Case Name: Kirk Short v. Stanford Health Care, et al.

Case No.: 17CV309845

Defendants Stanford Health Care and Ivan Cheng, M.D.’s Motion to Strike Portions of Plaintiff’s Complaint for Damages

On or about February 15, 2016, defendants Stanford Health Care (“SHC”), Stanford University Medical Center, and Ivan Cheng, M.D. (“Dr. Cheng”) (collectively, “Defendants”) provided medical and surgical services to plaintiff Kirk Short (“Short”) in connection with his spine surgery. (Complaint, ¶5.) According to the allegations, Defendants were negligent in determination for surgery, selection of surgical procedure, performance of the procedure and post-op care. (Id.)

On May 8, 2017, plaintiff Short filed a complaint against Defendants asserting a claim for professional negligence.

On March 14, 2018, defendants SHC and Dr. Cheng filed the motion now before the court, a motion to strike portions of plaintiff Short’s complaint. Specifically, defendants SHC and Dr. Cheng move to strike plaintiff Short’s prayer, “For attorney’s fees according to law and proof.”

I. Defendants SHC and Dr. Cheng’s motion to strike portions of plaintiff’s complaint for damages is GRANTED.

Under general rules of civil procedure, a motion to strike may be brought on the following two grounds: (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.)

Irrelevant matter includes “immaterial allegations.” (Code Civ. Proc., §431.10, subd. (c).) “An immaterial allegation in a pleading is any of the following: (1) An allegation that is not essential to the statement of a claim or defense; (2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense; (3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.” (Code Civ. Proc., §431.10, subd. (b).)

By plaintiff Short’s own acknowledgment, “Under California law, ‘each party to a lawsuit must pay its own attorney fees unless a contract or statute or other law authorizes a fee award.’ (Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230, 237, 149 Cal.Rptr.3d 440; see Code Civ. Proc., § 1021.) Thus, unless specifically provided by statute or agreement, attorney fees are not recoverable.” (K.I. v. Wagner (2014) 225 Cal.App.4th 1412, 1420–1421.)

Defendants SHC and Dr. Cheng contend plaintiff Short’s prayer for attorney’s fees is not supported by an allegation of either a statutory or contractual basis for attorney’s fees. In opposition, plaintiff Short argues contractual attorney’s fees are implicit because, “It is customary in this day and age before medical services are rendered that a contract is signed by all parties. Thus, since a contract would have been signed it is not unreasonable to believe that a standard attorney’s fees provision would be written in the contract.”

A contractual basis for attorney’s fees is not reasonably inferred. The existence of a contractual basis for attorney’s fees has not been adequately alleged. Accordingly, defendants SHC and Dr. Cheng’s motion to strike portions of plaintiff’s complaint for damages is GRANTED with 10 days’ leave to amend.