Case Number: BC504268??? Hearing Date: April 28, 2016??? Dept: A11
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES ? NORTH DISTRICT
WAYNE GALL, )
) Case Number BC 504268
Plaintiffs, )
) ORDER AFTER HEARING
v. )
) Date of Hearing:
STRYKER ORTHOPAEDICS, et al., ) April 28, 2016
) Dept. A-11
Defendants. ) Judge Randolph A. Rogers
____________________________________)
Defendant Jamie Hernandez?s demurrer and motion to strike the Second Amended Complaint came on for hearing on January 28, 2016. Plaintiff Wayne Gall appeared through his counsel of record, ________________. Defendant Jaime Hernandez appeared through his counsel of record, ___________________________.
The Court, having received and reviewed the pleadings of record and evidence submitted and having considered argument of counsel, hereby ORDERS:
The demurrers to the fourth through seventh and ninth causes of action are SUSTAINED without leave to amend.
The motion to strike attorney?s fees is GRANTED.
SO ORDERED this the _____ day of April, 2016.
______________________
RANDOLPH ROGERS,
JUDGE
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES ? NORTH DISTRICT
WAYNE GALL, )
) Case Number BC 504268
Plaintiffs, )
) STATEMENT OF DECISION
v. )
) Date of Hearing:
STRYKER ORTHOPAEDICS, et al., ) April 28, 2016
) Dept. A-11
Defendants. ) Judge Randolph A. Rogers
____________________________________)
The Court bases the Order After Hearing of this date upon the following Statement of Decision:
1. The present case is a medical malpractice and products liability case. On March 28, 2010, Plaintiff Wayne Gall (?Plaintiff?) underwent hip surgery under the care of Defendant Jaime Hernandez (?Hernandez?). As part of this surgery, Plaintiff was implanted with a hip implant device (?Device?), to prevent degeneration of the hip during the Device?s product life of 15-20 years. The Device was implanted, and apparently failed long before the end of its expected useful life, requiring removal of the device and replacement with another.
2. Plaintiff brought suit on March 28, 2013, against Defendants, Stryker Orthopaedics (?Stryker?) and Corin USA Limited, Inc. (?Corin?), who were alleged to be the manufacturers of the Device, on causes of action for strict liability (design, manufacture, failure to warn, and failure to adequately test), negligence, breech (sic) of express and implied warrantee (sic), fraudulent concealment, intentional misrepresentation, negligent misrepresentation, professional negligence, and violation of the Unfair Competition Law (?UCL?). The case was removed to Federal Court on September 17, 2013, and by stipulation on August 19, 2014, was remanded to State Court by Order dated August 20, 2014.
3. Dismissals with prejudice were then requested for Corin and Defendant HowMedica Osteonics Corp., apparently because Plaintiff had named the wrong manufacturers. Plaintiff filed his First Amended Complaint (?FAC?) on October 15, 2014, adding Defendants, Smith & Nephew Inc. (?Smith?) and Hernandez, alleging the same twelve causes of action. The case was then removed to Federal Court on November 13, 2014, before being Remanded by Order dated March 13, 2015.
4. On April 16, 2015, Hernandez filed his demurrer and motion to strike (?Motion?) the FAC. By Order dated 6/25/15, the Court sustained the demurrer, without leave as to some causes of action, and with leave as to others. The Court further granted the motion to strike.
5. Plaintiff filed his Second Amended Complaint (?SAC?) on October 30, 2015, alleging causes of action for manufacturing defect, failure to warn, failure to adequately test, negligence, breech (sic) of express warrantee (sic), fraudulent concealment, intentional misrepresentation, negligent misrepresentation, professional negligence, and UCL violations pursuant to Business and Professions Code ?17200. Trial is presently set for September 9, 2016 pursuant to Order dated 11/16/15.
6. On November 25, 2015, Hernandez filed his demurrer to the SAC. By Order dated 1/28/16, the Court sustained the demurrer with leave to amend. Plaintiff filed his Third Amended Complaint (?TAC?) on February 18, 2016, alleging causes of action for manufacturing defect, failure to warn, negligence, breach of contract, fraudulent concealment, intentional misrepresentation, negligent misrepresentation, professional negligence, and violation of the UCL. The causes of action applicable to Hernandez are the fourth through ninth causes of action for breach of contract, fraudulent concealment, intentional misrepresentation, negligent misrepresentation, professional negligence, and violation of the UCL.
7. On March 18, 2016, Hernandez filed a demurrer to the TAC as to all the causes of action alleged against him except the eighth cause of action for professional negligence. Hernandez argues that Plaintiff?s claim for breach of contract fails because Hernandez provided a service, rather than sold a product, and that the TAC has not alleged sufficient facts to demonstrate that a particular result was promised. Hernandez also argues that the fraud and misrepresentation claims fail because each of the alleged concealments or misrepresentations failed to cause any harm to Plaintiff, and there is no allegation of the intent to defraud. Hernandez further argues that Plaintiff has not alleged any unlawful, unfair, or fraudulent activity. Hernandez also filed a motion to strike, seeking to strike Plaintiff?s claim for attorney?s fees and restitution from the TAC. Finally, Hernandez filed a Request for Judicial Notice (?RJN?), asking the Court to take judicial notice of four documents, the Complaint, the First Amended Complaint, the Second Amended Complaint, and Plaintiff?s responses to certain requests for admission.
8. Plaintiff filed his Opposition to the demurrer and motion to strike on April 15, 2016. Plaintiff argues that his claim for breach of contract fits within the confines of the ?particular result? doctrine. He then argues that the fraud and misrepresentation claims are sufficient due to deficient assumptions asserted by Hernandez in his demurrer. Finally, Plaintiff contends that the UCL claim is adequately alleged as predicated upon the fraud cause of action. Plaintiff next contends that the motion to strike is unwarranted because the request for attorney?s fees either meets the requirements for a private attorney general claim or because nothing on the face of the TAC would preclude such an award. Plaintiff also argues that it can be implied that all Defendants in this case benefitted from Plaintiff undergoing the procedure, and therefore restitution is proper.
9. Hernandez filed his Reply on April 21, 2016. Hernandez argues that the allegations in the TAC are not promises of a particular result, but are at best generalized statements as to the result of the surgery. Hernandez then argues that the Opposition fails to adequately demonstrate injury from fraud or an intent to defraud. Finally, Hernandez argues that the UCL claim is insufficiently pled because the TAC has not validly established a statement that is fraudulent within the meaning of the UCL.
10. Standard for ruling on demurrer ? The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. CCP ?430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Concerning the legal sufficiency of a pleading, the sole issue on demurrer is whether the facts pleaded, if true, state a valid cause of action ? i.e., if the complaint pleads facts that would entitle the plaintiff to relief. Limandri v. Judkins (1997) 52 Cal.App.4th 326, 339.
11. A general demurrer admits the truth of all factual, material allegations properly pleaded in the challenged pleading, regardless of possible difficulties of proof. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Thus, no matter how unlikely or improbable, plaintiff?s allegations must be accepted as true for the purpose of ruling on the demurrer. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates (1995) 36 Cal.App.4th 698, 709. A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.
12. Pursuant to CCP ?? 430.10(e) and (f), the party against whom a complaint has been filed may object by demurrer to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. Schifando v. City of Los Angeles (2001) 31 Cal.4th 1074, 1082. The burden is on the plaintiff to demonstrate how the complaint can be amended to state a valid cause of action. Id.
13. RJN ? Hernandez?s RJN asks the Court to take judicial notice of the prior pleadings in this case, as well as Plaintiff?s responses to Requests for Admissions propounded by Hernandez. Plaintiff opposed the RJN based on Hernandez?s mistaken cite to a non-existent code-section, and the failure to provide context to the admissions sought. The Court takes judicial notice of all of the documents in the RJN because the first contention is a mere technicality, and the second grounds for objection has since been remedied by Hernandez.
14. Fourth Cause of Action (Breach of Contract) ? ?To recover for breach of warranty or contract in a medical malpractice case, there must be proof of an express contract by which the physician clearly promises a particular result and the patient consents to treatment in reliance on that promise.? McKinney v. Nash (1981) 120 Cal.App.3d 428, 442 (emphasis added). Moreover, a breach of warranty cause of action cannot be maintained against a health care provider when the underlying transaction involves the rendition of a service, rather than the sale of a product. See Shepard v. Alexian Brothers Hospital (1973) 33 Cal.App.3d 606, 615 (?Since . . . the liability imposed by strict liability in tort and breach of express and implied warranties is virtually the same, i.e., a form of liability without fault, the conclusion reached [that strict liability is inapplicable to rendition of a service] is equally applicable here.?)
15. The issue in dispute is whether Hernandez?s alleged representations to Plaintiff can be properly characterized as a promise of a specific result such that a contract theory can be properly asserted. Plaintiff relies heavily on Depenbrok v. Kaiser Foundation health Plan, Inc. (1978) 79 Cal.App.3d 167, arguing that his case is similar because Hernandez allegedly make particular promises regarding what Device he would receive during the surgery, the quality of the Device, and that Plaintiff would regain his range of motion and be free of pain. As to Plaintiff?s allegations regarding the Device itself, Depenbrok?s facts do not correlate well with Plaintiff?s claim.
16. Depenbrok involved a patient?s claim against a surgeon, wherein the surgeon had promised that a sterilization procedure would ensure that the patient would never bear children again. On the strength of the surgeon?s claim, the patient underwent the procedure, and much to her chagrin, became pregnant a few months after her surgery. She thereafter sued the surgeon on, among other claims, a breach of warranty claim.
17. In an effort to conform his own claim with those in Depenbrok, Plaintiff asserts that Hernandez promised to specifically implant the Cormet Hip Resurfacing System, manufactured by Corin. Thus, when Plaintiff was implanted with the Smith Device, which is suggested to be of substantially inferior quality, he suffered an outcome that was different from that which Hernandez promised. As such, Plaintiff concludes that a claim analogous to Depenbrok has been asserted.
18. Under the Depenbrok formulation, liability is imposed upon a physician or surgeon premised on his explicit promises regarding the results of his expertise. Liability of the physician or surgeon in Depenbrok necessarily flows from either the negligent performance of his services, or the over-exaggeration of his abilities prior to a procedure or treatment. However formulated, liability is premised on faults of the doctor in carrying out his duties as a doctor. In contrast, Plaintiff?s claim, although clothed in the language of Depenbrok, more closely resembles a claim premised on strict products liability.
19. Plaintiff?s assertion, distilled to its core, is simply that Hernandez promised one product, delivered another, and should therefore be liable because the product he delivered failed. The failure in this case, however, rests in the deficient product, not in Hernandez?s failure to competently fulfil his role as a physician or surgeon, or from his over-promising the beneficial results derivable from his particular skills as a physician or surgeon. These facts are more akin to, and raise the same concerns as, those of Shepard v. Alexian Brothers Hospital (1973) 33 Cal.App.3d 606, where the Court was concerned about imposing a form of liability without fault.
20. Nothing in Depenbrok suggests that it intended to hold physicians and surgeons liable for injuries arising from product defect complications; that is, liability based upon manufacturing and design performed by others. As already explained in the Court?s 1/28/16 Order, Plaintiff approached Hernandez for his medical services, presenting Hernandez with a medical problem and seeking appropriate treatment to rectify the issue. 1/28/16 Order at ?17.
21. Plaintiff cannot circumvent the limitations of Shepard, and the policy considerations stated therein, by inventive pleading or unpersuasive analogies.
22. Plaintiff is thus left with only the allegations that Hernandez orally stated that Plaintiff ?would regain his range of motion and be pain free [and that Plaintiff?s] risks of dislocation or other failure . . . and need for a revision surgery were ?slim to none.?? TAC at ?40. Even under Depenbrok, these statements are not enough to support a claim for breach of contract. As the Court in Depenbrok stated, a plaintiff must demonstrate that ?a surgeon has clearly promised a particular result (as distinguished from a mere generalized statement that the result will be good).? Depenbrok, supra, 79 Cal.App.3d at 171. Even on the allegations of the TAC, it is apparent that Hernandez was not providing a ?clear promise? as to a result, but opining as to the probable outcomes of Plaintiff?s procedure, however misguided or overly optimistic his opinions ultimately proved to be. E.g. TAC at ?40 (Hernandez stating that Plaintiff?s risk of adverse side effects being ?slim to none? is not a promise, but an estimation or opinion on the probabilities).
23. Plaintiff has had four attempts to amend his pleadings. He has repeatedly attempted to state a claim for breach of contract or warranty under Depenbrok, and has been unable to do so.
24. Accordingly, the demurrer is SUSTAINED without leave to amend as to the fourth cause of action.
25. Fifth through Seventh Causes of Action (Fraudulent Concealment, Intentional Misrepresentation, Negligent Misrepresentation) ? The elements for fraud are: (1) misrepresentation, (2) knowledge of the falsity, (3) intent to defraud, (4) justifiable reliance, and (5) resulting damages. See Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184. In pleading a cause of action for fraud, the pleadings must allege facts as to the ?how, when, where, to whom, and by what means the representations were tendered.? See Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73. Where a corporate defendant is alleged to have committed the fraud, the plaintiff must ?allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.? Tarmann v. State Farm Mutual Automobile Insurance Co. (1991) 2 Cal.App.4th 153, 157.
26. The elements for negligent misrepresentation are: (1) assertion of an untrue fact; (2) believed by defendant to be true; (3) without reasonable grounds for that belief; (4) defendant intended to induce plaintiff?s reliance on the representation; (5) plaintiff justifiably relied on that representation; and (6) resulting damage. Melican v. Regents of Univ. of Cal. (2007) 151 Cal.App.4th 168, 182. A cause of action sounding in negligent misrepresentation requires specificity of pleading. See Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519. Generally, a claim for negligent misrepresentation requires a positive assertion, not an implied representation unless the defendant purports to convey the whole truth about a subject, in which case a misleading half-truth may constitute a positive assertion. See OCM Principal Opportunities Fund v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 854.
27. The elements for fraudulent concealment are: (1) that defendant concealed or suppressed a material fact; (2) defendant was under a duty to disclose the fact; (3) defendant intentionally concealed or suppressed the fact with the intent to defraud; (4) plaintiff was unaware of the fact and would not have acted in the same way knowing of the concealed fact; (5) causation; and (6) damage to the plaintiff. Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC. (2008) 162 Cal.App.4th 858, 868. A fraudulent concealment cause of action does not require the same degree of specificity called for under a cause of action for fraudulent misrepresentations. See Committee on Children?s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 217 (?Less specificity is required when it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy?) (citations omitted) (superseded by statute on other grounds).
28. The TAC alleges four bases for a claim of fraud or misrepresentation: (1) that Plaintiff was promised the Corin Device, but was delivered and implanted with the Smith Device; (2) that Hernandez concealed that he had been paid travel expenses to fly to England to train on the Smith system, and was potentially in line to be paid consulting fees; (3) that Hernandez misrepresented the risks of the treatment; and (4) that Hernandez made medically unsound representations concerning the danger of metal ions. None of these form a valid basis for sustaining the fraud or misrepresentation claims.
29. Plaintiff first claims that he was the victim of fraud and misrepresentation because Hernandez championed the benefits of the Corin system, but thereafter implanted the Smith system. It is undisputed that both the Corin system and the Smith system are FDA approved devices, approved for the same purpose and to treat the same issues. The Court initially notes that it is unaware, and research has not disclosed, any cases in which a fraud claim has been sustained where a plaintiff claims injury from being promised one FDA approved medical device, and is thereafter given or implanted another substantially similar FDA approved medical device, where both devices were approved for the same purpose and treatment.
30. The Court further notes that there are now many product liability cases percolating amongst the many courts in the country concerning both the Corin system and the Smith system. See Swisher v. Stryker Corp. (W.D. Okla. 2016) 2016 WL 427372, 2016 U.S. Dist. LEXIS 12727; Stanifer v. Corin USA Ltd., Inc. (M.D. Fla. 2014) 2014 WL 5823319, 2014 U.S. Dist. LEXIS 158587, for suits against Corin. See Williams v. Smith & Nephew, Inc. (D. Md. 2015) 123 F.Supp.3d 733; Herron v. Smith & Nephew, Inc. (E.D. Cal. 2014) 7 F.Supp.3d 1043, for suits against Smith.
31. With this in mind, it is significant that Plaintiff?s original Complaint, filed when Plaintiff still believed that he had been implanted with the Corin system rather than the Smith system, not only specifically attacks the Corin system as defective, but also specifically attacks hip resurfacing systems as a class as defective. Complaint at ?96. Since filing his initial Complaint, Plaintiff apparently discovered that he did not receive the Corin system, but instead received the Smith system. As a result, Plaintiff now attempts to contend that Defendant committed fraud and misrepresentation because he installed the defective Smith system instead of the defective Corin system Plaintiff had allegedly been promised. The Court is entitled to consider the inconsistencies between the pleadings when evaluating the demurrer to the most recent amended complaint. See Vallejo Development Co. v. Beck Development Co. (1994) 24 Cal.App.4th 929, 946.
32. Under the circumstances, Plaintiff cannot allege the requisite reliance or damages necessary to support a claim for fraud or misrepresentation. ?To recover for fraud, the plaintiff must prove ? ?detriment proximately caused? by the defendant’s tortious conduct. [Citation.] Deception without resulting loss is not actionable fraud. [Citation.] ?Whatever form it takes, the injury or damage must not only be distinctly alleged but its causal connection with the reliance on the representation must be shown [Emphasis added].? ? (Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1818, 52 Cal.Rptr.2d 650; Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239?1240, 44 Cal.Rptr.2d 352, 900 P.2d 601; Civ.Code, ?? 1709, 3333; 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, ? 687, p. 147; BAJI No. 12.57.) ?Damage to be subject to a proper award must be such as follows the act complained of as a legal certainty.? (Agnew v. Parks (1959) 172 Cal.App.2d 756, 768, 343 P.2d 118.) The tort of negligent misrepresentation does not require scienter or intent to defraud, but it does, of course, require a showing of resulting damage [Emphasis added]. (Small v. Fritz Companies, Inc., supra, 30 Cal.4th at p. 173, 132 Cal.Rptr.2d 490, 65 P.3d 1255; Gagne v. Bertran (1954) 43 Cal.2d 481, 487?488, 275 P.2d 15.) ?. ?Assuming … a claimant’s reliance on the actionable misrepresentation, no liability attaches if the damages sustained were otherwise inevitable or due to unrelated causes.? (Kruse v. Bank of America (1988) 202 Cal.App.3d 38, 60, 248 Cal.Rptr. 217, italics added.) See, Goehring v. Chapman Univ., 121 Cal. App. 4th 353, 364-65, 17 Cal. Rptr. 3d 39, 47-48 (2004).
33. In summary, the Court finds that Plaintiff cannot reasonably allege reliance or damages sufficient to support a claim for fraud or misrepresentation where the crux of Plaintiff?s claim is that Defendant merely substituted one allegedly defective, albeit FDA approved, hip resurfacing system for another.
34. Plaintiff next attempts to argue that the fact that Smith paid for a trip to England to train on the Smith Device somehow qualifies as demonstrating Hernandez had a financial stake in Smith. TAC at ?48. Alternatively, Plaintiff contends that Hernandez should have disclosed that he potentially was in line to receive consulting fees from Smith, and this is somehow bolstered by the fact that Hernandez later did become a consultant for Smith. Id. Plaintiff?s formulation is insufficient to demonstrate a material fact was considered because neither created an actual conflict of interest in Hernandez. That Hernandez was flown to England to receive training on a new device does not make him invested in either Smith, or the Device. Similarly, Plaintiff?s requirement that Hernandez should disclose he might potentially, at some point in the future, become a consultant for Smith fails to demonstrate concealment of a material fact. Hernandez?s potential, speculative interest in Smith?s products did not create a material conflict with Plaintiff?s interest, and Hernandez?s subsequent role as a consultant for Smith does not retroactively create such a conflict.
35. Plaintiff also argues that Hernandez committed fraud or misrepresentation because he minimized the effect of the warnings provided in the brochures by stating that the chances of those outcomes were ?slim to none.? TAC at ?6. Alternatively, Plaintiff highlights that the metal ions were ?the one side effect plaintiff was told he could expect,? which was downplayed and represented as non-dangerous. Essentially, Plaintiff contends that fraud and misrepresentation claims should be allowed because Hernandez ?downplayed the possibility of such risks as ?slim to none,?? Opposition at 11:16, and misrepresented the risks of metal ions.
36. The Court considers these claims to be, essentially, claims that Hernandez failed to appropriately inform Plaintiff of the risks of undergoing the procedure. This is precisely the claim raised in Stone v. Foster (1980) 106 Cal.App.3d 334, where a plaintiff undergoing plastic surgery sued a plastic surgeon for permanent scars resulting from an operation in which the surgeon promised that her stomach would be ?as smooth as a baby?s.? Id. at 342. The Court of Appeal found that no fraud existed because complications that arise from a procedure whose risks are not disclosed or mischaracterized are precisely the type of claim medical negligence is intended to address. Here, Hernandez is alleged to have opined that the risks Plaintiff would be faced with in undergoing the procedure were ?slim to none.? These are in substance the same as those raised in Stone.
37. Having considered the facts of this case as alleged in the TAC, as well as such facts judicially noticeable, including the brochure attached to the TAC, the Court concludes that the TAC does not allege a claim for fraud or misrepresentation, but rather is attempting to allege a medical negligence claim similar to Stone v. Foster.
38. Accordingly, the demurrer is SUSTAINED without leave to amend as to the fifth through seventh causes of action.
39. Ninth Cause of Action (Unfair Competition Law – Business and Professions Code ?17200) ? ?A fraudulent business practice is one which is likely to deceive the public.? McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1471. It ?does not refer to the common law tort of fraud. Rather, to state an unfair competition law claim one need only show that members of the public are likely to be deceived.? People v. Persolve, LLC (2013) 218 Cal.App.4th 1267, 1273.
40. In light of the Court?s conclusion regarding the fraud causes of action, the Court declines to interpret the UCL as permitting a UCL-fraud claim for, what in essence, is a medical malpractice case that concerns a medical device.
41. Accordingly, the demurrer is SUSTAINED without leave to amend as to the ninth cause of action.
42. Motion to Strike ? The proper procedure to attack false, improper, or irrelevant allegations in a pleading is a motion to strike. CCP ?436(a). In granting a motion to strike made under Code of Civil Procedure ?435, ?[t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: [?] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.? CCP ?436(a). Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. CCP ?431.10. The court may also ?[s]trike 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.? CCP ?436(b).
43. Hernandez seeks to strike Plaintiff?s claims for attorney?s fees and restitution from the TAC. Both claims are rooted in the UCL claims. In light of the Court?s disposition of the UCL cause of action, neither the attorney?s fees, nor the claim for restitution, are supported.
44. Accordingly, the motion to strike is GRANTED.
SO ORDERED AND ADJUDGED this the ______ day of April, 2016.