Judge: Timothy Patrick Dillon, Case: 22STCV08019, Date: 2022-10-25 Tentative Ruling

Case Number: 22STCV08019    Hearing Date: October 25, 2022    Dept: 73

EVIE RYLAND v. CLAUDIA NEUMAN, individually and successor in interest of Marian Neuman, et al. 

Counsel for Plaintiff/Cross-Defendant (Movant): Vadim F. Frish, Matthew Ames (Frish Law Group, APLC)
Counsel for Defendant/Cross-Complainant (Opposition): Herbert N. Wolfe (Fisher, Klein & Wolfe LLP) 

MOTION TO STRIKE PORTIONS OF CROSS-COMPLAINT
(filed 06/15/2022)¿ 

TENTATIVE RULING¿ 

Plaintiff/Cross-Defendant’s Motion to Strike is GRANTED without leave to amend.

Background

This case arises out of a complaint for elder abuse filed by Plaintiff and Cross-Defendant Claudia Neuman against Defendant and Cross-Complainant Evie Ryland (“Ryland”).  On April 15, 2022, Ryland filed the present cross-complaint against Claudia Neuman, Victoria Talbot Neuman (collectively, the “Neumans”), and Does 1 to 10, alleging three causes of action: (1) services rendered to decedent Marian Neuman, (2) intentional infliction of emotional distress, and (3) negligent infliction of emotional distress. 

On June 15, 2022, the Neumans filed a Motion to Strike the request for attorney’s fees at page 5, line 27 and page 6, item 4, of Ryland’s Cross-Complaint. 

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.  (Code of Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (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.  (Code Civ. Proc., § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.) 

Before filing a motion to strike, the moving party is required to meet and confer with the party who filed the pleading sought to be stricken, in person or telephonically, for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the motion to strike.  (Code Civ. Proc., § 435.5, subd. (a).) 

Discussion

Meet and Confer 

Following a review of the Declaration of Matthew Ames, the Court finds that the Neumans have properly met and conferred in compliance with Code of Civil Procedure section 435.5, subdivision (a).  (Ames Decl., ¶¶ 2-3.) 

Ryland Does Not Plead Any Contractual or Statutory Bases for Attorneys’ Fees

The Neumans move to strike the request for attorneys’ fees in Ryland’s Cross-Complaint because Ryland does not plead any contractual or statutory bases for recovering attorneys’ fees.  The Court agrees.

 Civ. Code Proc. section 1021 sets forth the applicable standard.  Section 1021 states:

“Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, o the parties; but parties to actions or proceedings are entitled to their costs as hereinafter provided.”

(Emphasis added.)  Here, Ryland does not plead any contractual or statutory bases for attorneys’ fees.  Rather, the Cross-Complaint sets forth tort and quasi-contract claims.  As such, Ryland has failed to sufficiently plead entitlement to attorneys’ fees in this case.

Ryland opposes on the grounds that attorneys’ fees are recoverable as an element of costs under Civ. Code Proc. section 1026 because Claudia Neuman is defending this action as the trustee of the living trust created by decedent Marian Neuman.  Section 1026 provides, in relevant part, that

“(a) . . . in an action prosecuted or defended by a personal representative, trustee of an express trust, guardian, conservator, or a person expressly authorized by statute, costs may be recovered as in an action by or against a person prosecuting or defending in the person’s own right.

(b) Costs allowed under subdivision (a) shall, by the judgment, be made chargeable only upon the estate fund, or party represented, unless the court directs the costs to be paid by the fiduciary personally for mismanagement or bad faith in the action or defense.”

Ryland’s argument lacks merit for two reasons.  First, and as stated above, Ryland does not plead any statute, let alone Section 1026, as a basis for attorneys’ fees.  Second, Section 1026 does not expressly provide for recovery of attorneys’ fees.  While it is true that, in California, attorney’s fees are defined as costs, “California’s costs statute [section 1033.5] further specifies attorney’s fees are allowable as costs when authorized by contract, statute, or law.”  (Pulliam v. HNL Automotive Inc. (2022) 13 Cal.5th 127, 141-142.)  (Emphasis added.)  In other words, the statute must expressly provide for the recovery of attorneys’ fees.  Here, section 1026 does not so provide. 

Accordingly, the Court GRANTS the motion to strike the request for attorneys’ fees in Ryland’s Cross-Complaint.

Leave to Amend

Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

Because Ryland has not  stated how a viable claim for attorneys’ fees can be stated, any amendment would be futile.  Therefore, the court grants the motion to strike without leave to amend. 

Disposition

            The motion to strike is granted without leave to amend.

            Moving party to give notice.