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Opposing a motion to strike in California

by Stan Burman

Opposing a motion to strike in in California is the topic of this blog post.

If you have been served with a motion to strike you must file your opposition at least nine (9) Court days before the hearing and should serve the opposition by personal delivery or overnight mail pursuant to Code of Civil Procedure section 1005.

The first thing you need to do if you have been served with a motion to strike is to carefully review the motion and supporting documents to determine what grounds for opposition exist.

Common grounds for opposing a motion to strike in California could include that the motion to strike relies on extrinsic evidence that cannot be considered in ruling on a motion to strike unless the extrinsic evidence is subject to judicial notice.

For example the moving party cannot base a motion to strike on affidavits, declarations, or matters outside the four corners of the pleading containing extrinsic evidence that allegations in the complaint are false or a sham; such challenges only lie on the face of the complaint.

And although older cases may have recognized that a complaint cannot generally allege entitlement to punitive damages this is no longer the case in California.

In Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 88-89, the Court of Appeal recognized that if a pleading generally pleads facts stating a claim for malice, fraud, or oppression, then the claim for punitive damages is properly stated.

And even assuming that a motion to strike is granted, the Court will almost surely grant leave to amend.

It is often held that courts should indulge in great liberality in permitting amendment of pleadings so that no litigant shall be deprived of his day in court because of technicalities. Moreover, it has been repeatedly and consistently held that the court should liberally exercise its discretion in allowing amendments so that the cause may be decided on the merits. Desney v. Wilder, (1959) 46 Cal.2d 715, 751, Edwards v. Superior Court (2001) 93 Cal.App.4th 172, 180 (holding the discretionary power to allow amendments to the pleadings "in furtherance of justice" must be exercised liberally at all stages of the proceeding by permitting those amendments which will facilitate the interests of justice and resolve all disputed claims).

How to oppose a motion to strike in California is the topic of this blog post.

If you have been served with a motion to strike you must file your opposition at least nine (9) Court days before the hearing and should serve the opposition by personal delivery or overnight mail pursuant to Code of Civil Procedure section 1005.

The first thing you need to do if you have been served with a motion to strike is to carefully review the motion and supporting documents to determine what grounds for opposition exist.
Common grounds for opposition could include that the motion to strike relies on extrinsic evidence that cannot be considered in ruling on a motion to strike unless the extrinsic evidence is subject to judicial notice.

For example the moving party cannot base a motion to strike on affidavits, declarations, or matters outside the four corners of the pleading containing extrinsic evidence that allegations in the complaint are false or a sham; such challenges only lie on the face of the complaint.

And although older cases may have recognized that a complaint cannot generally allege entitlement to punitive damages this is no longer the case in California.

In Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 88-89, the Court of Appeal recognized that if a pleading generally pleads facts stating a claim for malice, fraud, or oppression, then the claim for punitive damages is properly stated.

And even assuming that a motion to strike is granted, the Court will almost surely grant leave to amend.

It is often held that courts should indulge in great liberality in permitting amendment of pleadings so that no litigant shall be deprived of his day in court because of technicalities. Moreover, it has been repeatedly and consistently held that the court should liberally exercise its discretion in allowing amendments so that the cause may be decided on the merits. Desney v. Wilder, (1959) 46 Cal.2d 715, 751, Edwards v. Superior Court (2001) 93 Cal.App.4th 172, 180 (holding the discretionary power to allow amendments to the pleadings "in furtherance of justice" must be exercised liberally at all stages of the proceeding by permitting those amendments which will facilitate the interests of justice and resolve all disputed claims).

Attorneys or parties in California who wish to view a portion of a sample opposition to a motion to strike sold by the author can use the link shown below.

Sample Opposition to Motion to Strike for California by Stan Burman on Scribd

 

Attorneys or parties in California who would like more information on a law and motion document collection containing over 70 sample documents for California litigation including a sample opposition to a motion to strike sold by the author can use the link shown below.

https://legaldocspro.myshopify.com/collections/frontpage/products/california-law-and-motion-document-collection

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit freeweeklylegalnewsletter.gr8.com/ for more information.  

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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.

 

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