Moving to strike an eviction complaint in California is the topic of this blog post.
Moving to strike an eviction complaint in California is appropriate when the complaint requests relief or damages which are not supported by the allegations of the complaint, or is not verified as required by law. These are the most common reasons, although there are other reasons.
The motion to strike can request that the entire eviction complaint be stricken or just certain specified portions. The court can only consider matters which appear on the face of the complaint. As with a demurrer there is no extrinsic evidence allowed, other than what can be judicially noticed.
Code of Civil Procedure § 436 states in pertinent part that a motion to strike may be filed to strike any irrelevant matter inserted in any pleading, and to strike any pleading or part thereof not drawn in conformity with the laws of this state.
In the case of an unlawful detainer complaint the law in California states that it must be verified by the plaintiff or their attorney. If the complaint is not verified, the entire complaint should be stricken on the grounds that the complaint is not verified as required by Code of Civil Procedure § 1166(a)(1). Thus, the complaint is not drawn in conformity with the laws of this state. If the complaint is verified but the verification is too general in wording, or is missing certain required information, a motion to strike can also be filed.
If the eviction complaint requests rent or other damages, but the three-day notice attached to the complaint does not contain a request for rent or other damages, the complaint is subject to a motion to strike.
Many eviction complaints request additional statutory damages for malicious conduct, yet do not allege any facts which would support a finding of malice. This is clearly subject to a motion to strike as several California Courts of Appeal have ruled.
A California Court of Appeal has ruled that if a claim of right appears on the face of a complaint which is legally invalid that the complaint is subject to a motion to strike. A surprising number of eviction complaints also request attorney fees even though there is no written agreement that provides for attorney fees. This renders the request for attorney fees legally invalid and subject to a motion to strike.
Because the unlawful detainer statutes do not provide for the timing of a hearing on a motion to strike, the timing for motions to strike is governed by Code of Civil Procedure § 1005, which requires 16 court days notice of the hearing on the motion to strike, plus five calendar days for notice by mailing. Court days means Monday through Friday, except for Court holidays. A defendant who wishes to file a motion to strike should contact the Court clerk and obtain a hearing date 4-5 weeks from the date of filing, not later than thirty five (35) calendar days, or the earliest date the Court clerk has available.
Some clerks will try to tell you that you must give the same notice as a motion to quash, this is not true. Code of Civil Procedure section 1005(b) states that the same minimum 16 Court days notice as is required for a demurrer as is also required for a motion to strike. See also the Rutter Group Cal. Practice Guide Landlord-Tenant Chapter 8-C 8:255.5.
Any party considering filing a motion to strike to an eviction complaint should first consider the information outlined in this blog post.
Sample motion to strike an eviction complaint in California for sale.
Attorneys or parties in California who would like to view a portion of a sample 11 page motion to strike a California eviction complaint containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and proof of service by mail sold by the author can use the link shown below.
Sample Motion to Strike for Unlawful Detainer (Eviction) in California by Stan Burman on Scribd
Attorneys or parties in California who would like more information on a California unlawful detainer (eviction) document package containing over 30 documents including a sample motion to strike an eviction complaint in California can use the link shown below.
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DISCLAIMER:
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.