1The topic of this issue of the newsletter is the filing of a motion to strike a complaint, or portions of a complaint in California.

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 motion to strike is sometimes filed along with a demurrer. However, a motion to strike must be filed at the same time as the demurrer, and must be set for hearing on the same day and time with the demurrer. If a complaint is required by law to be verified but is not verified, that is also grounds for a motion to strike. Note that in limited civil cases “Motions to strike are allowed only on the ground that the damages or relief sought are not supported by the allegations of the complaint.” See Code of Civil Procedure § 92(d). 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. “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. 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. Garcia v. Sterling (1985) 176 Cal.App.3d 17, 21. 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.. In Dawes v. Superior Court, supra, the Court of Appeal issued a peremptory writ of mandate directing the Superior Court to reinstate that portion of the complaint which sought recovery of punitive damages ruling that allegations that a driver was a managerial employee and principal owner of business entity at which the driver was served alcoholic beverages when he was intoxicated and that he was acting within course and scope of his employment and with authorization of business entity at the time of the accident were sufficient to maintain an action against the business entity, as well as the driver, for punitive damages.

However, 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. Landis v. Superior Court, (1965) 232 Cal.App.2d 548, 554, see also Vick v. Grasser (1959) 169 Cal.App.2d 692 697,stating that “The policy of great liberality in permitting amendments at any stage of the proceeding has been declared by our courts.” (internal citations omitted.) And 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. Desney v. Wilder (1959) 46 Cal.2d 715, 751; Edwards v. Superior Court (2001) 93 Cal.App.4th 172, 180 (holding the discretionary power to allow amendments to the pleadings “in furtherance of justice” must be exercised liberally at all stages of the proceeding by permitting those amendments which will facilitate the interests of justice and resolve all disputed issue). The issue of whether or not to file a motion to strike should only be made after legal research on irrelevant matter. If so, then a motion to strike should be filed. If you enjoy this newsletter, tell others about it. They can subscribe by visiting the following link: http://www.legaldocspro.net/newsletter.htm Have a great week and thanks for being a subscriber. Yours Truly, Stan Burman The author of this newsletter, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. The author's website: http://www.legaldocspro.net View numerous sample document sold by the author: http://www.scribd.com/legaldocspro Copyright 2012 Stan Burman. All rights reserved. DISCLAIMER: Please note that the author of this newsletter, 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 newsletter is NOT intended to constitute legal advice. These materials and information contained in this newsletter have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this

newsletter is not intended to create, and receipt does not constitute, any business relationship between the sender and receiver. Subscribers and any other readers should not act upon this information without seeking professional counsel.

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