Judge Mark A. Young, Case 22SMCV01032 2023-05-04 Tentative Ruling

Judge: Mark A. Young, Case: 22SMCV01032, Date: 2023-05-04 Tentative Ruling

Case Number: 22SMCV01032 Hearing Date: May 4, 2023 Dept: M

CASE NAME: Barron v. R&LS Investment Inc., et al.

CASE NO.: 22SMCV01032

MOTION: Motion to Strike

HEARING DATE: 5/4/2023

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. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

“Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show in what manner plaintiff can amend the complaint, and how that amendment will change the legal effect of the pleading. (Id.)

MEET AND CONFER

Before filing a demurrer or motion to strike, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (CCP §§ 430.41, 435.5.) Counsel’s declaration regarding an email correspondence exchanged between the parties does not satisfy Code of Civil Procedure section 430.41(a)’s requirement that the parties meet and confer in person or by telephone. (Markow Decl. ¶¶ 2-3.) On this occasion, the Court will proceed to address the merits of the motion despite the insufficiency of the meet and confer. The Court cautions the parties that a code-compliant meet and confer effort is required for each demurrer and motion to strike on subsequent pleadings.

Analysis

Motion to Strike – Auction Breach

Defendants argue that the “Auction Breach” allegations are irrelevant, false and constitute an improper matter inserted into the Complaint. Defendants contend that the terms of the listing agreement shows that this could not be a breach, because the terms forbid Defendants from listing the property on MLS.

Indeed, section 5.B states that Plaintiff opted to prohibit Defendants from listing the property in the MLS. (Compl., Ex. B, p. 3.) That said, Plaintiff alleges that Defendants breached the agreement and fiduciary duties by “suggest[ing] and recommend[ing] that Plaintiff sell the Property through an auction rather than taking the traditional route of listing the Property on the MLS. (FAC, ¶13.) The breach does not strictly concern Defendants’ failure to list, but negligently advising Plaintiff not to list on the MLS. Thus, the alleged auction breach would not be prohibited by the cited term of the listing agreement.

Accordingly, the motion to strike is DENIED.

Motion to Strike – Attorneys’ Fees

Defendants move to strike out the fees request because the express terms of the agreement limits the recovery of attorneys’ fees to disputes concerning enforcement of the compensation provisions. The attorneys’ fee provision states:

“15. ATTORNEY FEES: In any action, proceeding or arbitration between Seller and Broker to enforce the compensation provisions of this Agreement, the prevailing Seller or Broker shall be entitled to reasonable attorney fees and costs from the non-prevailing Seller or Broker, except as provided in paragraph 19A.”

(Compl., Ex. B, §15.)

Plaintiff argues that the first and sixth causes of action concern the compensation provisions. Indeed, Plaintiff seeks a declaration that Defendants are not entitled to any commission under the Listing Agreement due to Defendants’ breaches.

Here, Plaintiff does not seek to “enforce” the compensation provisions. Rather, the complaint makes clear that Plaintiff seeks to invalidate or avoid the compensation provisions. By the terms of the agreement, the parties intended only to shift fees in actions for enforcement of the compensation provisions. Therefore, in this non-enforcement action, the prayer for attorneys’ fees is improper. Accordingly, the motion to strike is GRANTED.