Case Name: Brown-Carr v. Public Storage
Case No.: 1-13-CV-247316

Defendant Public Storage (“Defendant”) moves to strike references to attorney’s fees. Plaintiff Terry Brown-Carr’s (“Plaintiff”) second amended complaint (“SAC”) asserts a single cause of action for premises liability with counts of negligence and willful failure to warn against Defendant. Paragraph 11, subparagraph (g) of the SAC seeks “Attorney’s fees.”

Defendant’s request for judicial notice of the SAC is GRANTED. (Evid. Code § 452, subd. (d).) Defendant’s request for judicial notice in reply of the entry of default against Anna Johnson is DENIED. (See Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 (stating that “judicial notice…is always confined to those matters which are relevant to the issue at hand”); see also Aquila, Inc. v. City and County of San Francisco (2007) 148 Cal.App.4th 556, 569 (stating that “[a]lthough a court may judicially notice a variety of matters, only relevant material may be noticed”).)

“As a general rule, attorney fees are awarded only when the action involves a claim covered by a contractual attorney fee provision and the lawsuit is between signatories to the contract.” (Real Property Services Corp. v. City of Pasadena (1994) 25 Cal.App.4th 375, 379-380.) Here, Plaintiff is a nonsignatory to a contract. Plaintiff is not alleging any claim based on a contract; rather, she alleges that Defendant was negligent in its “fail[ure] to properly illuminate the hall, allow[ance of] standing water to remain in the hall, and the… [presence of] several potholes.” (SAC, ¶ Prem.L-1.)

In opposition, Plaintiff cites to Brown Bark III, L.P. v. Haver (2013) 219 Cal.App.4th 809, a case also cited by Defendant. As noted by Plaintiff, Brown Bark III stated that “section 1717 allows a party who defeats a contract claim by showing the contract did not apply or was unenforceable to nonetheless recover attorney fees under that contract if the opposing party would have been entitled to attorney fees had it prevailed.” (Id. at p.819.) However, as previously stated, the SAC is not asserting any claim based on contract; thus, no contract claim could possibly be defeated by Plaintiff or Defendant.

Plaintiff also asserts that “Public Storage’s claim against Anna Johnson is instrumental in determining whether it believes it is entitled to attorney’s fees pursuant to the contract. In the cross-complaint, it seeks attorney’s fees… [t]herefore, it stands to reason, Ms. Brown-Carr, the non-signatory, is entitled to seek attorney’s fees pursuant to that contract because Public Storage made a claim against Ms. Brown-Carr using the inapplicable contract.” (Pl.’s opposition to motion to strike, pp.2:24-26, 3:1-2.) However, Plaintiff is not a cross-defendant in the cross-complaint. Defendant has made no claim against Plaintiff. The assertion that “Public Storage made a claim against Ms. Brown-Carr” is false and without merit.

The motion to strike subparagraph (g) of paragraph 11 of the SAC is GRANTED without leave to amend. Accordingly, subparagraph (g) of paragraph 11 of the SAC is hereby stricken.

The Court will prepare the order.