Monthly Archives: June 2010

Motion to strike a complaint in California

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

In the State of California 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. See Code of Civil Procedure § 436.

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.

For instance if a complaint requests attorney fees, yet the complaint fails to allege a contractual or statutory basis which entitles the plaintiff to recover attorney fees then the request for attorneys 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.

As with a demurrer no extrinsic evidence can be considered in ruling on a motion to strike.

A defendant 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. Weil & Brown, California Practice Guide: Civil Procedure Before Trial, § 7:169 (Rutter Group, 2006); Garcia v. Sterling (1985) 176 Cal.App.3d 17, 21.

Although older cases 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 if 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. Landis v. Superior Court, (1965) 232 Cal.App.2d 548, Vick v. Grasser (1959) 169 Cal.App.2d 692.

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, Edwards v. Superior Court (2001) 93 Cal.App.4th 172, (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).

The issue of whether or not to file a motion to strike should only be made after legal research on whether 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.

Attorneys or parties in California who wish to view a portion of a sample motion to strike to a complaint sold by the author please see below.

Attorneys or parties in California who wish to view a portion of a sample opposition to a motion to strike sold by the author please see below.

The author of this article, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Subscribe to his weekly newsletter with legal tips and tricks for California.  http://www.legaldocspro.net/newsletter.htm

Demurrer to complaint in California

Filing a demurrer to a complaint in California is the topic of this blog post. There are two types of demurrers in California, a general demurrer, and a special demurrer.

A general demurrer is made on one of two grounds, failure to state facts sufficient to constitute a cause of action, and the Court lacks subject matter jurisdiction. The grounds for a general demurrer are never waived. See Code of Civil Procedure § 430.80.

A special demurrer can be made on any one of several grounds, including uncertainty and lack of capacity to sue. The grounds for a special demurrer are waived unless they are raised by a special demurrer, or listed as affirmative defenses in the answer. Note that special demurrers are not allowed in limited civil cases.

A demurrer can only be used to challenge defects that appear on the face of the complaint, or from matters that can be made the subject of judicial notice.

The failure of the pleading to state a cause of action results from the fact that the complaint appears deficient on the face of the pleading or from judicially noticed matter.  Hall vs. Chamberlin  (1948) 31 Cal.2d 673, 679-680.

A California Court of Appeal has ruled that if a defendant negates any essential element of a particular cause of action, a judge should sustain the demurrer as to that cause of action.  See Cantu v. Resolution Trust Corp.(1992) 4 Cal.App. 4th 857, 880.

And a California Court of Appeal has stated that a general Demurrer admits the plaintiff’s interpretation of a contract, even if the contract is ambiguous.

A demurrer to a complaint tests only the legal sufficiency of the allegations. It does not test their truth, the plaintiffs’ ability to prove them, or the possible difficulty in making such proof.  Saunders v. Superior Court (1994) 27 Cal. App. 4th 832.

The sole issue raised by a general demurrer is whether the facts pleaded state a valid cause of action–not whether they are true. Thus, no matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer.  Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.

It is not necessary that the cause of action be the one intended by plaintiff. The test is whether the complaint states any valid claim entitling plaintiff to relief. Thus, plaintiff may be mistaken as to the nature of the case, or the legal theory on which he or she can prevail. But if the essential facts of some valid cause of action are alleged, the complaint is good against a general demurrer.

Special demurrers for uncertainty are a disfavored ground for a demurrer. A Demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond; i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him.  Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616, (citing text).

And the “uncertainties” must be specified. Where a demurrer is made upon this ground, it must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears (by reference to page and line numbers of the complaint).  Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809.

Even if a demurrer is sustained, leave to amend the complaint is routinely granted. Courts are very liberal in permitting amendments, not only where a complaint is defective in form, but also where substantive defects are apparent: “Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.”  Angie M. v. Sup.Ct. (Hiemstra) (1995) 37 Cal.App.4th 1217, 1227, see also Stevens v. Sup.Ct. (API Auto Ins. Services) (1999) 75 Cal.App.4th 594, 601.

It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349, see also Okun v. Sup.Ct. (Maple Properties) (1981) 29 Cal.3d 442, 460.

The issue of whether or not to file a general demurrer should only be made after legal research on the elements required to state a particular cause of action. If the complaint does not allege all of the required elements then a general demurrer should be filed.

And the issue of whether or not to file a special demurrer should only be made after a careful review of the complaint, as most special demurrers are made on the ground of uncertainty then the moving party should be certain that the complaint is so poorly written that it would not be possible to respond.

Attorneys or parties in California who wish to view a portion of a sample  demurrer to a complaint sold by the author please see below.

Attorneys or parties in California who wish to view a portion of a sample   opposition to a demurrer sold by the author please see below.

The author of this article, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Subscribe to his weekly newsletter with legal tips and tricks for California.  http://www.legaldocspro.net/newsletter.htm

Motion to Strike an Unlawful Detainer (eviction) complaint in California

Filing a motion to strike in an unlawful detainer (eviction) complaint in the State of California is the topic of this blog post.

A motion to strike is used when a 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 main reasons, although there are other reasons. The motion to strike can request that the entire 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 code states that it must be verified by the Plaintiff. If the complaint is not verified then 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.

Or 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 then 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.

Since 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.  CCP Section 1005(b) states that the same minimum 16 Court days notice as is required for a demurrer is also required for a motion to strike.  See also the Rutter Group Cal. Practice Guide Landlord-Tenant Chapter 8-C 8:255.5.

Attorneys or parties in the State of California who wish to view a portion of a sample motion to strike an unlawful detainer complaint sold by the author please see below.

The author of this article, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

Subscribe to my weekly newsletter with legal tips and tricks for California.   http://www.legaldocspro.net/newsletter.htm