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How to respond to a “motion to strike” in California

Jun 18th, 2015 | By | Category: Litigation Warrior

Litigation Warrior – Attacking the Pleadings with a Motion to Strike!!!

legal definitions motion to strike pleading

Introduction

This blog discusses what a “Motion to Strike” is under California state law, and how it plays out in litigation.

What is a Motion to Strike?

Under California law the Court may strike from a pleading any irrelevant, false or improper matter. See CCP §435.  This section of the California codes provides in relevant part that:

“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…” CCP §436 provides in relevant part: “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.” The Court has authority to strike damages from a complaint if such damages are not recoverable. The Court also has authority to strike punitive damages from the complaint. See Grieves v. Superior Court (4th Dist.,1984) 157 Cal.App.3d 159 [203 Cal.Rptr. 556].”

As another California court noted:

“The motion to strike is widely used to challenge portions of causes of action seeking punitive damages. (See, e.g., Grieves, supra, 157 Cal.App.3d at p. 164, 203 Cal.Rptr. 556.) Its use has also been approved in a case where the face of the complaint failed to state facts showing a primary right of the plaintiff and a primary duty of, or wrong committed by, the defendant. (Lodi v. Lodi (1985) 173 Cal.App.3d 628, 631, 219 Cal.Rptr. 116.).  We emphasize that such use of the motion to strike should be cautious and sparing. We have no intention of creating a procedural “line item veto” for the civil defendant. However, properly used and in the appropriate case, a motion to strike may lie for purposes discussed in this opinion.  Because a demurrer was unavailable to Ibershof to challenge the Hoffer claim portion of the causes of action, a writ must issue to set aside the superior court’s ruling. We afforded Ibershof the opportunity to file a supplemental brief on the availability of a demurrer, and he has failed to persuade us to the contrary.”
See PH II, Inc. v. Superior Court, 33 Cal. App. 4th 1680, 1683, 40 Cal. Rptr. 2d 169, 171 (1995)

What is “irrelevant” matter in a Complaint?

“Irrelevant” means allegations that do not have any bearing on the causes of action in the complaint.   The allegations don’t matter in other words.  These allegations in the pleading can be subject to a motion to strike as noted in Hill v. Wrather, 158 Cal. App. 2d 818, 823, 323 P.2d 567, 569 (1958):

“Irrelevant and redundant matter inserted in a pleading may be stricken by the court. See California Code Civ. Proc., §453. But a motion to strike cannot be made to serve the purpose of a special demurrer. Where a motion to strike is so broad as to include relevant matters, the motion should be denied in its entirety.”

What is “false” matter in a Complaint?

The falsity must appear on the face of the complaint.  As one Court noted:
“Thus, a court may strike false, untrue, matters contained in a pleading whenever their falsity or untruthfulness is revealed by facts which are judicially noticed. (§§ 436, 437.) A court may properly take judicial notice of its own records. (Evid. Code, § 452, subd. (e).) However, this does not mean that a court may judicially notice the truth of the statements contained in a deposition transcript filed as part of its record.  A court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments.”
See Garcia v. Sterling, 176 Cal. App. 3d 17, 21-22, 221 Cal. Rptr. 349, 352 (Ct. App. 1985).

What is “improper” matter in a Complaint?

Improper claims or improper damages that cannot be recovered (ex. attorney fees or punitive damages under California Civil Code Section 3294) can be attacked in the pleadings when the statutes and case law DO NOT provide for such a remedy.  For example, in a breach of contract case (where there is attorney fees clause to the prevailing party), there is usually not a basis to recover attorney fees or punitive damages (because the dispute arises out of contract).  As such, a Plaintiff who pleads breach of contract and who seeks “attorney fees and punitive damages” in the lawsuit will have this portion of the pleadings subject to a motion to strike, usually filed along with a Demurrer.  See timing issues in the video posted on this page.  As another example, in a right of publicity case we had, the Defendant unsuccessfully tried to strike punitive damages and attorney fees where the California Civil Code Section 3344 (statutory right of publicity) cause of action clearly permits recovery of these fees to a successful Plaintiff.  California’s financial elder abuse statute also allows for potential attorney fee recoveries as does willful copyright infringement.  Filing a motion to strike on these types of causes of action may not yield much fruit, and could draw a motion for sanctions from the other party for a frivolous filing.

Watch Attorney Steve explain the Motion to Strike in this video!

How to respond to motion to strike in California

Bonus materials:  Click on the picture above to watch our video on this legal topic.  Make sure to Click on the RED “V” in the corner to SUBSCRIBE to our business and real estate law youtube channel! You will get new litigation videos when we post them!!  Feel free to share our videos on your social media networks.

Are there any other grounds to file a Motion to Strike besides “false, improper, or irrelevant?

Yes.

1.  Sham Pleadings:

“A trial court has authority to strike sham pleadings, or those not filed in conformity with its prior ruling. (See Code Civ.Proc., § 436; and see Lyons v. Wickhorst (1986) 42 Cal.3d 911, 915, 231 Cal.Rptr. 738, 727 P.2d 1019.) With almost frightening candor appellants acknowledge that the present suit was filed solely to circumvent the court’s prior adverse ruling. Consequently, it could properly be struck and in so doing, the court did not, as appellants here assert, improperly set itself up as a gate-keeper to control all judicial access.”  See Ricard v. Grobstein, Goldman, Stevenson, Siegel, LeVine & Mangel, 6 Cal. App. 4th 157, 162, 8 Cal. Rptr. 2d 139, 142 (1992).”
2.  Conclusory allegations:
“A motion to strike can generally be used to attack any BARE LEGAL CONCLUSIONS set forth in a pleading. For example, in a straight promissory note action, allegations that defendant’s failure to pay was “wrongful, malicious and illegal.” Such allegations are conclusions of the pleader and “irrelevant matter,” subject to motion to strike.  Whenever using these types of labels, the pleader should use “facts” to establish the wrongdoing.  Conclusory allegations are often attacked in a pleading.”
 There are other grounds, but hopefully this blog gives you a good idea of what the Motion to Strike is.

Cal. CCP §435. Notice of motion to strike whole or part of complaint

Here is what the code section states:

(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, but this time limitation shall not apply to motions specified in subdivision (e).
(2) A notice of motion to strike the answer or the complaint, or a portion thereof, shall specify a hearing date set in accordance with Section 1005.
(3) A notice of motion to strike a demurrer, or a portion thereof, shall set the hearing thereon concurrently with the hearing on the demurrer.
(c) If a party serves and files a notice of motion to strike without demurring to the complaint, the time to answer is extended and no default may be entered against that defendant, except as provided in Sections 585 and 586.
(d) The filing of a notice of motion to strike an answer or complaint, or portion thereof, shall not extend the time within which to demur.
(e) A motion to strike, as specified in this section, may be made as part of a motion pursuant to subparagraph (A) of paragraph (1) of subdivision (i) of Section 438.

When must a motion to strike be raised?

As set forth above in CCP 435(b)(1) – “within the time allowed to respond to a pleading” (which in California generally means 30 days).  Unless extend by Court order, or by a stipulation between counsel.

California Rules of Court 3.1320(j) (time to respond following demurrers)

Under California Rules of Court 3.1320(j):

(j) Time to respond after demurrer

“Unless otherwise ordered, defendant has 10 days to answer or otherwise plead to the complaint or the remaining causes of action following: (1)The overruling of the demurrer; (2)The expiration of the time to amend if the demurrer was sustained with leave to amend; or (3)The sustaining of the demurrer if the demurrer was sustained without leave to amend.”

California Rules of Court 3.1322 (contents required for a Motion to Strike portions of complaint)

Under California Rules of Court Rule 3.1322. Motions to strike (a) Contents of notice:

“A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively. (Subd (a) amended and lettered effective January 1, 2007; adopted as part of untitled subd effective January 1, 1984.) (b) Timing: A notice of motion to strike must be given within the time allowed to plead, and if a demurrer is interposed, concurrently therewith, and must be noticed for hearing and heard at the same time as the demurrer. “


Motion to Strike in an Anti-SLAPP action

Anti-Slapp actions also have rules and laws pertaining to the Motion to Strike.  For example, In Jarrow Formulas, Inc. v. LaMarche, 31 Cal. 4th 728, 733, 74 P.3d 737, 740 (2003) the California court noted:

“Section 425.16 provides, inter alia, that “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) 1 Resolution of an anti-SLAPP motion “requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue,’ as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67, 124 Cal.Rptr.2d 507, 52 P.3d 685 (Equilon ).”

If you are filing or defending a Motion to Strike in California, and it relates to an issue involving constitutionally protected free speech, contact our law firm to discuss your legal rights.  You can use the contact form below.

What happens if the Court grants the motion to strike?

Some of the things that might happen if a motion to strike is granted in California are the following:

1.  The Court could allow an amended pleading to be filed
2.  The judge could strike a few words from the complaint
3.  A pleading can be stricken upon terms that the Court deems proper (See CCP 472a(d)).
4.  If the default is NOT correctible, the Court may deny leave to amend
5.  If a demurrer is overruled and the motion to strike is also heard, and both are overruled, the Court will order the moving party to “answer the complaint.

Note that the way the judge handles your case may vary depending on what Court you are in.  Judges can be different depending upon whether you are in Los Angeles or San Francisco county or Orange County.  It is always good to look up your judges prior “tentative rulings“online to see what their general legal philosophy is.

Contact a Litigation & Arbitration law firm

If you are involved in a business, real estate, insurance, intellectual property or personal injury dispute, contact one of our litigation attorneys to discuss your case.  We offer flexible legal fees and tenacious legal representation.  Call us at (877) 276-5084 or fill out the contact form below.

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We are a business and civil litigation firm with a focus on copyright infringement cases involving illegal movie downloads (torrent cases such as London Has Fallen and Malibu Media defense), software audits (ex. Microsoft audits, SPLA, Autodesk audit notification letter, Siemens PLM defense, SIIA, Adobe and Business Software Alliance defense) and other software vendors threatening piracy and infringement. We also handle cases involving internet law, anti-SLAPP, media law, right of publicity, trademarks & domain name infringement, and we have a niche practice area handling California BRE licensing disputes, accusations, subpoena response, statement of issues and investigations. We have offices in San Francisco, Beverly Hills, Newport Beach, San Diego & Phoenix, Arizona and accept federal copyright and trademark cases nationwide. All content on our website is general legal information only and not a substitute for legal advice, and should not be relied upon. Decisions to hire counsel should not be based on advertising alone. Blogs, videos and podcasts are authored by Steve Vondran, Esq. unless otherwise noted. We can be reached at (877) 276-5084.

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