Judge: John J. Kralik, Case: 23BBCV01209, Date: 2024-11-08 Tentative Ruling

Case Number: 23BBCV01209    Hearing Date: November 8, 2024    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Unite Welding Enterprises, Inc. (“Unite”) alleges Defendants E Roane Construction Management, Inc., Edward Dean Roane, Dillon Construction Inc., and Christopher David Dillon are officers, directors, principals, and/or agents of Defendant Dillon Roane A Joint Venture, Inc. (collectively, “Construction Defendants”).  Unite alleges that Defendant Canplan Industries, LLC (“Canplan”) is the owner of the real property located at 1305 West Elm Avenue, Coalinga California, 93210 (“West Elm Property”) and that Defendant Arabo , LLC (“Arabo”) is the owner of the property located at 1950 Mercantile Lane, Coalinga, California 93210 (“Mercantile Property”).  Unite alleges that Defendants Agassi Halajyan and Michael Keheian are the owners of Arabo and/or Canplan.

Unite alleges that Unite and Construction Defendants had completed several unrelated projects previously.  On June 30, 2021, Unite and Defendants entered into an oral agreement whereby Defendants promised to pay Unite for labor and materials purchased for labor, services, equipment, and materials for work on an existing structure owned by Defendants at the West Elm Property.  Unite alleges that it anticipated doing a significant amount of repair work on Canplan’s property and that they would be paid for labor and services.  During the pendency of the West Elm project, Defendants requested that Unite provide labor, services, equipment, and materials for work at Arabo’s Mercantile Property.  Unite alleges that after it completed work at the West Elm Property, it ordered materials for the Mercantile Property project, but Defendants ordered Plaintiff to cease all work on both properties.  Unite alleges that it provided invoices for Defendants in the amount of $173,524, but Defendants refused to pay for services rendered. 

The second amended complaint (“SAC”), filed May 17, 2024, alleges in the caption causes of action for: (1) breach of contract; and (2) common counts (open book, reasonable value, and account stated).  In the body of the SAXC, the causes of action are for: (1) breach of contract; (2) open book; (3) reasonable value; and (5) account stated; there is no fourth cause of action. 

On August 2, 2023, the defaults of Dillon Roane, a Joint Venture, Inc. and Dillon Construction, Inc. were entered. 

On October 2, 2024, the defaults of Arabo, LLC and Canplan Industries, LLC were entered. 

On February 2, 2024, Plaintiff dismissed The Building Group, LLC from the FAC. 

B.     Cross-Complaint

On September 3, 2024, Cross-Complainants Dillon Roane A Joint Venture, Inc., Dillon Construction Inc., Christopher David Dillon, and Edward Deane Roane filed a first amended cross-complaint (“FAXC”) against Arabo, LLC, Agassi Halajyan, and Michael Keheian for: (1) breach of contract; (2) fraud; (3) unfair competition; (4) civil conspiracy to defraud; and (5) violation of Business & Professions Code, § 17200 et seq.

On January 17, 2024, Cross-Complainants dismissed The Building Group, LLC from the cross-complaint. (The Building Group was a cross-defendant in the initial cross-complaint.)

C.     Relevant Background and Motion on Calendar

On September 3, 2024, Defendants Christopher David Dillon, Edward Deane Roane, Dillon Roane A Joint Venture Inc., and Dillon Construction Inc. (“Contractor Defendants”) filed an answer to the SAC. 

On October 3, 2024, Plaintiff filed a motion to strike portions of Defendants’ answer to the SAC.

On October 28, 2024, Contractor Defendants filed an opposition to the motion.

On October 31, 2024, Plaintiff filed a reply brief.

DISCUSSION

            Plaintiff moves to strike the prayer for damages in the Contractor Defendants’ answer, which seeks attorney’s fees as permitted by law. 

CCP § 1021 states that attorney’s fees are recoverable if allowed under statute and/or by agreement.  

Plaintiff argues that the contract it is relying upon in its breach of contract claim does not include an attorney’s fees clause and there is no other contract in the action with an attorney’s fees clause between Plaintiff and Contractor Defendants.  Plaintiff argues that there is also no statutory basis identified for Contractor Defendants to recover attorney’s fees, such that the request for fees in the answer should be stricken.

In opposition, Contractor Defendants argue that the SAC alleges that the parties entered into an oral agreement, such that there was no allegation whether the oral contact included or did not include attorney’s fees. 

Contractor Defendants’ answer does not allege facts that attorney’s fees are appropriate pursuant to the oral contract (i.e., that one of the material terms of the oral contract included an agreement for attorney’s fees).  Alternatively, Contractor Defendants have not identified and alleged a statute under which attorney’s fees are permitted.  As such, the motion to strike is granted.  The Court will allow Contractor Defendants one opportunity to amend the answer to allege a contractual or statutory basis for attorney’s fees, if possible.

CONCLUSION AND ORDER

            Plaintiff Unite Welding Enterprises, Inc.’s motion to strike portions of Contractor Defendants’ answer to the SAC is granted with 20 days leave to amend.

            Plaintiff shall provide notice of this order.

DATED:  November 8, 2024                                                  ___________________________

                                                                                          John J. Kralik

                                                                                          Judge of the Superior Court