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.
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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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