Judge Mark E. Windham, Case 22STLC00732 2022-09-14 Tentative Ruling

Judge: Mark E. Windham, Case: 22STLC00732, Date: 2022-09-14 Tentative Ruling

Case Number: 22STLC00732 Hearing Date: September 14, 2022 Dept: 26

MOTION TO STRIKE PORTIONS OF SECOND AMENDED COMPLAINT

(CCP §§ 435, 436)

TENTATIVE RULING:

Defendant T.H.E. Show/The Home Entertainment Show, LLC’s Motion to Strike Portions of the Second Amended Complaint is GRANTED AS TO THE IDENTICAL PORTIONS OF THE FIRST AMENDED COMPLAINT, AS FOLLOWS:

1. “FRAUDULENT AND UNFAIR BUSINESS PRACTICES” AT ¶1;

2. “AND OTHER INTENTIONAL MISREPRESENTATIONS ARE VIOLATIVE OF THE BUSINESS & PROFESSIONS CODE, TORT LAW, AND THE FUNDAMENTAL PUBLIC POLICIES OF THE STATE OF CALIFORNIA” AT ¶51; AND

3. “ATTORNEYS’ FEES” AT PP. 10-11, PRAYER FOR RELIEF, ¶5.

THE SECOND AMENDED COMPLAINT FILED ON APRIL 5, 2022 IS STRUCK ON THE COURT’S OWN MOTION.

SERVICE:

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

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

[X] 16/21 Day Lapse (CCP 12c and 1005 (b)) OK

SUMMARY OF COMPLAINT: Action for breach of contract and declaratory relief.

RELIEF REQUESTED: Strike the phrases “fraudulent and unfair business practices” and “and other intentional misrepresentations are violative of the Business & Professions Code, tort law, and the fundamental public policies of the State of California” as conclusory and irrelevant. Strike the request for attorney’s fees because Plaintiff has failed to plead facts showing it is entitled to recover attorney fees.

OPPOSITION: Prayers for relief are not properly the subject of a motion to strike and Defendant has not established that it will be prejudiced if the Motion is denied. Also, the request for attorney’s fees is supported by the Tort of Another doctrine.

REPLY: Plaintiff’s citation to federal authority in support of the opposition in wholly inapplicable here. There is no contractual or statutory basis for the request for attorney’s fees. The parties also met, conferred and agreed to drop the tort causes of action. The conclusory language supporting those tort causes of action should also be struck.

ANALYSIS:

On February 3, 2022, Hugh Nguyen and Angel City Audio, LLC (“Plaintiff”) filed this action for breach of contract, fraud and related claims against Maurice Chung and T.H.E. Show/The Home Entertainment Show, LLC (“Defendant”). On March 21, 2022, Plaintiff filed a First Amended Complaint that did not name either Hugh Nguyen or Maurice Chang. On April 5, 2022, Plaintiff filed a Second Amended Complaint without leave of court. Defendant filed the instant Motion to Strike Portions of the Second Amended Complaint on May 16, 2022. Plaintiff filed an opposition on August 31, 2022 and Defendant replied on September 7, 2022.

Discussion

As an initial matter, Plaintiff filed the Second Amended Complaint without leave of court, in violation of Code of Civil Procedure section 472, subdivision (a). On its own motion, the Court strikes the Second Amended Complaint pursuant to Code of Civil Procedure section 436, subdivision (b). The operative pleading is now the First Amended Complaint. Given that the same portions Defendant sought to strike from the Second Amended Complaint are in the First Amended Complaint, the Court will consider the Motion to Strike as pertaining to the First Amended Complaint. (See Notice of Motion, p. 2:4-16.)

The Motion is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 435.5. (Motion, Kinney Decl., ¶¶2-4.) Defendant moves to strike the following language:

1. “fraudulent and unfair business practices” at ¶1;

2. “and other intentional misrepresentations are violative of the Business & Professions Code, tort law, and the fundamental public policies of the State of California” at ¶51; and

3. “For costs of suit, including attorneys’ fees and costs associated with the prosecution of this operative Complaint, in an amount according to proof at the time of trial” at pp. 10-11, Prayer for Relief, ¶5.

Regarding the first two portions of the First Amended Complaint, Defendant argues that this language is irrelevant and unsupported by the allegations in the pleading. The First Amended Complaint alleges causes of action for breach of express contract, breach of implied covenant of good faith and fair dealing, breach of implied-in-fact contract, and declaratory relief. No causes of action for fraud or unfair business practices are alleged, nor are any facts alleged to support such causes of action. (See FAC, ¶¶8-23.) Nor does Plaintiff point to any such supporting allegations in its opposition. Instead, Plaintiff relies on non-binding federal case law to argue that Defendant will not be prejudiced if the allegations in question remain. The request to strike the phrases “fraudulent and unfair business practices” at paragraph 1 and “and other intentional misrepresentations are violative of the Business & Professions Code, tort law, and the fundamental public policies of the State of California” at paragraph 51 is granted.

Regarding the request to strike the prayer for damages, attorney’s fees are only recoverable when authorized by contract, statute or law. (Code Civ. Proc., §§ 10221, 1033.5, subd. (a)(10).) The First Amended Complaint does not allege a basis for the attorney’s fees arising out of the parties’ contract, nor does it cite to any applicable statute or law that allows the prevailing party in this action to recover attorney’s fees. (FAC, ¶¶8-23 and Prayer, ¶5.) Therefore, the First Amended Complaint lacks sufficient allegations to make a claim for attorney’s fees. The request to strike the request for attorney’s fees in the prayer for damages is also granted, but only as to the phrase “attorneys’ fees.” Defendant offers no argument that the prayer for costs is improper.

Finally, Plaintiff makes no showing that the First Amended Complaint can be amended to factually support the portions of the pleading Defendant moves to strike. Leave to amend must be allowed where there is a reasonable possibility of successful amendment, but the burden is on the complainant to show the Court that a pleading can be amended successfully.. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) As Plaintiff has not met that burden, leave to amend is denied.

Conclusion

1. “FRAUDULENT AND UNFAIR BUSINESS PRACTICES” AT ¶1;

2. “AND OTHER INTENTIONAL MISREPRESENTATIONS ARE VIOLATIVE OF THE BUSINESS & PROFESSIONS CODE, TORT LAW, AND THE FUNDAMENTAL PUBLIC POLICIES OF THE STATE OF CALIFORNIA” AT ¶51; AND

3. “ATTORNEYS’ FEES” AT PP. 10-11, PRAYER FOR RELIEF, ¶5.

THE SECOND AMENDED COMPLAINT FILED ON APRIL 5, 2022 IS STRUCK ON THE COURT’S OWN MOTION.

Moving party to give notice.