Judge: Stephen P. Pfahler, Case: 22CHCV00884, Date: 2023-04-18 Tentative Ruling

Case Number: 22CHCV00884    Hearing Date: April 18, 2023    Dept: F49

Dept. F-49

Date: 4-18-23

Case # 22CHCV00884

Trial Date: Not Set

STRIKE

MOVING PARTY: Defendants, Forward Calabasas, Inc. dba Keller Williams Realty Calabasas, et al.

RESPONDING PARTY: Plaintiff, Karen Berkibekyan

RELIEF REQUESTED

Motion to Strike

·         Claim for attorney fees

SUMMARY OF ACTION

On July 20, 2022, Plaintiff Karen Berkibekyan and defendants Longacre Estates, LP and Matthew Skinner entered into a “Vacant Land Purchase Agreement and Joint Escrow Instructions” for real property identified as “1 Lot Victoria Lane.” Defendants Forward Calabasas, Inc. dba Keller Williams Realty Calabasas and Zachary King represented the sellers in the transaction. On September 15, 2020, Plaintiff and Longacre Estates, LP executed a counteroffer whereby defendant First American Title Company was designated as title insurance company and escrow holder, and the price increased to one million with a required $100,000 deposit. While escrow was set to close 30 days after the obtainment of an “APN” (not defined in the operative complaint but presumably related to entitlements and approval of construction), escrow never closed.

Regardless or additionally to the failure to obtain an APN, Plaintiff also alleges the discovery of “defects” in the agreement, including the lack of the actual property/lot as described in the agreement, Longacre lacked actual title to the property, and was therefore never in a position to obtain the required entitlements and permits. The lack of ownership references prior case PC057766, whereby Plaintiff represents a judgment entered “voiding” any right title and interest by Longacre.

Notwithstanding the alleged lack of ownership based at least in part to the judgment voiding the right to convey title, Plaintiff alleges the $100,000 was improperly released to Longacre Estates, LP.

On October 14, 2022, Plaintiff filed a complaint for Fraud (Intentional Misrepresentation), Negligent Misrepresentation, Negligence, Breach of Contract, Breach of Fiduciary Duties, Breach of Duty to Disclose, Breach of Duty to Be Truthful, Breach of Covenant of Good Faith and Fair Dealing, Declaratory Relief, and Unjust Enrichment and Constructive Trust. On November 14, 2022, First American Title Company answered the complaint.

Also on November 14, 2022, Plaintiff filed a first amended complaint for Fraud (Intentional Misrepresentation), Negligent Misrepresentation, Negligence, Breach of Contract, Breach of Fiduciary Duties, Breach of Duty to Disclose, Breach of Duty to Be Truthful, Breach of Covenant of Good Faith and Fair Dealing, Declaratory Relief, and Unjust Enrichment and Constructive Trust. First American Title Company answered on December 8, 2022.

RULING: Granted.

Request for Judicial Notice: Granted.

The court takes judicial notice of the first amended complaint, but not the content for the truth of the matter asserted.

Defendants, Forward Calabasas, Inc. dba Keller Williams Realty Calabasas (Keller Williams) and Zachary King move to strike the claim for attorney fees in the first amended complaint. The motion relies on the argument that Plaintiff fails to allege any contractual or statutory basis of recovery for attorney fees against moving parties. Plaintiff in opposition acknowledges the arguments, but represents the claim for attorney fees are not stated against moving defendants, as they are not named in the fifth and seventh causes of action. Defendants in reply agree regarding the lack of any claim for attorney fees against moving defendants in the fifth and seventh causes of action, but still notes the remaining claim against moving defendants seeking attorney fees in the sixth cause of action.

A party may recover attorney fees incurred to enforce a contract providing for recovery. (Civ. Code, § 1717; Xuereb v. Marcus & Millichap, Inc. (1992) 3 Cal.App.4th 1338, 1342.) The identification of a broker in a purchase agreement, without any identified contractual obligations, will not render the broker a party to the agreement. (Super 7 Motel Associates v. Wang (1993) 16 Cal. App. 4th 541, 545.)

The operative complaint incorporates a copy of the Vacant Land Purchase Agreement and Joint Escrow Instructions [First Amend. Comp., Ex. B.] Section 31 states: “ATTORNEY FEES: In any action, proceeding or arbitration between Buyer and Seller arising out this Agreement, the prevailing Buyer or Seller shall be entitled to reasonable attorney fees and costs from the non-prevailing Buyer or Seller, except as provided in paragraph 28A.” Buyer and seller are identified as Karen Berkibekyan and Matt Skinner. The court finds no basis of contractual recovery of attorney fees against the broker defendants. The motion to strike is therefore granted with prejudice as to Keller Williams and Zachary King in the SIXTH cause of action for breach of duty to disclose.

Defendants are ordered to answer the first amended complaint within 10 days of this order.

Moving parties to give notice.