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Is a motion to strike a proper format to use in an attempt to eliminate affirmative defenses?

Berkeley, CA |
Filed under: Civil motions

Not quite sure how the defendant's affirmative defenses will get resolved. I would like to get them thrown out before trial. The case is set for trial already. I can still file motions, right?

Attorney Answers 4

  1. Best answer

    You can still file certain motions but probably not a motion to strike affirmative defenses if the case is set for trial. Pursuant to CCP § 430.40.(b) a motion to strike portions of an answer must be filed with 10 days after the answer is served. You are probably left only with a motion for summary adjudication of issues -- if you still have time -- with respect to a “resolution” of the affirmative defenses short of trial.

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  2. You can still file motions but your better approach would be to hire counsel.

  3. No, a motion to strike would normally not be used to strike affirmative defenses. While it is possible to demur to an answer, it is rarely done.

    Your efforts ought to be focused on propounding written discovery to ascertain what evidence exists (facts, witnesses and documents) to support each affirmative defenses. You can use Form Interrogatories - General, No. 15.1 for this purpose.

    Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.

  4. No. The proper way to eliminate affirmative defenses would be (a) through discovery directed at the affirmative defenses and/or (b) through a motion for summary adjudication pursuant to Code of Civil Procedure 437c(f). In most instances, summary adjudication as to affirmative defenses would be a waste of time/effort. Service of Judicial Counsel Form Interrogatories with box 15.1 checked should give you a general idea of the defendant's valid affirmative defenses and the facts supporting them.

    This posting is provided for information purposes only and should not be relied upon as legal advice. It is not legal advice. Nothing transmitted from this posting constitutes the establishment of an attorney-client relationship. Applicability of the legal principles discussed here may differ substantially in individual situations or in different jurisdictions. This information is intended for general informational purposes only and should be used only as a starting point for addressing your legal issues. It is not a substitute for an in-person or telephone consultation with an attorney licensed to practice in your jurisdiction about your specific legal issue, and you should not rely upon this information.

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