If you are bringing a motion to strike a complaint, the motion cannot be brought after an answer or demurrer is filed, however, the motion may be brought concurrently with a demurrer.
Check the local local rules.
Some Courts may still have extra "guidelines" regarding law and motion practice in general or motions to strike in particular.
The motion must be made within specified time periods.
For a motion to strike a complaint this time period is 30 days unless you obtain an agreement to extend from opposing counsel. (C.C.P. ? 435(b)). Therefore, if you are bringing a motion to strike a complaint, it must be brought when your answer would otherwise be due. Because of this requirement, if you wish to obtain an extension of time to respond to a complaint make sure you use the word "respond" in your confirming letter and not "answer." If you are bringing a motion to strike an answer, you must file your motion within ten days. (C.C.P. ? 435(b), CRC 329). If you are bringing a motion to strike a demurrer it must be filed within nine court days before the hearing on the demurrer and must be set for hearing concurrently with the demurrer. (C.C.P. ? 435(b), 1005).
Make sure the motion is based on proper grounds.
The motion may be brought only to strike for the following reasons:
a. To strike "irrelevant, false or improper matter inserted in any pleading"
b. To strike a pleading or part of a pleading "not drawn or filed in conformity with the laws of this state, a court rule or order of court." (C.C.P. ? 436). This includes striking an unverified answer to a verified complaint.
c. If the case is a limited civil case, motions to strike are only permitted only to strike damages or relief sought that are not supported by the allegations of the complaint. (C.C.P. ? 92(d)(e)).
Check the timing of the hearing.
Additional days should be added depending on the method of service. (See C.C.P. ? 1005). If the motion is set concurrently with a demurrer, the date set for hearing cannot be more than 35 days from filing or the first available court date thereafter. (CRC 325(b)).
Double Check the Notice of Motion.
The Notice of Motion must set forth exactly what the moving party seeks to strike. If you wish to strike the entire pleading, say so. If you wish to strike a particular numbered paragraph, clearly identify the paragraph. If the potion sought to be stricken is only a sentence or part of the pleading, the exact language must be quoted verbatim in the notice of motion preferably with a reference to the page and line numbers.
Make sure you have a Memorandum of Points and Authorities.
A Memorandum of Points and Authorities must be included or the motion may be treated as not meritorious. (See CRC 313(a)). The motion must be based upon the pleadings and no outside matter. C.C.P. ? 437. The exception to this rule is that motions to strike may be based upon judicially noticeable information. As a general rule, if you need to file a declaration in support of your motion, you are doing something wrong. A proper Request for Judicial Notice in support of your motion is allowed.
Does the Motion need a Request for Judicial Notice?
Remember to file a Request for Judicial Notice if you wish the court to take judicial notice of certain facts, but these facts must be independently verifiable. See California Evidence Code ? ? 450 - 460.
If you cite treatises or out of state references make sure you submit copies to the Court.
Not only is this a court rule, but you must remember that expansive judicial libraries are more and more becoming a thing of the past. Like many of us practitioners, judges and their staff are becoming limited to online research and if the Court's research agreement with its online research provider does not include the authority you cite, the Court will ignore it and/or become annoyed at you for making them go out and search for it.
Check with the Court.
Make sure that you check with the Court prior to filing the motion to determine if a date needs to be reserved or if the Court has any upcoming "dark" days before you file your motion.
Pay attention to the Details.
Make sure that the date, time and department are clearly listed in the caption of the motion. Make sure there is a proper footer at the bottom of your pleadings. Make sure you have listed all parties on your proof of service.
Additional resources provided by the author
This checklist does not address the requirements of a Special Motion to Strike brought pursuant to brought under California Code of Civil Procedure § 425.16 (an “Anti-SLAPP Motion”).
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