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Sample Motion to Strike An Answer to a Complaint for California

Sample Motion to Strike An Answer to a Complaint for California

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Published by Stan Burman
This sample motion to strike an answer to a complaint for California is made pursuant to Sections 435-437 of the Code of Civil Procedure. The sample requests that the entire answer be stricken as it is not verified, or in the alternative that all of the affirmative defenses contained in the answer should be stricken as they contain only immaterial allegations. The sample contains brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and a proof of service by mail.

The author is a freelance paralegal that has worked in California and Federal litigation since 1995 and has used this sample for many years. Note that the author is NOT an attorney and no guarantee or warranty is provided.
This sample motion to strike an answer to a complaint for California is made pursuant to Sections 435-437 of the Code of Civil Procedure. The sample requests that the entire answer be stricken as it is not verified, or in the alternative that all of the affirmative defenses contained in the answer should be stricken as they contain only immaterial allegations. The sample contains brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and a proof of service by mail.

The author is a freelance paralegal that has worked in California and Federal litigation since 1995 and has used this sample for many years. Note that the author is NOT an attorney and no guarantee or warranty is provided.

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Published by: Stan Burman on Apr 14, 2013
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Any Attorney or Party Any Street Any Town, CA 55555 714-555-5555 Any Attorney or Party

Superior Court of the State of California For the County of _________________

Any Plaintiff, Plaintiff, vs. Any Defendant, and DOES 1-5 Defendants.

) ) ) ) ) ) ) ) ) ) ) )

Case No. NOTICE OF MOTION AND MOTION TO STRIKE DEFENDANT ____’S ANSWER; MEMORANDUM OF POINTS AND AUTHORITIES DATE: TIME: DEPT:

1

To subscribe to my FREE California weekly legal newsletter

visit http://www.legaldocspro.net/newsletter.htm and enter your e-mail address. Be sure to remove this notice and all other notices before using this document.
1 TO DEFENDANT____________________, AND THEIR ATTORNEYS OF RECORD: 1 PLEASE TAKE NOTICE that on __________________, at ________.M., or as soon

after that as the matter can be heard, in Department, ___ of the above-entitled court located at _____________________________________________, Plaintiff __________ (“Plaintiff ”) will
- 1 NOTICE OF MOTION AND MOTION TO STRIKE ANSWER

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move this Court for an order striking the entire Answer filed by Defendant _________ (“Defendant”) on file herein, or in the alternative for an order striking ALL of the affirmative defenses contained in the Answer filed by Defendant . The grounds for this Motion to Strike are set forth below. MOTION TO STRIKE ANSWER FILED BY DEFENDANT _____________ This Motion to Strike is made pursuant to Code of Civil Procedure §§ 435-437 on the grounds that the answer is not verified even though the complaint is verified which is required by Code of Civil Procedure § 446. Thus the entire answer should be stricken. This Motion to Strike is also made on the alternative grounds that ALL of the affirmative Defenses listed in the answer filed by Defendant assert only affirmative defenses that are wholly irrelevant to the causes of action alleged in the complaint, and thus constitute immaterial allegations. The following affirmative defenses should be stricken. 1. The first affirmative defense alleging _______ on the grounds that this defense

contains allegations that are wholly irrelevant to the causes of action alleged in the complaint, and thus constitute immaterial allegations. 2. The second affirmative defense alleging _______ on the grounds that this defense

contains allegations that are wholly irrelevant to the causes of action alleged in the complaint, and thus constitute immaterial allegations. 3. The third affirmative defense alleging _______ on the grounds that this defense

contains allegations that are wholly irrelevant to the causes of action alleged in the complaint, and thus constitute immaterial allegations. 4. The fourth affirmative defense alleging _______ on the grounds that this defense

contains allegations that are wholly irrelevant to the causes of action alleged in the complaint, and thus constitute immaterial allegations.

- 2 NOTICE OF MOTION AND MOTION TO STRIKE ANSWER

Do NOT just use the wording here unless it definitely applies to your particular situation. Be sure to modify these paragraphs to suit your individual situation. the attached Motion to Strike. served and filed herewith.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. Attorney for Plaintiff . Dated________________ LAW OFFICES OF ANY ATTORNEY By: _____________________________ __________________.3 NOTICE OF MOTION AND MOTION TO STRIKE ANSWER . and thus constitute immaterial allegations. The fifth affirmative defense alleging _______ on the grounds that this defense contains allegations that are wholly irrelevant to the causes of action alleged in the complaint. The Memorandum of Points and Authorities in support thereof. the complete court records on file in this action and upon such other further written or oral evidence which may be presented at the time of hearing of this motion. This Motion to Strike is based upon this notice.

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MEMORANDUM OF POINTS AND AUTHORITIES I. STATEMENT OF FACTS This case arises from ________________. Plaintiff had alleged ______causes of action against Defendants. The complaint was verified. See Plaintiff’s complaint on file. Defendant filed an unverified answer that contains affirmative defenses with allegations that are wholly irrelevant to the causes of action alleged in the complaint, and thus constitute immaterial allegations. Plaintiff contends that this court should order that the entire answer filed by Defendant should be stricken on the grounds that the answer is not verified even though the complaint is verified which is required by Code of Civil Procedure § 446. Thus the entire answer should be stricken. In the alternative, plaintiff requests that this court strike ALL of the affirmative defenses listed in the answer filed by Defendant as the affirmative defenses consist entirely of allegations that are wholly irrelevant to the causes of action alleged in the complaint, and thus constitute immaterial allegations. See Defendant’s answer on file.

Be sure to modify these paragraphs to suit your individual situation. Do NOT just use the wording here unless it definitely applies to your particular situation.
/// /// /// ///

- 4 NOTICE OF MOTION AND MOTION TO STRIKE ANSWER

(3) A demand for judgment requesting relief not supported by the allegations of the complaint or .10 which states in pertinent part that “b) An immaterial allegation in a pleading is any of the following: (1) An allegation that is not essential to the statement of a claim or defense. “When the complaint is verified. See Code of Civil Procedure § 435(a). answers. In the alternative.” Thus the answer is not drawn in conformity with the laws of this state. The pleadings at which a motion to strike may be directed include demurrers.5 NOTICE OF MOTION AND MOTION TO STRIKE ANSWER . and to strike any pleading or part thereof not drawn in conformity with the laws of this state. (2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense. plaintiff contends that ALL of the affirmative defenses contained in the answer should be stricken as the affirmative defenses consist entirely of allegations that are wholly irrelevant to the causes of action alleged in the complaint. LEGAL ARGUMENT A. irrelevant or improper matter inserted in any pleading.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. the answer shall be verified. Plaintiff contends that the entire answer should be stricken on the grounds that the answer is not verified as required by Code of Civil Procedure § 446 which states in pertinent part that. complaints. and cross complaints. A MOTION TO STRIKE IS APPROPRIATE WHERE THE ANSWER CONTAINS IRRELEVANT MATTER OR IS NOT DRAWN IN CONFORMITY WITH THE LAWS OF THIS STATE Code of Civil Procedure § 436 states in pertinent part that a Motion to Strike may be filed to strike any false. and thus constitute immaterial allegations. An immaterial allegation is defined in Code of Civil Procedure § 431.

III. and thus constitute immaterial allegations which should be considered irrelevant matter and stricken. except for Court holidays. CONCLUSION Based on the foregoing.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 cross-complaint. Dated________________ _________________________________________ ANY PLAINTIFF Remember that you MUST file and serve your Motion to Strike within 10 calendar days from the date that the answer was served. Court days means Monday through Friday. You must give 16 Court days notice. plus five (5) more calendar days if the notice is mailed.6 NOTICE OF MOTION AND MOTION TO STRIKE ANSWER . You should get .” The first affirmative defense alleges ______. yet this defense is not even remotely relevant to any of the causes of action contained in the complaint. (c) An “immaterial allegation” means “irrelevant matter” as that term is used in Section 436. or in the alternative that the Court order that ALL of the affirmative defenses contained in the answer filed by Defendant should be stricken. plaintiff requests that the Court grant the Motion to Strike the entire answer filed by Defendant. Also remember to make sure that you give proper notice. See Code of Civil Procedure Section 435(a). The other affirmative defenses like the first. consist entirely of allegations that are wholly irrelevant to the causes of action alleged in the complaint.

or the earliest date the Court clerk will give you.7 NOTICE OF MOTION AND MOTION TO STRIKE ANSWER . .1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a Court date 4-5 weeks from the date you file your motion to strike but no later than 35 days.

[ ] (By Facsimile) I served a true and correct copy by facsimile during regular business hours to the number(s) listed above. [ ] (By Personal Service) I caused such envelope to be delivered by hand via messenger service to the address above.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1PROOF OF SERVICE I am over the age of 18 and not a party to this action. service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. my business/residence address is: ADDRESS OF PERSON SERVING PAPERS On ____________________ I served the foregoing document(s) described as: NOTICE OF MOTION TO STRIKE AND MOTION TO STRIKE DEFENDANT ____’S ANSWER. I am aware that on motion of the party served. DATED: ______________ _________________________________________ NAME OF PERSON SERVING PAPERS . California with postage thereon fully prepaid. Said transmission was reported complete and without error. Mail) I deposited such envelope in the mail at ________. I am a resident of or employed in the county where the mailing occurred.S. MEMORANDUM OF POINTS AND AUTHORITIES to the following parties: NAME AND ADDRESS OF ATTORNEY FOR PLAINTIFF OR PLAINTIFF WITHOUT AN ATTORNEY [X] (By U.8 NOTICE OF MOTION AND MOTION TO STRIKE ANSWER . I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

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