Striking an answer in California is the topic of this blog pot.
Requesting a court order striking all or any portion of an answer in California requires filing and serving a motion to strike the answer.
The relevant code sections which authorize striking an answer in California are Code of Civil Procedure sections 435 through 437. If you use it in the appropriate situations a motion to strike an answer is an excellent litigation tool.
The filing of a motion to strike an answer in California is authorized by Code of Civil Procedure section 435(a) which states in pertinent part that a motion to strike may be directed to an answer.
However, there is a very short time limit of only 10 calendar days after the answer is served to file a motion to strike an answer pursuant to the provisions of Code of Civil Procedure section 435(b).
If you want to file a demurrer to the answer as well, both the demurrer and the motion to strike must be filed at the same time, and set for hearing at the same time as well. Many answers that contain grounds for a demurrer also contain grounds for a motion to strike as well.
There are several grounds for filing a motion to strike in California. To strike “irrelevant, false or improper matter inserted in any pleading. See Code of Civil Procedure Section 436(a), and to strike a pleading or part of a pleading “not drawn or filed in conformity with the laws of this state, a court rule or order of court.” See Code of Civil Procedure Section 436(b).
The second ground clearly authorizes striking an unverified answer to a verified complaint. Code of Civil Procedure § 446 states in pertinent part that, “When the complaint is verified, the answer shall be verified.” Section 446 also specifies other situations in which an answer to a complaint or cross-complaint must be verified. This is not as common as the first ground.
The first ground mentioned above is seen fairly often in California litigation. A defendant will often include numerous "boilerplate" affirmative defenses in an answer which generally consist entirely of allegations that are wholly irrelevant to the causes of action alleged in the complaint, as a result they constitute immaterial allegations according to California law.
An immaterial allegation is defined in Code of Civil Procedure § 431.10 which states in pertinent part that
“(b) An immaterial allegation in a pleading is any of the following:
(1) An allegation that is not essential to the statement of a claim or defense.
(2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense.
(3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.
(c) An “immaterial allegation” means “irrelevant matter” as that term is used in Section 436.”
In working in California and Federal litigation since 1995 I have seen numerous answers that include many boilerplate affirmative defenses such as "failure of consideration" in an answer to a personal injury complaint! That is clearly immaterial and irrelevant. That type of defense is used in at least 50% of the answers that I review in my work.
Attorneys or parties in California who would like to view a portion of a sample motion to strike an answer containing a memorandum of points and authorities with citations to case law and statutory authority and proof of service sold by the author can use the link shown below.
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 motion to strike an answer sold by the author can use the link shown below.
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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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.