Susan Kang Schroeder vs. Classic Party Rental

Motion to Strike

Cal. Super. - 4th Dist.May 6, 2016

R o p e r s M a j e s k i K o h n & B e n t l e y A Pr of es si on al C o r p o r a t i o n Lo s A n g e l e s 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ELECTRONICALLY FILED Superior Court of California, County of Orange TIM M. AGAJANIAN (SBN 130508) T1A42016 at 04:40:00 Phd GERMAN A. MARCUCCI (SBN 222237) Clerk of the Superior Court THOMAS J. MCNAMARA (SBN 289883) By Trinity Palabrica, Deputy Clerk ROPERS, MAJESKI, KOHN & BENTLEY 445 South Figueroa Street, Suite 3000 Los Angeles, California 90071-1619 Telephone: (213) 312-2000 Facsimile: (213) 312-2001 Email: tim.agajanian@rmkb.com german.marcucci@rmkb.com thomas.mcnamara@rmkb.com Attorneys for Defendant SPECIAL EVENT HOLDINGS INC. dba CLASSIC PARTY RENTALS SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE - CENTRAL JUSTICE CENTER SUSAN KANG SCHROEDER, CASE NO. 30-2016-00850715-CU-PO-CJC an individual, Hon. Geoffrey T. Glass — Dept. C32 Plaintiff, NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF AMENDED Vv. COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN CLASSIC PARTY RENTAL; SUPPORT THEREOF PABLO, an individual; AND DOES 1 through 50, inclusive, DATE: December 19,2016 TIME: 1:30 p.m. Defendants. DEPT: C32 Complaint Filed: February 25, 2016 Trial Date: Not Set TO ALL PARTIES AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on December 19, 2016, at 1:30 p.m., or as soon thereafter as the matter may be heard in Department C32 of the above-entitled Court located at 700 Civic Center, Santa Ana, California 92701, defendant Special Event Holdings Inc. dba Classic Party Rentals (erroneously sued as Classic Party Rental) (“Classic Party Rentals”). Classic Party Rentals will and does hereby move to strike portions of plaintiff Susan Kang Schroeder’s (“Plaintiff”) Amended Complaint pursuant to Code of Civil Procedure sections 435 and 436. 4816-1527-8396.1 -1- NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF AMENDED COMPLAINT R o p e r s M a j e s k i K o h n & B e n t l e y A Pr of es si on al C o r p o r a t i o n Lo s A n g e l e s 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 More specifically, Classic Party Rentals seeks an order from this court striking all prayers for attorney’s fees as against Classic Party Rentals on the ground that attorneys’ fees are not recoverable in the actions pleaded in the Amended Complaint. (Code Civ. Pro. § 1021). Specifically, Classic Party Rentals moves to strike the following paragraphs as against Classic Party Rentals: e Prayer for Damages, “Third Cause of Action. . . 5. For attorney’s fees in an amount to be shown according to proof;” (Amended Complaint, p. 6:10.) e Prayer for Damages, “Fourth Cause of Action. . . 5. For attorney’s fees in an amount to be shown according to proof;” (Amended Complaint, p. 6:19.) This Motion is based upon this Notice and the attached Memorandum of Points and Authorities as well as all pleadings and papers on file herein and upon such evidence, either oral or documentary, as may be introduced at the time of hearing on the Motion. DATED: November 14, 2016 ROPERS, MAJESKI, KOHN & BENTLEY By: /s/ Thomas J. McNamara TIM M. AGAJANIAN GERMAN A. MARCUCCI THOMAS J. MCNAMARA Attorneys for Defendant SPECIAL EVENT HOLDINGS INC. dba CLASSIC PARTY RENTALS 4816-1527-8396.1 -2- NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF AMENDED COMPLAINT R o p e r s M a j e s k i K o h n & B e n t l e y A Pr of es si on al C o r p o r a t i o n Lo s A n g e l e s 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. PRELIMINARY STATEMENT As stated in the Demurrer filed concurrently herewith, this lawsuit arises out of injuries allegedly suffered by plaintiff Susan Kang Schroeder (“Plaintiff”) when some beach chairs owned by Classic Party Rentals fell from a stack. All relevant facts and allegations of the Amended Complaint are summarized in the demurrer filed concurrently herewith. II. LEGAL ARGUMENT A. Standard On Motion To Strike Code of Civil Procedure section 436 provides, in relevant part: “The court may, upon a motion made pursuant to Section 435 [...] (a) strike out any irrelevant, false, or improper matter inserted in any pleading; (b) strike out all or part of any pleading not drawn or filed in conformity with the law of this state, a court rule, or an order of the court.” (Civ. Code §436.) The Code defines “immaterial allegation” as (1) “[a]n allegation that is not essential to the statement of the claim or defense,” (2) “[a]n allegation that is neither pertinent to, or supported by, an otherwise sufficient claim or defense,” or (3) “[a] demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.” (Code Civ. Proc. §431.10(b)(1)-(3)). Immaterial allegations are the same as “irrelevant” matters as that term is used as a basis for motion to strike pursuant to Code of Civil Procedure section 436. (Code Civ. Proc. §431.10(c).) Additionally, contentions, deductions or conclusion of fact or law alleged in the complaint are not considered in judging its sufficiency, and therefore are immaterial allegations. (C&H Food Company v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062.) The Court has authority to strike damages from a Complaint if such damages are not recoverable, including punitive damages. (Grieves v. Superior (1984) 157 Cal. App.3d 159, 168.) 4816-1527-8396.1 -1- NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF AMENDED COMPLAINT R o p e r s M a j e s k i K o h n & B e n t l e y A Pr of es si on al C o r p o r a t i o n Lo s A n g e l e s 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Plaintiff Is Not Entitled To Attorneys’ Fees As stipulated by Code of Civil Procedure Section 1021, a party is not entitled to attorney’s fees except where authorized by statute or by contract. (Anger v. Borden (1951) 38 Cal 2d 136, 238.) Moreover, a prayer that merely contains a request for “reasonable attorney’s fees and costs” does not satisfy the pleading requirement. (Jen-Mar Const. Co. v. Brown (1967) 247 Cal.App.2d 564, 573-574.) Here, Plaintiff alleges no such obligation or statute, but instead merely inserts a prayer for attorney’s fees in her last two causes of action without any justification whatsoever. Put simply, attorneys’ fees are not authorized in actions for assault and battery, which Plaintiff mistakenly prays for in her Amended Complaint. Therefore, these prayers must be stricken in their entirety. 111. CONCLUSION Based on the foregoing, Classic Party Rentals respectfully requests that the Court grant this Motion and order the following portions of the Amended Complaint stricken as against Classic Party Rentals, with prejudice: e Prayer for Damages, “Third Cause of Action. . . 5. For attorney’s fees in an amount to be shown according to proof;” (Amended Complaint, p. 6:10.) e Prayer for Damages, “Fourth Cause of Action. . . 5. For attorney’s fees in an amount to be shown according to proof;” (Amended Complaint, p. 6:19.) DATED: November 14, 2016 ROPERS, MAJESKI, KOHN & BENTLEY By: /s/ Thomas J. McNamara TIM M. AGAJANIAN GERMAN A. MARCUCCI THOMAS J. MCNAMARA Attorneys for Defendant SPECIAL EVENT HOLDINGS INC. dba CLASSIC PARTY RENTALS 4816-1527-8396.1 -2- NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF AMENDED COMPLAINT R o p e r s M a j e s k i K o h n & B e n t l e y A Pr of es si on al C o r p o r a t i o n Lo s A n g e l e s 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASE NAME: SCHROEDER v. CLASSIC PARTY RENTAL; et al. ACTION NO.: OCSC No. 30-2016-00850715-CU-PO-CJC PROOF OF SERVICE METHOD OF SERVICE 1. At the time of service I was over 18 years of age and not a party to this action. 2. My business address is 445 South Figueroa Street, Suite 3000, Los Angeles, California 90071-1619, County of Los Angeles. 3. On November 14, 2016, I served the following document: NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 4. Iserved the document(s) electronically through Court approved electronic filing service provider on the person(s) at the electronic service address below: Steven D. Baric, Esq. Attorney for Plaintiff BARIC & ASSOCIATES SUSAN KANG SCHROEDER 2601 Main Street, Suite 1050 Irvine, California 92614 Phone: (949) 251-1870 Fax: (949) 251-1886 Email: sbaric@bariclaw.com I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: November 14, 2016 Elizabeth Avila /s/ Elizabeth Avila Name Signature 4816-1527-8396.1 -3- NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF AMENDED COMPLAINT