Judge: Lee S. Arian, Case: 29STCV40596, Date: 2023-11-15 Tentative Ruling

Case Number: 29STCV40596    Hearing Date: November 15, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTIES: Defendants S&M Ventures No. 1, LLC dba Vermont Square and Charles Peter Scurich (“Defendants”)   

RESPONDING PARTY: N/A  

I.            INTRODUCTION

This action arises from a shooting that occurred on November 14, 2017. On November 12, 2019, Plaintiffs The Estate of Antonio Maurice Wilson Williams, by and through its successor in interest and heirs at law, K.W., a minor and as successor in interest to Antonio Maurice Wilson Williams, by and through his guardian ad litem Raven Nelson, and Lotanaka Nicole Smiley Williams (collectively, “Plaintiffs”) filed a complaint against Defendants S&M Ventures No.1, LLC dba Vermont Square, Charles Peter Scurich, and Does 1 through 10, alleging causes of action for: (1) premises liability; (2) negligence; (3) negligence per se; (4) negligent infliction of emotional distress; (5) wrongful death; and (6) survivor action.

On July 7, 2021, Defendants S&M Ventures No.1, LLC dba Vermont Square and Charles Peter Scurich (“Defendants”) filed a demurrer and motion to strike.

Prior to the hearing on the demurrer and motion to strike, Plaintiffs filed a First Amended Complaint (“FAC”).

On January 19, 2023, Plaintiffs filed an Amendment to Complaint identifying Noel Yaziji (“Yaziji”) as Doe 1.

On May 25, 2023, Defendant Yaziji filed a demurrer to the FAC as well as a motion to strike.

On July 7, 2023, the Court issued an order sustaining the demurrer of Defendant Yaziji to the FAC with 15 days leave to amend. The Court deemed the motion to strike moot.

The Operative Second Amended Complaint

          On July 25, 2023, Plaintiffs filed the operative Second Amended Complaint (“SAC”) against Defendants alleging causes of action for: (1) premises liability; (2) negligence; (3) wrongful death; and (4) survivor action. The SAC does not name Defendant Yaziji as a defendant.

The Instant Motion

          On October 12, 2023, Defendants filed and served a motion (the “Motion”) for an order striking improper portions of the SAC.[1] Defendants seek to strike all references to attorney’s fees from the SAC including Paragraph 6 from the prayer for relief which provides “[f]or reasonable attorney’s fees and costs as provided by law.”

          The Motion is brought on the grounds that: (1) the Court has authority to strike portions of the SAC; and (2) Plaintiffs are not entitled to recover attorney’s fees.

          On November 2, 2023, Plaintiffs filed and served a Statement of Non-Opposition to the Motion indicating that they “will not oppose Defendants’ Motion to Strike Plaintiffs’ request for attorney’s fees from [the] Second Amended Complaint.” (Statement of Non-Opposition at 2:1-3.)

The Motion is unopposed. Any opposition to the Motion was required to have been filed and served at least nine court days prior to the hearing pursuant to California Code of Civil Procedure, Section 1005(b).  

II.          MEET AND CONFER

          The meet and confer requirement has been met pursuant to Code Civ. Proc. § 435.5.

III.        LEGAL STANDARD

           “Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.” (Code Civ. Proc. § 435(b)(1).) A court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc. § 436(a).)  A court may “[s]trike 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.” (Code Civ. Proc. § 436(b).)

IV.         DISCUSSION

“California follows the American rule, under which each party to a lawsuit must pay its own attorney fees unless a contract or statute or other law authorizes a fee award.” (Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230, 237.)

Here, the SAC does not allege an entitlement to attorney’s fees by contract, statute, or other law. Moreover, given that the Motion is unopposed, there is an inference that it has merit. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

Accordingly, the Court GRANTS the Motion.

V.     CONCLUSION

The Motion is GRANTED.

Moving parties are ordered to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

      Dated this 15th day of November 2023