Case Name: Mosaic Real Estate Investment, LLC v. Saul Roberto Flores, et al.

Case No.: 18-CV-330156

Before the Court is the motion by plaintiff Mosaic Real Estate Investment, LLC (“Mosaic”) to strike the request for attorney fees and costs in the first amended answer (“FAA”) of defendants Ground Zero Construction Co. Inc. (“Ground Zero”) and Saul Roberto Flores (“Flores”).

Factual and Procedural Background

This is an action by a developer, Mosaic, to recover money from its general building contractor, Ground Zero, and the officer of its general contractor, Flores, for construction defects. On February 8, 2019, Mosaic filed the operative first amended complaint against several defendants, including Ground Zero and Flores, alleging causes of action for: (1) breach of contract; (2) fraudulent misrepresentation; (3) negligence; (4) implied contractual indemnity; (5) judicial foreclosure; and (6) “vicarious liability.”

On October 2, 2019, Ground Zero and Flores filed their FAA. In the FAA, Ground Zero and Flores ask “that they be awarded their reasonable attorney’s fees and costs incurred ….” (FAA, p. 5:11-12.)

On November 15, 2019, Mosaic filed the instant motion to strike. Ground Zero and Flores filed an opposition to the motion on February 5, 2020.

Discussion

Pursuant to Code of Civil Procedure section 436, Mosaic moves to strike the request for attorney fees and costs in the FAA.

I. Legal Standard

Under Code of Civil Procedure section 436, a court may strike out any irrelevant, false, or improper matter inserted into any pleading or strike out all or 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.) The grounds for a motion to strike must appear on the face of the challenged pleading or from matters of which the court may take judicial notice. (Code Civ. Proc., § 437, subd. (a).) In ruling on a motion to strike, the court reads the pleading as a whole, all parts in their context, and assuming the truth of all well-pleaded allegations. (See Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63, citing Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255.)

II. Analysis

Mosaic argues that the Court should strike Ground Zero and Flores’ request for attorney fees because they did not plead a contractual or statutory basis for attorney fees and costs in the FAA.

This argument is not well-taken. The fact that Ground Zero and Flores did not allege a contractual or statutory basis for attorney fees and costs is not a basis to strike the request. Because contractual and statutory attorney fees are recoverable as costs of suit by noticed motion, a statutory or contractual basis need not be affirmatively alleged. (See Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469, 497; see also Chinn v. KMR Property Management (2008) 166 Cal.App.4th 175, 194; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019), ¶ 6:275, p. 6-90.)

Next, Mosaic argues that Flores’ request for attorney fees is predicated on Civil Code section 1717 and Flores is not entitled to attorney fees under that statute.

This argument lacks merit. The FAA does not allege the contractual or statutory basis for Flores’ request for attorney fees. There is nothing in the FAA establishing that Flores’ request for attorney fees is based on Civil Code section 1717. In its moving papers, Mosaic cites an email from Flores’ counsel, in which counsel purportedly referred Civil Code section 1717 as a basis for the request for attorney fees. But the Court only considers the face of the challenged pleading and judicially noticeable matters on a motion to strike. Thus, the Court cannot consider any statements purportedly made by Flores’ counsel.

For these reasons, Mosaic does not establish that the request for attorney fees and costs should be stricken from the FAA.

III. Conclusion

Accordingly, Mosaic’s motion to strike is DENIED.

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