Jorge Lopez vs. Angela Archie

Complaint Information

SHANNON B. JONES LAW GROUP, INC.

SHANNON B. JONES (Bar No. 149222) E-FILED

sbj@sbj-law.com 6/19/2018 2:01 PM

208 W. El Pintado Road FRESNO COUNTY SUPERIOR COURT Danville, California 94526 By: R. Faccinto, Deputy

Telephone: (925) 837-2317 I'acsimile: (925) 837-4831

Attorneys for Defendants STRONG HOLDINGS, INC.

(erroneously sued as KELLER WILLIAMS WESTLAND REALTY) and MEL KILNER

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF FRESNO

JORGE LOPEZ, No. 18CECG00629 Plaintiff, REPLY BRIEF IN SUPPORT OF MOTION o OF STRONG HOLDINGS, INC.

(ERRONEOUSLY SUED AS KELLER WILLIAMS WESTLAND REALTY) AND MEL KILNER TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT

ANGELA L. ARCHIE; MEL KILNER;

KELLER WILLIAMS WESTLAND

REALTY and DOES 1 to 25,

Defendants. Date: June 26, 2018 Time: 3:30 p.m. Dept.: 503

Complaint Filed: 2/20/18 First Amended Complaint Filed: 4/5/18

N’ N’

M’

Detfendants Strong Holdings, Inc. (erroneously sued as Keller Williams Westland Realty) and Mel Kilner (collectively “Keller Williams™) respectfully submit this memorandum of points and authorities in support of their motion to strike portions of Plaintiff Jorge Lopez’s (“Plaintiff”) First Amended Complaint (“FAC”). [. INTRODUCTION By this motion, Keller Williams seeks an order striking three references in the

FAC to attorney’s fees allegedly incurred by Plaintiff. The allegations are irrelevant and

REPLY BRIEF IN SUPPORT OF MOTION OF STRONG HOLDINGS, INC. AND MEL KILNER TO STRIKE PORTIONS OF FIRST

REPLY BRIEF IN SUPPORT OF MOTION OF STRONG HOLDINGS, INC. AND MEL KILNER TO STRIKE PORTIONS OF FIRST improper as the FAC does not allege a contractual or statutory basis by which Plaintiff may recover attorney’s fees from Keller Williams. As discussed in the moving papers, while the Purchase Agreement does contain an attorney’s fee provision, by its express terms, the provision pertains only to litigation between the buyer and the seller and it authorizes the imposition of fees against only the buyer or the seller. Even if Keller Williams were a party to the Purchase Agreement (which is not the case as discussed in Keller Williams demurrer), the attorney’s fee provision does not permit Plaintiff to recover attorney’s fees from anyone other than the seller, that is, defendant Angela L. Archie.

improper as the FAC does not allege a contractual or statutory basis by which Plaintiff may recover attorney’s fees from Keller Williams. As discussed in the moving papers, while the Purchase Agreement does contain an attorney’s fee provision, by its express terms, the provision pertains only to litigation between the buyer and the seller and it authorizes the imposition of fees against only the buyer or the seller. Even if Keller Williams were a party to the Purchase Agreement (which is not the case as discussed in Keller Williams demurrer), the attorney’s fee provision does not permit Plaintiff to recover attorney’s fees from anyone other than the seller, that is, defendant Angela L. Archie.

Plaintiff fails to refute any of these points in his opposition. He makes no attempt to explain how an attorney fee provision that contemplates an award of fees against only the buyer or the seller can be the basis for a fee award against Keller Williams, and Plaintiff is unable to provide any statutory basis for the requested fees.

The attorney’s fee allegations are irrelevant, improper and should be stricken. Because leave to amend would be futile, it should be denied.

II. LEGAL ARGUMENT

A. Plaintiff’s Requests For Attorney’s Fees Are Irrelevant and Improper

Because the FAC Does Not Allege a Contractual or Statutory Basis For Such Fees

As discussed in the moving papers, the requests for attorney’s fees in the FAC are irrelevant, improper, and are subject to a motion to strike, because the FAC does not allege the existence of a statute or a contractual provision that provides for the recovery of such fees from Keller Williams. (See Code of Civ. Proc. §436; see also Code of Civ. Proc. §431.10(b)(3),(c).)

Plaintiff argues that the Purchase Agreement contains an attorney’s fee provision. As discussed in Keller William’s demurrer, Keller Williams is not a party to the Purchase Agreement. For that reason alone, the attorney’s fee provision does not provide a basis for an award of fees against Keller Williams. By its express terms, the provision only applies to htigation between the buyer and the seller, and it authorizes the imposition of a fee award against the buyer or the seller only. The provision reads as follows:

REPLY BRIEF IN SUPPORT OF MOTION OF STRONG HOLDINGS, INC. AND MEL KILNER TO STRIKE PORTIONS OF FIRS'

REPLY BRIEF IN SUPPORT OF MOTION OF STRONG HOLDINGS, INC. AND MEL KILNER TO STRIKE PORTIONS OF FIRS' 25. ATTORNEYS FEES: In any action, proceeding, or arbitration between Buyer and Seller arising out of this Agreement, the prevailing Buyer or Seller shall be entitled to rcasonably attorney fees and costs from the non-prevailing Buyer or Seller, except as provided in paragraph 22A.

25. ATTORNEYS FEES: In any action, proceeding, or arbitration between Buyer and Seller arising out of this Agreement, the prevailing Buyer or Seller shall be entitled to rcasonably attorney fees and costs from the non-prevailing Buyer or Seller, except as provided in paragraph 22A.

(See Ex. A to the FAC, at 425.)

In 1ts moving papers, Keller Williams noted that the attorney’s fee provision in the Purchase Agreement authorizes a fee award against only a non-prevailing “Buyer” or “Seller,” and does not authorize an award of fees against a broker. Notably, Plaintiff fails to address this point in his opposition. Plaintiff makes no attempt to explain how a fee provision that expressly states that only the buyer or the seller could be liable for attorney’s fees can support Plaintiff’s request that Keller Williams pay Plaintiff’s attorney’s fees.

Likewise, Plaintiff has not identified any statute that expressly authorizes the imposition of attorney’s fees. (See Grasso v. Crow (1997) 57 Cal.App.4™ 847, 849-851 [a statutory provision must clearly provide for the recovery of attorney’s fees in order for such fees to be awarded].)

B. The Motion to Strike is Not a Special Demurrer

Unable to identify any contractual or statutory basis for his attorney’s fee claims, Plaintiff resorts to the nonsensical contention that the motion to strike is in actuality an improper special demurrer. Plaintiff argues as follows:

The motion by Defendants to strike out portions of the first amended complaint is improper such that it would impact not only the attorneys’ fees sought by Plaintiff but also the negligence, fraud, and breach of contract by Defendants, set forth in two causes of action alleged which assert and rely on, at least in part, on the failure to disclose by Defendants and the damages resulting therefrom. Stated differently, Defendants seek to attack the various causes of action in Plaintiff’s first amended complaint by way of a motion to strike which is improper. If Defendants are seeking to defend against any improper or defective pleading in the three causes of action, the challenge must be brought by way of a special demurrer.

(Opp., at 4:13-20.)

REPLY BRIEF IN SUPPORT OF MOTION OF STRONG HOLDINGS, INC, AND MEL KILNER TO STRIKE PORTIONS OF FIRST

REPLY BRIEF IN SUPPORT OF MOTION OF STRONG HOLDINGS, INC, AND MEL KILNER TO STRIKE PORTIONS OF FIRST The argument misconstrues the nature and basis of this motion. A motion to strike 1s appropriate to remove any irrelevant, false, or improper matters from a complaint, or any portion of a complaint that does not conform with the laws of the State of California. (Code of Civ. Proc. §436.) Irrelevant matter includes a “demand for judgment requesting relief not supported by the allegations of the complaint.” (Code of Civ. Proc. §431.10(b)(3),(c).) This motion seeks to strike only language that is directly related to the irrelevant attorney’s fee claims, as follows:

The argument misconstrues the nature and basis of this motion. A motion to strike 1s appropriate to remove any irrelevant, false, or improper matters from a complaint, or any portion of a complaint that does not conform with the laws of the State of California. (Code of Civ. Proc. §436.) Irrelevant matter includes a “demand for judgment requesting relief not supported by the allegations of the complaint.” (Code of Civ. Proc. §431.10(b)(3),(c).) This motion seeks to strike only language that is directly related to the irrelevant attorney’s fee claims, as follows:

15 Paragraph GN-1, page 6: “Plaintiff has also been forced to incur attorneys’ fees and costs.”

2 Paragraph BC-4, page 7: “and Plaintiff has incurred legal fees.”

3. Paragraph BC-5, page 7: “Plaintiff is entitled to attorney fees by an agreement or a statute according to proof.”

(See Notice of Motion, at 2:1-5.)

Plaintiff presents no coherent explanationthese three passages is relevant to any of the causes of action in the FAC. To the extent Plaintiff contends that these allegations are relevant to show that Plaintiff was damaged, the argument is without merit. By definition, Plaintiff could not have been damaged by incurring expenses that are not legally recoverable. To the extent Plaintiff’s position is that the attorney fee allegations are relevant to Plaintiff’s claims against defendant Angela L. Archie (“Archie”), the argument is without merit. Keller Williams does not take a position as to whether Plaintiff is entitled to claim fees from Ms. Archie, Keller Williams merely seeks an order striking the allegations as they are directed against Keller Williams.

Plaintifl”s Areument as to the Merits of the Lawsuit are Improper

Plaintiff improperly argues the merits of the case. (Opp., at 5:18-6:12.) Not only is the argument based on matters that are not alleged in the FAC (such as a Real Estate Transfer Disclosure and an AVID), such arguments have no bearing on the impropriety of the attorney’s fee claims,

REPLY BRIEF IN SUPPORT OF MOTION OF STRONG HOLDINGS. INC. AND MEL KILNER TO STRIKE PORTIONS OF FIRST

REPLY BRIEF IN SUPPORT OF MOTION OF STRONG HOLDINGS. INC. AND MEL KILNER TO STRIKE PORTIONS OF FIRST IV. CONCLUSION The attorney’s fees allegations are irrelevant, improper, and should be stricken. Plaintiff has not alleged a statutory or contractual basis for such fees. Therefore, this motion must be granted.

IV. CONCLUSION The attorney’s fees allegations are irrelevant, improper, and should be stricken. Plaintiff has not alleged a statutory or contractual basis for such fees. Therefore, this motion must be granted.

Dated: June\“{ , 2018 SHANNON B. JONES LAW GROUP, INC.

(‘_‘ %‘L/

SHANNON B. JONES Attorneys for Defendants STRONG HOLDINGS, INC. (erroneously sued as KELLER WILLIAMS WESTLAND REALTY) and MEL KILNER

REPLY BRIEF IN SUPPORT OF MOTION OF STRONG HOLDINGS, INC, AND MEL KILNER TO STRIKE PORTIONS OF FIRST

PROOF OF SERVICE

I, the undersigned, declare:

I am a resident of the State of California and over the age of eighteen years, and not a party to the within action; my business address is 208 W. El Pintado Road, Danville, CA 94526. On June lz, 2018, I served the within document(s):

REPLY BRIEF IN SUPPORT OF MOTION OF STRONG HOLDINGS, INC.

(ERRONEOUSLY SUED AS KELLER WILLIAMS WESTLAND REALTY) AND MEL KILNER TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT

X by transmitting via email the above listed document(s) to the email address(es) set forth below on this date before 5:00 p.m.

X by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Danville, California addressed as set forth below.

by electronic service via electronic transmission to all parties appearing on the electronic service list on this court’s E-Service list by utilizing the Electronic Filing Service Provider as ordered by this Court. A copy of the filing receipt page will be maintained with the original document in this office.

Jay A. Christofferson, Esq. Wanger Jones Helsley PC

265 E. River Park Circle, Suite 310 Fresno, CA 93720

Tel: (559) 233-4800

Fax: (559) 233-9330

ichristofferson(@wijhattorneys.com

X by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Danville, California addressed as set forth below.

In Pro Per

Angela Archie

P.O. Box 11778 Fresno, CA 93775 Tel: (559) 696-6188

REPLY BRIEF IN SUPPORT OF MOTION OF STRONG HOLDINGS, INC. AND MEL KILNER TO STRIKE PORTIONS OF FIRST

REPLY BRIEF IN SUPPORT OF MOTION OF STRONG HOLDINGS, INC. AND MEL KILNER TO STRIKE PORTIONS OF FIRST I declare under penalty of perjury under the laws of the State of California that the above 1s true and correct.

I declare under penalty of perjury under the laws of the State of California that the above 1s true and correct.

Executed on June fi, 2018, at Danville, California.

A (oo

P. CASE

REPLY BRIEF IN SUPPORT OF MOTION OF STRONG HOLDINGS, INC. AND MEL KILNER TO STRIKE PORTIONS OF FIRST