On 02/20/2018 Jorge Lopez filed a Property - Other Property Fraud lawsuit against Angela Archie. This case was filed in Fresno County Superior Courts, Bf Sisk Courthouse located in Fresno, California. The Judges overseeing this case are Gaab, Kimberly, Diaz, Monica, Snauffer, Mark, Black, Donald and Simpson, Alan. The case status is Pending - Other Pending.
*******0629
02/20/2018
Pending - Other Pending
Fresno County Superior Courts
Bf Sisk Courthouse
Fresno, California
Gaab, Kimberly
Diaz, Monica
Snauffer, Mark
Black, Donald
Simpson, Alan
Lopez, Jorge
Archie, Angela L.
Kilner, Mel
Keller Williams Westland Realty
Strong Holdings, Inc.
Archie, Angela
Dye, Antonio
Melgar, Edgar
Gill, Faraz
Aspire Realty Solutions
Kilner, Mel
Strong Holdings, Inc.
Christofferson, Jay A.
Cook, Russell D.
Jones, Shannon B
Jamison, Daniel O.
Jones, Shannon B
Reply; Comment: in Support of Demurrer to Plaintiff's First Amended Complaint
Reply; Comment: in Support of Motion to Strike Portions of Plantiff's First Amended Complaint
Minute Order Attachment
Objection; Comment: Jorge Lopez's Objection to Defendants' Request for Judicial Notice
Memorandum of Points & Authorities; Comment: Jorge Lopez's Memorandum of Points and Authorities in Opposition to Demurrer to the First Amended Complaint
Memorandum of Points & Authorities; Comment: Jorge Lopez's Memorandum of Points and Authorities in Opposition to Motion to Strike Portions of the First Amended Complaint
Notice of Deposit of Jury Fees 5.30.18.pdf; Comment: Jury Fee Deposit
HRG 6.15.18 CMC Stmt 5.30.18.pdf
Letter of Documents Returned Without Filing; Comment: Returned: Case Management Statement; Notice of Deposit of Jury Fees; Check #4153 $150.00 Reason: Documents are being returned unprocessed. Please note effective July 1, 2016, documents filed by represented parties in all unlimited civil actions must be filed electronically. Visit our website for more information: http://www.fresno.courts.ca.gov
Summons issued and filed; Summons issued and filed; Comment: Summons as to Second Amended Complaint filed.
Answer/Response/Denial/Demurrer - No Fee; Comment: Defendant Angela Archie Answer to 2nd Amended Complaint
Amended Complaint - Claim Amount Unchanged (No Fee); Comment: Second Amended Complaint filed
Substitution of Attorney; Comment: Old Attorney: Pro Per New Attorney: Russell Cook Bar#94934
Minute Order Attachment (Tentative Rulings Only); Comment: and Certificate of mailing
Summons on Cross Complaint.pdf; Summons issued and filed; Comment: to 1st Cross Complaint
Summons on Cross Complaint.pdf; Summons issued and filed; Comment: to 1st Cross Complaint
Cross-Complaint.pdf; Comment: 1st Cross Complaint
Stipulation; Comment: Parties to engage in mediation. Mediator: TBD
Jury Trial- Judicial Officer: Black, Donald; Hearing Time: 9:00 AM; Comment: Requested by both parties with estimated time of 3-7 days.
Trial Readiness- Judicial Officer: Simpson, Alan; Hearing Time: 9:30 AM
Mandatory Settlement Conference- Hearing Time: 10:00 AM
Answer Filed- Answer/Response/Denial/Demurrer - No Fee; Comment: to First Amended Cross-Complaint
Notice Filed- NOE Order re Cont Trial 6-21-19.pdf; Comment: Notice of Entry of Order
Answer Filed- Answer/Response/Denial/Demurrer - No Fee; Comment: to 1st Cross-Complaint
Order filed- Order filed; Judicial Officer: Gaab, Kimberly; Comment: Granting Strong Holdings, Inc. and Mel Kilner's Ex Parte Application for an Order Continuing Trial
Minute Order Attachment- Minute Order Attachment; Comment: and Certificate of Mailing
Request Filed- Request; Comment: Request for Judicial Notice in Support of Cross-Defendants' [Gill and Melgar] Opposition to Ex Parte Application for An Order Continuing Trial [etc.]
Declaration Filed- Declaration; Comment: Declaration of Caroline M. Lutz in Support of Cross-Defendants' [Gill and Melgar] Opposition to Ex Parte Application for An Order Continuing Trial [etc.]
Financial: Archie, Angela; Total Financial Assessment $435.00; Total Payments and Credits $435.00
Financial info for Lopez, Jorge: EFile Payment Receipt # WEB-2019-10446 Lopez, Jorge $60.00
Financial info for Lopez, Jorge: Transaction Assessment $60.00
Financial info for Lopez, Jorge: EFile Payment Receipt # WEB-2018-85482 Lopez, Jorge $60.00
Financial info for Lopez, Jorge: Transaction Assessment $60.00
Financial info for Lopez, Jorge: EFile Payment Receipt # WEB-2018-66528 Lopez, Jorge $60.00
Financial info for Lopez, Jorge: Transaction Assessment $60.00
Financial info for Lopez, Jorge: EFile Payment Receipt # WEB-2018-13180 Lopez, Jorge $435.00
Financial info for Lopez, Jorge: Transaction Assessment $435.00
Financial: Lopez, Jorge; Total Financial Assessment $615.00; Total Payments and Credits $615.00
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
JORGE LOPEZ, No. 18CECG00629 Plaintiff, REPLY BRIEF IN SUPPORT OF MOTION o OF STRONG HOLDINGS, INC.
ANGELA L. ARCHIE; MEL KILNER;
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.
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
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.
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