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.
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.
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.
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.
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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.
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Filed under: California civil litigation, California freelance paralegal | Tagged: California civil litigation, California law, California law and motion, Law, motion to strike complaint in California, motion to strike in California | 2 Comments »