This article will discuss the use of a strike motion in an unlawful detainer (eviction) action in the state of California. This type of motion can be filed when a lawsuit requests relief or damages that are not supported by the allegations in the lawsuit, or are not verified as required by law.
The strike motion may request that the entire complaint be removed or only certain parts of it. The Court can only consider the issues that appear on the face of the complaint. As with an objection, no extrinsic evidence is allowed, other than that which can be judicially noted.
Section 436 of the Code of Civil Procedure provides in pertinent part that this motion may be filed to set aside any irrelevant matter inserted in any pleading, and to set aside any pleading or part thereof not made in accordance with the laws of this state.
In the case of a lawsuit for illegal retention, the code establishes that it must be verified by the Plaintiff. If the complaint is not verified, the entire complaint must be set aside because the complaint is not verified as required by section 1166(a)(1) of the Code of Civil Procedure. Therefore, the complaint is not filed in accordance with the laws of this state.
Or if the eviction complaint asks for 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 the complaint is subject to dismissal.
Many eviction complaints ask for additional legal damages for malicious conduct, but do not alleviate any facts that support a finding of malice. This is clearly subject to a strike motion as several California appellate courts 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 determination of “malice” is inappropriate and therefore subject to a motion to dismiss. strike.
A California Court of Appeals has ruled that if a claim of right appears in a complaint that is legally invalid, the complaint is subject to dismissal.
Because the statutes governing unlawful detainers make no provision regarding the timing of a hearing on a strike motion, the timing of strike motions is governed by section 1005 of the Code of Civil Procedure, which requires notice 16 court days from the hearing on the strike motion, plus five calendar days for notice by mail. Court days means Monday through Friday, excluding court holidays. A defendant who wishes to file a motion to strike must contact the court clerk and obtain a hearing date 4-5 weeks from the date of filing, 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 that you must give the same notice as a motion to quash, this is not true. The same minimum notice of 16 court days that is required for a stay is also required for a motion to strike. See Rutter Group Cal. Practical Landlord-Tenant Guide 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.