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Different atty from atty of record filed an unverified answer to my verified complaint against defendants-a company and its ownr

San Francisco, CA |

I filed a veified complaint in a CA superior court, and the defendant has just now filed an unverified general answer. Also, the defendant's attorney did not file the answer, a completely different law firm filed and served it.
Nothing has been filed to change atty or law firm,
What can or should I do?

This is an unlimited civil case in superior court.

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Attorney answers 3

Best Answer
Posted

Procedurally, the proper response is for you to file a Motion to Strike pursuant to California Code of Civil Procedure sections 435 and 436.

California Code of Civil Procedure § 435 authorizes a defendant to move to strike matters from complaints. Section 435(b)(1) states in pertinent part:

"Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof …"

California Code of Civil Procedure § 436 provides grounds upon which the court may strike portions of a complaint, and provides as follows:

"The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper

(a) Strike out any irrelevant, false, or improper matter inserted in any pleading.

(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court."

http://www.avvo.com/legal-guides/ugc/standards-for-ruling-on-a-motion-to-strike-in-california?ref=result_1_title

The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author (who is only admitted to practice law in the State of California). For specific advice about your particular situation, consult your own attorney.

Asker

Posted

Thank you so much for your response. I'll do research in CA Forms of Pldg and Prac on how to file a Motion to Strike and CCP 435 and 436. If the defendant's time to file a verified answer is up, can I file a request to enter default?

Frank Wei-Hong Chen

Frank Wei-Hong Chen

Posted

No, a request for entry of default would likely be rejected if an answer, albeit unverified, was already on file. Sent via BlackBerry from T-Mobile

Asker

Posted

The case was filed Jan. 30, 2009, and is approaching the 3 yr timeframe to get answer(s) or default(s) entered, there have been about 5 different types of motions filed by defendants, before this "answer", and they've won 2 and lost 3 of them. If I file a Motion to Strike regarding CCP 435 and 436, can they file an amended answer to verify, before the date of the motion? and if not, and they loose my motion against them, will they be given time to file a verified amended answer? They're playing games to take up time...

Posted

I agree with Mr. Chen. In an unlimited case, if the plaintiff filed a verified complaint and the defendant filed an unverified complaint, the plaintiff should file a motion to strike the unverified answer. This is only a pleading defect which means if you don't object, you waive the defect.

Jason J.L. Yang, Esq. is admitted to practice law in California and therefore, all posts are based on California law. The posts do not constitute legal advice and does not create an attorney/client relationship.

Asker

Posted

It's unverified and also a law firm that is not the atty of record filed the unverified answer. Is the Motion to Strike for both the defect of the complaint being unverified and also that no change of atty form was filed. Is it still a valid answer even though it's filed by a law firm that's not representing the defendant?

Posted

You can move to strike the answer on the grounds that it was not verified. Generally, a verified complaint must be verified with a few exceptions. The attorney firm filing the answer should have filed a substitution of attorney. Contact my office if you wish to discuss.