Case Number: BC607448 Hearing Date: June 16, 2016 Dept: 40

SUMMARY OF ISSUE

Defendant moves to strike the prayer for attorneys’ fees, arguing the contractual attorneys’ fees provision runs only in its favor. In opposition, plaintiff argues that case law provides that, nonetheless, the provision is reciprocal.

ANALYSIS

Motion to Strike Standard

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. CCP §436(a). The court may also strike 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. CCP § 436(b). It may be an abuse of discretion to deny leave to amend after granting a motion to strike a complaint if the defect is curable. CLD Const., Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146-1147.

Attorneys’ Fees Standard

“Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.” CCP § 1021.

Here, the parties’ contact provides for attorneys’ fees in relevant part as follows: “In the event of any default of this Agreement by CLIENT, including a default for failure to pay monies due and owing to DEALER, CLIENT shall pay DEALER any and all damages or losses incurred by DEALER in connection with such default, including all costs and expenses incurred by DEALER in collecting any monies due and owing by CLIENT to DEALER hereunder, reasonable attorney’s fees, costs, prejudgment interest, and any other reasonable and related expenses of collection.” Complaint ¶ 12, Exh. A, p. 2, ¶ 4 (emphasis added).

On its face, the attorneys’ fees provision appears to run exclusively in defendant’s favor. In opposition, plaintiff cites Leaf v. Phil Rauch, Inc. (1975) 47 Cal.App.3d 371 for the proposition that attorneys’ fees provisions are nonetheless mutual. Indeed, as the California Supreme Court explained, “Section 1717 was enacted by the Legislature to ensure mutuality of remedy in the recovery of attorney’s fees. [Citation.] Thus, where a contract provides that only one party may obtain attorney’s fees in litigation, the statute makes the right to such fees reciprocal, such that the ‘party prevailing on the contract’ claim will be entitled to recovery of the fees, ‘whether he or she is the party specified in the contract or not.’ [Citations] Additionally, section 1717 allows attorney’s fees to a party who successfully defends an action on a contract containing an attorney’s fees clause by establishing the contract’s invalidity, unenforceability, or nonexistence. [Citations.]” Pacific Custom Pools, Inc. v. Turner Construction Co. (2000) 79 Cal.App.4th 1254, 1268 (citations and internal quotations omitted).

Therefore, the prayer for attorneys’ fees is not improper and the motion is DENIED.