This article will discuss the use of a motion to strike in an unlawful detainer (eviction) action in the State of California. This type of motion can be filed 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.
The motion to strike can request that the entire complaint be stricken, or just certain 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 section 436 states in pertinent part that this motion 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 section 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 this means that the complaint is subject to being stricken.
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.
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 being stricken.
Because the statutes governing unlawful detainers do not have any provisions regarding the timing of a hearing on a motion to strike, the timing for motions to strike is governed by Code of Civil Procedure section 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.
Note that some clerks will try to tell you that you must give the same notice as a motion to quash, this is not true. The same minimum 16 Court days notice as is required for a demurrer is also required for a motion to strike. See the Rutter Group Cal. Practice Guide Landlord-Tenant Chapter 8-C 8:255.5 (2012).
The author sincerely hopes that you have enjoyed this article.
Copyright 2012 Stan Burman. All rights reserved.