Preview
E-FILED
7/6/2018 4:30 PM
1 McCormick, Barstow, Sheppard,
Wayte & Carruth LLP FRESNO COUNTY SUPERIOR COURT
2 Gregory S. Mason,#148997 By: C. Cogburn, Deputy
greg.mason@mccormickbarstow.com
3 Ben Nicholson,#239893
ben.nicholson@mccormickbarstow.com
4 Vanessa M. Cohn,#314619
Vanessa.cohn@mccormickbarstow.com
5 7647 North Fresno Street
Fresno, California 93720
6 Telephone: (559)433-1300
Facsimile: (559)433-2300
7
Attorneys for Defendant, PANOCHE WATER
8 DISTRICT
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF FRESNO
11
12 STEPHEN W. SLOAN, an individual. Case No. 18CECG00511
13 Plaintiff, MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
14 V. MOTION TO STRIKE ATTORNEYS'
FEES FROM PLAINTIFF'S COMPLAINT
15 PANOCHE WATER DISTRICT,a California
water district; and DOES 1-100 inclusive, Date: August 22,2018
16 Time: 3:30 p.m.
Defendants. Dept.: 503
17 Judge: Hon. Kimberly Gaab
18 Action Filed: February 8, 2018
Trial Date: Not Assigned
19
20 Defendant, PANOCHE WATER DISTRICT ("PWD") hereby submits the following
21 Memorandum of Points and Authorities in support of its Motion to Strike Plaintiff STEPHEN W.
22 SLOAN'S claim for attorneys' fees from the Complaint.
23 1.
INTRODUCTION
24
25 The subject lawsuit arises out of Plaintiffs claim that PWD entered into a 2015 agreement
26 with Plaintiffthrough PWD's general manager, Dennis Falaschi,for the purchase of2,500 acre feet of
27
28
McCormick, Barstow.
Sheppahd, WAVTE &
Carruth LLP MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE ATTORNEYS'
7847 NORTH FRESNO STREET
FRESNO. CA 93720 FEES FROM COMPLAINT
1 water per water year' for a period ofthree years, at the rate of$800 per acre foot from the Hamburg
2 Wells^.[Complaint,^ 6.] The Complaint alleges that this 2015 agreement("Alleged Agreement 1")
3 was presented to and approved by the PWD Board of Directors.
4 The Complaint also alleges that, during the 2016 water year, before Plaintiff delivered any
5 water under Alleged Agreement 1 to PWD,Plaintiffoffered to modify Alleged Agreement 1 such that
6 PWD would purchase 3,500 acre feet of water per water year for a period of five years, at the rate of
7 $600 per acre foot from the Hamburg Wells ("Alleged Agreement 2").[Complaint,^ 7.]
8 In Plaintiffs prayer for relief, Plaintiff requests "attorney's fees as provided by law."
9 [Complaint, pg. 5:18] However, Plaintifffails to cite any law or basis for awarding attorneys' fees.
10 As no such law or basis for attorneys' fees exists, Plaintiffs request should be stricken.
11 I.
LAW AND ARGUMENT
12
A. Applicable Law Regarding Motions To Strike And Attorneys^ Fees
13
14 Section 436 of the California Code of Civil Procedure ("Code of Civ. Pro.") provides that,
15 upon a motion,a court may strike "any irrelevant,false, or improper matter inserted in any pleading"
16 or all or any part of any pleading not drawn or filed in conformity with the laws of this state. A
17 motion to strike may be brought to strike an entire pleading or any part of a pleading. (Code of Civ.
18 Pro. § 435(b)(1).) Further, a motion to strike is the proper procedure for eliminating an improper
19 request for attorneys' fees. (Weil & Brown, C/v. Pro. Before Trial(Rutter Group 2011) 7:183.)
20 The Complaint in the instant matter asserts that Plaintiff seeks "attorney's fees as provided by
21 law." [Complaint, pg. 5:18.] However,the general rule is well established: in the absence ofstatutory
22 authority or an agreement between the parties providing otherwise, each litigant pays his or her own
23 attorneys' fees. (Code of Civ. Pro. § 1021; Reidv. Valley Reslauranis, Inc. (1957)48 Cal.2d 606,
24 610.) "Awards of attorney's fees by courts are the exception rather than the rule." {Steele v. Gold
25
'A "water year" is described in the Complaint as running from March 1 to the last day ofFebruary the
26 following year.[Complaint,^ 6.]
^ The "Hamburg Wells" are described in the Complaint as agricultural wells situated on certain real
27
property located adjacent to the Delta-Mendota Canal and on certain real property located adjacent to
28 the Central California Irrigation District's Outside Canal.[Complaint,^ 4.]
MCCORMICK, BaRSTOW,
Shepparo, WAVTE &
CaRRLtTH LLP MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE ATTORNEYS'
76«7 NORTH FRESNO STREET
FRESNO. CA 93720 FEES FROM COMPLAINT
1 (1984) 150Cal.App.3d 928,931.)
2 This "American Rule," according to which litigants pay their own attorneys' fees, has been
3 repeatedly acknowledged and upheld by California courts. {See, e.g., Glym v. Marquette(1984)152
4 Cal.App.3d277,280; Camp v. Swoap{\919)9A Cal.App.3d 733.) Appellate courts have consistently
5 reversed awards ofattorneys' fees given in the absence ofeither some express statutory authority or a
6 contractual agreement between the parties, holding that such awards are given in error. {In re
7 Marriage ofReyes(1979)97 Cal.App.3d 876, 879 ["Appellant has not argued the existence of any
8 agreement,exception or statutory authority other than section 4370 which would bring this case within
9 the meaning of the above stated rule. Accordingly, we conclude that the trial court was correct in
10 denying the motion"]; Canal-Randolph Anaheim, Inc. v. Wilkoski (1978) 78 Cal.App.3d 477, 485
11 [finding that there was no contractual agreement between the parties and no statutory authority
12 providing for attorneys' fees, therefore the fee awards granted by the trial court were not supported by
13 the findings].)
14 In the present case, Plaintiff did not allege that he is entitled to attorneys' fees by virtue ofa
15 written agreement between the Plaintiffand PWD.Indeed,Plaintiffcannot make such an allegation, as
16 no such agreement exists. Furthermore, Plaintiff did not identify any applicable statute or legal
17 authority to support a claim for attorneys' fees against PWD. In the absence of either an express
18 statute or a contractual agreement between the parties, Plaintiff is not entitled to attorneys' fees from
19 PWD. As such,the prayer for attorneys' fees- and therefore,the words"Attorney's fees as provided
20 by law" in Paragraph 2 of the Prayer for Relief- as stated against PWD,is improper and should be
21 stricken.
22 II.
CONCLUSION
23
24 For the foregoing reasons,PWD respectfully requests that the Court grant its Motion to Strike,
25 thereby striking all claims for attorneys' fees against PWD from Plaintiffs Complaint.
26 Ill
27 III
28 III
McCormick, Barstow,
Sheppard, Wayte &
Carrutm LLP MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE ATTORNEYS'
7947 NORTH FRESNO STREET
FRESNO. CA 93720 FEES FROM COMPLAINT
1 Dated: July 6,2018 McCORMICK,BARSTOW,SHEPPARD,
WAYTE & CARRUTH LLP
2
3
4 By:.
Gregory S. Mason
5 Ben Nicholson
Vanessa M. Cohn
6 Attorneys for Defendant, PANOCHE WATER
DISTRICT
7
37472-00000 5220062.1
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
McCormick, Barstow,
SHEPPARO, WA-tTE &
Carruth LLP MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE ATTORNEYS'
7M? NORTH FRESNO STREET
FRESNO. CA 93720 FEES FROM COMPLAINT
PROOF OF SERVICE
STATE OF CALIFORNIA,COUNTY OF FRESNO
3 At the time of service, I was over 18 years of age and not a party to this action. I am
employed in the County of Fresno, State of California. My business address is 7647 North Fresno
4 Street, Fresno, CA 93720.
5 On July 6,2018,1 served true copies of the following document(s)described as NOTICE OF
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO
6 STRIKE ATTORNEYS'FEES FROM PLAINTIFF'S COMPLAINT on the interested parties in
this action as follows:
7
George P. Rodarakis Marshall C. Whitney
8 RODARAKIS & SOUSA, APC Whitney, Thompson & Jeffcoach LLP
100 Sycamore Ave., Ste. 101 8050 North Palm Avenue, Ste. 110
9 Modesto, CA 95354 Fresno, California 93711
Telephone: (209) 554-5232 Telephone: (559)753-2550
10 Facsimile: (209)544-1085 Facsimile: (559)753-2560
grodarakis@rodsoulaw.com mwhitney@wtjlaw.com
11 nlee(S>,wtilaw.com
12 BY MESSENGER SERVICE: 1 served the documents by placing them in an envelope or
package addressed to the persons at the addresses listed in the Service List and providing them to
13 Eddings Attorney Services, a professional messenger service, for service.
14 I declare under penalty of perjury under the laws of the State ofCalifornia that the foregoing is
true and correct.
15
Executed on July 6,2018, at Fresno, California.
16
17
18 Patricia Mata
19
20
21
22
23
24
25
26
27
28
MCCORMICK, BARSTOW,
Sheppard, WAYTE &
Carruth LLP
TM7 NORTH FRESNO STREET
FRESNO. CA S3730
Preview
E-FILED 7/6/2018 4:30 PM 1 McCormick, Barstow, Sheppard, Wayte & Carruth LLP FRESNO COUNTY SUPERIOR COURT 2 Gregory S. Mason,#148997 By: C. Cogburn, Deputy greg.mason@mccormickbarstow.com 3 Ben Nicholson,#239893 ben.nicholson@mccormickbarstow.com 4 Vanessa M. Cohn,#314619 Vanessa.cohn@mccormickbarstow.com 5 7647 North Fresno Street Fresno, California 93720 6 Telephone: (559)433-1300 Facsimile: (559)433-2300 7 Attorneys for Defendant, PANOCHE WATER 8 DISTRICT 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF FRESNO 11 12 STEPHEN W. SLOAN, an individual. Case No. 18CECG00511 13 Plaintiff, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 14 V. MOTION TO STRIKE ATTORNEYS' FEES FROM PLAINTIFF'S COMPLAINT 15 PANOCHE WATER DISTRICT,a California water district; and DOES 1-100 inclusive, Date: August 22,2018 16 Time: 3:30 p.m. Defendants. Dept.: 503 17 Judge: Hon. Kimberly Gaab 18 Action Filed: February 8, 2018 Trial Date: Not Assigned 19 20 Defendant, PANOCHE WATER DISTRICT ("PWD") hereby submits the following 21 Memorandum of Points and Authorities in support of its Motion to Strike Plaintiff STEPHEN W. 22 SLOAN'S claim for attorneys' fees from the Complaint. 23 1. INTRODUCTION 24 25 The subject lawsuit arises out of Plaintiffs claim that PWD entered into a 2015 agreement 26 with Plaintiffthrough PWD's general manager, Dennis Falaschi,for the purchase of2,500 acre feet of 27 28 McCormick, Barstow. Sheppahd, WAVTE & Carruth LLP MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE ATTORNEYS' 7847 NORTH FRESNO STREET FRESNO. CA 93720 FEES FROM COMPLAINT 1 water per water year' for a period ofthree years, at the rate of$800 per acre foot from the Hamburg 2 Wells^.[Complaint,^ 6.] The Complaint alleges that this 2015 agreement("Alleged Agreement 1") 3 was presented to and approved by the PWD Board of Directors. 4 The Complaint also alleges that, during the 2016 water year, before Plaintiff delivered any 5 water under Alleged Agreement 1 to PWD,Plaintiffoffered to modify Alleged Agreement 1 such that 6 PWD would purchase 3,500 acre feet of water per water year for a period of five years, at the rate of 7 $600 per acre foot from the Hamburg Wells ("Alleged Agreement 2").[Complaint,^ 7.] 8 In Plaintiffs prayer for relief, Plaintiff requests "attorney's fees as provided by law." 9 [Complaint, pg. 5:18] However, Plaintifffails to cite any law or basis for awarding attorneys' fees. 10 As no such law or basis for attorneys' fees exists, Plaintiffs request should be stricken. 11 I. LAW AND ARGUMENT 12 A. Applicable Law Regarding Motions To Strike And Attorneys^ Fees 13 14 Section 436 of the California Code of Civil Procedure ("Code of Civ. Pro.") provides that, 15 upon a motion,a court may strike "any irrelevant,false, or improper matter inserted in any pleading" 16 or all or any part of any pleading not drawn or filed in conformity with the laws of this state. A 17 motion to strike may be brought to strike an entire pleading or any part of a pleading. (Code of Civ. 18 Pro. § 435(b)(1).) Further, a motion to strike is the proper procedure for eliminating an improper 19 request for attorneys' fees. (Weil & Brown, C/v. Pro. Before Trial(Rutter Group 2011) 7:183.) 20 The Complaint in the instant matter asserts that Plaintiff seeks "attorney's fees as provided by 21 law." [Complaint, pg. 5:18.] However,the general rule is well established: in the absence ofstatutory 22 authority or an agreement between the parties providing otherwise, each litigant pays his or her own 23 attorneys' fees. (Code of Civ. Pro. § 1021; Reidv. Valley Reslauranis, Inc. (1957)48 Cal.2d 606, 24 610.) "Awards of attorney's fees by courts are the exception rather than the rule." {Steele v. Gold 25 'A "water year" is described in the Complaint as running from March 1 to the last day ofFebruary the 26 following year.[Complaint,^ 6.] ^ The "Hamburg Wells" are described in the Complaint as agricultural wells situated on certain real 27 property located adjacent to the Delta-Mendota Canal and on certain real property located adjacent to 28 the Central California Irrigation District's Outside Canal.[Complaint,^ 4.] MCCORMICK, BaRSTOW, Shepparo, WAVTE & CaRRLtTH LLP MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE ATTORNEYS' 76«7 NORTH FRESNO STREET FRESNO. CA 93720 FEES FROM COMPLAINT 1 (1984) 150Cal.App.3d 928,931.) 2 This "American Rule," according to which litigants pay their own attorneys' fees, has been 3 repeatedly acknowledged and upheld by California courts. {See, e.g., Glym v. Marquette(1984)152 4 Cal.App.3d277,280; Camp v. Swoap{\919)9A Cal.App.3d 733.) Appellate courts have consistently 5 reversed awards ofattorneys' fees given in the absence ofeither some express statutory authority or a 6 contractual agreement between the parties, holding that such awards are given in error. {In re 7 Marriage ofReyes(1979)97 Cal.App.3d 876, 879 ["Appellant has not argued the existence of any 8 agreement,exception or statutory authority other than section 4370 which would bring this case within 9 the meaning of the above stated rule. Accordingly, we conclude that the trial court was correct in 10 denying the motion"]; Canal-Randolph Anaheim, Inc. v. Wilkoski (1978) 78 Cal.App.3d 477, 485 11 [finding that there was no contractual agreement between the parties and no statutory authority 12 providing for attorneys' fees, therefore the fee awards granted by the trial court were not supported by 13 the findings].) 14 In the present case, Plaintiff did not allege that he is entitled to attorneys' fees by virtue ofa 15 written agreement between the Plaintiffand PWD.Indeed,Plaintiffcannot make such an allegation, as 16 no such agreement exists. Furthermore, Plaintiff did not identify any applicable statute or legal 17 authority to support a claim for attorneys' fees against PWD. In the absence of either an express 18 statute or a contractual agreement between the parties, Plaintiff is not entitled to attorneys' fees from 19 PWD. As such,the prayer for attorneys' fees- and therefore,the words"Attorney's fees as provided 20 by law" in Paragraph 2 of the Prayer for Relief- as stated against PWD,is improper and should be 21 stricken. 22 II. CONCLUSION 23 24 For the foregoing reasons,PWD respectfully requests that the Court grant its Motion to Strike, 25 thereby striking all claims for attorneys' fees against PWD from Plaintiffs Complaint. 26 Ill 27 III 28 III McCormick, Barstow, Sheppard, Wayte & Carrutm LLP MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE ATTORNEYS' 7947 NORTH FRESNO STREET FRESNO. CA 93720 FEES FROM COMPLAINT 1 Dated: July 6,2018 McCORMICK,BARSTOW,SHEPPARD, WAYTE & CARRUTH LLP 2 3 4 By:. Gregory S. Mason 5 Ben Nicholson Vanessa M. Cohn 6 Attorneys for Defendant, PANOCHE WATER DISTRICT 7 37472-00000 5220062.1 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 McCormick, Barstow, SHEPPARO, WA-tTE & Carruth LLP MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE ATTORNEYS' 7M? NORTH FRESNO STREET FRESNO. CA 93720 FEES FROM COMPLAINT PROOF OF SERVICE STATE OF CALIFORNIA,COUNTY OF FRESNO 3 At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Fresno, State of California. My business address is 7647 North Fresno 4 Street, Fresno, CA 93720. 5 On July 6,2018,1 served true copies of the following document(s)described as NOTICE OF MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO 6 STRIKE ATTORNEYS'FEES FROM PLAINTIFF'S COMPLAINT on the interested parties in this action as follows: 7 George P. Rodarakis Marshall C. Whitney 8 RODARAKIS & SOUSA, APC Whitney, Thompson & Jeffcoach LLP 100 Sycamore Ave., Ste. 101 8050 North Palm Avenue, Ste. 110 9 Modesto, CA 95354 Fresno, California 93711 Telephone: (209) 554-5232 Telephone: (559)753-2550 10 Facsimile: (209)544-1085 Facsimile: (559)753-2560 grodarakis@rodsoulaw.com mwhitney@wtjlaw.com 11 nlee(S>,wtilaw.com 12 BY MESSENGER SERVICE: 1 served the documents by placing them in an envelope or package addressed to the persons at the addresses listed in the Service List and providing them to 13 Eddings Attorney Services, a professional messenger service, for service. 14 I declare under penalty of perjury under the laws of the State ofCalifornia that the foregoing is true and correct. 15 Executed on July 6,2018, at Fresno, California. 16 17 18 Patricia Mata 19 20 21 22 23 24 25 26 27 28 MCCORMICK, BARSTOW, Sheppard, WAYTE & Carruth LLP TM7 NORTH FRESNO STREET FRESNO. CA S3730