Hang Sheng et al. v. Prometheus Real Estate Group, Inc. et al.

In ruling on a motion to strike, the court reads the complaint as a whole, all parts in their context, and assumes the truth of all well-pleaded allegations. (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63.)

California Rules of Court, rule 3.1322(a) requires that “[a] notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.” (Cal. Rules of Court, rule 3.1322(a).)

As with a demurrer, no extrinsic evidence can be considered. This includes declarations. The court has considered the declaration from Prometheus counsel Evelina Chang in support of the motion only to the extent it addresses the meet and confer efforts required by statute and has not considered the attached exhibits. The court has not considered any portion of the two declarations submitted by Plaintiffs, any portion of the attached exhibits, or any arguments based on this extrinsic evidence. While the party bringing a motion to strike is required by statute to file a declaration describing meet and confer efforts, there is no 19

authority permitting an opposing party to file a declaration. Self-represented litigants “are held to the same standards as attorneys” and must comply with the rules of civil procedure. (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543; Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)

DISCUSSION

Prometheus’ request for judicial notice in support of the motion to strike is denied. (Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091, fn.1 [denying as unnecessary a request for judicial notice of pleading under review on demurrer].)

Prometheus’ motion strike largely fails to comply with Rule of Court 3.1322(a) because the targets of the motion are not clearly identified in the notice of motion. The notice of motion identifies the requests for punitive damages and attorney fees that are made in the complaint’s prayer and exhibit 7 to the complaint. While other targets of the motion are more precisely identified in the supporting memorandum, that does not comply with Rule 3.1322(a). (See memorandum at p. 2:1-4.)

The motion to strike exhibit 7 to the complaint is denied. Assuming arguendo that an attached exhibit can be considered part of a “pleading” as defined in Code of Civil Procedure section 435, Prometheus has failed to show that this exhibit (containing noise complaints similar to Plaintiffs’ alleged experience) are irrelevant to all of Plaintiffs’ causes of action. (See complaint at ¶¶ 44-47.) Asserting that an allegation is “hearsay” is not a basis for a motion to strike the allegation, much less a basis for striking an exhibit to a pleading.

Prometheus’ motion to strike the request for punitive damages in the complaint’s prayer (and, even if considered, requests made elsewhere in the body of the complaint that are only identified in the supporting memorandum) is also denied. A motion to strike is not a substitute for a demurrer and cannot be used to assert that a cause of action is inadequately pleaded. (Pierson v. Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342 [“[A] motion to strike is generally used to reach defects in a pleading which are not subject to demurrer.”].) Code of Civil Procedure section 436, subdivision (a), “does not authorize attacks on entire causes of action, let alone entire pleadings.” (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528.) “Its purpose is to authorize the excision of superfluous or abusive allegations.” (Ibid.)

Prometheus and PSAA have not demurred to any of the three fraud causes of action alleged against them in the complaint. Those causes of action are therefore presumed to be adequately pleaded against them for purposes of this motion. Any adequately pleaded fraud claim will support recovery of punitive damages. (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 610.)

The motion to strike the request for attorney fees in the complaint’s prayer is granted. Under Code of Civil Procedure section 1021, “each party is to bear his or her own attorney fees unless a statute or the agreement of the parties provides otherwise.” (Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 504; see Code Civ. Proc., § 1021 [“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, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.”].) The complaint does not allege any statutory or contractual basis for the recovery of attorney fees. 20

Even if it did, self-represented litigants are not permitted to recover attorney fees. (Witte v. Kaufman (2006) 141 Cal.App.4th 1201, 1207-1209; Trope v. Katz (1995) 11 Cal.4th 274, 277, 280-282 (Trope).)

Plaintiffs’ argument in opposition that they should be permitted to request attorney fees because they may be represented by counsel in the future is unpersuasive. (See opposition at p. 2:11-15, 8:23-10:9.) Contrary to what the opposition claims, Civil Code section 1942.4 (which is not referenced in the complaint) does not alter the general rule that self-represented parties cannot recover attorney fees. Similarly, the private, contract-based dispute between Plaintiffs and Prometheus and PSAA alleged in the complaint does not present a situation that might benefit the general public such that Code of Civil Procedure section 1021.5 (which is also not referenced in the complaint) might apply.

Even if it did, that would not change the general rule that self-represented litigants may not recover attorney fees. “[T]he usual and ordinary meaning of the words ‘attorney’s fees,’ both in legal and in general usage, is the consideration that a litigant actually pays or becomes liable to pay in exchange for legal representation.” (Trope, supra, 11 Cal.4th at p. 280.) Plaintiffs have not paid any such consideration and will not unless they acquire legal representation at a later date.

The motion to strike the request for attorney fees from paragraph 8 of the complaint’s prayer is granted without leave to amend. If Plaintiffs acquire legal representation at some later date and believe they can identify a basis for requesting attorneys’ fees, they may bring a noticed motion for leave to amend.

CONCLUSION

Defendant PSAA’s request for joinder is granted.

Defendant Prometheus’s request for judicial notice is denied.

Prometheus’ motion to strike portions of the complaint is granted without leave to amend as to the request for attorney fees in paragraph 8 of the complaint’s prayer. The motion is denied in all other respects.

Defendants Prometheus and PSAA are directed to file answers to the complaint within 30 days of the court’s final order. (Code. Civ. Proc., § 472a, subd. (d).)

The court will prepare the order.

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