Judge: Elaine Lu, Case: 22STCV12361, Date: 2023-04-17 Tentative Ruling

Case Number: 22STCV12361    Hearing Date: April 17, 2023    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

On April 12, 2022, Plaintiff Yehuda Fulda (“Plaintiff”) filed the instant legal malpractice action against Defendant Donna Boris dba Boris and Associates (“Defendant”).  On October 20, 2022, Plaintiff filed the operative First Amended Complaint (“FAC”) against Defendant asserting six causes of action for (1) Breach of Contract, (2) Legal Malpractice, (3) Breach of Fiduciary Duty, (4) Conversion, (5) Breach of Implied Covenant of Good Faith and Fair Dealing, and (6) Promissory Estoppel.

On December 30, 2022, Defendant filed the instant motion to strike portions of the FAC.  On February 1, 2023, Defendant filed a notice of errata.  On March 1, 2023, Plaintiff filed a non-opposition to the motion to strike.  No reply has been filed.

Allegations of the Operative Complaint

The FAC alleges in relevant part that:

            On January 17, 2019, Plaintiff retained Defendant to handle the appeal of Channa Grundman vs. PayPal, Santa Clara Superior Court; Case No.: 17CV311182; Sixth District Court Appeal (H046729).  (FAC ¶ 6.)  “Specifically, Plaintiff sought to obtain appellate review of pleadings, orders or Judgment naming him as a party to the action when in fact he had not been a party or participant in the underlying arbitration which was the subject of the suit.”  (FAC ¶ 6.)

            The agreement with Defendant provided terms for legal services at the rate of $95 per hour, with a $7,500 retainer, and a cap at $15,000. Plaintiff’s payments to Defendant in accordance with the contract exceeded $15,000.00. (FAC ¶ 7.)  Plaintiff repeatedly contacted Defendant about the appeal.  Defendant responded noting delays due to family members in hospice and due to the COVID-19 Pandemic.  (FAC ¶¶ 8-20.) 

            “Defendant failed, despite numerous and constant requests by Plaintiff to communicate, confer, consult, advise and use information from Plaintiff to represent Plaintiff in the matters described. Due to her action and inaction, Plaintiff who was never part of the underlying arbitration proceeding, was arbitrarily joined in a judgment and named as a defendant and made liable for the award $48,484.17.”  (FAC ¶ 21.)  “Defendant never properly filed the . . . Appeal and failed to post the required transcript fees. (Santa Clara Superior Court; Case No.: 17CV311182; Sixth District Court Appeal (H046729)) despite numerous warnings and extensions of time to post fees and file the Brief on Appeal from the Second District Court of Appeal.”  (FAC ¶ 22.) 

Legal Standard

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer (i.e., words, phrases, prayer for damages, etc.).  (See CCP §§ 435-437.)  A party may file a motion to strike in whole or in part within the time allowed to respond to a pleading, however, if a party serves and files a motion to strike without demurring to the complaint, the time to answer is extended.  (CCP §§ 435(b)(1), 435(c).)

A motion to strike lies only where the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws.  (CCP § 436.)  The grounds for moving to strike must appear on the face of the pleadings or by way of judicial notice.  (CCP § 437.)

Meet and Confer Requirement

Code of Civil Procedure section 435.5, subdivision (a) requires that “[b]efore 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 whether an agreement can be reached that would resolve the objections to be raised in the motion to strike.” The parties are to meet and confer at least five days before the date the responsive pleading is due and if they are unable to meet the demurring party shall be granted an automatic 30-day extension.  (Code Civ. Proc., § 435.5(a)(2).)  The moving party must also file and serve a declaration detailing the meet and confer efforts.  (Id.¿at (a)(3).)¿ If an amended pleading is filed, the parties must meet and confer again before a motion to strike may be filed to the amended pleading.  (Id.¿at (a).) 

Here, Defendant has sufficiently met and conferred.  (Boris Decl. ¶ 2.) 

Discussion

            Defendant seeks to strike the amount of punitive damages alleged and the request for attorneys’ fees.

Amount of Punitive Damages

            Pursuant to Civil Code section 3295(e), “[n]o claim for exemplary damages shall state an amount or amounts.” 

            Accordingly, the prayer at page 10 lines 13-14 stating “Plaintiff further demands $5,000,000.00 in punitive damages from defendant” is prohibited by law as the amount of punitive damages cannot be alleged in the complaint.  Therefore, Defendant’s motion to strike the amount of punitive damages alleged is GRANTED.

Attorneys’ Fees

            Attorney’s fees shall only be recoverable as provided for by statute, contract or other law. (CCP §§1021, 1033.5(a)(10).)

            Here, the FAC does not allege any statutory or contractual basis for attorneys’ fees.  Accordingly, Defendant’s motion to strike the prayer for attorneys’ fees.

Leave to Amend

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 plaintiff to show the court that a pleading can be amended successfully. (Goodman v. Kennedy, supra, 18 Cal.3d at p. 348; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) 

Here, Plaintiff concedes in Plaintiff’s non-opposition that Plaintiff has no objection to the motion to strike.  Accordingly, leave to amend is DENIED.

CONCLUSION AND ORDER

            Based on the foregoing, Defendant Donna Boris dba Boris and Associates’ motion to strike is GRANTED WITHOUT LEAVE TO AMEND.

            The First Amended Complaint is stricken at:

1.       “Plaintiff further alleges $5,000,000.00 in punitive damages from defendant ...” (FAC, p. 10, lines 16-18)

2.      “and reasonable attorneys’ fees ...” (FAC, p. 10, line 19)

            Defendant is to file an answer to the First Amended Complaint within thirty (30) days of this order – by May 17, 2023.

            The case management conference is continued to May 22, 2023 at 8:30 am.

            Moving Party is to give notice and file proof of service of such.

DATED:  April 17, 2023                                                        _____________________________

                                                                                                  Elaine Lu

                                                                                                  Judge of the Superior Court