Case Number: SC121904    Hearing Date: August 13, 2014    Dept: M

Ruling
Watermill Flying Point Trust v. US Legal
SC121904

This is an action by a litigant against a document depository which another court, in a different action, ordered the litigant (i.e., Plaintiff herein and in the underlying action) to utilize. Plaintiff claims that as a result of a dispute with the document depository, Defendant has “made every effort to obstruct” Plaintiff’s prosecution of the underlying action by, among other alleged wrongs, refusing to provide Plaintiff with requested documents. Plaintiff’s complaint alleges claims for negligence, injunction, accounting, and declaratory relief. In connection with those claims, Plaintiff seeks attorney’s fees as damages. See, Complaint, para. 10. Defendant moves to strike the request for attorney’s fees. Plaintiff has opposed the motion; Defendant filed a reply.

GRANTED WITHOUT LEAVE TO AMEND:

Having read and considered the moving papers, the court tentatively grants the Defendant’s motion without leave to amend pursuant to CCP 435-436, and rules as follows:

1. For a Motion to Strike the court deems all allegations pled as true. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice;
2. A motion to strike can be made to strike irrelevant, false or improper matter inserted in any pleading or to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of the court – see CCP §436;
3. In opposing the motion to strike Plaintiff relies on the “tort of another” doctrine. That reliance is misplaced here;
4. Under this equitable exception to the general rule that each party bears the cost of employing an attorney unless a statute or agreement provides otherwise, “[a] person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney’s fees, and other expenditures thereby suffered or incurred.” Prentice v. North Amer. Title Guar. Corp. (1963) 59 C 2d 618, 620 (emphasis added);
5. “The theory of recovery is that the attorney fees are recoverable as damages resulting from a tort in the same way that medical fees would be part of the damages in a personal injury action.” Sooy v. Peter (1990) 220 CA 3d 1305, 1310;
6. Accordingly, attorney fees sought under the “tort of another” doctrine are “an item of damages that must be pleaded and proved and submitted to the trier of fact.” Hsu v. Abara (1995) 9 C 4th 863, 869, fn. 4;
7. “In such cases there is no recovery of attorney fees qua attorney fees.” Sooy v. Peter, supra, at p. 1310;
8. This doctrine is limited in use. See generally, Pearl, California Attorney Fee Awards, Sections 9.4 et seq. “Because the third party tort ‘exception’ is in fact an element of tort damages, nearly all of the cases which have applied the doctrine involve a clear violation of a traditional tort duty between the tortfeasor who is required to pay the attorney fees and the person seeking compensation for those fees.” Sooy v. Peter, supra, at p. 1310;
9. It does not apply where the party claiming fees is not compelled or required to bring (or defend) the action as a proximate result of a breach of duty by the party against whom fees are sought. See, Prentice, supra, at p. 621; see also Sooy v. Peter, supra, at p. 1310, and UMET Trust v. Santa Monica Medical Investment Co. (1983) 140 CA 3d 864, 871;
10. Here, Plaintiff has failed to plead any entitlement to fees under the “tort of another doctrine,” in that it has failed to plead the elements necessary for the proper application of the “tort of another” doctrine. It merely requests attorney’s fees without specifying in the allegations of the complaint how any purported breach of duty by Defendant proximately caused Plaintiff to be placed in the position of being required or compelled to bring suit against any third party(ies);

11. In this regard, Plaintiff’s implied assertion that it is entitled to recover fees against Defendant merely because Defendant’s alleged conduct resulted in this suit against Defendant, is without merit. That assertion ignores the general rule that each party bears the cost of employing an attorney unless a statute or agreement provides otherwise;
12. Further, Plaintiff has not explained in its opposition to the motion to strike how it could amend its complaint to properly allege a request for attorney’s fees under the (narrow) doctrine. It is its burden to do so. E.g., Goodman v. Kennedy (1976) 18 C 3d 335, 349 (“Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”); Hendy v. Losse (1991) 54 C 3d 723, 742. Accordingly, granting the request to strike without leave to amend is appropriate;
13. Motion to strike the phrase “and attorney’s fees” in paragraph 10 of the complaint is granted with prejudice;
14. Answer is to be served and filed within ten days; and
15. Defendant shall give notice of today’s rulings and timely file proof of service thereof.