Judge: Melvin D. Sandvig, Case: 22CHCV00621, Date: 2023-07-20 Tentative Ruling

Case Number: 22CHCV00621    Hearing Date: July 20, 2023    Dept: F47

Dept. F47

Date: 7/19/23

Case #22CHCV00621

MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT

Motion to Strike filed on 6/22/23.

MOVING PARTY: Defendant SunPower Capital, LLC

RESPONDING PARTY: Plaintiff Alicia Grandmaison

NOTICE: ok

RELIEF REQUESTED: An order striking allegations regarding and the prayer for attorneys’ fees. 

RULING: The motion is granted with 20 days leave to amend. 

SUMMARY OF FACTS & PROCEDURAL HISTORY

This action arises out of an agreement, entered into on 5/28/16, for the installation and servicing of a solar panel system on the roof of Plaintiff Alicia Grandmaison’s (Plaintiff) property by Defendant SunPower Capital, LLC (Defendant).  Plaintiff alleges that from the time of installation she sustained damages caused by the installation, defective equipment, failure to obtain savings and failure to obtain promised reimbursement from Defendant. 

On 8/8/22, Plaintiff filed her verified complaint against Defendant for: (1) Breach of Contract, (2) Breach of Warranty, (3) Fraudulent Misrepresentation, (4) Negligent Misrepresentation and (5) Breach of Implied Warranty of Good Faith and Fair Dealing.  On 4/3/23, Defendant’s demurrer to the original complaint was overruled, in part, and sustained with leave to amend, in part.  (See 4/3/23 Minute Order).  To the extent the Defendant’s motion to strike portions of the original complaint was not rendered moot by the ruling on the demurrer, it was granted with leave to amend.  Id. 

On 5/3/23, Plaintiff filed the subject First Amended Complaint.  After meet and confer efforts did not resolve the issues Defendant had with regard to the allegations and prayer for attorneys’ fees contained within the First Amended Complaint, Defendant filed and served the instant motion to strike.  (See Chatzipantsios Decl.).  Specifically, Defendant seeks to strike paragraph 36,  page 6 lines 14-15 which states: “Paragraph 17 of the Contract states that Plaintiff ‘[is] entitled to recover [] attorney’s fees and costs if [she] prevail[s].” See Exhibit 1, page 12, paragraph 17; ’” Prayer for Relief ¶ 3, page 9 line 7 which states: “For all fees and costs incurred herein;” and Prayer for Relief ¶ 4, page 9 line 8 which states: “For attorneys’ fees as allowed by the Contract as described in Paragraph 36 above.”  Plaintiff has opposed the motion and Defendant has filed a reply to the opposition. 

ANALYSIS 

Upon motion, the Court may strike out any irrelevant, false, or improper matter inserted in any pleading or all or part of a pleading not drawn in conformity with the laws of California, a court rule or an order of the Court.  See CCP 435, 436. 

In ruling on Defendant’s motion to strike portions of the original complaint, the Court stated that

Plaintiff had failed to allege a sufficient basis for the recovery of attorneys’ fees because the original complaint did not reference a contract, statute or law as required to recover attorneys’ fees under CCP 1021 and CCP 1033.5(a)(10).  (See 4/3/23 Minute Order, p.6).  The Court further noted that in the opposition to the motion to strike portions of the original complaint, Plaintiff relied on a portion of the contract relating to the recovery of attorneys’ fees after  arbitration; however, Plaintiff failed to cite authority for the proposition that the attorney fee provision carries over to a court action.  Id.

In the First Amended Complaint, Plaintiffs relies on the contract between the parties as the basis for the claim for attorneys’ fees.  The portion of the contract which allows for the recovery of attorneys’ fees in the provision entitled “Applicable Law; Arbitration” and provides, in relevant part:

“We will each bear all of our own attorney’s fees and costs except that you are entitled to recover your attorney’s fees and costs if you prevail in the arbitration and the award you receive from the arbitrator is higher than Our last written settlement offer.  When determining whether your award is higher than Our last written settlement offer your attorney’s fees and costs will not be included.”  

(See FAC, Ex.1, p.12 §17).

Plaintiff has still failed to establish that the attorney fee provision in the contract carries over to a court action.  In Gilbane Federal (N.D. Cal. 2017) 275 F.Supp.3d 1180, 1194-1195, affirmed 777 Fed.Appx. 873 (9^th Cir. 2019), relied on by Plaintiff, the court merely held that a violation of a forum selection clause entitled the opposing party to recover attorney’s fees.  Id. at 1196.  There  is no indication in the Gilbane decision that the attorney fee provision was contained with a contractual arbitration provision as is the case here.   

However, there may be another basis (i.e., statutory) for Plaintiff to recover attorneys’ fees against Defendant based on the facts alleged in this case.  Plaintiff has alleged that “[p]ursuant to Code of Civil Procedure §1281.97, [Defendant] has waived its right to compel arbitration.  As a result, Plaintiff is now proceeding with the immediate action.”  (FAC ¶42).  Based on such allegation, Plaintiff may possibly be entitled to recover some, if not all, of her attorneys’ fees against Defendant as sanctions pursuant to CCP 1281.99.

CCP 1281.99(a) provides: 

“The court shall impose a monetary sanction against a drafting party that materially breaches an arbitration agreement pursuant to subdivision(a) of Section 1281.97 or subdivision (a) of Section 1281.98, by ordering the drafting party to pay the reasonable expenses, including attorney's fees and costs, incurred by the employee or consumer as a result of the material breach.”

CONCLUSION

Based on the foregoing, the motion is granted with 20 days leave to amend.  The Court finds that the First Amended Complaint fails to allege a proper basis for Plaintiff to recover attorneys’ fees in this action.  However, because there is a reasonable possibility that Plaintiff can cure the defect, Plaintiff is given leave to amend.