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Striking a complaint in California

by Stan Burman

Striking a complaint in California is the topic of this blog post.  

Striking a complaint in California is authorized by Code of Civil Procedure section 436 which 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.

A motion to strike in California as with a demurer cannot rely on any extrinsic evidence other than matters that can be judicially noticed. However in the right situations a motion to strike can be very useful. The filing of a motion to strike extends the time to answer a complaint, however it does not extend the time to file a demurrer. A demurrer and motion to strike should be filed concurrently and set for hearing on the same date and time.

If a particular statute requires that a complaint must be verified any party failing to verify that complaint runs the risk of the opposing party filing a motion to strike. Examples would include quite title complaints and an unlawful detainer complaint.

A California Court of Appeal has ruled that if a claim of right appears on the face of a complaint and that claim is legally invalid the complaint is subject to a motion to strike.

A common situation that I see on a regular basis is a complaint which requests attorney fees, yet the complaint fails to allege a contractual or statutory basis which entitles the plaintiff to recover attorney fees. In that case the request for attorney fees is subject to a motion to strike. And if the complaint requests any other relief to which plaintiff is not entitled to, that portion of the complaint is also subject to a motion to strike.

A motion to strike can be very effective in situations where the plaintiff is requesting relief to which they are not entitled, or if the complaint contains irrelevant matter. If so, then a motion to strike should be filed.

Meet and confer requirement effective January 1, 2018.

The new meet and confer requirement for a motion to strike in California just became effective on January 1, 2018.

The new meet and confer requirement for a motion to strike in California is found in Code of Civil Procedure section 435.5 which states in pertinent part that,

“(a) Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike. If an amended pleading is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion to strike the amended pleading.

(1) As part of the meet and confer process, the moving party shall identify all of the specific allegations that it believes are subject to being stricken and identify with legal support the basis of the deficiencies. The party who filed the pleading shall provide legal support for its position that the pleading is legally sufficient, or, in the alternative, how the pleading could be amended to cure any legal insufficiency.

(2) The parties shall meet and confer at least five days before the date a motion to strike must be filed. If the parties are unable to meet and confer at least five days before the date the motion to strike must be filed, the moving party shall be granted an automatic 30-day extension of time within which to file a motion to strike, by filing and serving, on or before the date a motion to strike must be filed, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the motion to strike was previously due, and the moving party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.

(3) The moving party shall file and serve with the motion to strike a declaration stating either of the following:

(A) The means by which the moving party met and conferred with the party who filed the pleading subject to the motion to strike, and that the parties did not reach an agreement resolving the objections raised by the motion to strike.

(B) That the party who filed the pleading subject to the motion to strike failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith.

(4) A determination by the court that the meet and confer process was insufficient is not grounds to grant or deny the motion to strike.

(b) A party moving to strike a pleading that has been amended after a motion to strike an earlier version of the pleading was granted shall not move to strike any portion of the pleadings on grounds that could have been raised by a motion to strike as to the earlier version of the pleading.

(c) (1) If a court grants a motion to strike and grants leave to amend, the court may order a conference of the parties before an amended pleading, or a motion to strike an amended pleading, may be filed. If the conference is held, the court shall not preclude a party from filing a motion to strike and the time to file a motion to strike shall not begin until after the conference has concluded.

(2) This section does not prohibit the court from ordering a conference on its own motion at any time or prevent a party from requesting that the court order that a conference be held.

(d) This section does not apply to any of the following:

(1) An action in which a party not represented by counsel is incarcerated in a local, state, or federal correctional institution.

(2) A proceeding in forcible entry, forcible detainer, or unlawful detainer.

(3) A special motion brought pursuant to Section 425.16.

(4) A motion brought less than 30 days before trial.

(g) If a motion to strike is denied and the pleading is not further amended, the moving party preserves its right to appeal after final judgment without filing a further motion to strike.

(h) This section shall remain in effect only until January 1, 2021, and as of that date is repealed, unless a later enacted statute that is enacted before January 1, 2021, deletes or extends that date.” (emphasis added).

This code section was enacted by the California legislature in the hopes that it would reduce the number of motions to strike by imposing a requirement to meet and confer before most demurrers can be filed. It will expire on January 1, 2021, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2021, deletes or extends that date.

The advantages of the new meet and confer requirement for a motion to strike in California is  that if you meet and confer as required and the other party or attorney does not respond, or will not meet and confer in good faith you can file and serve a declaration on or before the date that your responsive pleading is due detailing your efforts and that will give you an automatic 30-day extension of time to file a responsive pleading.

Sample motion to strike a complaint in California.

Attorneys or parties in California who wish to view a portion of a sample motion to strike a complaint including 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 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 95 sample documents for California litigation including a sample motion to strike a complaint sold by the author can use the link shown below.


https://legaldocspro.myshopify.com/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.

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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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