2017-00217521-CU-FR

Kylee Yoder vs. Mark E. Haynes

Nature of Proceeding: Motion to Strike Portions of the 1st Amended Complaint

Filed By: Lewis, Erick D.

Defendants Mark E. Haynes and Folsom Hall Investors, Inc. d/b/a/Keller Williams Realty – Folsom’s Motion to Strike portions of the First Amended Complaint (“FAC”) is ruled on as follows:

Defendants’ Request for Judicial Notice is granted.

California Code of Civil Procedure section 435, subdivision (b)(1), states, in pertinent part, “Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof” The grounds for a motion to strike are as follows: 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, § 436.) Where a substantive defect is clear from the face of a complaint, such as a purported claim of right which is legally invalid, that portion of the cause of action may be attacked through the filing of a motion to strike. (PH II, Inc. v. Superior Court (1995) 15 Cal.App.4th 1680, 1682-1683.)

Defendants seek to strike the following language from the FAC:

Paragraph 145: [Granted without leave to amend]. This paragraphs seeks attorneys fees under plaintiff’s Buyer Representation Agreement with defendants. On the face of the FAC, the language of the contract applies only to disputes regarding the obligation to pay the real estate commission. This action does not arise from a dispute over the amount or payment of commission. See Hasler v Howard (2004) 120 Cal.App.4th 1023, 1027. The language of the contract is not broad enough to provide for attorneys fees for any dispute arising out of the parties’ relationship. Plaintiff points to no other provision in the contract or any other contract or statutory provision entitling plaintiff to fees.

7th cause of action Breach of Contract: Granted, without prejudice to bringing a motion to amend. See, e.g. People ex rel. Dept. Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785. This cause of action goes beyond the scope of leave to amend. Moreover, plaintiff has not alleged the terms of any contract that required defendants “to produce the Subject Property in a safe and habitable condition.” (See paragraph

136) A plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend. Community Water Coalition v. Santa Cruz County Local Agency (2011) 200 Cal.App.4th 1317, 1329.

Prayer for Relief, page 27, line 6 for general damages: Granted, without leave to amend. The Court previously granted the motion to strike general damages as to moving defendants yet the FAC still alleges a request for general damages against “defendants.” The prayer is deemed to apply only to defendant Kincaid.

Prayer for Relief Punitive Damages, page 27, line 8: Denied. The Court has overruled the demurrer to the Fraud cause of action.

Prayer for Relief Attorneys Fees page 27 line ten: Granted, without leave to amend. Plaintiff has not alleged a contract that provides for attorneys fees for the causes of action alleged in the FAC.