2016-00199650-CU-BC

Ezatullah Ghulam vs. Mohamad Aalemkhiel

Nature of Proceeding: Motion to Strike the First Amended Complaint

Filed By: Coleman, Michael

** If any party requests oral argument, then the hearing will take place at 9:00 AM in this department on Wednesday, March 14, 2018 . If this date is inconvenient for the parties, they shall meet and confer regarding a mutually convenient date and call the clerk in Department 54 by no later than 4:00 p.m on Monday, March 12, 2018 to notify the clerk of the new date. Any request for oral argument must still be made Monday, March 12, 2018, 4:00 p.m. (See Local Rule 1.06.) **

Defendants’ motion to strike is ruled upon as follows.

The motion to strike the third cause of action for fraudulent concealment is DENIED. Defendant insists that Plaintiff was not given leave to amend to add this new cause of action. In his original complaint, Plaintiff alleged a cause of action for “fraud.” The “fraud” cause of action encompassed allegations regarding both misrepresentation and concealment. Plaintiff has now split the “fraud” cause of action into fraudulent misrepresentation and fraudulent concealment. The Court disagrees that the splitting of the cause of action is adding a “new cause of action.”

The motion to strike entire FAC is DENIED. Defendant moves to strike the entire FAC on the ground Plaintiff was not given leave to amend to add the third cause of action for fraudulent concealment. The motion is denied for the reasons set forth above.

The motion to strike prayer for attorneys’ fees is GRANTED. There is no statutory nor contractual basis for an award of attorneys’ fees. Plaintiff claims that he may be entitled to attorneys’ fees “as the power of attorney agent of his brother, Zinatullah Gelaman (“Zin”), pursuant to the indemnification provision of the partnership agreement, to which Zin is a signatory.” (Opposition, 5:16-18.) Zin is not a plaintiff in this action. Thus, there is no basis for an award of attorneys’ fees.