Motion to strike a complaint in California

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

A motion to strike in California can request that the entire complaint be stricken, or that only specified portions of the complaint be stricken.

Deadline for filing a motion to strike a complaint in California.

A motion to strike a complaint in California must be filed before any answer is filed. A motion to strike a complaint in California is sometimes filed concurrently with a demurrer.

However, a motion to strike in California must be filed at the same time as the demurrer, and must be set for hearing on the same day and time with the demurrer.  If a complaint is required by law to be verified but is not verified, that is also grounds for a motion to strike and certain complaints must be verified such as quiet title complaints.

Law authorizing a motion to strike a complaint in California.

A motion to strike a complaint in California is authorized by Code of Civil Procedure section 435 which states in pertinent part that,

“(a) As used in this section:

(1) The term “complaint” includes a cross-complaint.

(2) The term “pleading” means a demurrer, answer, complaint, or cross-complaint.

(b) (1) Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.”

Grounds for filing a motion to strike a complaint in California.

There are several grounds for filing a motion to strike in California which are specified in Code of Civil Procedure section 436 which states that,

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

(a) Strike out any irrelevant, false, or improper matter inserted in any pleading.

(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”

Another common ground for filing a motion to strike a complaint in California is that the complaint contains immaterial allegations.

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.”

A California Court of Appeal has stated in a published decision 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.

Another ground for filing a motion to strike a complaint is in cases where the complaint requests attorney’s fees, yet the complaint fails to allege any contractual or statutory basis which would entitle the plaintiff to recover attorney’s fees.  In such a situation the request for attorney’s 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.

However a motion to strike is only allowed in certain circumstances in a limited civil case as “Motions to strike are allowed only on the ground that the damages or relief sought are not supported by the allegations of the complaint.” See Code of Civil Procedure § 92(d).

As with a demurrer no extrinsic evidence can be considered in ruling on a motion to strike as Code of Civil Procedure § 437 states that,

“(a) The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.

(b) Where the motion to strike is based on matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, such matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit.”

An experienced civil litigation attorney can review a complaint and determine if you have sufficient grounds for filing a motion to strike the complaint.  You can contact attorney Nathan Mubasher for a free consultation and evaluation of your case.

Schedule a free consultation today.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

 

 

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Author: nathanmubasher

Attorney Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

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