File a motion to strike an eviction complaint in California

The filing of a motion to strike an unlawful detainer (eviction) complaint in the State of California is the topic of this blog post. A motion to strike can be filed instead of, or in addition to, a demurrer, and 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, 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. If the complaint is verified but the verification is too general in wording, or is missing certain information, a motion to strike can also be filed.

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, 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 UD complaint which contains a prayer for statutory damages (up to $600, in addition to actual damages) when the complaint fails to plead facts adequate to support a finding of “malice” is improper and thus subject to motion to strike. See Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316–317, see also Fifth & Broadway Partnership v. Kimny, Inc. (1980) 102 Cal.App. 3d 195, 204 (both cases decided under prior law which allowed treble damages).

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. Many eviction complaints also request attorney fees even though there is no written agreement that provides for attorney fees,. This renders the request for attorney fees legally invalid and subject to a motion to strike.

“We conclude that when a substantive defect is clear from the face of a complaint, such as a violation of the applicable statute of limitations or a purported claim of right which is legally invalid, a defendant may attack that portion of the cause of action by filing a motion to strike”. PH II, Inc. v. Superior Court (1995) 33 Cal.App. 4th 1680, 1682-1683.

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

Any party considering filing a motion to strike to an eviction complaint should first consider the information outlined in this blog post.

ATtorneys or parties in California who would like to view a sample motion to strike an eviction complaint sold by the author can click below.

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal
litigation since 1995. Visit the author’s website at: http://www.legaldocspro.net

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Copyright 2012 Stan Burman. All rights reserved.

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

These materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

About Stan Burman

Freelance paralegal working in California and Federal litigation since 1995.
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