff alleges six claims for (1) legal malpractice, (2) breach of fiduciary duty, (3) constructive fraud, (4) intentional fraud, (5) breach of implied covenant of good faith and fair dealing, and (6) negligence.   

This hearing is on Defendant’s motion to strike the complaint.  Defendant moves to strike Plaintiff’s prayer for damages because it fails to state the amount of damages, and prayer for attorneys’ fees because there is no legal basis for the award of such fees.   

LEGAL STANDARD 

The court may, upon 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, subd. (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, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc. § 437.) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy¿(1976) 18 Cal.3d 335, 348.)¿ The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  

MEET AND CONFER 

Code Civ. Proc. § 435.5 requires that before the filing of a motion to strike, 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 whether an agreement can be reached that would resolve the objections to be raised in the motion to strike.  (Code Civ. Proc. § 435.5(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. § 435.5(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. §435.5(a)(3).)  Defendants submit the Declaration of Rafi Moghadam which attests defense counsel made several attempts to meet and confer by telephone with Plaintiff’s counsel, but Plaintiff’s counsel was either in trial or failed to respond.  This satisfies the meet and confer requirements of § 435.5.  

DISCUSSION 

Plaintiff argues that Defendants’ motion to strike is untimely.  Defendant Rafi Moghadam was personally served with the summons and complaint on March 1, 2024, and his law firm was personally served on March 6, 2024.  The 30 day deadline to respond expired on April 1, 2024 and April 5, 2024 respectively.  However, Defendants filed a declaration for an automatic extension of 30 days.  Accordingly, their response deadline was extended to May 1, 2024 and May 6, 2024.  Defendants filed their motion to strike on May 2, 2024.  While one of the Defendants’ motion is one day late, the other Defendant’s motion is timely.  Given the limited delay, the Court will consider both Defendants’ motions on their merits.  (CPF Agency Corp. v. R&S Towing (2005) 132 Cal.App.4th 1014, 1020-1021 (court has discretion to rule on late-filed motion to strike).)        

Plaintiff also argues Defendants waived their right to move to strike because they filed an answer.  Plaintiff cites no authority for this argument.  Its authorities stand for the proposition that a defendant cannot move to strike after it has filed an answer.  Here, Defendants filed their motion to strike at the same time as their answer.  In any event, the court has the discretion to consider the merits of the motion under the court’s inherent authority to strike improper matter from pleadings at any time.  (Code Civ. Proc. § 436(a);¿CPF Agency Corp., 132 Cal.App.4th at 1021.)¿ 

The Court now turns to the merits of the motion.   Defendants argue that Plaintiff’s prayer for money damages does not specify the amount of damages and is therefore invalid.  The Court agrees.   

In non-personal injury cases, such as this one, “[i]f the recovery of money or damages is demanded, the amount demanded shall be stated.” (Code Civ. Proc. § 425.10(a)(2).)  “Section 425.10 requires all complaints to state the amount of damages sought, except in personal injury or wrongful death cases.”  (Electronic Funds Solutions v. Murphy (2005) 134 Cal.App.4th 1161, 1176.)  

The purpose of this rule is to place the defendants on notice of the maximum liability confronting them. (Id.)  The rule “aids a defendant in evaluating the validity of plaintiff’s damage claims with regard to their provability.”  (Plotitsa v. Superior Court (1983) 140 Cal.App.3d 755, 761.)   

Here, the Complaint alleges various monetary damages but specifies none. (See Compl. at 6:6-8, 7:10-11, 8:2-3, 8:20-21, 9:15-16, 10:6-7, 10:18-19, 11:4, 11:5, 11:6, 11:7, 11:9.)  The phrase “in an amount to be proven at time of trial” is not Code-compliant.  Because this action is not a personal injury or wrongful death suit, Plaintiff is required to specify the amount of damages.  (See Code Civ. Proc. § 425.10(b).)  Accordingly, Plaintiff’s prayer for unspecified money damages is defective and must be stricken. 

Plaintiff argues he has alleged he suffered “actual harm”, and Defendants should simply resort to discovery to quantify that harm.  The availability of discovery does not contravene the Code’s specific command that Plaintiff state “the amount of damages demanded” by his Complaint.  Were it otherwise, every plaintiff could simply point to discovery and refuse to state “the amount demanded” in his complaint, rendering the requirements of § 425.10 meaningless.   

Defendants also argue that Plaintiff has not stated a basis for his claim for attorneys’ fees.  Again, the Court agrees.   

California generally follows what is commonly referred to as the “American Rule” which provides that each party to a lawsuit must ordinarily pay his or her own¿attorneys’ fees.  (See, e.g.,¿Trope v. Katz¿(1995) 11 Cal.4th 274, 278.)  The¿American Rule is codified in¿Code Civ. Proc. §1021, which states in¿relevant part:¿ “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 … .”¿ 

Here, the Complaint does not specify a statutory or contractual basis for Plaintiff’s prayer for attorney’s fees.  Without a statutory or contractual basis, Plaintiff cannot recover any attorney’s fees in the present case. (Code Civ. Proc. §§ 1021, 1033.5(a)(10); Trope, 11 Cal.4th at 278–279 (“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”.).) 

In Opposition, Plaintiff argues he is entitled to attorneys’ fees under Code Civ. Proc. § 1021.5, the private attorney general statute.  “[A]n award under [section 1021.5]¿requires a showing that (1) the litigation enforced an important right affecting the public interest; (2) it conferred a significant benefit on the general public or a large class of persons; and (3) the necessity and financial burden of private enforcement (or enforcement by one public entity against another) were such as to make the award appropriate.¿[Citation.] Since the statute states the criteria in the conjunctive, each element must be satisfied to justify a fee award. [Citation.] … [¶] The third element, the necessity and financial burden requirement, involves two issues: ‘whether private enforcement was necessary and whether the financial burden of private enforcement warrants subsidizing the successful party’s attorneys.’ [Citation.]” (Children & Families Com. of Fresno County v. Brown¿(2014) 228 Cal.App.4th 45, 55.)  The Complaint fails to allege any of these essential elements.   

More importantly, Plaintiff is seeking to vindicate a personal right.  “When … the primary effect of a lawsuit [is] to advance or vindicate a plaintiff’s personal economic interests …. fees under section 1021.5 is improper.”  (Flannery v. Cal. Highway Patrol (1998) 61 Cal.App.4th 629, 635.)  “Section 1021.5¿was not designed as a method for rewarding litigants motivated by their own pecuniary interests who only coincidentally protect the public interest.”  (Beach Colony II v. California Coastal Com. (1985) 166 Cal. App. 3d 106, 114.)  “Instead, its purpose is to provide some incentive for the plaintiff who acts as a true private attorney general, prosecuting a lawsuit that enforces an important public right and confers a significant benefit, despite the fact that his or her own financial stake in the outcome would not by itself constitute an adequate incentive to litigate.” (Satrap v. Pacific Gas & Electric Co. (1996) 42 Cal. App. 4th 72, 80.)  Here, Plaintiff’s malpractice suit seeks recovery for Plaintiff’s personal economic interests, and not to vindicate an important public right.   

Accordingly, the Court grants the motion to strike Plaintiff’s prayer for attorneys’ fees. 

CONCLUSION 

Based on the foregoing, the Court GRANTS Defendants’ motion to strike Plaintiff’s prayer for unspecified damages with 20 days’ leave to amend and Plaintiff’s prayer for attorneys’ fees without leave to amend.    

 

IT IS SO ORDERED. 

 

DATED:  July 9, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court