Motion to Strike Portions of Plaintiff's Complaint
Plaintiffs cite to no relevant statutory authority, and to no case law whatsoever, in support of the arguments made in their Opposition, they have failed to comply with Rule 3.113(b).
Given Plaintiffs' failure to comply with Rule 3.113(b), the arguments they attempt to raise in their Opposition should be deemed waived by this Court, and Princess' Motion to Dismiss should be granted as if it were unopposed. This is enough to decide the case. But the Court has elected to read and consider everything said. Therefore, even if this were not enough to decide the case the Court has considered other arguments.
Plaintiffs have incorrectly relied on a typographical error in the Notice of Motion to Dismiss. Plaintiffs argue that the Motion to Dismiss is internally unreliable and an attempt to use procedural momentum to avoid merits review. Specifically, they note that the Notice of Motion to Dismiss says that the Passage Contract requires that Plaintiffs' personal injury claims be arbitrated in Miami-Dade County. However, read in connection with the balance of Princess' moving papers, it is obvious that the italicized words contain a typographical error: they should read "non-personal injury claims."
The error is not repeated anywhere else in the moving papers, and the Motion to Dismiss quotes the exact language at issue where it is abundantly clear that the forum-selection clause at issue applies to non-personal injury claims like Plaintiffs' complaint herein. Plaintiffs were not, in fact, misled by the typographical error.
Plaintiffs claim that the Court should reject the motion because there was no contemporaneous evidence, no notice, no assent, inconsistent conduct, timeline defect and legal consequence is without merit. The moving papers were clearly adequate on each and all those meritless claims.
Defendants claim that Plaintiffs seek to address new theories and arguments raised for the first time in Defendant's Reply, including (1) waiver and (2) a "traveling companion" theory as to John Bacon, neither of which was presented in Defendant's moving papers and neither of which is supported by proof of enforceable notice or assent and Plaintiffs object to this new matter raised for the first time in Reply and request that it be disregarded, or alternatively, if the Court is inclined to consider such new matter, Plaintiffs request a brief continuance to permit a full and fair opportunity to respond.
That objection is without merit. There are no new theories or arguments raised for the first time. Plaintiffs merely responded to the arguments raised by the Defendants in their Response. The Court will consider it and will not grant continuance. Additionally, Plaintiffs have already had a chance to respond and indeed attempted to do so in their Sur-Reply, which the Court has read and considered.
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Plaintiffs' Opposition does not dispute the central fact raised by the Motion to Dismiss: Princess' Passage Contract contains a forum-selection clause requiring non-personal injury claims, including breach of contract and other consumer-based claims, to be arbitrated in Miami-Dade County, Florida. Plaintiffs nevertheless filed their Complaint in the Superior Court of California, County of Santa Barbara. To defeat the instant Motion to Dismiss, it is Plaintiffs' burden to show, by citation to both relevant law and admissible evidence, that the forum-selection clause is unenforceable. Plaintiffs' Opposition does not to do so, relying instead on the conclusory and legally unsupported assertion that neither Plaintiff "assented" to arbitration in Miami-Dade County. Princess' Motion to Dismiss must therefore be granted.
Additionally, Princess set forth in its Memorandum in support of the Motion to Dismiss the Ninth Circuit's two-pronged test of "reasonable communicativeness," used to determine when a passenger is contractually bound by the "fine print of a passenger ticket." Schlessinger v. Holland America, N.V. (2004) 120 Cal.App.4th 552, at p. 557. The two prongs at issue are: (a) the physical characteristics of the ticket itself (font size, conspicuousness, clarity of notice, ease of perceiving the ticket provisions in question), and (b) an evaluation of "the circumstances surrounding the passenger's purchase and subsequent retention of the ticket/contract," including "extrinsic factors indicating the passenger's ability to become meaningfully informed of the provisions.
Wallis ex rel. Wallis v. Princess Cruises, Inc. (9th Cir. 2002) 306 F.3d 827 at ps. 835 - 836. Plaintiffs' Opposition does not address either prong, either to explain how Princess' Passage Contract failed to satisfy them or to contend that a different test should apply. As a result, the forum-selection clause in Princess Passage Contract should be deemed to have been reasonably communicated to Plaintiffs, and the Motion to Dismiss should be granted.
Tentative Ruling: West Coast Community Builders, Inc. v. Devicente & Mills Architecture, Inc., et al Tentative Ruling: West Coast Community Builders, Inc. v. Devicente & Mills Architecture, Inc., et al Case Number
Case Type Civil Law & Motion Hearing Date / Time Wed, 05/27/2026 - 10:00 Nature of Proceedings Motion of Defendants Devicente & Mills Architecture, Inc. and Eduardo deVicente to Strike Portions of Plaintiff's Complaint Tentative Ruling For Plaintiff West Coast Community Builders, Inc.: Timothy G. Scanlon, Young Wooldridge LLP For Defendants Devicente & Mills Architecture, Inc. and Eduardo deVicente: John T. Lupton, Miller Waxler LLP RULING For the reasons set forth herein, the motion to strike portions of Plaintiff's complaint is granted.
This ruling does not prevent Plaintiff from moving to amend the complaint to allege sufficient grounds for recovery of attorneys' fees, or prevent Plaintiff from potentially recovering attorneys' fees, as costs, should Plaintiff prevail in the action and have a legally supported basis for recovery of attorneys' fees. The trial date set for 6/30/26 is confirmed.
Background
This action commenced on December 31, 2025, by the filing of the complaint by Plaintiff West Coast Community Builders, Inc., against Defendants Devicente & Mills Architecture, Inc., dba DMHA Architecture (DMHA) and Eduardo deVicente (collectively "Defendants") for breach of written contract and professional negligence. As alleged in the complaint: On April 1, 2021, Plaintiff and DMHA entered into a written Standard Form of Agreement Between Design-Builder and Architect (the "agreement"). (Compl., P. 10 & Exh.
A.) Pursuant to the agreement, DMHA agreed to provide Plaintiff with architectural services for the development located at 219 E. Haley Street, Santa Barbara, including design development through the construction phase of the project (the "project"). (Compl., P. 11.) Pursuant to the agreement, DMHA agreed to, among other things, (1) provide design development through the construction phase of the project, (2) comply with design and construction milestones for the project, (3) perform its services with the professional skill and care ordinarily provided by architects practicing in the same or similar locality under the same or similar circumstances, (4) perform services as expeditiously as is consistent with such professional skill and care and the orderly progress of the project, (5) perform its services in the sole interest, and for the exclusive benefit, of Plaintiff, (6) carry professional liability insurance with policy limits of not less than three million dollars per claim and three million dollars in the aggregate, (7) review laws, codes, and regulations applicable to DMHA's services and respond in the design of DMHA's work to requirements imposed by governmental authorities having jurisdiction over the project, (8) assist Plaintiff with the evaluation of alterative materials, building system and equipment in developing the design of the project, (9) review and respond to requests for information relating to the project, (10) review and approve (or take other appropriate action) on project submittals, (11) review and prepare proposed change orders and construction change directives, and (12) any additional services deemed appropriate under the agreement. (Compl., P. 13.)
Within the last year, and on or after January 7, 2025, DMHA materially breached the agreement by failing to perform each of those services with the promised professional skill and care ordinarily provided by architects practicing in the same or similar locality under the same or similar circumstances. (Compl., P. 14.) Specifically, within the last year, Plaintiff discovered design deficiencies impacting fire and life safety issues, accessibility issues, waterproofing, drainage, and assemblies issues. (Ibid.)
DMHA's deficiencies and omissions in breach of the Agreement resulted in additional design-related costs and delays to the project, including: (l) fire treated lumber, (2) window ratings, (3) slider doors, (4) drag struts, (5) stair stringers, (6) door ratings/sizes, (7) seismic joints, (8) ceiling joists, (9) exhaust shafts, (10) stairs ratings, (11) panels, (12) heat pumps, (13) fire wall ratings, (14) assembly changes at mechanical shaft, (15) louver unit additions, (16) elevator shaft drywall, (17) desglass, (18) additional framing, (19) trash chute caps, and (20) cabinet ADA issues. (Compl., P. 15.)
The project is not yet complete. (Ibid.) Under the terms of the agreement, Plaintiff has been damaged, as a result of DMHA's breaches, in an amount no less than $873,083.08. (Compl., P. 17.) A review of the attached agreement shows that Eduardo deVicente is the president and CEO of DMHA.
Defendants now move to strike the portions of Plaintiff's complaint that seek attorneys' fees. Specifically: Paragraph 20, page 5, lines 10-11: "Pursuant to Article 12 of the Agreement, Plaintiff is entitled to the recovery of attorneys' fees and costs in the collection of the outstanding amount due." Paragraph 27, page 7, lines 1-2: "Pursuant to Article 12 of the Agreement, Plaintiff is entitled to the recovery of attorneys' fees and costs in the collection of the outstanding amount due." Page 7, line 8: "including attorneys' fees as permitted by contract and statute." Plaintiff opposes the motion.
Analysis
"The Court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: "(a) Strike out any irrelevant, false, or improper matter inserted in any pleading. "(b) Strike out 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., Sec. 436.) Defendants argue that the request for attorneys' fees is improper and not drawn in conformity with California law. " 'The appropriate procedural device for challenging a portion of a cause of action seeking an improper remedy is a motion to strike.' " [Citation.]" (Brown v.
Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, 844.) "The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the Court is required to take judicial notice." (Code Civ. Proc., Sec. 437, subd. (a).) "California follows the American rule regarding attorney's fees. Under that rule, litigants are ordinarily responsible for paying their own attorney's fees, unless a statute or agreement provides otherwise. [Citation.]" (Travis v. Brand (2023) 14 Cal.5th 411, 417.)
Attorney's fees are allowed as costs when authorized by contract, statute, or law. (Code Civ. Proc., P. 1033.5, subd. (a)(10).) "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." (Code Civ. Proc., Sec. 1021.) "[A] party seeking to recover attorneys' fees as the prevailing party in an action on a contract providing for such fees must make an election whether to plead and prove such fees as damages under the contract or claim them as costs of suit.
In other words the party must follow either procedure but not both." (Herzog v. Riel (1979) 99 Cal.App.3d Supp. 12, 15.) Civil Code, section 1717(a) provides, in pertinent part: "In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs." "Section 1717 and its reciprocity principles, however, have " 'limited application. [They] cover[] only contract