Judge: Virginia Keeny, Case: 24STCV26592, Date: 2025-01-21 Tentative Ruling

Case Number: 24STCV26592    Hearing Date: January 21, 2025    Dept: 45

Mariam Moore, et al. v. Penalver, LLC, et al.

Motion to Strike

Date of Hearing:         January 21, 2025                     Trial Date:       None Set

Department:                45                                            Case No.:        24STCV26592           

Moving Party:             Defendants Penalver, LLC; and Pena Grading and Demolition, Inc.

Responding Party:      Plaintiffs Mariam Moore; Ara Hakhverdian; and Maria Jacquez     

BACKGROUND

Factual and Procedural Background

            On October 11, 2024, Mariam Moore, Ara Hakhverdian, and Maria Jacquez (Plaintiffs) filed a Complaint against Penalver, LLC, and Pena Grading and Demolition, Inc. (Defendants), alleging five causes of action related to Defendants’ recycling business.  Plaintiffs allege Defendants’ business operations pollute the neighboring community where Plaintiffs reside. (Compl., ¶16.) Plaintiffs allege rocks, stones, dirt, dust, and particulate matter were released from the site of Defendants business operations onto Plaintiffs’ properties. (Id.) Plaintiffs requested Defendants abate their operations. When Defendants did not, Plaintiffs filed suit.

Defendants now move to strike plaintiffs’ prayer for attorney fees and injunctive relief. 

Meet and Confer

“Before filing a motion to strike…the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the motion to strike.” (Code Civ. Proc. §435.5.)

Defendants provide the Declaration of William D. Koehler (Koehler Decl.) which states Defense counsel sent a meet and confer letter via email on November 11, 2024 with a response deadline of close of business on November 18, 2024. (Koehler Decl., ¶3.) On November 18, 2024, Plaintiff’s counsel responded, asking to set up a call. (Id. at ¶4.) However, Defense counsel states the response to the Complaint was due on November 22, 2024, and therefore filed the Motion. As such, the requirements for Code Civ. Proc. §435.5 remain unsatisfied, however, per Code Civ. Proc. §435.5(a)(4), “A determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion to strike.” Therefore, the Court turns its attention to the Motion.

[Tentative] Ruling

            Defendant’s Motion to Strike is GRANTED.

LEGAL STANDARD

The court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc. § 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc. §436, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc. §437.)

ANALYSIS

            In their moving papers, Defendants seek to strike two forms of relief requested in the Prayer of the Complaint: (a) the request for attorney’s fees and (b) the request for  injunctive relief. For the reasons below, the Motion is denied.

A.    Attorneys’ Fees

            Under the “American Rule”, each party to a lawsuit must ordinarily pay for their own attorney fees. (Riverside Mining Limited v. Quality Aggregates (2024) 104 Cal.App.5^th 269, 275.) A litigant may only recover costs from the opposing party when grounded in contract or statute. (Id. Also see Code Civ. Proc. §§1717 and 1021.)

            Here, Plaintiffs have requested attorneys’ fees without stating a statutory basis.  Nonetheless, plaintiffs correctly point out that they may be entitled to fees under Section 1021.5 if this action ultimately results in “the enforcement of an important right affecting the public interest” by conferring a significant benefit “on the general public or a large class of persons,” and “the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate.”  Having given notice that it intends to seek attorney fees if available and advising defendant of their intent to seek fees under Section 1021, the motion to strike attorney fees is denied. 

            Plaintiffs have also established that they may be entitled to an injunction pursuant to C.C.P. Section §731(a) if they establish that defendants employed “unnecessary and injurious methods of operation.”  The court agrees that plaintiffs have adequately alleged that defendant is using unnecessary and injuries methods of operation. 

CONCLUSION

Accordingly, Defendant’s Motion to Strike is DENIED.