TRIAL JUDGES DO NOT HAVE TO STRIKE ATTORNEY’S FEES PRAYERS IN COMPLAINT UNTIL PLAINTIFF HAS FULL OPPORTUNITY TO DETERMINE BASIS FOR RECOVERY.

Los Angeles County Superior Court Judge Rita Miller Denies Motion to Strike But Grants Leave to Plead Fee Basis Based Upon Existence of Written Contract.

            I happened to be at a hearing on a motion to quash based on lack of personal jurisdiction, on May 19, 2008, before Judge Rita Miller, who sits in Los Angeles County Superior Court. 

            Judge Miller had another law and motion matter set for hearing that dealt with an attorney’s fees pleading issue.  Plaintiff filed a complaint pleading entitlement to attorneys fees based on a written contract, but pled no other specifics.  The defense moved to strike the prayer based on failure to allege the contract predicate for fee recovery.

            In her tentative, Judge Miller was declined to deny the motion to strike based on Camenisch v. Superior Court, 44 Cal.App.4^th 1689, 1698 (1996), which held:

            “[Defendant attorney in a legal malpractice action] also argues that

              the court erred in refusing to strike [plaintiff client’s] prayer for

              attorney fees.  [Defendant] asserts that the prayer must be stricken

              because the complaint did not allege a contract allowing recovery of

              attorney fees by the prevailing party.  [Plaintiff] replies, correctly,

              that the court was not required to strike the prayer before he has had

              a full opportunity to determine, through discovery, whether a basis for

              recovery exists.”

            Interestingly enough, however, the plaintiff in the matter before Judge Miller agreed to amend to plead the existence of the written contract.  Going with the flow, Judge Miller denied the motion to strike but set a date for the plaintiff to actually plead the written contractual basis for the fee award—a result which appears to have met the concerns of both sides.