Judge Katherine Chilton, Case 22STLC00045 2022-07-27 Tentative Ruling

Judge: Katherine Chilton, Case: 22STLC00045, Date: 2022-07-27 Tentative Ruling

Case Number: 22STLC00045 Hearing Date: July 27, 2022 Dept: 25

PROCEEDINGS: DEMURRER WITH MOTION TO STRIKE

MOVING PARTY: Plaintiff/Cross-Defendant American Contractors Indemnity Company

RESP. PARTY: Defendant/Cross-Complainant Kent Diffenderfer

DEMURRER WITH MOTION TO STRIKE

(CCP §§ 430.10, 435 et seq.)

TENTATIVE RULING:

Plaintiff/Cross-Defendant ACIC’s DEMURRER to the Cross Complaint’s (1) breach of contract and (2) negligence actions is SUSTAINED WITH 20 DAYS LEAVE TO AMEND.

Plaintiff/Cross-Defendant ACIC’s MOTION TO STRIKE is GRANTED WITH 20 DAYS LEAVE TO AMEND as to (1) Paragraph 18 of the Cross-Complaint, (2) request for punitive damages, and (3) request for attorney’s fees.

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 July 14, 2022. [ ] Late [ ] None

REPLY: Filed on July 20, 2022. [ ] Late [ ] None

ANALYSIS:

I. Background

On January 4, 2022, Plaintiff American Contractors Indemnity Company, a California Corporation (“Plaintiff” or “ACIC”) filed an action against Kent Diffenderfer, aka Kent Diffenderfer, Jr. (“Defendant” or “Diffenderfer”) for breach of contract, seeking $16,465 in damages plus interest and attorney’s fees and costs. (Complaint p. 2 ¶ 9.) The Complaint is based on a Bond Application/Indemnity Agreement (“Agreement”) between Plaintiff and Defendant. (Ibid. at ¶ 3.)

On April 22, 2022, Defendant filed an Answer denying all allegations in the Complaint.

Defendant also filed a Cross-Complaint, concurrent with the Answer, against Plaintiff/Cross-Defendant ACIC and John Hartel (“Hartel”) for (1) breach of contract, (2) fraudulent misrepresentation, (3) conversion, and (4) negligence. (4-22-22 Cross-Complaint.) The Cross-Complaint alleges that Hartel and Diffenderfer were co-owners of a construction company, Lux North Development Corp. (“Lux”) and Diffenderfer had entered into an agreement with ACIC for a bond on behalf of Lux. (Cross-Compl. p. 2 ¶¶ 8-9.)

On May 20, 2022, Counsel for ACIC filed a declaration stating that meet and confer efforts had not been successful, but Counsel for Diffenderfer had granted a 30-day extension to file a response to the Cross-Complaint. (5-20-22 Kim Decl.)

On June 27, 2022, Plaintiff/Cross-Defendant ACIC filed a Demurrer with Motion to Strike (“Demurrer”) and Motion to Strike (“Motion to Strike”) to the Cross-Complaint. On July 14, 2022, Defendant/Cross-Complainant filed an Opposition to the Demurrer and an Opposition to the Motion to Strike. On July 20, 2022, Plaintiff/Cross-Defendant ACIC filed replies to both Oppositions.

II. Legal Standard

A demurrer is a pleading that may be used to test the legal sufficiency of the factual allegations in the complaint. (Code of Civ. Proc. § 430.10.) There are two types of demurrers – general demurrers and special demurrers. (See McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 77.)

General demurrers can be used to attack pleadings for failure to state facts sufficient to constitute a cause of action or for lack of subject matter jurisdiction. (Code Civ. Proc. § 430.10(e); McKenney, 167 Cal.App.4th at 77.) Such demurrers can be used only to challenge defects that appear on the face of the pleading or from matters outside the pleading that are judicially noticeable; evidence or extrinsic matters are not considered. (Code of Civ. Proc. §§ 430.30, 430.70; Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) For the purpose of testing the sufficiency of the cause of action, the Court admits “all material facts properly pleaded” and “matters which may be judicially noticed,” but does not consider contentions, deductions, or conclusions of fact or law. [Citation].” (Blank, 39 Cal.3d at 318.) It gives these facts “a reasonable interpretation, reading it as a whole and its parts in their context.” (Ibid.). At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) The face of the complaint includes exhibits attached to the complaint. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) "If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence." (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447.)

Special demurrers can be used to attack the pleadings on grounds that the pleading is uncertain, ambiguous, and unintelligible, or in a contract case, for failure to allege whether a contract is oral or written. (Code Civ. Proc., § 430.10(f).) However, special demurrers are not allowed in limited jurisdiction civil actions and any grounds for special demurrers must be raised as affirmative defenses in the answer. (Code Civ. Proc., § 92(c).)

Moreover, Code of Civil Procedure § 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41(a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41(a)(3).)

III. Discussion

A. Meet and Confer Requirement

On May 20, 2022, ACIC’s Counsel Amber Kim filed a declaration demonstrating her attempts to meet and confer with Diffenderfer’s counsel regarding a potential demurrer and motion to strike. (5-20-22 Kim Decl.) Attorneys were unable to meet and confer; however, Diffenderfer’s counsel granted ACIC a 30-day extension to respond to the Cross-Complaint. (Ibid. at ¶¶ 3-4.)

On June 27, 2022, Counsel for ACIC filed declarations, concurrently with the Demurrer and Motion to Strike, demonstrating that she attempted to meet and confer with Diffenderfer’s counsel on two additional occasions, on May 25 and June 14, 2022; however, she did not receive a response. (6-27-22 Kim Decl. in Support of Demurrer ¶¶ 5-6; Kim Decl. in Support of Motion to Strike ¶¶ 5-6.)

The Court finds the declarations sufficient to satisfy the meet and confer requirement.

B. First Cause of Action – Breach of Contract

a. Defendant/Cross-Complainant Diffenderfer’s Allegations

The Cross-Complaint alleges that “[i]n or around October of 2015, Diffenderfer entered into an agreement (hereinafter the “Lux Agreement”) with Hartel to act as co-owners of a construction company, Lux North Development Corp. (hereinafter “Lux”).” (Cross-Compl. p. 2 ¶ 8.) On January 1, 2016, Diffenderfer contracted with ACIC for a bond on behalf of Lux and was listed as the guarantor of this agreement. (Ibid. at ¶ 9.) Around November 2017, Diffenderfer filed a notice of dissociation with the Contractors State License Board because he wanted to discontinue the business relationship with Hartel due to Hartel’s alleged failure to complete his responsibilities and pay third parties. (Ibid. at ¶ 10.) Following Diffenderfer’s dissociation, Hartel continued to work under the Bond and act as a representative of Lux. (Ibid. at ¶ 11.) Diffenderfer alleges that Hartel’s actions led certain customers to file claims with the ACIC. (Ibid at ¶ 10.) Diffenderfer alleges that ACIC “failed to properly investigate the claims, resulting in payments from the bond that should not have been made” and thus, caused Diffenderfer to suffer financial injury. (Ibid. at ¶¶ 12-13.)

Diffenderfer alleges that he “entered into the ACIC Agreement with ACIC to secure the Bond,” and performed his obligations under the Agreement. (Ibid. at ¶ 16.) ACIC breached the Agreement because it did not properly investigate the claims under the Bond and paid for claims that should not have been paid. (Ibid.) As a result, Diffenderfer suffered damages that were caused by ACIC’s breach of agreement. (Ibid. at ¶ 17.)

Diffenderfer also alleges that ACIC “committed the acts alleged herein oppressively and maliciously, with the wrongful intention of injuring Diffenderfer, from an improper motive amounting to malice, and in conscious disregard of Diffenderfer’s rights.” (Ibid. at ¶ 18.) Therefore, Diffenderfer is seeking punitive damages.

b. Plaintiff/Cross-Defendant ACIC’s Demurrer

ACIC demurs to Diffenderfer’s breach of contract cause of action for failure to state facts sufficient to constitute a cause of action. (Demurrer p. 2.) ACIC argues that Diffenderfer “provides no facts as to what contractual obligations of the contract were breached by ACIC” and does not attach the Bond agreement or plead its terms verbatim. (Ibid. p. 6.) Furthermore, Diffenderfer does not plead any facts showing that a breach or resulting damages occurred. (Ibid.) Since Diffenderfer “cannot identify any corresponding facts” as to each element of a breach of contract cause of action, ACIC requests that the Court sustain its demurrer. (Ibid.)

c. Defendant/Cross-Complainant Diffenderfer’s Opposition to Demurrer

In its Opposition to the Demurrer, Diffenderfer argues that “in the context of a demurrer, complaints must be liberally construed” citing Buss v. J.O. Martin Co. (1966) 241 Cal.App.2d 123, 133-134.), and “whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer, citing Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609-610. (Opposition p. 3.) Diffenderfer states that that the Cross-Complaint clearly alleges that he entered into the ACIC Agreement with ACIC to secure the Bond and that he performed all of his obligations. (Opposition p. 4.) However, ACIC breached the Agreement because it did not properly investigate the claims under the Bond and paid them when it should not have, thus, causing Diffenderfer to incur damages.” (Opposition p. 4.) Furthermore, he states that the contract terms are properly alleged in the Complaint regarding ACIC’s “responsibility under the ACIC agreement to properly investigate claims made against the Bond before paying out funds from the Bond.” (Ibid.)

d. Plaintiff/Cross-Defendant’s Reply to Opposition to Demurrer

In its Reply to the Opposition, ACIC reiterates the requirement of attaching the agreement or pleading its terms and states that “no terms of the alleged January 1, 2016, ACIC Agreement are stated in verbatim nor is it attached to the cross-complaint as an exhibit.” (Reply to Opp. to Demurrer, p. 2.) ACIC contends that Diffenderfer’s statement that the “contract term that ACIC breached is properly alleged in the Complaint” can be interpreted in two ways – either that ACIC’s Complaint contained the Agreement or that Diffenderfer’s statement in the Cross-Complaint was sufficient to plead the terms of the ACIC contract. (Ibid. p. 2-3.) ACIC argues that neither interpretation survives the demurrer because Diffenderfer is either relying on a document that’s not attached to the Cross-Complaint and does not contain any reference to ACIC’s investigative obligations or making conclusory statements about his Cross-Complaint. (Ibid.)

e. Analysis

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) “A written contract may be pleaded either by its terms – set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference – or by its legal effect. [Citations.] In order to plead a contract by its legal effect, plaintiff must ‘allege the substance of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.’ [Citation.]” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.)

The Court finds that Defendant/Cross Complainant Diffenderfer has failed to state facts sufficient to constitute a breach of contract cause of action against Plaintiff/Cross-Defendant ACIC. First, Diffenderfer has not included any contractual provisions in his allegations, nor has he attached the contract to the Cross-Complaint. In his Opposition to the Demurrer, he states that he refers to the agreement attached to the Complaint; however, the Indemnity Agreement attached to ACIC’s Complaint does not contain any provisions regarding ACIC’s investigative obligations. (Opposition p. 4.) Furthermore, his statements about his performance of contractual obligations, ACIC’s breach of obligations, and the resulting damages are conclusory. The Court cannot assess whether Diffenderfer’s factual allegations constitute a breach of contract cause of action if it is not presented with the provisions of the agreement and sufficient facts. Thus, even if the facts alleged are liberally construed, the Court finds that they are not sufficient to constitute a breach of contract cause of action against ACIC.

Therefore, Plaintiff/Cross-Defendant ACIC’s Demurrer to the Cross-Complaint’s breach of contract cause of action is SUSTAINED.

C. Fourth Cause of Action – Negligence

a. Defendant/Cross-Complainant Diffenderfer’s Allegations

The Cross-Complaint alleges that “[i]n or around October of 2015, Diffenderfer entered into an agreement (hereinafter the “Lux Agreement”) with Hartel to act as co-owners of a construction company, Lux North Development Corp. (hereinafter “Lux”).” (Cross-Compl. p. 2 ¶ 8.) On January 1, 2016, Diffenderfer contracted with ACIC for a bond on behalf of Lux and Diffenderfer was listed as the guarantor of this agreement. (Ibid. at ¶ 9.) Around November 2017, Diffenderfer filed a notice of dissociation with the Contractors State License Board because he wanted to discontinue the business relationship with Hartel due to Hartel’s alleged failure to complete his responsibilities and pay third parties. (Ibid. at ¶ 10.) Following Diffenderfer’s dissociation, Hartel continued to work under the Bond and act as a representative of Lux. (Ibid. at ¶ 11.) Hartel’s alleged actions lead certain customers to file claims with the ACIC. (Ibid at ¶ 10.) Diffenderfer alleges that “ACIC negligently investigated the claims made in association with the Bond and negligently paid claims that should not have been paid.” (Cross-Compl. at ¶ 28.) As a result, Diffenderfer was harmed by ACIC’s negligence and is entitled to recover damages. (Ibid. at ¶ 28.)

b. Plaintiff/Cross-Defendant ACIC’s Demurrer

ACIC demurs to Diffenderfer’s negligence cause of action for failure to state facts sufficient to constitute a cause of action. (Demurrer p. 2.) ACIC argues that Diffenderfer’s Cross-Complaint fails to plead any facts showing that ACIC owed a duty of care to Diffenderfer and breached that duty. (Demurrer to Cross-Compl. p. 7.) Furthermore, the Cross-Complaint does not contain any facts regarding causation or damages and merely contains conclusory statements as to each element of a negligence cause of action. (Ibid.)

c. Defendant/Cross-Complainant Diffenderfer’s Opposition to Demurrer

Diffenderfer states that the allegations of the Cross-Complaint establish the elements of duty, breach, causation, and damages because he alleges that “ACIC negligently investigated the claims made in association with the Bond and negligently paid claims that should not have been paid. Cross-Complainant has been harmed as a result of Cross-Defendants’ negligence.” (Opposition p. 5.)

d. Plaintiff/Cross-Defendant’s Reply to Opposition to Demurrer

In its Reply to the Demurrer, ACIC reiterates that conclusory statements are insufficient to properly plead a cause of action and that Diffenderfer’s conclusory statements are not supported by any facts that ACIC owed a duty of care to Diffenderfer and breached this duty, thus, causing Diffenderfer to incur damages as a result of the alleged negligence. (Reply to Demurrer p. 3.)

e. Analysis

“The essential elements of a cause of action for negligence are: (1) the defendant's legal duty of care toward the plaintiff; (2) the defendant's breach of duty—the negligent act or omission; (3) injury to the plaintiff as a result of the breach—proximate or legal cause; and (4) damage to the plaintiff.” (Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.)

Owing a duty of care to the plaintiff is an indispensable prerequisite to the imposition of liability for negligence. (Richards v. Stanley (1954) 43 Cal.2d 60, 63.) A duty is an “obligation, recognized by the law, requiring the actor to conform to certain standard of conduct, for the protection of others against unreasonable risks.” (Hilyar v. Union Ice Co. (1955) 45 Cal. 2d 30, 36-37.) Generally, an omission to perform a contract obligation is not a tort, unless that omission is also an omission of a legal duty. (Jones v. Kelly (1929) 208 Cal. 251, 255.)

Here, the Court finds that Diffenderfer failed to state facts sufficient to constitute a negligence cause of action against ACIC. Diffenderfer states that “ACIC negligently investigated the claims made in association with the Bond and negligently paid claims that should not have been paid.” (Cross-Compl. at ¶ 28.) First, Diffenderfer does not plead any facts that demonstrate ACIC owed Diffenderfer a duty outside the alleged contractual obligations. Second, as discussed above, the Court cannot determine if these contractual obligations even exist because Diffenderfer has not presented the said provisions of the agreement or attached the agreement to the Cross-Complaint.

Furthermore, Diffenderfer’s allegations regarding breach of duty, causation, and damages are conclusory statements that the Court cannot take into consideration when assessing whether sufficient facts have been pled to constitute a cause of action. (Blank, 39 Cal.3d at 318.)

Therefore, Plaintiff/Cross-Defendant ACIC’s Demurrer to the Cross-Complaint’s negligence cause of action is SUSTAINED.

D. Leave to Amend

When a demurrer is sustained, the Court determines whether there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) When a plaintiff “has pleaded the general set of facts upon which his cause of action is based,” the court should give the plaintiff an opportunity to amend his complaint, since plaintiff should not “be deprived of his right to maintain his action on the ground that his pleadings were defective for lack of particulars.” (Reed v. Norman (1957) 152 Cal.App.2d 892, 900.) Generally, the court will allow leave to amend on at least the first try, unless there is absolutely no possibility of overcoming the issue. (See Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227 ("Denial of leave to amend constitutes an abuse of discretion unless the complaint shows on its face it is incapable of amendment. [Citation.] Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.").)

Here, there is a reasonable possibility that an amendment may cure the defect in the pleadings. Therefore, Plaintiff/Cross-Defendant ACIC’s Demurrer to the Cross-Complaint’s causes of action for (1) breach of contract and (2) negligence actions is SUSTAINED WITH 20 DAYS LEAVE TO AMEND.

E. Motion to Strike

a. Plaintiff/Cross-Defendant ACIC’s Motion to Strike

In its Motion to Strike, Plaintiff/Cross-Defendant moves to strike the following portions from the Cross-Complaint:

1) Paragraph 18. “Cross-Defendants, and each of them, committed the acts alleged herein oppressively and maliciously, with the wrongful intention of injuring Diffenderfer, from an improper motive amounting to malice, and in conscious disregard of Diffenderfer’s rights. Thus, Diffenderfer is entitled to recover punitive damages from Cross-Defendants.”

2) Prayer for relief of reasonable attorney fees, as forms of relief.

3) Prayer for relief of punitive damages.

ACIC argues that “punitive damages are not recoverable on a breach of contract theory” and can only be recovered “‘for the breach of an obligation not arising from contract.’ (Civ. Code, § 3294, subd. (a).” (Motion to Strike p. 6.) Furthermore, ACIC argues that Diffenderfer was required to make specific factual allegations showing the existence of “oppression, fraud, or malice” but “is entirely silent as to any such allegation.” (Ibid.)

In regard to attorney’s fees, ACIC argues that the Cross-Complaint “is entirely silent as to Diffenderfer’s entitlement to attorneys fees as to ACIC” based on statute or any agreement. (Ibid.)

b. Defendant/Cross-Complainant Diffenderfer’s Opposition to Motion to Strike

In its Opposition to the Motion to Strike, Diffenderfer states that “[w]hen considering the Motion to Strike, the Court must accept as true all facts alleged in the Complaint. If there is any basis for attorney fees or punitive damages based on the facts alleged, the motion to strike must be denied.” (Opposition p. 3.)

c. Plaintiff/Cross-Defendant’s Reply to Opposition to Motion to Strike

In its Reply to the Demurrer, ACIC reiterates that “there is no cause of action that would support punitives against the surety” and “Diffenderfer does not provide any statute or agreement that entitles him to attorney fees.” (Reply to Motion to Strike p. 2.)

d. Analysis

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).)

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) A request for punitive damages may be made pursuant to Civil Code § 3294(a) which provides that “[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”

Under the statute, malice is defined as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others” and oppression is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Code Civ. Proc. § 3294(c)(1), (c)(2).) Although not defined by the statute, despicable conduct refers to circumstances that are base, vile, or contemptible. College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) Also, “[u]nder the statute, malice does not require actual intent to harm…Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences…. [Citation.]” (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.)

As discussed above, ACIC has satisfied the meet and confer requirement through its Counsel’s declarations.

First, the Court finds that Diffenderfer has not presented facts sufficient to show that he is entitled to punitive damages. It appears that Diffenderfer seeks punitive damages pursuant to the breach of contract cause of action because this prayer for relief is included in the same section as the breach of contract cause of action. (Cross-Compl. ¶ 18.) However, punitive damages cannot be awarded in an action for the breach of an obligation arising out of a contract. (Civ. Code § 3294(a).) Furthermore, the allegations pleaded in the Cross-Complaint do not rise to the kind of despicable, vile conduct that may warrant these damages. To the extent Diffenderfer seeks punitive damages from ACIC, he has not pleaded any facts demonstrating that ACIC acted in a malicious or oppressive manner in allegedly failing to investigate and pay the claims. Thus, Plaintiff/Cross-Defendant’s request to strike Defendant/Cross-Complainant’s requests for punitive damages is GRANTED WITH 20 DAYS LEAVE TO AMEND.

Second, the Court finds that Diffenderfer has not presented facts sufficient to show that he is entitled to attorney’s fees in this action. (Cross-Complaint ¶ 29.) Parties cannot recover attorney’s fees unless expressly authorized by a statute or contract. (Hom v. Petrou (2021) 67 Cal.App.5th 459, 464.) Diffenderfer did not identify a statute or contract that would permit him to recover attorney’s fees in the Cross-Complaint or in the Opposition. Thus, Plaintiff/Cross-Defendant’s request to strike Defendant/Cross-Complainant Diffenderfer’s request for attorney’s fees is GRANTED WITH 20 DAYS LEAVE TO AMEND.

IV. Conclusion & Order

For the foregoing reasons, Plaintiff/Cross-Defendant ACIC’s Demurrer to the Cross Complaint’s (1) breach of contract and (2) negligence actions is SUSTAINED WITH 20 DAYS LEAVE TO AMEND.

In addition, Plaintiff/Cross-Defendant ACIC’s Motion to Strike is GRANTED WITH 20 DAYS LEAVE TO AMEND as to (1) Paragraph 18 of the Cross-Complaint, (2) request for punitive damages, and (3) request for attorney’s fees.

Moving party is ordered to give notice.