Motion to Strike (Judge William J. Elfvling)

Case Name:??? Nhu Y Thi Nguyen v. Teresa Hung, et al.??????

Case No.:??????? 16-CV-296813

1. Background

Nhu Y Thi Nguyen (?Plaintiff?) retained defendant Teresa Hung aka Teresa Thu-Huong Nguyen (?Hung?), an attorney, to represent her in marital dissolution and immigration proceedings.? (First Amended Complaint (?FAC?), ?? 17-22.)? Hung failed to complete Plaintiff?s visa application and did not competently represent her in the immigration proceedings.? (FAC, ?? 40-43.)? Additionally, Hung used Plaintiff?s immigration status to extort additional fees from her and improperly entered into a business venture with her for the development of real property in Vietnam.? (FAC, ?? 23-39.)? Plaintiff alleges defendants Luong Hung, Hung?s husband, and Kim O. Le (?Le?), Hung?s office manager, assisted Hung in her wrongful conduct.? (FAC, ?? 4-5, 24.)

Plaintiff asserts the following causes of action: (1) legal malpractice (against Hung); (2)?violation of the California Rules of Professional Conduct (against Hung); (3) fraud (against all defendants); (4) breach of contract (against Hung); (5) negligence (against Le); and (6)?intentional infliction of emotional distress (against all defendants).? Plaintiff seeks to recover damages and ?all costs associated with this lawsuit including reasonable attorney?s fees.?? (FAC at p. 21:21.)

Le moves to strike the claim for attorney?s fees in the prayer for relief and requests an award of monetary sanctions against Plaintiff and her attorney.

1. Motion to Strike

In general, each party must pay his or her own attorney?s fees unless an agreement between the parties or a statute provides otherwise.? (Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 504, citing Code Civ. Proc., ??1021.)? When attorney?s fees are sought based on a contractual fee provision, they are recoverable as special damages and the plaintiff must specifically plead facts giving rise to his or her entitlement to fees.? (M. C. & D. Capital Corp. v. Gilmaker (1988) 204 Cal.App.3d 671, 676.)? Attorney?s fees recoverable pursuant to a statute are allowable as costs and the plaintiff need only adequately allege the underlying statutory claims.? (Ibid.)? A court may strike a request for attorney?s fees where the basis for recovery is not set forth in the pleading.? (See Code Civ. Proc., ??436; see also Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 385 [defendant may challenge claim for improper remedy by motion to strike], citing Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 164 [plaintiff must plead basis for punitive damages claim]; see also Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2016) ? 7:182 [court may strike unauthorized claim for attorney?s fees].)

While Plaintiff?s claims arise out of a dispute over a contract for legal services, she does not allege the contract contained a fee provision.? Consequently, Plaintiff?s claim for attorney?s fees, to the extent it is based on an agreement between the parties, is not supported by the allegations in the FAC. ?Plaintiff does not present any arguments to the contrary.

Plaintiff does not assert any statutory claims or otherwise allege she is entitled to recover attorney?s fees based on a particular statute.? Given she asserts ordinary tort and contract claims, the statutory basis for recovery of attorney?s fees is not obvious.? In opposition, however, Plaintiff argues she may recover fees pursuant to Code of Civil Procedure section 1021.5, which codifies the private attorney general doctrine. ?(See Gray v. Don Miller & Associates, Inc., supra, 35 Cal.3d at p.?504.)? Under the private attorney general doctrine, a party may recover attorney?s fees from the opposing party in an action to enforce an important right affecting the public interest.? (Ibid.)? Plaintiff does not provide and the Court is otherwise unaware of any authority supporting the proposition that ordinary tort and contract claims, without more, constitute claims for which fees may be recovered pursuant to section 1021.5.? Plaintiff?s claim for attorney?s fees therefore is not supported by the allegations in the FAC to the extent it is purportedly based on this or any other statute.

Based on the foregoing the motion to strike the request for attorney?s fees in the prayer for relief is GRANTED with 10 days? leave to amend.

III.?????? Request for Monetary Sanctions

??????????? Le asks the Court to impose monetary sanctions in the amount of $3,060.00 against Plaintiff and her attorney pursuant to Code of Civil Procedure section 128.5, which authorizes a court to impose monetary sanctions against a party or attorney who acts in bad faith or engages in tactics that are frivolous or solely for the purpose of causing delay.? Le argues sanctions are warranted because Plaintiff?s claim for attorney?s fees was frivolous and in bad faith.

Requests for sanctions pursuant to Code of Civil Procedure section 128.5 must comply with the procedures set forth in Code of Civil Procedure section 128.7, subdivision (c).? (Code Civ. Proc., ??128.5, subd. (f).)? Thus, a request for sanctions must be separately noticed and may be filed no sooner than 21 days after service of the motion on the party against whom sanctions are sought so as to give the responding party an opportunity to withdraw the objectionable motion or pleading.? (Code Civ. Proc., ? 128.7, subd. (c)(1).)? Le did not separately notice her request for sanctions and filed her motion to strike, including her request for sanctions, the day after she served Plaintiff with the motion.? Consequently, Le?s request is procedurally improper.

Additionally, an action or litigation tactic must be ?totally and completely without merit? or ?for the sole purpose of harassing an opposing party.?? (Code Civ. Proc., ? 128.5, subd. (b)(2).)? Even though her claim for attorney?s fees was not supported, the record does not reflect Plaintiff?s conduct or her attorney?s actions rise to a level warranting sanctions.? Consequently, even if Le?s request was procedurally proper, there is no basis for awarding sanctions under these circumstances.? Le?s request for monetary sanctions is therefore DENIED.