Judge: Helen Zukin, Case: 19SMCV01966, Date: 2022-09-06 Tentative Ruling
Case Number: 19SMCV01966 Hearing Date: September 6, 2022 Dept: 207
Background
In 2015, Montalba independently contracted
with Defendant PBS Engineers, Inc. (“PBS”) whereby PBS was to provide
“customary” mechanical, electrical, and plumbing engineering services for the
project.
Plaintiffs’ operative Fourth Amended
Complaint (“FAC”) brings claims against demurring Defendant PBS for: (1)
Professional Negligence; (2) Breach of Contract; (3) Breach of the Implied
Covenant of Good Faith and Fair Dealing; (4) Breach of Implied covenant to
Perform Work in a Good and Competent Manner; (5) Breach of Fiduciary Duty; (6)
Aiding and Abetting Breach of Fiduciary Duty; (7) Aiding and Abetting Fraud and
Deceit; (8) Negligence; and (9) Violation of Business & Professions Code
sections 17200 et seq.
PBS brought prior
demurrers to Plaintiffs’ Second and Third Amended Complaints. The Court
sustained PBS’s demurrers with leave to amend. PBS
now brings this demurer to every cause of action asserted against it in the FAC,
arguing the FAC fails to state sufficient facts to constitute causes of action
under Code Civ. Proc. § 430.10(e). PBS separately moves to strike allegations
in the FAC concerning Plaintiffs’ claim for punitive damages and attorneys’
fees against PBS.
Legal Standards
When considering demurrers, courts read the allegations
liberally and in context. (Wilson v. Transit Authority of City of Sacramento
(1962) 199 Cal.App.2d 716, 720-21.) 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
pleading alone, and not on the evidence or facts alleged.” (E-Fab, Inc. v.
Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such,
the court assumes the truth of the complaint’s properly pleaded or implied
factual allegations. (Id.) However, it does not accept as true deductions,
contentions, or conclusions of law or fact. (Stonehouse Homes LLC v. City of
Sierra Madre (2008) 167 Cal.App.4th 531, 538.)
Motions to strike are used to reach defects or objections to
pleadings which are not challengeable by demurrer (i.e., words, phrases, prayer
for damages, etc.). (C.C.P. §§ 435, 436 & 437.) 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. (C.C.P. § 436.) The grounds for moving
to strike must appear on the face of the pleading or by way of judicial notice.
(C.C.P. § 437.)
Analysis
1. Meet and
Confer Requirement
Before filing a
demurrer or a motion to strike, the demurring or moving party is required to
“meet and confer in person or by telephone” with the party who filed the
pleading demurred to or the pleading subject to the motion to strike for the
purposes of determining whether an agreement can be reached through a filing of
an amended pleading to resolve the objections to be raised in the demurrer.
(C.C.P. §§ 430.41 and 435.5.) Counsel
for PBS has confirmed this requirement has been satisfied. (Ainslie Decl. at ¶
2.)
2. Plaintiffs’ Procedural Objections
As an initial matter, Plaintiffs
ask the Court to overrule PBS’s demurrer in its entirety because PBS’s demurrer
does not contain tables of content or authorities as required by California
Rules of Court rule 3.1113(f).
PBS acknowledges its demurrer should
have included tables of content and authorities under rule 3.1113(f), but
states this failure does not merit a wholesale rejection of its demurrer. The
Court agrees. Plaintiffs extol the virtues of tables of content and authority, which
allow a reader to “more readily locate where a case is cited, and in the
instances where a case is cited multiple times (or for multiple contentions),
it allows counsel to readily identify each of these locations….” (Opposition at
2.) Plaintiffs allege they were prejudiced by the lack of tables in PBS’s
moving papers because they “incurred further legal fees because the document
was not user friendly in the manner required by the Rules of Court….” (Id.)
Plaintiffs have offered no evidence of any such prejudice suffered, and do not
attempt to quantify the additional fees they allege they incurred as a result
of PBS’s failure to include the required tables. The Court in its discretion
finds Plaintiffs’ generalized allegations of prejudice are insufficient to
warrant the wholesale rejection of PBS’s demurrer. Accordingly, the Court declines
Plaintiffs’ request to overrule PBS’s demurrer on this basis.
3. Professional
and General Negligence
The elements for negligence are:
(1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3)
causation; and (4) damage to the plaintiff. (County of Santa Clara v.
Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)
“The elements of a cause of action
for professional negligence are (1) the existence of the duty of the
professional to use such skill, prudence, and diligence as other members of the
profession commonly possess and exercise; (2) breach of that duty; (3) a causal
connection between the negligent conduct and the resulting injury; and (4)
actual loss or damage resulting from the professional negligence.” (Hasso v.
Hapke (2014) 227 Cal.App.4th 107, 153.)
As an initial matter, PBS argues
Plaintiff’s causes of action against it for professional negligence and
ordinary negligence are duplicative. The Court agrees. The California Supreme Court
has determined that with respect to questions of substantive law, there is no
distinction between ordinary negligence and professional negligence because “a
defendant has only one duty, measured by one standard of care, under any given
circumstances.” (Flowers v. Torrance Memorial Hospital Medical Center
(1994) 8 Cal.4th 992, 1000.) “[A] plaintiff cannot, on the same facts, state
causes of action for ordinary negligence as well as professional negligence, as
a defendant has only one duty that can be measured by one standard of care
under any given circumstances.” (Bellamy v. Appellate Department (1996) 50 Cal.App.4th 797, 804.)
Plaintiffs’ two causes of action
for negligence are expressly based on the same factual allegations. (FAC at
¶¶207, 321.) PBS’s
duty to Plaintiffs here stems from the work performed by PBS on the subject
property in its professional capacity. As Plaintiffs have pled a separate cause
of action against PBS for professional negligence, the tenth cause of action
for ordinary negligence is duplicative.
PBS further argues Plaintiffs cannot establish a cause of
action against it for professional negligence under Weseloh Family Ltd. Partnership v. K.L. Wessel Construction
Co., Inc. (2004) 125 Cal.App.4th 152. In
sustaining PBS’s prior demurrers to these negligence causes of action, the
Court found PBS’s alleged role in the subject construction work was analogous
to the defendant engineer’s role in Weseloh, which was held to be
insufficient to give rise to duty of care owed to the property owner alleging
defects in the construction of walls designed by the engineer. In finding the
engineer did not owe a duty of care to the property owner, the Weseloh
court reasoned:
There is no dispute Randle and Owen's role in the project was limited to
the design of the retaining walls, the supervision of the design process, and
an inspection of the walls. As discussed above, there is no evidence either
Randle or Owen ever participated or supervised any physical work in the
construction of the retaining walls; rather, it appears Randle and Owen
provided engineering services akin to professional advice and opinion.
(Weseloh, 125 Cal.App.4th
at 168-169.)
Paragraph 19 adds conclusory statements that PBS provided
services “which went beyond simply providing professional advice and opinion on
the design of certain mechanical, electrical, and plumbing systems” which
“included participating in and supervision” of construction work at the
project. (FAC at ¶19.) The only new factual allegation is that PBS “made
several visits to the PROJECT during various stages of construction.” (Id.)
Paragraphs 19 and 52 add allegations that PBS visited the
project on several points during construction and actively participated in the
supervision of the physical construction work taking place there. (FAC at ¶¶19,
52.) As set forth above, the Court’s reasoning in Weseloh was based on
the engineer’s not having participated or supervised the physical construction
work at the project. The Court finds these new allegations concerning PBS’s
role in participating in the supervision of such work to be sufficient at the
pleading stage to state a cause of action against PBS for negligence.
PBS next argues
any cause of action for negligence against it is completely subsumed by
Plaintiffs’ allegations of breach of contract against PBS. However, at the pleading
stage, plaintiffs may set forth alterative theories of recovery and inconsistent
counts. (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1388.)
Additionally, “a contractual obligation may create a legal duty and the breach of
that duty may support an action in tort.’ This is true; however, conduct amounting
to a breach of contract becomes tortious only when it also violates a duty independent
of the contract arising from principles of tort law. [Citation.] ‘ “ ‘An omission
to perform a contract obligation is never a tort, unless that omission is also an
omission of a legal duty.’ “ ‘ [Citations.]” (Erlich v. Menezes (1999) 21
Cal.4th 543, 551.)
PBS argues there
is no liability in tort for economic loss caused by the performance of a
contract “between the parties.” (Reply at 5.) However, here there is no
contract between PBS and Plaintiffs, only between PBS and Montalba. Even if
there were a contract between PBS and Plaintiffs, Plaintiffs’ FAC alleges PBS
engaged in supervisory activities at the project. PBS argues its contract with
Montalba did not require PBS to engage in any such supervisory activities. (Reply
at 4 [“The PBS-Montalba contract does not contain any mention of supervision
over contractors performing work”].) Accordingly, Plaintiffs have alleged
negligence on the part of PBS beyond its contractual duties to Montalba.
The Court thus
SUSTAINS PBS’s demurrer to Plaintiffs’ tenth cause of action for negligence
against PBS without leave to amend and OVERRULES PBS’s demurrer to Plaintiffs’ first
cause of action for professional negligence.
4. Contractual
Causes of Action
PBS addresses Plaintiffs’ causes
of action for breach of contract, breach of the implied covenant of good
faith and fair dealing, and breach of implied covenant to perform work in a
good and competent manner collectively. PBS argues each of these causes of
action fails to state a claim against PBS as there is no contract between PBS
and Plaintiffs and Plaintiffs have not shown they are third party beneficiaries
of the contract between PBS and Montalba.
For a plaintiff to allege breach of
contract as a third-party beneficiary, the plaintiff must plead a contract that
was made expressly for his benefit. (See Martin v. Bridgeport Community
Association, Inc. (2009) 173 Cal.App.4th 1024, 1034.) “‘The test in
deciding whether a contract inures to the benefit of a third person is whether
an intent to so benefit the third person appears from the terms of the
agreement . . . .’” (Id. [quoting Schonfeld v. City of Vellejo
(1975) 50 Cal.App.3d 401, 420].) “The fact that a third party is incidentally
named in the contract, or that the contract, if carried out according to its
terms, would inure to his benefit, is not sufficient to entitle him to enforce
it.” (Id.) “Reading the agreement as a whole in light of the
circumstances under which it was made, the terms of the agreement must clearly
manifest an intent to make the obligation inure to the benefit of the third
party.” (Id.)
In sustaining PBS’s prior demurrers to these causes of
action, the Court found there is no contract between PBS and Plaintiffs, and
Plaintiffs had not asserted sufficient factual allegations to show they were
third party beneficiaries of the contract between PBS and Montalba. As each of
these causes of action were dependent on the existence of such a contractual
relationship, PBS’s demurrers to each were sustained for the same reasons. Specifically,
the Court found “Plaintiffs have failed to allege that
it was Defendants’ clear intent for the agreement to benefit third party
Plaintiffs” or Montalba had entered into the contract “with the intent
expressly to benefit Plaintiffs.”
Plaintiffs here have cured these defects by attaching a
copy of the contract between PBS and Montalba to the FAC. The
Court finds Plaintiffs’ FAC alleges PBS and Montalba entered into the contract
with the motivating purpose to benefit third party Plaintiffs in the
construction of the residence. (FAC at ¶241.) Taken together, these allegations
are sufficient to survive demurrer at the pleading stage as to Plaintiffs’
claim that they are third party beneficiaries of the contract between Montalba
and PBS. Plaintiffs otherwise allege the
essential elements of a their own performance under the contract (FAC at ¶243),
PBS’s breach (id at ¶256), and damage to Plaintiffs (id at ¶257)
as required to state a cause of action for breach of contract.
PBS further argues Plaintiffs
cannot establish these contractual causes of action as they have not satisfied
all of the conditions precedent for bringing a claim as required under the
terms of the contract. However, this argument goes to the merit of Plaintiffs’ allegation
that they have performed under the contract, which is not properly before the
Court on this demurrer.
Accordingly, PBS’s demurrer to
Plaintiffs’ causes of action for breach of contract, breach of the
implied covenant of good faith and fair dealing, and breach of implied covenant
to perform work in a good and competent manner is
OVERRULED.
5. Breach of Fiduciary Duty and Aiding and
Abetting Same
The elements for a breach of fiduciary
duty cause of action are “the existence of a fiduciary relationship, its
breach, and damage proximately caused by that breach.” (Thomson v. Canyon
(2011) 198 Cal.App.4th 594, 604.) “[F]iduciary
duties are either imposed by law or are undertaken by agreement.” (Maglica
v. Maglica (1998) 66 Cal.App.4th 442, 447 [modified on denial of reh'g
(Sept. 28, 1998)].)
In sustaining PBS’s demurrer to
the Third Amended Complaint, the Court noted Plaintiffs were alleging a
fiduciary duty was undertaken by agreement and not imposed by law by virtue of
a contractual relationship between the parties. The Court found Plaintiffs had
failed to assert factual allegations from which this
Court could find a confidential relationship was created by PBS as Plaintiffs’ allegations that PBS assisted in obtaining
permits with governmental entities were insufficient to demonstrate PBS owed
Plaintiffs a fiduciary duty.
PBS alleges the FAC does not cure
the deficiencies in the TAC which led to the Court’s sustaining of its prior
demurrer. Plaintiffs disagree and generally argue the FAC is “replete with
allegations regarding PBS’ actions as a fiduciary” without pointing to any specific
paragraph or paragraphs in the FAC which purportedly contain those allegations.
(Opposition at 14.)
Paragraph 219 of the FAC expands on Plaintiffs’ previous
assertion that PBS acted as a fiduciary to Plaintiffs because it represented
Plaintiffs before various governmental agencies in seeking various permits.
Paragraph 219 additionally alleges PBS’s contract with Montalba required PBS to
provide “required assistance” during the plan check process with the Los
Angeles Department of Building and Safety 9”LADBS”, and PBS was also obligated
to provide corrections requested by governmental officials. This allegation
standing alone is insufficient to establish a confidential relationship between
PBS and Plaintiffs which would give rise to a fiduciary duty on behalf of PBS. The
Court finds these additional allegations are insufficient to establish a fiduciary
duty owed by PBS for the same reasons Plaintiffs’ prior allegations of permit
assistance were insufficient.
“The mere fact that in the course of their business
relationships the parties reposed trust and confidence in each other
does not impose any corresponding fiduciary duty in the absence of an act
creating or establishing a fiduciary relationship known to law.” (Worldvision
Enterprises, Inc. v. American Broadcasting Companies, Inc. (1983)
142 Cal.App.3d 589, 595.) “A confidential relation exists between two persons
when one has gained the confidence of the other and purports to act or advise
with the other's interest in mind. A confidential relation may exist although
there is no fiduciary relation; it is particularly likely to exist where there
is a family relationship or one of friendship or such a relation of confidence
as that which arises between physician and patient or priest and penitent.” (Vai
v. Bank of Am. Nat’l Trust & Savs. Ass’n (1961) 56 Cal.2d 329,
337-338.) “The prerequisite of a confidential relationship is the reposing of
trust and confidence by one person in another who is cognizant of this fact.
The key factor in the existence of a fiduciary relationship lies in control by
a person over the property of another.” (Id. at 338.)
The
FAC does not set out any factual allegations from which this Court could find a
confidential relationship was created by PBS’s actions in obtaining permits or
agreeing to provide assistance to Montalba in the plan check process with LADBS.
The FAC makes it clear any such actions were undertaken by virtue of PBS’s contractual
obligations to Montalba and not the result of any trust or confidence between
Plaintiffs and PBS. The FAC also does not allege PBS controlled any property of
Plaintiffs or knowingly undertook Plaintiffs’ trust and confidence in applying
for permits for the project.
Thsese allegation are also
insufficient to establish a cause of action for breach of fiduciary duty
against PBS as the FAC does not allege PBS breached its duty in connection with
the permitting process. Rather, the purported breaches alleged by the FAC all
concern work unrelated to PBS’s representation of Plaintiffs before any
governmental agencies. The FAC also contains no factual allegations showing
Plaintiffs were damaged in any way by such representation in obtaining permits
for the project. Accordingly, PBS’s demurrer to the cause of action for breach
of fiduciary duty is SUSTAINED.
In sustaining PBS’s prior demurrer
to the cause of action for aiding and abetting breach of fiduciary duty, the
Court, citing American Master Lease LLC v. Idanta Partners, Ltd. (2014)
225 Cal.App.4th 1451, 1477, recognized there are two theories under which
someone may be liable for aiding and abetting a breach of fiduciary duty: (1)
where the aider and abettor owes a fiduciary duty to the plaintiff and provides
substantial assistance to the person breaching the fiduciary duty, or (2) where
the aider and abettor commits an independent tort and makes a conscious
decision to participate in tortious activity for the purpose of assisting
another in performing a wrongful act.
The Court has already found the FAC
does not establish PBS owed Plaintiffs a fiduciary duty, and the Court can
discern no new factual allegations showing PBS engaged in an independent tort
or conscious decision to participate in tortious activity to assist another’s
wrongful act beyond the conclusory allegations which led the Court to sustain
PBS’s prior demurrers to this cause of action. Plaintiffs again argue the FAC
is “replete” with sufficient allegations to state a cause of action against PBS
for aiding and abetting breach of fiduciary duty without providing any citation
to such allegations in the FAC. Plaintiffs’ cause of action for aiding and
abetting breach of fiduciary duty is set forth at paragraphs 283-295 of the
FAC. The allegations regarding PBS in these paragraphs remain unchanged from
the Third Amended Complaint.
As the FAC realleges the same
conclusory allegations which led the Court to sustain PBS’s prior demurrer, the
Court SUSTAINS PBS’s demurrer to Plaintiffs’ cause of action for aiding and
abetting breach of fiduciary duty in the FAC.
6. Aiding
and Abetting Fraud
“‘Liability may . . . be imposed on one
who aids and abets the commission of an intentional tort if the person (a)
knows the other’s conduct constitutes a breach of duty and gives substantial
assistance or encouragement to the other to so act or (b) gives substantial
assistance to the other in accomplishing a tortious result and the person’s own
conduct, separately considered, constitutes a breach of duty to the third
person.’” (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1325-26
[quoting Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 846]; see
also Schulz v. Neovi Data Corp. (2007) 152 Cal.App.4th 86, 93.) “Mere
knowledge that a tort is being committed and the failure to prevent it does not
constitute aiding and abetting.” (Fiol, supra, 50 Cal.App.4th at
1326.) “To plead aiding and abetting by a defendant, the plaintiff must allege
that the defendant had actual knowledge of the ‘specific primary wrong’ being
committed, and gave substantial assistance to the wrongful conduct.” (Goonewardene
v. ADP, LLC (2016) 5 Cal.App.5th 154, 188 [overturned on other grounds].)
The Court previously sustained PBS’s
demurrer to this cause of action, finding Plaintiffs simply recited the same
conclusions that PBS provided substantial assistance and intentionally
concealed fraud were deficient as they were not supported by any factual
allegations showing how PBS is alleged to have assisted or concealed such
fraud. PBS argues the same is true for the FAC. The Court agrees. Paragraphs
315 and 316 in the FAC allege PBS “substantially assisted” others in committing
fraud by observing this fraudulent conduct and failing to report it to
Plaintiffs. As set forth above, knowledge that a tort is being committed and
failing to prevent it is insufficient to establish a cause of action for aiding
and abetting.
The remaining paragraphs in the FAC
simply recite the same conclusions from the Third Amended Complaint, which
alleged PBS “intentionally concealed” fraud by other parties relating to the
HVAC system at the property and the testing of same without providing the
necessary factual support demonstrating PBS’s substantial assistance in the
fraud. The Court thus SUSTAINS PBS’s demurrer to this cause of action.
7. Unfair
Competition
California’s Unfair Competition Law
(“UCL”), codified at Business and Professions Code section 17200 et seq.,
prohibits “any unlawful, unfair, or fraudulent business act or practice.” (Bus.
& Prof. Code § 17200; see Clark v. Superior Court (2010) 50 Cal.4th
605, 610.) A UCL plaintiff must plead and prove the defendant engaged in a
business practice which was either unlawful (i.e., is forbidden by law) or
unfair (i.e., harm to victim outweighs any benefit) or fraudulent (i.e., is
likely to deceive members of the public). (Albillo v. Intermodal Container
Services, Inc. (2003) 114 Cal.App.4th 190, 206.) “An unlawful business
practice or act within the meaning of the UCL is an act or practice, committed
pursuant to business activity, that is at the same time forbidden by law.” (Bernardo
v. Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322,
351.)
Plaintiffs, citing Code Civ. Proc.
§ 430.41(b) argue PBS cannot bring a demurrer to Plaintiffs’ twelfth cause of
action for unfair competition because they did not include this cause of action
in their prior demurrer to the Second Amended Complaint. In ruling on PBS’s
demurrer to the Third Amended Complaint, the Court agreed section 430.41(b)
barred PBS from demurring to this cause of action in the Third Amended
Complaint. However, the Court found Plaintiffs’ claim for unfair competition
must necessarily stand or fall with the antecedent substantive causes of action
alleged against PBS. As the Court sustained PBS’s demurrer to every other cause
of action asserted against it in the Third Amended Complaint, the Court on its
own motion struck Plaintiffs’ cause of action for unfair competition against
PBS.
Different circumstances are
presented here. As set forth above, the Court has overruled PBS’s demurrer to
several causes of action and as a result the Court is not faced with a
situation where Plaintiffs’ claim for unfair competition is the only remaining
cause of action asserted against PBS. The Court thus finds Code Civ. Proc. §
430.41(b) precludes the Court from considering the merits of PBS’s arguments
concerning this cause of action and accordingly PBS’s demurrer to Plaintiffs’
cause of action for unfair competition is OVERRULED.
8. Leave to
Amend
In sustaining PBS’s demurrer to
the Third Amended Complaint, the Court granted Plaintiffs leave to amend noting
“This is Plaintiff’s last opportunity to amend.” (June 3, 2022, Order at 25.)
Plaintiffs’ oppositions to PBS’s demurrer and motion to strike do not make any
showing that any of the defects identified above could be cured by further
amendment. (Blank v. Kirwan
(1985) 39 Cal.3d 311, 318.) As set forth above, the
Court is sustaining PBS’s demurrer to several causes of action on the same bases
on which it sustained PBS’s demurrer to those same cause of action in the Second
and Third Amended Complaints. Plaintiffs have been given ample prior
opportunity to state viable causes of action against PBS with specific guidance
from the Court as to the deficiencies in their pleading and have failed to do
so. (See Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967 [denying leave
to amend is proper where plaintiff “was granted numerous opportunities to amend
her complaint and yet remained unable to successfully state a cause of
action”].)
On such facts, the Court finds no
basis to conclude Plaintiffs would be able to state sufficient factual
allegations to constitute causes of action against PBS if given leave to amend
again, and accordingly the Court will not grant Plaintiffs further leave to
amend any cause of action for which it has sustained PBS’s demurrer as set
forth above.
9. Motion to Strike
PBS also moves to strike
allegations in the FAC concerning punitive damages. Plaintiffs’ claim for
punitive damages is dependent on its causes of action for fraud and aiding and
abetting fraud. Here, Plaintiffs’ fraud claim is not asserted against PBS and
the Court has now sustained PBS’s demurrer to Plaintiffs’ claim for aiding and
abetting fraud without leave to amend. Plaintiffs assert the FAC nonetheless
contains factual allegations to entitle it to punitive damages against PBS. The
Court disagrees. The FAC contains no shortage of allegations that PBS’s actions
were malicious or despicable. However, these are merely Plaintiffs’ conclusory characterizations
of PBS’s actions. Accordingly, the Court GRANTS PBS’s motion to strike as to
the challenged portions of the FAC concerning Plaintiffs’ claim for punitive
damages against PBS.
Finally, PBS
moves to strike Plaintiffs’ claim for attorney’s fees, arguing the FAC fails to
demonstrate Plaintiffs are entitled to such recovery either by contract or
statute. In response, Plaintiffs claim they will be able to show they are
entitled to attorney’s fees by virtue of the contract between PBS and Montalba.
Even where a claim for attorneys’ fees is
unsupported by the pleadings, courts are not required to strike such a claim
before a plaintiff has the “opportunity to determine, through discovery,
whether a basis for recovery exists.” (Camenisch v. Superior Court
(1996) 44 Cal.App.4th 1689, 1699.) As Plaintiffs have indicated a potential
basis for recovery of attorney’s fees may exist, the Court declines to strike
Plaintiffs’ claim for attorney’s fees at this time.
Conclusion
Defendant PBS Engineers, Inc.’s demurrer to the causes of
action in Plaintiffs’ Fourth Amended Complaint is SUSTAINED without leave to
amend as to Plaintiffs’ causes of action for breach of fiduciary duty, aiding
and abetting breach of fiduciary duty, aiding and abetting fraud and deceit, and
negligence. PBS’s demurrer is otherwise OVERRULED.
Defendant PBS Engineers, Inc.’s motion to strike is GRANTED
as to the allegations concerning Plaintiffs’ claim for punitive damages against
PBS and is otherwise DENIED.