Judge Lynne M. Hobbs, Case Number: 22STCV12531, Date: 2024-02-23 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 22STCV12531, Date: 2024-02-23 Tentative Ruling

Case Number: 22STCV12531 Hearing Date: February 23, 2024 Dept: 30

VICTOR PULIDO vs ORION TRANSPORTATION CORPORATION

TENTATIVE

Cross-Defendants motion to strike the prayer for attorney’s fees as to request no. 1 is GRANTED without leave to amend. The motion to strike attorney fees as to request nos. 2-4 is DENIED without prejudice.

Legal Standard

Pursuant to Code of Civil Procedure, section 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) Strike out 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.” The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

Any party may move to strike the whole or any part of a pleading within the time allotted to respond to the pleading. (Code Civ. Proc., § 435, subd. (b)(1).) The allegations of a complaint “must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “read[s] allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume[s] their truth.” (Clauson v. Sup. Ct. (1998) 67 Cal.App.4th 1253, 1255 (Clauson).)

Discussion

B. Meet and Confer

“Before 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 if an agreement can be reached that resolves the objections to be raised in the motion to strike.” (CCP § 435.5(a).)

The motion to strike is accompanied by the declaration of Brandon M. Matamoros, which satisfies the meet and confer requirement. (Code Civ. Proc. § 435.5.)

B. Timeliness of Motion to Strike

A motion to strike any pleading must be filed “within the time allowed to respond to a pleading”—e.g., 30 days after service of the complaint or cross-complaint unless extended by court order or stipulation. (CCP § 435(b)(1).)

The Court notes that the motion to strike is untimely. However, an untimely motion to strike may be considered by the court in its discretion. (Jackson v. Doe (2011) 192 Call.App.4th 742, 750; CCP § 436(a).) As such, the Court will address the motion to strike on its merits.

C. Merits

Cross-Defendants move to strike the following portions of the Cross-Complaint relating to the request for attorney fees:

5. “Paragraph 9 of the Cross-Complaint, appearing at page 3, lines 27 through 27, inclusive:

6. That portion pf Paragraph 20 of the Cross-Complaint appearing at page 5, lines 18 through 22, seeking an award of attorney’s fees;

7. That portion pf Paragraph 21 of the Cross-Complaint appearing at page 5, lines 27 to 28, seeking an award of attorney’s fees;

8. Paragraph 4 of the prayer to the Cross-Complaint appearing at page 6, lines 10 through 20, inclusive.”

As to Cross-Defendants’ request nos. 2 and 3, California Rules of Court, rule 3.1322 states: “A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.” (Cal. Rules of Court, rule 3.1322.)

Cross-Defendant’s notice of the motion does not identify the specific portions of the cross-complaint that Defendant seeks to strike as to items 2 and 3. Accordingly, the motion is DENIED as to items 2 and 3 for failure to meet the procedural requirements.

As to request no. 1, California Code of Civil Procedure section 1021 provides for attorney’s fees specifically provided by statute or by agreement between the parties. (Code Civ. Proc. § 1021.)

Cross-Complainant does not allege any agreement of the parties or cite any statutory basis that would provide for attorney’s fees pursuant to CCP § 1021.

However, as to request no. 4, Cross-Defendants seek to strike this paragraph: For judgment against Cross-Defendants, and each of them, in such amounts as Plaintiff may recover against Cross-Complainant in this action.

This paragraph appears relevant to other claims and not just attorney fees. Thus, the request to strike no. 4 is denied.

Thus, the motion to strike the prayer for attorney’s fees as to request no. 1 is GRANTED without leave to amend. The motion to strike attorney fees as to request nos. 2-4 is DENIED without prejudice.