This case was last updated from Los Angeles County Superior Courts on 11/06/2020 at 07:19:15 (UTC).

SHEREE SWANSON VS ATTACK MARKETING., A DELAWARE LIMITED LIABILITY COMPANY

Case Summary

On 03/26/2019 SHEREE SWANSON filed a Labor - Other Labor lawsuit against ATTACK MARKETING , A DELAWARE LIMITED LIABILITY COMPANY. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******2981

  • Filing Date:

    03/26/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Other Labor

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Plaintiff

SWANSON SHEREE

Defendant

ATTACK MARKETING. A DELAWARE LIMITED LIABILITY COMPANY

Attorney/Law Firm Details

Plaintiff Attorneys

HALL TIMOTHY A

HALL TIMOTHY A.

Defendant Attorney

GILLESPIE RICHARD

 

Court Documents

Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

10/7/2020: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion - Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion

8/11/2020: Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion - Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion

Ex Parte Application (name extension) - Ex Parte Application for Leave to have Motion concerning Discovery to be heard closer to Trial Date; Order Shortening time for service

8/21/2020: Ex Parte Application (name extension) - Ex Parte Application for Leave to have Motion concerning Discovery to be heard closer to Trial Date; Order Shortening time for service

Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

8/21/2020: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

Opposition (name extension) - Opposition to Ex Parte Application

8/26/2020: Opposition (name extension) - Opposition to Ex Parte Application

Minute Order - Minute Order (Hearing on Ex Parte Application for Leave to have Motion conc...)

8/26/2020: Minute Order - Minute Order (Hearing on Ex Parte Application for Leave to have Motion conc...)

Declaration (name extension) - Declaration of Richard L. Gillespie

8/26/2020: Declaration (name extension) - Declaration of Richard L. Gillespie

Minute Order - Minute Order (Hearing on Motion to be Relieved as Counsel)

9/28/2020: Minute Order - Minute Order (Hearing on Motion to be Relieved as Counsel)

Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil - Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil

7/14/2020: Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil - Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil

Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

7/14/2020: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

7/14/2020: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

Memorandum of Points & Authorities - Memorandum of Points & Authorities

1/13/2020: Memorandum of Points & Authorities - Memorandum of Points & Authorities

Proof of Personal Service - Proof of Personal Service

1/13/2020: Proof of Personal Service - Proof of Personal Service

Proof of Service by Mail - Proof of Service by Mail

5/28/2019: Proof of Service by Mail - Proof of Service by Mail

Memorandum of Points & Authorities - Memorandum of Points & Authorities

5/28/2019: Memorandum of Points & Authorities - Memorandum of Points & Authorities

Civil Case Cover Sheet - Civil Case Cover Sheet

3/26/2019: Civil Case Cover Sheet - Civil Case Cover Sheet

First Amended Standing Order - First Amended Standing Order

3/26/2019: First Amended Standing Order - First Amended Standing Order

Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

3/26/2019: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

24 More Documents Available

 

Docket Entries

  • 03/29/2022
  • Hearing03/29/2022 at 10:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 04/09/2021
  • Hearing04/09/2021 at 08:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 02/09/2021
  • Hearing02/09/2021 at 10:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion to Compel Discovery (not "Further Discovery")

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  • 10/07/2020
  • DocketProof of Service (not Summons and Complaint); Filed by: Attack Marketing., A Delaware Limited Liability Company (Defendant); As to: Sheree Swanson (Plaintiff)

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  • 10/07/2020
  • DocketProof of Service (not Summons and Complaint); Filed by: Attack Marketing., A Delaware Limited Liability Company (Defendant); As to: Sheree Swanson (Plaintiff)

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  • 09/28/2020
  • DocketMinute Order (Hearing on Motion to be Relieved as Counsel)

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  • 09/28/2020
  • DocketHearing on Motion to be Relieved as Counsel scheduled for 09/28/2020 at 10:00 AM in Spring Street Courthouse at Department 25 updated: Result Date to 09/28/2020; Result Type to Held - Motion Granted

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  • 08/26/2020
  • DocketOpposition to Ex Parte Application; Filed by: ATTACK MARKETING., A DELAWARE LIMITED LIABILITY COMPANY (Defendant)

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  • 08/26/2020
  • DocketDeclaration of Richard L. Gillespie; Filed by: ATTACK MARKETING., A DELAWARE LIMITED LIABILITY COMPANY (Defendant)

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  • 08/26/2020
  • DocketProof of Service (not Summons and Complaint); Filed by: ATTACK MARKETING., A DELAWARE LIMITED LIABILITY COMPANY (Defendant); As to: SHEREE SWANSON (Plaintiff)

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39 More Docket Entries
  • 05/28/2019
  • DocketHearing on Motion to Strike (not anti-SLAPP) - without Demurrer scheduled for 01/22/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 05/06/2019
  • DocketProof of Service by Mail; Filed by: SHEREE SWANSON (Plaintiff); As to: ATTACK MARKETING., A DELAWARE LIMITED LIABILITY COMPANY (Defendant)

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  • 03/26/2019
  • DocketNon-Jury Trial scheduled for 09/22/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 03/26/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 03/29/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 03/26/2019
  • DocketComplaint; Filed by: SHEREE SWANSON (Plaintiff); As to: ATTACK MARKETING., A DELAWARE LIMITED LIABILITY COMPANY (Defendant)

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  • 03/26/2019
  • DocketSummons on Complaint; Issued and Filed by: SHEREE SWANSON (Plaintiff); As to: ATTACK MARKETING., A DELAWARE LIMITED LIABILITY COMPANY (Defendant)

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  • 03/26/2019
  • DocketCivil Case Cover Sheet; Filed by: SHEREE SWANSON (Plaintiff); As to: ATTACK MARKETING., A DELAWARE LIMITED LIABILITY COMPANY (Defendant)

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  • 03/26/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 03/26/2019
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 03/26/2019
  • DocketCase assigned to Hon. James E. Blancarte in Department 94 Stanley Mosk Courthouse

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Tentative Rulings

Case Number: 19STLC02981    Hearing Date: September 28, 2020    Dept: 25

HEARING DATE: Mon., September 28, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Swanson v. Attack!Marketing COMPL. FILED: 03-26-19

CASE NUMBER: 19STLC02981 DISC. C/O: 03-10-21

NOTICE: OK DISC. MOT. C/O: 03-25-21

TRIAL DATE: 04-09-21

PROCEEDINGS: MOTION TO BE RELIEVED AS COUNSEL

MOVING PARTY: Defendant’s Counsel Richard Gillespie

RESP. PARTY: None

MOTION TO BE RELIEVED AS COUNSEL

(CCP § 284(2); CRC rule 3.1362)

TENTATIVE RULING:

Defendant’s Counsel Richard Gillespie’s Motion to be Relieved as Counsel is GRANTED and the proposed order will be signed at the hearing. After the order is signed, a copy of the signed order must be served on the client and on all parties that have appeared in the case.” (Cal. Rules of Court, rule 3.1362(e).) The Order on this Motion will not be effective “until proof of service of a copy of the signed order on [Defendant] has been filed with the court.” (Id.)

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of September 23, 2020 [ ] Late [X] None

REPLY: None filed as of September 23, 2020 [ ] Late [X] None

ANALYSIS:

  1. Background

On March 26, 2019, Plaintiff Sheree Swanson (“Plaintiff”) filed this action for nonpayment of wages and waiting time penalties pursuant to Labor Code section 203 against Defendant Attack!Marketing (“Defendant”).

On July 14, 2020, Defendant’s counsel Richard Gillespie of Littler Mendelson, P.C. (“Counsel”) filed the instant Motion to be Relieved as Counsel (the “Motion”). To date, no opposition has been filed.

  1. Legal Standard

The court may order that an attorney be changed or substituted at any time before or after judgment or final determination upon request by either client or attorney and after notice from one to the other. (Code Civ. Proc., § 284(2).) “The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court.” (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) An application to be relieved as counsel must be made on Judicial Counsel Forms MC-051 (Notice of Motion and Motion), MC-052 (Declaration), and MC-053 (Proposed Order). (Cal. Rules of Court, rule 3.1362(a), (c), (e).)

In addition, California Rules of Court, rule 3.1362 subsection (d) requires that the notice of motion and motion, declaration, and proposed order be served on the client and all other parties who have appeared in the case by personal service, electronic service, or mail. If the notice is served by mail, it must be accompanied by a declaration stating facts showing that either:

(A) The service address is the current residence or business address of the client; or

(B) The service address is the last known residence or business address of the client and the attorney has been unable to locate a more current address after making reasonable efforts to do so within 30 days before the filing of the motion to be relieved.

(Cal. Rules of Court, rule 3.1362, subd. (1)(A) & (2).) (Italics added.)

  1. Discussion

Defendant’s Counsel seeks to be relieved because Defendant can no longer afford representation and has failed to fulfill its duty as a client, which has led to an irreparable breakdown in the attorney-client relationship. (MC-052, ¶ 2.) Counsel served Defendant with the Motion, supporting declaration, and proposed order by mail at Defendant’s current address, which was confirmed via email at most 30 days before filing this motion. (Id. at ¶ 3.)

 

The Court is satisfied with Counsel’s reasons for seeking to be relieved and finds that he has satisfied the requirements of California Rules of Court, rule 3.1362, subdivision (a) and (c)-(e). Importantly, trial is not scheduled until April 9, 2021, giving Defendant sufficient time to seek new representation should it wish to continue defending this action.

  1. Conclusion & Order

For the foregoing reasons, Defendant’s Counsel Richard Gillespie’s Motion to be Relieved as Counsel is GRANTED and the proposed order will be signed at the hearing. After the order is signed, a copy of the signed order must be served on the client and on all parties that have appeared in the case.” (Cal. Rules of Court, rule 3.1362(e).) The Order on this Motion will not be effective “until proof of service of a copy of the signed order on [Defendant] has been filed with the court.” (Id.)

Moving party is ordered to give notice.

Case Number: 19STLC02981    Hearing Date: January 22, 2020    Dept: 25

MOTION TO STRIKE

(CCP § 436)

TENTATIVE RULING:

Defendant Attack!Marketing’s Motion to Strike Plaintiff’s Request for Attorneys’ Fees is GRANTED.

ANALYSIS:

I. Background

On March 26, 2019, Plaintiff Sheree Swanson (“Plaintiff”) filed an action against Defendant Attack!Marketing for damages for non-payment of wages and waiting time penalties under Labor Code section 203.

On May 28, 2019, Defendant filed an Answer. Defendant also filed the instant Motion to Strike Plaintiff’s Request for Attorneys’ Fees (the “Motion”) and a Request for Judicial Notice. On January 8, 2020, Plaintiff filed an Opposition. On January 13, 2020, Defendant filed a Reply brief and a second Request for Judicial Notice.

II. Legal Standard

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper. (Code Civ. Proc., §§ 435; 436, subd. (a).) Motions may also target pleadings or parts of pleadings that are not filed or drawn in conformity with applicable laws, rules or orders. (Code Civ. Proc., § 436 subd. (b).) Motions to strike in limited jurisdiction courts may only challenge pleadings on the basis that “the damages or relief sought are not supported by the allegations of the complaint.” (Code Civ. Proc., § 92 subd. (d).) A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer. (Pierson v. Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342; see also City & County of San Francisco v. Strahlendorf (1992) 7 Cal.App.4th 1911, 1913 [motion may not be based on a party's declaration or factual representations made by counsel in the motion papers].)

In particular, a motion to strike can be used to attack the entire pleading or any part thereof – in other words, a motion may target single words or phrases, unlike demurrers. (Warren v. Atchison, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 40.) California’s policy of liberal construction applies to motions to strike. (Code Civ. Proc., § 452; see also Duffy v. Campbell (1967) 250 Cal.App.2d 662, 666 [noting that courts must resolve all reasonable doubts in favor of the pleading when considering a motion to strike].) The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.” (Code Civ. Proc., § 436.)

Finally, Code of Civil Procedure section 435.5 requires that “[b]efore filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining whether an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc § 435.5, subd. (a).)

III. Judicial Notice

Defendant filed a request for judicial notice concurrently with its Motion, requesting that the Court notice (1) the Lynne Camillo February 10, 2015 IRS Memorandum, number 20152204 and (2) the California Department of Industrial Relations’ release on “Waiting Time Penalties.”

Judicial notice may be taken of “[r]egulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States.” (Evid. Code., § 452, subd. (b).) Judicial notice may also be taken of “[o]fficial acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. (Evid. Code, § 452, subd. (c).) Because the IRS Memorandum and the release on “Waiting Time Penalties” fall within these categories, Defendant’s request for judicial notice is GRANTED.

In addition, Judicial notice may be taken of the “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.” (Evid. Code, § 452, subd. (d).) Defendant filed a second Request for Judicial notice concurrently with its Reply brief, requesting that the Court judicially notice a July 22, 2019 Minute Order for the matter titled Weissman v. Attack!Marketing, case number 19STLC01507, currently pending in this Department. The July 22, 2019 Minute Order granted Defendant’s Motion to Strike plaintiff Weissman’s request for attorneys’ fees based on section 203 claims. (7/22/19 Minute Order.) The Reply brief and second Request for Judicial Notice were served on Plaintiff by overnight delivery. (1/13/20 Proof of Service, ¶ 6.)

Although this request was served six court days before the scheduled hearing on this Motion, the Court finds the request gave Plaintiff “sufficient notice of the request to enable [Plaintiff] to prepare to meet the request.” (Evid. Code, § 453; See CREED-21 v. City of San Diego (2015) 234 Cal.App.4th 488, 520 [affirming trial court’s denial for judicial notice on the basis that the opposing party was deprived of a reasonable opportunity to prepare an opposition because the request was made after a tentative ruling had been released and because the document was an unauthenticated copy].) Here, this request was made before a tentative ruling has been released, involves a copy of a court record, and is a document Defense counsel is readily familiar with as it was submitted by him within the last year.

Thus, Defendant’s request for judicial notice of the July 22, 2019 Minute Order is also GRANTED.

IV. Discussion

The Motion is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 435.5. (Mot., Gillespie Decl., ¶¶ 2-3, Exh. 1.)

Plaintiff alleges that she was employed as a model by Defendant on two separate occasions and was later discharged. (Compl., ¶¶ 9, 11, 17, 19.) Plaintiff further alleges that Defendant did not pay Plaintiff’s wages for more than thirty days after Plaintiff was discharged from her employment. (Id., ¶¶ 13, 20.) As a result, she argues, Plaintiff is entitled to a penalty under Labor Code section 203. (Id., ¶¶ 13-14, 21-22.) Labor Code section 203, subdivision (a) provides, in pertinent part, that if “an employer willfully fails to pay, without abatement or reduction…any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced…” (Italics added.)

Plaintiff also alleges she is entitled to an award of attorneys’ fees under Labor Code section 218.5. (Id., ¶¶ 15, 23.)

Labor Code section 218.5, subdivision (a) provides, in pertinent part:

“In any action brought for the nonpayment of wages, fringe benefits, or health and welfare pension fund contributions, the court shall award reasonable attorney’s fees and costs to the prevailing party if any party to the action requests attorney’s fees and costs upon the initiation of the action.”

Defendant moves to strike Plaintiff’s request for “reasonable attorneys’ fees pursuant to Labor Code section 218.5” and argues that California law does not allow their recovery based on Plaintiff’s allegations. (Mot., p. 1:13-15.)

Defendant argues that an award of attorneys’ fees is not warranted under section 218.5 because Plaintiff is not seeking the recovery of “wages, fringe benefits, or health and welfare or pension fund contributions.” (Mot., MP&A, p. 3:8-10.) Defendant further argues that a cause of action seeking penalties under Labor Code section 203 alone, without a corresponding claim for unpaid wages under Labor Code sections 201 or 202, does not justify the recovery of attorneys’ fees. (Id., p. 3:10-11, 21-22.)

Defendant’s reliance on Ling v. P.F. Chang’s China Bistro, Inc. (2016) 245 Cal.App.4th 1242 is on point. In Ling, the Court of Appeal rejected the argument that “a section 203 waiting time claim based on section 226.7 premium pay is an ‘action brought for the non-payment of wages’ under section 218.5.” (Ling v. P.F. Chang’s China Bistro, Inc. (2016) 245 Cal.App.4th 1242, 1261.) The Court recognized that “the remedy for a section 226.7 violation is an extra hour of pay,” but it also clarified that “the fact that the remedy is measured by an employee’s hourly wage does not transmute the remedy into a wage as the term is used in section 203, which authorizes penalties to an employee who has separated from employment without being paid.” (Ibid.)

In her Opposition, Plaintiff attempts to distinguish her case from Ling and cites several cases, neither of which demonstrates that attorneys’ fees can be recovered without an underlying claim for unpaid wages.

Plaintiff relies heavily on On-Line Power, Inc. v. Mazur (2007) 149 Cal.App.4th 1079. On-Line involved an action for both unpaid wages and penalties for various Labor Code sections violations and attorneys’ fees under section 218.5. (On-Line Power, Inc. v. Mazur (2007) 149 Cal.App.4th 1079, 1082.) In On-Line, the Court found that executive salaries were wages, and that “a cause of action for non-payment of such wages falls under Labor Code section 218.5.” (Id., at p. 1086.) However, the Court of Appeal did not consider whether a claim for waiting penalties under Labor Code section 203 alone entitled a plaintiff to attorneys’ fees under section 218.5. As such, this case provides minimal, if any, support for Plaintiff’s position.

Plaintiff also relies on Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244. Kirby considered the narrow issue of “when if ever, a party who prevails on a section 226.7 action for an alleged failure to provide rest breaks may be awarded attorney’s fees,” which is inapplicable here. (Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244, 1248.) In addition, Plaintiff cites Mamika v. Barca (1998) 68 Cal.App.4th 487, 491, which considered what the proper calculation of penalties under section 203 was. Mamika does not analyze or cite to Labor Code section 218.5 at all. Instead, Plaintiff apparently relies on this case for the proposition that penalties under Labor Code section 203 are wages. (Oppo., p. 4:19-23.) However, this is expressly contradicted by Ling, a more recent case, which held that the remedy is not transmuted into a wage as the term is used in Section 203. (Ling v. P.F. Chang’s China Bistro, Inc. 245 Cal.App.4th at 1261.)

Lastly, the Court notes that Plaintiff makes the same exact arguments this Court considered and rejected in July 2019, without making an effort to argue why the Court should rule differently in this case. (See 1/13/20 RJN, Exh. 4.)

V. Conclusion

Based on the foregoing, Defendant Attack! Marketing’s Motion to Strike Plaintiff’s Request for Attorneys’ Fees is GRANTED.

Moving party is ordered to give notice.