Demurrer & Motion to Strike (Judge William J. Elfving)


Case Name: ?? Centria Homeowners Association v. Western Pacific Housing, Inc., et al.

Case No.:??????? 16-CV-289945

This action arises from alleged defects in the Centria Condominium Project (?the Project?) and the underfunding its homeowners? association. In the complaint, plaintiff Centria Homeowners Association (?Plaintiff?) alleges the following: Plaintiff is a homeowners? association that maintains and manages the Project for its members, i.e. the owners of the residential units, with funds acquired from its members. (Compl., ???5, 17, 19, & 34-35.) Plaintiff?s Articles of Incorporation, Bylaws, and Covenants, Conditions, and Restrictions (collectively, ?Governing Documents?) set forth its obligations to maintain and repair the Project, comply with Civil Code section 895 et seq., and adequately budget for expenses. (Id., ???19-20 & 101.) Defendants Western Pacific Housing, Inc. and D.R. Horton, Inc. (collectively, ?Defendants?) initially owned the Project, were members of Plaintiff that were bound by the Governing Documents, and had representatives serving on its board. (Id., ???14, 26, 30, & 100.) Defendants and Does 1 through 100 acted as agents, employees, and/or co-conspirators of one another. (Id., ???12-13 & 27-30.) Defendants subdivided, developed, designed, and constructed the Project; executed contracts with Does 41 through 100 for the design, construction, and materials (collectively, ?the Construction Contracts?); and offered units for sale. (Id., ???9, 14, 26, 30-33, & 105-108.) Defendants defectively designed and constructed the Project and inadequately budgeted for Plaintiff?s expenses in violation of the Governing Documents, the Construction Contracts, and other duties. (E.g., ???1, 14-16, 21-24, 37, 42, 63, 95, 101, & 110.) As a result of Defendants? conduct, the Project contains construction and design defects and Plaintiff is underfunded. (E.g., id., ???23, 36-37, 39, 54-55, 66, 79, 91, 97, 102, & 111.)

Plaintiff asserts causes of action for: (1)?violations of Civil Code section?895 et seq. against all defendants; (2)?breach of implied warranty against all defendants; (3)?breach of express warranty against Does 51 through 100; (4)?negligence against all defendants; (5)?negligent misrepresentation against Defendants and Does 1 through 30; (6)?breach of fiduciary duty against Defendants and Does 1 through 40; (7)?violation of governing documents against Defendants and Does 1 through 30; (8)?breach of contract against all defendants; and (9)?strict liability against Defendants, Does 1 through 30, and Does 81 through 100.

Defendants demur to the seventh and eighth causes of action and make a request for judicial notice in support thereof. (See Code Civ. Proc. [?CCP?], ??430.10.) They also move to strike portions of the complaint and make a request for judicial notice in support of that motion and an additional request for judicial notice with their reply. (See CCP, ???435-437.) Plaintiff makes a request for judicial notice in support of its opposition to both matters.

  1. Demurrer to the Seventh & Eighth Causes of Action
  2. Judicial Notice

Defendants? request for judicial notice in support of the demurrer is GRANTED as to the existence of the court records at issue. (See Evid. Code, ??452, subd.?(d); see also People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2; see also Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.)

Plaintiff?s request judicial notice of the complaint in support of the opposition is GRANTED. (See Evid. Code, ??452, subd.?(d); see also People ex rel. Lockyer v. Shamrock Foods Co., supra, 24 Cal.4th, at p.?422, fn. 2.)

  1. Demurrer

Defendants demur to seventh and eighth causes of action on the grounds of uncertainty, failure to allege whether a contract is oral, written, or implied by conduct, and failure to state a claim.[1] (See CCP, ??430.10, subds.?(e), (f), & (g).)

  1. Uncertainty

Defendants argue that the demurrer for uncertainty should be sustained because Plaintiff does not sufficiently plead facts to identify the contracts at issue. Their reliance on Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 608 is misguided because, in that case, the appellate court merely referenced the trial court?s ruling without passing on the proprietary of the demurrer or the complaint. (See Leader v. Health Industries of America, Inc., supra, 89 Cal.App.4th, at pp.?608 & 614-615.) ?A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.? (Khoury v. Maly?s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) It will be sustained only where the complaint is so incomprehensible that the defendant cannot reasonably respond. (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135; see also Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) There are no uncertainties in the complaint that make the complaint incomprehensible such that Defendants cannot reasonably respond. Accordingly, the demurrer for uncertainty to the seventh and eighth causes of action is OVERRULED.

  1. Failure to Allege Whether a Contract is Oral, Written, or Implied

Defendants suggest that Plaintiff has not pleaded whether the agreements were written, oral, or implied. To the contrary, the allegations show that the subject contracts are written. (Compl., ???16-20, 100-102, & 104-112.) Thus, the demurrer for failure to state whether the contracts and governing document are oral, written, or implied to the seventh and eighth causes of action is OVERRULED.

  1. Failure to State a Claim

On demurrer, courts admit all material facts properly pleaded and subject to judicial notice, but not contentions, deductions or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Courts ?also accept as true those facts that may be implied or inferred from those expressly alleged.? (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501.) A demurrer tests only the legal sufficiency of the complaint, not the plaintiff?s ability to prove the facts alleged. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 47.) Courts must give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Id., at p. 38.)

  1. Seventh Cause of Action for Violation of the Governing Documents

The seventh cause of action is a breach of contract claim based on alleged violations of the Governing Documents. (Compl., ???99-112.) The elements of a cause of action for breach of contract are: (1)?the existence of a contract; (2)?the plaintiff?s performance or excuse for non-performance; (3)?the defendant?s breach; and (4)?resulting damages to the plaintiff. (Reichert v. General Ins. Co. of America (1968) 68 Cal.2d 822, 830.) Defendants only take issue with the element of the existence of a contract. They argue that Plaintiff has not attached the Governing Documents to the complaint, stated their terms verbatim, or adequately alleged their legal effect.

A written contract may be pleaded either by (1) stating the terms of the contract verbatim in the complaint; (2)?attaching a copy of the contract to the complaint; or (3)?pleading the legal effect of the contract. (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 993; see also Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 459; see also Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 199.) Since Plaintiff does not attach the Governing Documents to the complaint or plead their terms verbatim, it must plead their legal effect. To plead a contract by its legal effect, the plaintiff must allege the substance of its relevant terms. (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 993, citing McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.) A complaint is insufficient if it omits allegations to show the legal effect of the contract?s material terms. (See Gilmore v. Lycoming Fire Ins. Co. (1880) 55 Cal. 123, 124.)

Defendants argue that to plead a contract?s legal effect, Plaintiff must specifically identify the contract by date, edition, or version, and cite to particular provisions containing the terms at issue. This argument lacks merit. Nothing in Maxwell v. Dolezal (2014) 231 Cal.App.4th 93 or the other legal authorities cited in the moving and reply papers requires a plaintiff to specifically identify a contract by date, edition, or version or to cite to specific provisions in a contract in order to adequately allege its legal effect. Defendants also contend that, if the Governing Documents have been amended or modified, then the complaint is defective because it does not identify the relevant amendments. Nothing in the complaint suggests that the Governing Documents have been amended or modified. If it is Defendants? position that an amendment or modification exists and provides a defense to the enforcement of the Governing Documents, then they may allege facts to support their defense in the answer, not in support of the demurrer. (See Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881; see also CCP, ??431.30, subd.?(b).) Defendants? argument therefore lacks merit.

Next, Defendants assert that the allegation that they violated ?various provisions? in the Governing Documents (Compl., ??101) is insufficient. Notably, Plaintiff further alleges that Defendants violated provisions related to the obligations to maintain, repair, and replace components and common areas and to prepare budgets consistent with expenses. (Id., ??101.) Elsewhere, it alleges particular obligations imposed by the Governing Documents, including statutory obligations that Defendants allegedly violated. (E.g., id., ???16, 19, 20, 37, & 42.) Such allegations are sufficient to plead the legal effect of the material terms of the Governing Documents. Since a demurrer cannot be sustained to only a portion of a cause of action (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682), the omission of facts concerning various other provisions is of no consequence to the outcome of this demurrer.

Accordingly, the demurrer for failure to state a claim to the seventh cause of action is OVERRULED.

  1. Eighth Cause of Action for Breach of Contract

The eighth cause of action is for breach of the Construction Contracts. (Compl., ???104-112.) The elements of a cause of action for breach of contract are: (1)?the existence of a contract; (2)?the plaintiff?s performance or excuse for non-performance; (3)?the defendant?s breach; and (4)?resulting damages to the plaintiff. (Reichert v. General Ins. Co. of America, supra, 68 Cal.2d, at p.?830.) Defendants take issue with the elements of the existence of a contract, breach, and resulting damages.

In connection with the element of existence of a contract, a written contract may be pleaded either by (1) stating the terms verbatim; (2)?attaching a copy to the complaint; or (3)?pleading the legal effect. (E.g., Heritage Pacific Financial, LLC v. Monroy, supra, 215 Cal.App.4th, at p.?993, citing McKell v. Washington Mutual, Inc., supra, 142 Cal.App.4th, at p.?1489; see also Gilmore v. Lycoming Fire Ins. Co., supra, 55 Cal., at p.?124.) Since Plaintiff does not attach the Construction Contracts to the complaint or plead their terms verbatim, it must plead the legal effect. Defendants argue that Plaintiff must identify particular contracts by date, parties, and trade. No legal authority requires Plaintiff to identify contracts by date. Moreover, Plaintiff alleges facts to identify the parties to, trades involved in, and material terms of the Construction Contracts. (Compl., ???26, 31-33, 105, & 108.) Although the alleged definition of the Construction Contracts (see id., ??105) might include other agreements, the omission of the terms of those contracts is of no consequence because a demurrer cannot be sustained to only a portion of a cause of action. (See PH II, Inc. v. Superior Court, supra, 33 Cal.App.4th, at p.?1682.) Defendants further assert that, in light of the parties? involvement in pre-litigation procedures, Plaintiff is able to provide more specific allegations to identify the Construction Contracts. Although this dispute involves the pre-litigation procedures (see Defendants? RJN, Exs.?A-B), Plaintiff is not required to plead specific facts to survive demurrer. A plaintiff is only required to allege ultimate facts. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1390.) The ultimate fact of the existence of a contract may be pleaded by alleging its legal effect. (See, e.g., Heritage Pacific Financial, LLC v. Monroy, supra, 215 Cal.App.4th, at p.?993.) Since Plaintiff has adequately alleged the legal effect of the Construction Contracts (Compl., ???26, 31-33, 105, & 108), it has properly pleaded the existence of a contract.

With respect to the element of breach, Defendants contend that since they allegedly owned and developed the Project (e.g., Compl., ? 26), Plaintiff has not adequately alleged how they breached the Construction Contracts. Defendants allegedly executed the Construction Contracts with Does 41 through 100 for the performance of design and construction work on the Project. (Compl., ???26, 31-33, 105, & 108-111.) Plaintiff also alleges that Defendants and Does 1 through 100 each acted as agents or employees on behalf of one another. (Id., ???12-13.) Such allegations of agency/employment constitute averments of ultimate fact sufficient to survive demurrer. (See Skopp v. Weaver (1976) 16 Cal.3d 432, 437; see also Garton v. Title Ins. & Trust Co. (1980) 106 Cal.App.3d 365, 376.) Plaintiff therefore sufficiently alleges that Defendants and Does 1 through 100 were bound by the Construction Contracts, and they collectively breached by defectively designing and constructing the Project. (Compl., ???1, 105, 108, & 110.) Thus, Plaintiff has adequately pleaded the element of breach.

As for resulting damages, Defendants argue that Plaintiff has not adequately pleaded how their alleged breach of the Construction Contracts caused damages. To the contrary, Plaintiff alleges that as a result of Defendants? breach, it and its members have sustained actual and consequential damages related to the defects in the Project. (Compl., ???110-111.) These allegations are sufficient to support the element of resulting damages.

In light of the foregoing, the demurrer for failure to state a claim to the eighth cause of action is OVERRULED.

  1. Motion to Strike Portions of the Complaint
  2. Judicial Notice

Defendants? request for judicial notice in support of the motion is GRANTED. (See Evid. Code, ??452, subd.?(c); see also Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265; see also Gbur v. Cohen, supra, 93 Cal.App.3d, at p.?301.)

Plaintiff?s request for judicial notice of the complaint in support of the opposition is GRANTED. (See Evid. Code, ??452, subd.?(d); see also People ex rel. Lockyer v. Shamrock Foods Co., supra, 24 Cal.4th, at p.?422, fn. 2.)

With the reply, Defendants make a request for judicial notice of three matters. As a threshold issue, the Court could summarily deny the request because it raises new issues for the first time in the reply. (See Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764; see also REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500.) Furthermore, the request for judicial notice of the complaint (Defendants? Reply RJN, Ex. B) is unnecessary, given that the Court has already granted Plaintiff?s request for judicial notice of the complaint and the instant motion necessarily involves an analysis of the complaint. (See CCP, ??437, subd.?(a).) Defendants also request judicial notice of the truth of portions of Plaintiff?s counsel?s declaration in opposition to a motion to stay, including a ?date of service of the Notice of Commencement of Legal Proceedings? mentioned therein and two exhibits attached thereto. (Defendants? Reply RJN, p.?2:6-8, & Ex.?A.) Defendants insist that these matters are subject to judicial notice pursuant to Evidence Code section 452, subdivision (h). That provision allows judicial notice of ?[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.? (Evid. Code, ??452, subd.?(h).) The truth of facts stated in declarations and documents filed with the court are reasonably subject to dispute and therefore not subject to judicial notice. (See Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort, supra, 91 Cal.App.4th, at p.?882.) Accordingly, Defendants? request for judicial notice in support of the reply is DENIED.

 

 

  1. Motion to Strike

Defendants move to strike paragraph 103, parts of paragraphs 42 and 112, and prayer paragraph 6 from the complaint on the ground that they are irrelevant, false, or improper and are not drawn or filed in conformity with the law. (See CCP, ??436.)

  1. Paragraph 42

In paragraph 42, Plaintiff alleges facts to support the first cause of action for violations of Civil Code sections 895 et seq. Defendants argue that allegations referring to defects in plumbing, sewer, irrigation, drainage, and landscaping systems in violation of Civil Code sections 896, subdivisions (e), (g)(7), and (g)(12) (Compl., ??42) should be stricken because they are time-barred. The defense of the statute of limitations may be raised by a motion to strike when the face of the complaint clearly and affirmatively shows that a portion of the cause of action is time-barred; it is not enough that a portion of the claim might be barred. (PH II, Inc. v. Super. Ct., supra, 33 Cal.App.4th, at p.?1682; see also E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315-1316; see also Geneva Towers Ltd. Partnership v. City and County of San Francisco (2003) 29 Cal.4th 769, 781; see also Union Carbide Corp. v. Superior Court (1984) 36 Cal.3d 15, 25.)

Civil Code section 896 provides that the limitations period for defects in plumbing and sewer systems if four years (Civ. Code, ??896, subd.?(e)), irrigation and drainage systems is one year (id., subd.?(g)(7)), and landscaping systems is two years (id., subd.?(g)(12)) that accrue upon the ?close of escrow.? (id., subds.?(e), (g)(7), & (g)(12).) In this context, Plaintiff is an ?association.? (Civ. Code, ???895, subd.?(e) & 4080; see also Compl., ???5 & 34-35.) Therefore, ?close of escrow? means the later of either: (1)??the date of substantial completion, as defined in Section 337.15 of the Code of Civil Procedure,? which can be no later than the recordation of a valid notice of completion (see CCP, ? 337.15, subd.?(g)(2)); or (2)??the date the builder relinquishes control over the association?s ability to decide whether to initiate a claim under this title.? (Civ. Code, ??895, subd.?(e).)

Defendants assert that the alleged violations are time-barred based on the date of substantial completion. Plaintiff does not allege the date of substantial completion. A motion to strike may also be based on any matter subject to judicial notice. (CCP, ??437, subd.?(a).) The Court has taken judicial notice of the notice of completion of unit 127 recorded on June?3,?2009. (Defendants? RJN, Ex.?A.) This shows that substantial completion of unit 127 of the Project occurred no later than June?3,?2009. (Ibid.; CCP, ??337.15, subd.?(g)(2).) That being said, the alleged violations at issue (Compl., ??42) are based on defects in the Project?s common areas and 140?units (e.g., id., ???1, 5, 19-20, & 40-55). Defendants? counsel declares that the notice for unit 127 is the most recently recorded notice of any unit in the Project (Fales decl., ???2-4), but counsel?s declaration cannot be considered in connection with this motion to strike (see CCP, ??437, subd.?(a)). In any event, the date of substantial completion will be the date of accrual only if that date is later than ?date the builder relinquishes control over the association?s ability to decide whether to initiate a claim.? (See Civ. Code, ??895, subd.?(e); see also Civ. Code, ??896, subds. (e), (g)(7), & (g)(12).) Nothing in the complaint or subject to judicial notice shows the date when the builder relinquished control over Plaintiff?s ability to decide whether to initiate a claim. A complaint is not fatally defective when the dates necessary to determine whether a claim is time-barred are omitted. (See United Western Medical Centers v. Superior Court (1996) 42 Cal.App.4th 500, 505 [discussing a demurrer]; see also PH II, Inc. v. Super. Ct., supra, 33 Cal.App.4th, at p.?1682-1683.) Since the date of relinquishment is not alleged in the complaint or subject to judicial notice, the alleged violations at issue (Compl., ??42) are not necessarily time-barred.

Accordingly, the motion to strike paragraph 42 of the complaint is DENIED.

  1. Paragraph 103, Paragraph 112, & Prayer Paragraph 6

In prayer paragraph 6, Plaintiff requests attorney?s fees for the claims for breach of fiduciary duty, violation of the Governing Documents, and breach of the Construction Contracts (sixth, seventh, and eighth causes of action). Plaintiff alleges facts supporting her request as to the seventh and eighth causes of action in paragraphs 103 and 112. Defendants argue that these portions of the complaint (Compl., ???103 & 112; Compl., prayer at ??6) should be stricken because the request for attorney?s fees is unsupported.

Each party bears its own attorney fees unless a statute or agreement provides otherwise. (CCP, ??1021; Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 504.)

In connection with the seventh cause of action for violation of the Governing Documents, Plaintiff alleges that it is entitled to recover attorney?s fees in accordance with Civil Code section?1354. (Compl., ??103.) Civil Code section 1354 is no longer in effect. (See Stats. 2012, ch. 180, ? 1, p. 2840.) Nevertheless, as Defendants note in their moving papers, Civil Code section 5967 is currently in effect and contains language that is identical to Civil Code section 1354. Civil Code section 5967 provides, in relevant part, that: ?In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney?s fees and costs.? (Civ. Code, 5967, subd.?(c).) Plaintiff?s claim for violation of the Governing Documents is an action to enforce the Governing Documents. (Compl., ???99-103.) Defendants? contention that Plaintiff has not sufficiently alleged the existence of those instruments lacks merit for the reasons set forth above in connection with the demurrer. Accordingly, for purposes of ruling on the motion to strike, the request for attorney?s fees in connection with the seventh cause of action is not irrelevant, false, or improper or drawn in violation of the law.

Turning to the eighth cause of action for breach of the Construction Contracts, Plaintiff alleges that it is entitled to recover attorney?s fees and costs under Civil Code section 1717. (Compl., ??112.) That provision states that in an action on a contract, where the contract expressly provides for the recovery of attorney?s fees and costs by either party, the prevailing party is entitled to recover fees and costs ?whether he or she is the party specified in the contract or not.? (Civ. Code, ??1717, subd. (a).) As discussed above in connection with the demurrer, Plaintiff has sufficiently alleged the existence of the Construction Contracts. Plaintiff alleges on information and belief that the Construction Contracts provide that the prevailing party is entitled to recover attorney?s fees and costs (Compl., ??112) and it is a third party beneficiary of the Construction Contracts (id., ???105-106 & 108). It is proper to make these allegations on information and belief. (See Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802; see also Thompson v. Sutton (1942) 50 Cal.App.2d 272, 279.) Contrary to Defendants? assertion, Plaintiff alleges ultimate facts to show that it is the intended third party beneficiary of the Construction Contracts. (Compl., ???105-108; see also Heritage Pacific Financial, LLC v. Monroy, supra, 215 Cal.App.4th, at p.?993; see also Civ. Code, ??1559 [stating that a third party beneficiary may enforce a contract]; see also, e.g., Prouty v. Gores Technology Group (2004) 121 Cal.App.4th 1225, 1232-1233 [discussing contracts that may be enforced by third party beneficiaries].) Plaintiff?s allegations are presumed to be true. (See Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.) Thus, for purposes of ruling on the motion to strike, the request for attorney?s fees in support of the eighth cause of action is not irrelevant, false, or improper or drawn in violation of the law.

As for the sixth cause of action for breach of fiduciary duty, the question of whether to award attorney?s fees turns on the language of the contract. (Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 708; Siligo v. Castellucci (1994) 21 Cal.App.4th 873, 877-878; Santisas v. Goodin (1998) 17 Cal.4th 599, 608.) The Construction Contracts allegedly provide for attorney?s fees in an ?action necessary to enforce? them. (Compl., ??12.) A tort claim for breach of fiduciary duty is not an action to enforce a contract. (Exxess Electronixx v. Heger Realty Corp., supra, 64 Cal.App.4th, at p.?709.) Thus, Plaintiff has not alleged a contractual provision that would allow it to recover fees for the breach of fiduciary duty claim. Nevertheless, ?[a]ttorney?s fees need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed.? (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129-130.) As stated above, Plaintiff may properly recover attorney?s fees as to the seventh cause of action. In support of that claim, Plaintiff alleges that Defendants owned the Project, controlled Plaintiff?s board, failed to ?prepare operating and reserve budgets that are consistent with [Plaintiff?s expenses],? and caused its damages. (Compl., ?? 100-102.) Plaintiff alleges the same facts in support of the breach of fiduciary duty claim. (Id., ???93-95 & 97.) Therefore, for purposes of ruling on the motion to strike, the request for attorney?s fees in support of the sixth cause of action is not irrelevant, false, or improper or drawn in violation of the law.

In light of the foregoing, the motion to strike paragraphs 103 and 112 as well as prayer paragraph 6 of the complaint is DENIED.

[1] Defendants have not submitted a meet and confer declaration in support of the demurrer as required by CCP section 430.41. Additionally, since the demurrer for failure to state whether a contract is oral, written, or implied (see CCP, ??430.10, subd.?(g)) is not set forth in the demurrer or notice, the Court could disregard that ground. (See CCP, ??430.60.) In this instance, the Court will overlook these procedural defects and consider the merits of the demurrer.