Motion to Strike Portions of Complaint
all parties that have appeared in the case. (Cal. Rules of Court, Rule 3.1362(e).)
Moving Attorney to give notice.
106 Palos vs. La Habra Motion to Strike Portions of Complaint – DENIED Unified School District, 2025-01511238 Defendant, La Habra City School District (“Defendant”), moves for an order striking all references to attorney’s fees and costs at paragraph 78, page 15, lines 1 through 3 of the Second Amended Complaint of Plaintiff, Ian Palos, a minor, by and through his Guardian ad Litem, Salem Palos (“Plaintiff”). The motion to strike is DENIED.
Under Code of Civil Procedure section 436, the court may, upon a motion or at any time in its discretion, and upon terms it deems proper, strike out “...any irrelevant, false, or improper matter inserted in any pleading” or “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(a)-(b); See Quiroz v. Seventh Ave. Ctr. (2006) 140 Cal.App.4th 1256, 1281.) Irrelevant matters include allegations not essential to a claim or defense, allegations not pertinent to nor supported by a sufficient claim or defense, or requesting relief not supported by the allegations of the complaint or cross-complaint. (Code Civ. Proc. § 431.10(b).)
Defendant claims the allegations of the second amended complaint seeking attorney fees and costs are not supported by the claims for relief, and are therefore irrelevant.
Paragraph 78 of the ninth cause of action for violation of Government Code section 11135 states: “As a proximate result of the acts and omissions of Defendants, and each of them, as described herein, Plaintiff is entitled to Plaintiff’s reasonable attorney’s fees, Plaintiff’s costs of suit incurred herein, and such other and further relief as the Court deems just and proper.”
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“[E]ach party to a lawsuit is responsible for his or her own attorney’s fees in the absence of an agreement between the parties for fees or a statute specifically authorizing fees. [Citations.]” (Pederson v. Kennedy (1982) 128 Cal.App.3d 976, 979.) Under Code of Civil Procedure section 1032, attorney’s fees are recoverable as costs when authorized by contract, statute or law. (Code Civ. Proc. § 1033.5(a)(10)(A)-(C).)
Plaintiff does not dispute that Government Code section 11135 does not reference or authorize attorney’s fees, and cites to no authority supporting that attorney’s fees are authorized by Government Code section 11135. Instead, Plaintiff appears to rely upon Code of Civil Procedure section 1021.5. The Second Amended Complaint makes no claim for attorney’s fees under Code of Civil Procedure section 1021.5, but there is no requirement that a claim for attorney’s fees under Section 1021.5 must be pled in the complaint.
“ ‘There is no requirement that the intent to seek attorney fees under section 1021.5 must be pleaded in the underlying action. [Citation.] Such fees are not part of the underlying cause of action, but are incidents to the cause and are properly awarded after entry of a . . . judgment[.]’ [Citation.]” (Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469, 497 [finding that trial court erred in striking plaintiff’s prayer for attorney fees under Code of Civil Procedure section 1021.5 based on a failure to adequately plead their basis, and that plaintiff’s failure to reallege his request for fees in his first amended complaint did not waive or forfeit his ability to seek them at the conclusion of his case since there was no requirement that they be pled at all].)
Additionally, the “preliminary consideration under section 1021.5 is the plaintiff’s success.” (Vargas v. City of Salinas (2011) 200 Cal.App.4th 1331, 1339.) Since the plaintiff’s success cannot be assessed until after judgment, a motion to strike attorney’s fees under Code of Civil Procedure section 1021.5 appears premature.
Defendant to file an Answer within 20 days.