Case Number: BC648761 Hearing Date: May 31, 2018 Dept: 47

David Bar-Or v. Cory Gamberg, et al.

MOTION TO STRIKE RE: SECOND AMENDED COMPLAINT

MOVING PARTY: Defendants Cory Gamberg, Brian Gamberg, Neal Castleman, DCX-Chol Enterprises, Inc. and Lytepost, Inc.

RESPONDING PARTY(S): Plaintiffs David Bar-Or

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Defendants have allegedly breached an agreement to pay Plaintiff for the rights to programmable LCD (or is it LED—the 1AC alleged both technologies?) light technology developed by Plaintiff.

Defendants Cory Gamberg, Brian Gamberg, Neal Castleman, DCX-Chol Enterprises, Inc. and Lytepost, Inc. move to strike portions of the second amended complaint. The hearing was continued from a prior date to permit compliance with the meet and confer requirement set forth in CCP § 436.

TENTATIVE RULING:

Defendants Cory Gamberg, Brian Gamberg, Neal Castleman, DCX-Chol Enterprises, Inc. and Lytepost, Inc.’s motion to strike Prayer, ¶ 5 for attorney’s fees is GRANTED without leave to amend unless Plaintiff can demonstrate a reasonable possibility of successful amendment at the hearing.

The motion to strike the reference to “all Defendants” at ¶¶ 88 – 91, 93 – 101 (as specified in the notice of motion) is GRANTED without leave to amend as to Defendant Neal Castleman and OVERRULED as to the other Defendants based upon the March 15, 2018 ruling on the demurrer.

DISCUSSION:

Demurrer

Meet and Confer

The Declaration of David Azar reflects that Plaintiff’s counsel failed to meet and confer in good faith. This satisfies CCP § 435.5(a)(3)(B).

Discussion

The motion to strike Prayer, ¶ 5 for attorney’s fees is GRANTED without leave to amend. “[A]s a general rule, attorney fees are not recoverable as costs unless they are authorized by statute or agreement.” People ex rel. Dept. of Corporations v. Speedee Oil Change Systems, Inc. (2007) 147 Cal. App. 4th 424, 429. Especially in that Plaintiff alleges breach of an oral contract and common law fraud, there is no basis for recovery of attorney’s fees pled, unless Plaintiff can plead that the parties orally agreed for recovery of attorney’s fees pursuant to the contract. Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. Goodman v. Kennedy (1976) 18 Cal.3d 335, 348. In this instance, however, Plaintiff must demonstrate this possibility at the hearing, otherwise no leave to amend will be given.

The motion to strike the reference to “all Defendants” at ¶¶ 88 – 91, 93 – 101 (as specified in the notice of motion) is GRANTED without leave to amend as to Defendant Neal Castleman and OVERRULED as to the other Defendants based upon the March 15, 2018 ruling on the demurrer.

Moving Party to give notice, unless waived.

IT IS SO ORDERED.

Dated: May 31, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court