Judge: Katherine Chilton, Case: 20STLC02904, Date: 2022-09-19 Tentative Ruling

Case Number: 20STLC02904     Hearing Date: September 19, 2022    Dept: 25

PROCEEDINGS:      MOTION TO STRIKE

MOVING PARTY:   Defendant American Airlines, Inc.

RESP. PARTY:         Plaintiff Jacqueline Cullen

MOTION TO STRIKE

(CCP §§ 435 et seq.)

TENTATIVE RULING:

Defendant American Airlines, Inc.’s Motion to Strike is GRANTED.

SERVICE: 

[ X ] Proof of Service Timely Filed (CRC, rule 3.1300)                 OK

[ X ] Correct Address (CCP §§ 1013, 1013a)                                     OK

[ X ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     OK

OPPOSITION:          Filed on August 18, 2022.                                    [   ] Late                      [   ] None

REPLY:                     Filed on August 24, 2022.                                    [   ] Late                      [   ] None

ANALYSIS:

I.                Background

On March 30, 2020, Plaintiff Jacqueline Cullen (“Plaintiff”) filed an action against American Airlines, Inc. (“Defendant”) for breach of contract, seeking (a) “an award of general and consequential damages according to proof;” (b) “an award of reasonable attorneys’ fees and costs incurred in the investigation, filing and prosecution of this action pursuant to contract and/or statute, to the extent permitted by law;” and (c) all further relief the Court may deem proper.  (Compl. p. 4.)  The Complaint arose out of Plaintiff’s alleged purchase of airline tickets for herself and her family from Defendant American Airlines, Inc.  (See Compl.)

A Non-Jury Trial was scheduled for September 27, 2021.  (3-30-20 First Amended Standing Order.)  On September 27, 2021, the Court noted that there were no appearances by either party and dismissed the Complaint without prejudice.  (9-27-21 Minute Order.)

On March 28, 2022, Plaintiff filed a Motion to Vacate Dismissal pursuant to Code of Civil Procedure § 473(b).  On April 26, 2022, the Court granted Plaintiff’s Motion and vacated the dismissal entered on September 27, 2021.  (4-26-22 Minute Order.)

On June 9, 2022, Defendant filed the instant Motion to Strike (“Motion”) seeking to strike Plaintiff’s request for attorney’s fees.  On August 18, 2022, Plaintiff filed an Opposition to the Motion and on August 24, 2022, Defendant filed a Reply.

The Court, on its own motion, continued the hearing on the Motion from August 31, 2022, to September 19, 2022.  (8-19-22 Minute Order.)

II.              Legal Standard

According to Code of Civil Procedure § 436:

The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

(a) Strikeout any irrelevant, false, or improper matter inserted in any pleading.

(b) Strike out 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.

However, motions to strike in limited jurisdiction courts may only challenge pleadings on the basis that “the damages or relief sought are not supported by the allegations of the complaint.” (Code Civ. Proc. § 92(d).)  The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.”  (Code Civ. Proc. § 436.)

Furthermore, § 435.5 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 resolves the objections to be raised in the motion to strike.”  (Code Civ. Proc. § 435.5(a).)

III.            Discussion

A.    Meet and Confer Requirement

On June 6, 2022, Defense counsel contacted Plaintiff’s counsel via electronic mail regarding the instant Motion to Strike.  (Peterson Decl. ¶ 3; Ex. B.)  Subsequently, on June 8, 2022, attorneys for the parties discussed Defendant’s intention to file the Motion on the phone.  (Ibid. at ¶ 4.)  However, an agreement was not reached following the meet and confer attempts.  (Ibid. at ¶ 5.)

            Plaintiff does not dispute that parties met and conferred regarding the Motion.

The Court finds Defendant’s declaration sufficient to satisfy the meet and confer requirement.

B.    Motion to Strike

Here, Plaintiff seeks (a) “an award of general and consequential damages according to proof;” (b) “an award of reasonable attorneys’ fees and costs incurred in the investigation, filing and prosecution of this action pursuant to contract and/or statute, to the extent permitted by law;” and (c) all further relief the Court may deem proper.  (Compl. p. 4.)

Defendant moves to strike the following portion from the Complaint:

1.     AS TO THE PRAYER FOR RELIEF:

The prayer for ‘attorney fees’ at p. 4, ¶ b.

(Mot. p. 3.)  Defendant argues that “[t]he Complaint fails to set forth any contractual or statutory basis whereby Plaintiff could recover attorneys' fees.”  (Ibid. at pp. 4-5.)

In its Opposition to the Motion, Plaintiff argues that Code of Civil Procedure § 2033.420 authorizes attorney’s fees.  (Oppos. p. 2.)  According to Plaintiff, the statute applies here because “[i]n its Answer, Defendant unquestionably denied the allegations of Plaintiff’s Complaint, and Plaintiff fully expects it to deny a multitude of requests for admission.”  (Ibid.)  Therefore, Plaintiff is entitled to attorney’s fees pursuant to this statute.  (Ibid.)

In its Reply to the Opposition, Defendant states that no discovery has been propounded on Defendant and “responses to requests for admissions are not the subject of defendant’s motion to strike.”  (Reply pp. 1-2.)  Code of Civil Procedure § 2033.420, cited by Plaintiff, “is a limited remedy for discovery motions” and does not set out relief for a breach of contract cause of action.  (Ibid. at p. 2.)  Plaintiff has failed to demonstrate that she is entitled to attorney’s fees based on any contractual terms or statute.  (Ibid.)

A prevailing party is entitled to recover costs as a matter of right.  (Code Civ. Proc., § 1032(a)(4).)  Attorney’s fees may be recovered as costs when expressly authorized by contract, statute, or law.  (Code Civ. Proc., § 1033.5(a)(10); Hom v. Petrou (2021) 67 Cal.App.5th 459, 464.) 

The Court finds that Plaintiff has not presented facts sufficient to show that she is entitled to attorney’s fees in this action.  Plaintiff has not identified a statute or contractual provision in the Complaint or Opposition to the Motion that would permit her to recover attorney’s fees.  Plaintiff’s reliance on Code of Civil Procedure § 2033.420 is improper as it relates to requests for admission, not recovery of attorney’s fees in an action for breach of contract.

Thus, Defendant’s request to strike Plaintiff’s prayer for relief in the form of attorney’s fees is GRANTED.

"Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question."  (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.)

Here, Plaintiff did not cite to any other contractual provision or statute that would allow recovery of attorney’s fees.  Accordingly, leave to amend is denied. 

IV.           Conclusion & Order

Defendant American Airlines, Inc.’s Motion to Strike is GRANTED.

            The Court hereby schedules a TRIAL SETTING CONFERENCE on DECEMBER 5, 2022, at 9:30 a.m. IN DEPARTMENT 25, SPRING STREET COURTHOUSE.

Moving party is ordered to give notice.