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Tentative Ruling
Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107


AIG Property Casualty Company vs Bob Holzer Automotive Inc et al

Case No: 17CV03486
Hearing Date: Fri Dec 08, 2017 9:30

Nature of Proceedings: Motion to Strike Portions of Plaintiff's Complaint

TENTATIVE RULING: The motion is granted, with leave to amend on or before December 18, 2017. If no amended complaint is filed, defendant shall answer no later than December 29, 2017.


Plaintiff, an insurance company, filed this subrogation action on August 8, 2017. The action arises from an incident involving a 2010 Land Range Rover owned by its insured, Marc Recordon. The vehicle had been sold to Mr. Recordon by Santa Barbara Automotive on April 6, 2010, and thereafter was maintained by defendant Santa Barbara Automotive. On August 27, 2014, the vehicle lost power while being driven on the northbound 101 near Santa Barbara. Defendant Bob Holzer Automotive was called out and responded to the disabled vehicle. While defendant was hooking up chains to move the vehicle onto its flatbed, a fire broke out in the vehicle’s engine compartment, causing substantial damage to the vehicle. Plaintiff paid its insured $46,063.00 under the policy as reimbursement for the reasonable value of the damage to and destruction of the vehicle. Based on these allegations, plaintiff alleges causes of action for negligence and breach of contract against both defendants, and strict liability against Santa Barbara Automotive. In its prayer, plaintiff seeks consequential damages, prejudgment interest, and “attorney’s fees, if allowable by contract, law or statute.”

MOTION TO STRIKE: Defendant Santa Barbara Automotive has moved to strike the prayer for attorneys’ fees, on the basis that the measure and mode of compensation of attorneys is left to agreement of the parties, except when fees are specifically provided for by statute. The complaint does not allege any statute entitling plaintiff to fees, nor does it allege the existence of a contract under which it would be entitled to attorneys’ fees for prosecuting this action. (Code Civ. Proc., § 1021; Musaelian v. Adams (2009) 45 Cal.4th 512, 516.) As a result, the prayer for fees must be stricken. (Code Civ. Proc., §§ 435, subd. (b)(1), 436.)

Analysis: The motion is granted, with leave to amend on or before December 18, 2017.

Generally speaking, a prayer for attorneys must be supported by a contractual provision, or citation to an authorizing statute. Even so, a prayer for attorneys’ fees is not a necessary prerequisite to an ultimate award of attorneys’ fees, where such award is shown to be proper. Plaintiff shall have leave to amend to allege a proper basis for the fee request, and any such amended complaint shall be filed on or before December 18, 2017. If plaintiff opts not to amend at that time, defendant shall answer the complaint no later than December 29, 2017.

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