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 seeks redress or damages that are not supported by the allegations in the complaint, or are not verified as required by law.
The strike motion may request that the entire complaint, or only certain parts, be vacated. The Court can only consider the issues that appear on the face of the complaint. As with an objection, extrinsic evidence is not allowed, other than that which can be judicially warned.
Section 436 of the Code of Civil Procedure establishes in the relevant part that this motion may be filed to reject any irrelevant matter inserted in any allegation, and to remove any allegation or part thereof that is not prepared in accordance with the laws of this state. .
In the case of an unlawful retention complaint, the code states that it must be verified by the complainant. If the complaint is not verified, the entire complaint must be rejected on the basis that the complaint was not verified as required by section 1166 (a) (1) of the Code of Civil Procedure. Therefore, the report is not made in accordance 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 rejected.
Many eviction complaints request additional legal damages for malicious conduct, but do not allege any facts to support a finding of malice. This is clearly subject to a strike motion, as several California Courts of Appeals have ruled.
A UD complaint containing a sentence for statutory damages (up to $ 600, in addition to actual damages) when the complaint does not allege adequate facts to support a finding of “malice” is inappropriate and therefore subject to a motion strike.
A California Court of Appeals has ruled that if a claim of right appears in the face of a complaint that is legally invalid, the complaint is subject to dismissal.
Because the statutes governing unlawful detentions have no provision regarding the timing of a hearing on a strike motion, the timing for strike motions is governed by section 1005 of the Code of Civil Procedure, which requires notice 16 short days of hearing on the strike motion, plus five calendar days for notification by mail. Court days means Monday through Friday, excluding court holidays. A defendant wishing to file a strike motion should contact the clerk of court and obtain a hearing date of 4-5 weeks from the filing date, no later than thirty-five (35) calendar days, or the date earliest available to the court clerk. .
Note that some clerks will try to tell you to give the same notice as a motion to vacate, this is not true. The same minimum notice of 16 court days that is required for an objection to a strike motion is also required. See Rutter Group Cal. A Practical Guide for Landlords and Tenants, Chapter 8-C 8: 255.5 (2012).
The author sincerely hopes that you have enjoyed this article.
Sincerely,
Stan burman
Copyright 2012 Stan Burman. All rights reserved.
