Filing a motion to obtain an answer to a complaint or counterclaim in California is the topic of this article. Section 435(a) of the Code of Civil Procedure provides that a motion to strike may be directed to a response. However, there is a very short time limit of only 10 calendar days after the answer is filed to file a motion to quash an answer pursuant to Section 435(b) of the Code of Civil Procedure.

If a party also wishes to file an objection to the response, both the objection and the motion to quash must be filed at the same time and scheduled for hearing at the same time. Many responses that contain grounds for an objection also contain grounds for a strike motion.

There are several reasons to file a strike motion in California. To strike out an irrelevant, false, or inappropriate matter inserted in any pleading pursuant to Section 436(a) of the Code of Civil Procedure, and to strike out a pleading or part of a pleading that was not drafted or presented in accordance with the laws of this state, a court order or court order pursuant to Section 436(b) of the Code of Civil Procedure.

The second reason clearly authorizes to cross out an unverified response to a verified complaint. Article 446 of the Code of Civil Procedure establishes in its pertinent part that, “Verified the complaint, the answer will be verified.” Article 446 also specifies other situations in which a response to a claim or counterclaim must be verified. This is not as common as the first ground.

The first reason mentioned above is seen quite often in California litigation. A defendant will often include numerous “repetitive” affirmative defenses in an answer that generally consist entirely of allegations that are wholly irrelevant to the causes of action alleged in the complaint, and as a result constitute immaterial allegations under California law. .

An immaterial accusation is defined in Section 431.10 of the Code of Civil Procedure. The author has seen responses that include a repetitive affirmative defense such as “lack of consideration” in an answer to a personal injury claim or other defenses that have absolutely nothing to do with any of the causes of action in the claim or counterclaim. These are clearly immaterial and irrelevant and are found in about 50% of the responses the author reviews in his work.

The author sincerely hopes that you have enjoyed this article and found it informative. If you enjoyed this article, please tell others.

Sincerely,

stan burman