Chapter 160 MOTIONS TO STRIKE
Introduction
Scope of Chapter
This chapter contains memoranda of points and authorities that may be submitted in civil actions to support or oppose motions to strike pleadings in whole or in part.

Forms of points and authorities supporting motions to strike include:

· A general form for use in supporting motions to strike [Form 1].

· A form for use in supporting motions to strike pleading matter which was not filed or drawn in conformity with the laws of California [Form 2].

· Forms setting out specific instances of failure to conform to the laws of California for which pleading matter may be stricken [Forms 3-7].

· Forms for use in a motion to strike pleading matter as irrelevant [Form 20] or as false or improper [Form 30].

· A form for use in supporting a motion to strike improper amended pleadings [Form 31].

· Forms to support a special motion to strike a cause of action against a person arising from that person's exercise of the constitutional rights of petition or free speech in connection with a public issue (i.e., a SLAPP suit) [Forms 10, 10.1].

Points and authorities opposing motions to strike in general and for specific reasons are included in Forms 40-43.

Points and authorities opposing motions to strike made on specific grounds are included in Forms 44-48.

Points and authorities opposing a special motion to strike a SLAPP suit are included in Form 50.
Governing Law
Statutory authority and time limits for motions to strike are set out in Code Civ. Proc. § 435[Deering's] . Grounds for which pleading matter may be stricken are set out in Code Civ. Proc. §§ 436[Deering's] and 431.10(b)[Deering's], (c)[Deering's] . Limits on the means by which grounds for striking pleading matter may be established are set out in Code Civ. Proc. § 437[Deering's] .

A special motion to strike causes of action brought to inhibit the right of people to exercise their constitutional rights of petition and free speech on matters of public interest (SLAPP suits) is authorized and governed by Code Civ. Proc. § 425.16(b)[Deering's] .
1982 Reorganization of Governing Statutes and Prior Case Law
In 1982, the Legislature substantially reorganized the statutory law governing motions to strike. The primary effect of the 1982 statutory scheme appears to be to provide for explicit statutory authority for making motions to strike and for most, if not all, of the grounds on which pleading matter may be stricken [see Code Civ. Proc. §§ 435[Deering's], 436[Deering's] ]. The only provisions in the scheme that restrict either a party's right to move to strike or the court's power to strike pleading matter are the timeliness and hearing date provisions of Code Civ. Proc. § 435[Deering's] [see Forms 41 (timeliness) and 42 (hearing date requirements)] and the prohibition of speaking motions to strike set out in Code Civ. Proc. § 437[Deering's] [see Form 40]. There are no statutory provisions stating that the grounds for striking pleading matter set out in Code Civ. Proc. § 436[Deering's] or Code Civ. Proc. § 431.10(b)[Deering's],(c)[Deering's] are meant to be exclusive.

Because the 1982 statutory scheme does not restrict the grounds for which courts may strike pleading matter, with the exception of Code Civ. Proc. § 437[Deering's] (speaking motion not proper), most of the pre-1982 case law dealing with motions to strike appears to be still valid. When using pre-1982 cases, counsel should cite the case together with the statute that now provides the authority for striking the challenged pleading on the grounds urged.
Restricted Use of Motion in Limited Civil Cases
In limited civil cases, motions to strike are allowed only on the ground that the damages or relief sought are not supported by the allegations of the complaint [ Code Civ. Proc. §§ 91(a)[Deering's], 92(d)[Deering's] ; see Code Civ. Proc. §§ 431.10(b)(3)[Deering's], 436(b)[Deering's] (general authority for motion to strike on ground that relief sought not supported by allegations)].

Code Civ. Proc. § 435(a)[Deering's] provides that the term complaint includes a cross-complaint. Code Civ. Proc. § 92(d)[Deering's] only uses the term complaint. Although it is probable that Code Civ. Proc. § 92(d)[Deering's] may be read in light of the language of Code Civ. Proc. § 435(a)[Deering's] to permit motions to strike cross-complaints in limited civil cases, this is not clear from the language of the statute.
Court's Inherent Power to Strike
Prior to 1982, the courts of appeal had developed the doctrine that a court may strike pleading matter under the court's inherent power, by summary means, in order to prevent frustration, abuse, or disregard of court processes. This inherent power was explicitly recognized as being apart from statute [ Stafford v. Ballinger (1962) 199 Cal. App. 2d 289, 297, 18 Cal. Rptr. 568 ]. It appears that the grounds on which the pre-1982 cases allowed the striking of pleading matter are now subsumed under the statement of grounds for striking such matter set out in Code Civ. Proc. § 436[Deering's] . Thus, it appears that it is no longer necessary to cite the inherent power of the court as authority for striking a pleading. However, the statutory scheme contains no provision restricting or abolishing the court's inherent power to strike pleading matter. Thus, if a case should arise in which grounds permitting the striking of pleading matter under an inherent powers theory are not authorized by statute, the court's inherent powers may probably still be used as good authority for striking.
Relationship to Demurrer
A motion to strike is generally used to reach defects in a pleading which are not subject to demurrer. Hence, a motion to strike does not lie to attack a complaint for insufficiency of allegations to justify relief, as that is a ground of general demurrer [ Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal. App. 3d 340, 342, 264 Cal. Rptr. 673 ].

The precise demarcation between the function of a motion to strike and of a demurrer is not clear in every case. It has been held that a motion to strike may not be used for purposes of a demurrer, and that for instance, matter may not be stricken on motion to strike for uncertainty [ Allerton v. King (1929) 96 Cal. App. 230, 234, 274 P. 90 ; see Form 46].

In contrast, it has been noted that although a party may not demur to a portion of a cause of action, when a substantive defect is clear from the face of a complaint involving only a portion of a cause of action, that portion may be attacked by filing a motion to strike [see PH II, Inc. v. Superior Court (1995) 33 Cal. App. 4th 1680, 1681, 1683, 40 Cal. Rptr. 2d 169 ]. One practical difference between a motion to strike and a demurrer is that when a demurrer is sustained, leave to amend the defective pleading is deemed granted unless the court specifies otherwise, while there is no provision stating that leave to amend is deemed granted when a motion to strike is granted [see Cal. Rules of Ct., Rule 325(e)[Deering's] ]. It has been held that a motion to strike should not be granted when the purported defect in the challenged pleading can be corrected by amendment [ Allerton v. King (1929) 96 Cal. App. 230, 234, 274 P. 90 ; see Form 46]. However, when a motion to strike is granted, the court may order that an amendment or amended pleading be filed on terms it deems proper [ Code Civ. Proc. § 472a(d)[Deering's] ].
Time Tolling Effect of Motion to Strike
The motion to strike is now statutorily recognized as a pleading. Filing of a notice of motion to strike has the same effect for default purposes when it is filed within the time for response to a pleading as an answer, demurrer, or other recognized pleading [see Code Civ. Proc. § 585[Deering's] (entry of default)]. Thus, if a party serves and files a notice of motion to strike without demurring to the complaint, the time to answer is extended and no default may be entered against that defendant while the motion to strike is pending [see Code Civ. Proc. § 435(c)[Deering's] ]. However, after the motion has been heard, within the time specified by Code Civ. Proc. § 1005(b)[Deering's] [see Form 42, below ] and ruled on, the obligation to answer or otherwise respond may be partially reinstated. If the motion is denied, the party who made the motion must respond to the pleading within the time allowed by the court. Code Civ. Proc. § 472a(d)[Deering's] provides that the court must allow the party that is filing the motion to strike a complaint time to answer if the motion is denied. If the motion is granted, the moving party must still respond to any unstricken portions of the pleading within the time allowed by the court. Failure to respond in either of these cases may result in entry of default [see Code Civ. Proc. §§ 585[Deering's], 586[Deering's] (default)].

The filing of a notice of motion to strike does not extend the time within which to demur [ Code Civ. Proc. §§ 435(d)[Deering's], 585(f)[Deering's] ].
Speaking Motion Not Proper
A motion to strike may not rely on extrinsic evidence [see Code Civ. Proc. § 437(a)[Deering's] ]. For a full discussion of this restriction, see Form 40.
Time for Hearing
For a discussion concerning the time when a hearing on a motion to strike must be scheduled, see Form 42.
Trial Court Delay Reduction Act
Under the Trial Court Delay Reduction Act, courts have discretion to strike pleadings for noncompliance with program rules, if, after taking into account the effect of previous sanctions or previous lack of compliance in the case, it appears that less severe sanctions would not be effective [ Gov. Code § 68608(b)[Deering's] ; see, e.g., Los Angeles Super. Ct. Rules, Rules 7.13, 8.0 ; see also Code Civ. Proc. § 575.2[Deering's] ; Cal. Rules of Ct., Rule 227[Deering's] ]. Counsel in cases governed by trial delay reduction programs should consult the local rules for specific provisions governing the striking of pleadings as a sanction.
Page Limits on Points and Authorities
Generally, a memorandum of points and authorities must not exceed 15 pages in length. A reply or closing memorandum may not exceed 10 pages in length [see Cal. Rules of Ct., Rule 313(d)[Deering's] ]. Any party desiring to file a longer memorandum must obtain leave of court [see Cal. Rules of Ct., Rule 313(d)[Deering's] ]. For further discussion of the page limitations under Cal. Rules of Ct., Rule 313[Deering's] , and of other basic format requirements of memoranda of points and authorities, see Ch. 1, Writing Legal Memoranda and Briefs, § 1.01[4].
Related Pleading and Practice Chapters
For forms and a discussion relating to motions to strike, see Ch. 375, Motions to Strike in CALIFORNIA FORMS OF PLEADING AND PRACTICE. For forms and discussion relating to demurrers, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 206, Demurrers and Motions for Judgment on the Pleadings.

For forms and a discussion relating to motions for summary judgment, see Ch. 537, Summary Judgment in CALIFORNIA FORMS OF PLEADING AND PRACTICE.
Related Points and Authorities Chapters
For memoranda of points and authorities supporting and opposing a demurrer, see Ch. 71, Demurrers and Motions for Judgment on the Pleadings.

For memoranda of points and authorities supporting and opposing motions for summary judgment, see Ch. 221, Summary Judgments.
Forms
Form 1 Supporting Motion to Strike Whole or Part of Pleading
[Code Civ. Proc. § 435]--General Form
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF __________________________________


)NO. _______________
)MEMORANDUM OF POINTS
)AND AUTHORITIES IN
)SUPPORT OF MOTION TO
)STRIKE [WHOLE or PART
)OF] _______________
)[specify
_________________________ [name ],)pleading, e.g.,
)COMPLAINT]
Plaintiff, )Date: _______________
vs. )Time: _______________
_________________________ [name ],)Location: _____________
Defendant. )[Judge: _______________
)]
)Date Action Filed: ____
)[Trial Date: __________
)]
)


THE _________________ [specify pleading, e.g., COMPLAINT] IS SUBJECT TO A MOTION TO STRIKE THE WHOLE OR ANY PART THEREOF.

A. Timely Motion to Strike Is Proper. 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 ( Code Civ. Proc. § 435(b)(1)[Deering's] ).

B. Pleadings Subject to Motion to Strike. The pleadings at which a motion to strike may be directed include demurrers, answers, complaints, and cross complaints (see Code Civ. Proc. § 435(a)[Deering's] ).

[Add points and authorities setting out specific grounds for striking pleading matter (see Forms 2-31). ]

Respectfully submitted,
_________________ [firm name, if any ]
By:_________________ [signature ]
_________________ [typed name ]
Attorney for _________________
[party's status and name ]

COMMENTS

Use of Form

The foregoing memorandum of points and authorities may be submitted in support of a motion to strike the whole or any part of a complaint, cross complaint, answer, or demurrer. The foregoing sets out points of law establishing the statutory basis for bringing a motion to strike [see Code Civ. Proc. § 435[Deering's] ]. Counsel should add points and authorities setting out specific grounds for a motion to strike, such as those set out in Forms 2-31.

Counsel should insert facts and arguments into the foregoing form and any form that is used in combination with it to show the relationship between the facts of the case and the points of law stated.

The time restriction stated in Paragraph A does not apply if the motion to strike is made as part of a motion under Code Civ. Proc. § 438(i)(1)(A)[Deering's] , directed at a pleading filed after a motion for judgment on the pleadings was sustained with leave to amend [ Code Civ. Proc. § 435(b)(1)[Deering's], (e)[Deering's] ; see also Form 5, below, and Ch. 71, Demurrers and Motions for Judgment on the Pleadings ].

Related Pleading and Practice Forms

For forms and discussion relating to motions to strike, see Ch. 375, Motions to Strike in CALIFORNIA FORMS OF PLEADING AND PRACTICE. For forms and discussion relating to demurrers, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 206, Demurrers and Motions for Judgment on the Pleadings.

For forms and discussion relating to motions for summary judgment, see Ch. 537, Summary Judgment in CALIFORNIA FORMS OF PLEADING AND PRACTICE.

Related Points and Authorities

For memoranda of points and authorities supporting and opposing a demurrer, see Ch. 71, Demurrers and Motions for Judgment on the Pleadings.

For memoranda of points and authorities supporting and opposing motions for summary judgment, see Ch. 221, Summary Judgments.

Opposing Points and Authorities

Memoranda of points and authorities in opposition to a motion to strike are set out in Forms 40-48 in this chapter.
Form 2 Supporting Motion to Strike Whole or Part of Pleading [Code Civ. Proc. § 435]--Pleading Matter Not Filed or Drawn in Conformity With Law [Code Civ. Proc. § 436(b)]
[This form should be used in combination with a general form of memorandum of points and authorities supporting a motion to strike (see Form 1) and with appropriate memoranda of points and authorities setting out specific points in which the pleading to be wholly or partially stricken fails to conform with state law (see Forms 3-7). ]

THE _________________ [specify pleading, e.g., COMPLAINT] SHOULD BE STRICKEN BECAUSE IT WAS NOT _________________ [DRAWN or FILED] IN CONFORMITY WITH LAW.

Improperly Drawn or Filed Pleading Matter Subject to Motion to Strike. The court may, on a motion to strike pursuant to Code of Civil Procedure Section 435[Deering's] (statutory authority for motion to strike) or at any time in its discretion, strike any pleading or part thereof not drawn or filed in conformity with state law ( Code Civ. Proc. § 436(b)[Deering's] ).

COMMENTS

Use of Form

The foregoing points and authorities may be used to support a motion to strike all or part of a pleading on the grounds that the matter to be stricken was not drawn or filed in conformity with California law [see Code Civ. Proc. § 436(b)[Deering's] ]. The foregoing form sets out the statutory basis for the court's power to strike pleading matter that was not drawn or filed in conformity with California law. The form should be used in combination with a general form of points and authorities in support of a motion to strike [see Form 1] and with points and authorities setting out specific points in which the matter to be stricken fails to conform with state law, such as those set out in Forms 2.1 through 7.

Counsel should insert facts and arguments into this form and into any points and authorities used in combination with it, showing how the points of law stated relate to the facts of the case.

Pleadings Violating Specific Statutes, Rules, or Court Orders

Code Civ. Proc. § 436(b)[Deering's] gives the court the explicit power to strike all or part of any pleading that violates any particular law governing the drawing or filing of pleadings. A rule of law which matter in a pleading violates would ordinarily be subject to judicial notice [see Evid. Code §§ 451[Deering's], 452[Deering's], 453[Deering's] ]. Matter subject to judicial notice under Evid. Code § 452[Deering's] or 453[Deering's] that is the basis for a motion to strike must be specified in the motion or in the accompanying points and authorities, except as the court may otherwise permit [ Code Civ. Proc. § 437(b)[Deering's] ]. In arguing that the pleading matter, which the motion to strike is directed against, violates a statutory rule of pleading or a rule of court, counsel should cite both Code Civ. Proc. § 436(b)[Deering's] and the specific statute or rule that the pleading matter violates. In arguing that the pleading matter violates a court order, counsel should cite Code Civ. Proc. § 436(b)[Deering's] and ask the court to take notice of the order that the matter violates, pursuant to Evid. Code §§ 452[Deering's], 453[Deering's] ; see Evid. Code § 453[Deering's] and Cal. Rules of Ct., Rules 313(h)[Deering's], 323(c)[Deering's] on procedure concerning requesting judicial notice]. Local rules concerning procedure for obtaining judicial notice of court files should also be consulted.

Opposing Points and Authorities

Points and authorities in opposition to motions to strike, including motions to strike a pleading not filed or drawn in conformity with the laws of the state are set out in Forms 40-45.
Form 2.1 Supporting Motion to Strike Whole or Part of Pleading [ Code Civ. Proc. § 435 ]--Pleading Matter Not Filed or Drawn in Conformity With Law [ Code Civ. Proc. § 436(b) ]--Amended Pleading Not In Conformity With Court's Prior Ruling
[This form should be combined with a general form of memorandum of points and authorities supporting a motion to strike setting out the statutory basis for making a motion to strike (see Form 1) and a form of memorandum of points and authorities setting out the statutory basis for the court's power to strike pleading matter that was not drawn or filed in conformity with law (see Form 2). ]

THE AMENDED _________________ [specify pleading, e.g., COMPLAINT] SHOULD BE STRICKEN BECAUSE IT WAS NOT FILED IN CONFORMITY WITH THE PRIOR RULING OF THE COURT.

Pleading Not in Conformity With Court's Prior Ruling Subject to Motion to Strike. A trial court has authority to strike a pleading that is not filed in conformity with its prior ruling ( Janis v. California State Lottery Com. (1998) 68 Cal. App. 4th 824, 829, 80 Cal. Rptr. 2d 549 ).

COMMENTS

Use of Form

These points and authorities may be submitted in support of a motion to strike an amended pleading that was not filed in conformity with the court's prior ruling. This form should be used in combination with a general form of points and authorities [see Form 1] and a form of points and authorities setting out the point that pleading matter that was not drawn or filed in conformity with the laws of this state may be stricken [see Code Civ. Proc. § 436(b)[Deering's] ; Form 2].

Counsel should insert argument in the form, showing the relationship between the facts of the case and the points of law stated.

DISCUSSION OF AUTHORITIES

Pleading Not in Conformity With Court's Prior Ruling Subject to Motion to Strike

Janis v. California State Lottery Com. (1998) 68 Cal. App. 4th 824, 80 Cal. Rptr. 2d 549 , involved a class action against the California State Lottery Commission (CSL) and GTECH Corporation (GTECH), seeking recovery of moneys lost by Keno players during the four years that CSL operated the lottery Keno game. Ultimately, GTECH filed a motion for summary judgment which was granted. In so doing, however, the court also granted plaintiff's request for leave to amend, noting that plaintiff was free to assert a new cause of action against GTECH, but cautioned plaintiff that plaintiff could not amend to add any new claim back in on any of the theories as to which summary judgment had been sustained. Plaintiff filed a first amended complaint reasserting the original causes of action and adding language to each concerning a violation of Gov. Code §§ 8880.4(a)(2)[Deering's] and 8880.63[Deering's] . Thereafter, GTECH filed a motion to strike the allegations against it which was granted and judgment was entered. Plaintiff appealed (68 Cal. App. 4th 824, 827-829).

The court of appeal affirmed. The court noted that the trial court has authority to strike sham pleadings, or those not in conformity with its prior ruling (68 Cal. App. 4th 824, 829). Plaintiff's first amended complaint reasserted the original causes of action against GTECH and merely appended a sentence to each concerning the alleged violation of the Lottery Act. Thus, plaintiff failed to comply with the court's ruling. Consequently, the motion to strike was properly granted (68 Cal. App. 4th 824, 829).
Form 3 Supporting Motion to Strike Whole or Part of Pleading
[Code Civ. Proc. § 435]--Pleading Matter Not Filed or Drawn in Conformity With Law [Code Civ. Proc. § 436(b)]--Amended Pleading Without Permission of Court
[Code Civ. Proc. §§ 472, 473(a)]
[This form should be combined with a general form of memorandum of points and authorities supporting a motion to strike setting out the statutory basis for making a motion to strike (see Form 1) and a form of memorandum of points and authorities setting out the statutory basis for the court's power to strike pleading matter that was not drawn or filed in conformity with law (see Form 2). ]

THE AMENDED _________________ [specify pleading, e.g., COMPLAINT] SHOULD BE STRICKEN BECAUSE IT WAS FILED WITHOUT PERMISSION OF THE COURT WHEN SUCH PERMISSION WAS REQUIRED.

A. Amended Complaint Filed Without Permission Is Subject to Be Stricken. An amended complaint filed without permission, when such permission is required, may be stricken upon motion ( Stafford v. Ballinger (1962) 199 Cal. App. 2d 289, 297, 18 Cal. Rptr. 568 (case decided under Code Civ. Proc. § 435[Deering's] , which has been amended to authorize motions to strike pleadings in general and not merely complaints)).

[Optional ] B. Only One Timely Amendment of Course Is Provided for. Any pleading may be amended once by the party of course, and without costs, at any time before the answer or demurrer is filed, or after demurrer before trial of the issue of law thereon ( Code Civ. Proc. § 472[Deering's] ).

[Optional ] C. Permission Is Required Unless Statute Provides for Amendment of Course. Under the statutory provisions allowing amendments at the court's discretion, when the conditions for allowing an amendment of course are not satisfied, amendments must be sought by noticed motion for leave to amend, which should be supported by affidavits showing why leave should be granted (see Code Civ. Proc. § 473(a)(1)[Deering's] ; Loser v. E.R. Bacon Co. (1962) 201 Cal. App. 2d 387, 390, 20 Cal. Rptr. 221 ).

[Optional ] D. Permission Required After Responsive Pleading Is Filed or Time for Filing Response Passes. Once the response to a pleading has been filed, or the time within which a response may be filed has passed, the right to amend the pleading is gone, and any amendments require permission of the court sought by appropriate motion ( Tingley v. Times Mirror (1907) 151 Cal. 1, 11, 89 P. 1097 ; Asia Investment Co. v. Borowski (1982) 133 Cal. App. 3d 832, 840, 184 Cal. Rptr. 317 ; see Code Civ. Proc. §§ 472[Deering's], 473(a)(1)[Deering's] ).

[Optional ] E. Amendment Adding New Parties Always Requires Permission. The statutory right to amend a pleading once of course, which is set out in Section 472[Deering's] of the Code of Civil Procedure , does not encompass the bringing in of new parties without permission of the court ( Taliaferro v. Davis (1963) 220 Cal. App. 2d 793, 795, 34 Cal. Rptr. 120 ).

[Optional ] F. Permission to Amend Does Not Authorize Addition of New Parties. An authorization to amend a complaint that does not specifically permit the addition of new parties applies only to the causes of action alleged against the parties already named and does not authorize the addition of new parties ( Taliaferro v. Davis (1963) 220 Cal. App. 2d 793, 794-795, 34 Cal. Rptr. 120 ; see also Code Civ. Proc. § 473(a)(1)[Deering's] ; see Phoenix of Hartford Ins. Companies v. Colony Kitchens (1976) 57 Cal. App. 3d 140, 147, 128 Cal. Rptr. 893 ).

COMMENTS

Use of Form

These points and authorities may be submitted in support of a motion to strike an amended pleading that was filed without leave of the court, or includes matter beyond the scope of the court's leave, in a case when leave to file an amended pleading is required. The form sets out the point that an amended pleading filed without leave of the court when leave is required is subject to a motion to strike. It also sets out the points that leave of the court is required to file more than one amended pleading and to file any amended pleading after the time to answer the original pleading has run. Finally, the form sets out the point that permission is always required for an amendment adding new parties, and that leave to amend a pleadng does not entail permission to add new parties unless the leave explicitly so provides. This form should be used in combination with a general form of points and authorities [see Form 1] and a form of points and authorities setting out the point that pleading matter that was not drawn or filed in conformity with the laws of this state may be stricken [see Form 2].

Counsel should insert argument in the form, showing the relationship between the facts of the case and the points of law stated.

Use of Pre-1982 Case Law

The cases cited in this form were decided before the 1982 revision of the statutory scheme governing motions to strike. However, since none of the rules set out in these cases are inconsistent with the current statutory provisions, it appears that they are still good law. For discussion of the effect of the 1982 reorganization on prior case law, see 1982 Reorganization of Governing Statutes and Prior Case Law in the Introduction to this chapter, above.

Only Added Parties May Move to Strike Addition of Parties

One court of appeal has held that a motion to strike a pleading on the ground that it adds new parties without leave of the court should be granted only in favor of those defendants that were added without leave and has declined to uphold such a motion in favor of defendants named in the original pleading [ People ex rel. Dept. Pub. Wks. v. Clausen (1967) 248 Cal. App. 2d 770, 782, 57 Cal. Rptr. 227 (cross complaint)].

Related Points and Authorities

For forms of points and authorities relating to amended pleadings generally, see Ch. 16, Amended and Supplemental Pleadings, Part I, in this set.

DISCUSSION OF AUTHORITIES

Amended Complaint Filed Without Permission Is Subject to Be Stricken

In Stafford v. Ballinger (1962) 199 Cal. App. 2d 289, 18 Cal. Rptr. 568 , plaintiff sought to acquire title to certain real property either through a judgment quieting title or by a decree of specific performance. The trial court sustained the defendants' demurrers to the plaintiff's third amended complaint without leave to amend. The plaintiff nevertheless filed a fourth amended complaint. The defendants moved to strike the fourth amended complaint, and the trial court granted the motion. Plaintiff appealed.

The court of appeal upheld the trial court's order striking the fourth amended complaint. At page 297, the court stated that an amended complaint filed without permission may be stricken on motion. The court stated that authority for striking such a pleading derived from Code Civ. Proc. § 435[Deering's] , which provided for motion to strike a complaint in whole or in part [now see Code Civ. Proc. § 435[Deering's] as amended, authorizing motions to strike pleadings in general; see also Code Civ. Proc. § 436(b)[Deering's] authorizing the striking of pleading not filed in conformity with law or order of the court], and from the inherent powers of the court to prevent frustration, abuse, or disregard of court processes (199 Cal. App. 2d 289, 297).

Permission Is Required Unless Statute Provides for Amendment of Course

Code Civ. Proc. § 473(a)(1)[Deering's] provides that the court may, in furtherance of justice, and on such terms as may be proper, (1) allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect and (2) in the court's discretion, allow an amendment to any pleading or proceeding in other particulars, after notice to the adverse party, on such terms as may be just. Code Civ. Proc. § 473[Deering's] appears to overlap partially with Code Civ. Proc. § 472[Deering's] (see Paragraph B, above) which provides for an amendment of pleading by the party of course if the conditions that it sets out are met. The apparent effect of these statutes taken together is that if the conditions of Code Civ. Proc. § 472[Deering's] are not met, an amended pleading must be filed pursuant to Code Civ. Proc. § 473(a)(1)[Deering's] . However, since Code Civ. Proc. § 473(a)(1)[Deering's] does not give the party a right to amend a pleading, but rather gives the court the power to permit such an amendment in its discretion, it appears that permission by the court is necessary to provide the statutory authorization to amend a pleading when Code Civ. Proc. § 472[Deering's] does not apply [see discussion, below ].

Loser v. E.R. Bacon Co. (1962) 201 Cal. App. 2d 387, 20 Cal. Rptr. 221 , was an action for personal injuries sustained in an industrial workplace. Plaintiff sued defendants on the theory that defendants had supplied plaintiff's employer with a defective machine, thereby causing plaintiff's injuries. After plaintiff had filed one original and one amended complaint and defendants had answered, plaintiff filed a second amended complaint stating an additional cause of action based on breach of warranty. Plaintiff had sought no prior permission to file the second amended complaint. The trial court struck the second amended complaint without prejudice to defendants' existing rights to file another amended complaint if permission to do so were granted after proper notice.

The court of appeal upheld the trial court's striking of the complaint. The court noted that because plaintiff filed the amendment after defendants had filed the answer, the conditions of Code Civ. Proc. § 472[Deering's] for filing an amended complaint of course had not been met [see discussion under Permission Required After Responsive Pleading Is Filed or Time for Filing Response Passes, below ] and so applied Code Civ. Proc. § 473[Deering's] (201 Cal. App. 2d 387, 389-390). The court held that under Code Civ. Proc. § 473[Deering's] amendments prior to trial ordinarily must be sought by noticed motion for leave to amend, which should be supported by appropriate affidavits explaining the purpose and need for the amendment and the reason for failure to raise the issues earlier. The court further held that the nature of the proposed amendment should be indicated by presenting the amendment itself to the court in the noticed motion (201 Cal. App. 2d 387, 390). The court noted that the procedures for obtaining permission to file an amended complaint under Code Civ. Proc. § 473[Deering's] had not been followed in the case before it and stated that the court may by virtue of its inherent power to prevent abuse of its processes strike an amended complaint that has been filed in disregard of established procedural process (201 Cal. App. 2d 387, 390).

The court held that the court could strike the pleading even though the motion to strike for failure to seek permission was brought by only one of the defendants. The court further held that the action of the trial court was not an abuse of discretion because the order to strike was made without prejudice to the rights of plaintiff to file another amended complaint if permission to do so were to be granted after proper notice (201 Cal. App. 2d 387, 390). The court also rejected plaintiff's argument that prejudice must be shown before a court may strike a complaint (201 Cal. App. 2d 387, 389).

This case was decided before the enactment of Code Civ. Proc. § 436(b)[Deering's] , which provides that a court may strike pleading matter that was not drawn or filed in conformity with the laws of this state or an order of the court. Since an amended pleading filed without permission when permission was required is not filed in conformity with Code Civ. Proc. § 473(a)[Deering's] , Code Civ. Proc. § 436(b)[Deering's] seems to provide explicit statutory authorization for the kind of strike order upheld by the court in this case. Counsel should therefore cite Code Civ. Proc. §§ 436(b)[Deering's] and 473(a)[Deering's] along with this case.

Permission Required After Responsive Pleading Is Filed or Time for Filing Response Passes

Tingley v. Times Mirror (1907) 151 Cal. 1, 89 P. 1097 , involved an action for libel. Defendant filed an answer after a demurrer to the complaint had been overruled. Plaintiff filed no demurrer to the answer. On the day before the trial was to commence, defendant served on the plaintiff and filed an amended answer, which introduced additional pleas. At commencement of the trial, plaintiff moved to strike the amended complaint on the ground that it had been filed without leave of court or authority of law, and had changed issues raised in the action by introducing the new pleas. The trial court granted the motion. After commencement of trial, defendant moved the court for permission to file the amended answer that had previously been stricken and the trial court denied the motion. Defendant then eliminated certain pleas that had been added to the amended answer and filed the answer thus amended with the consent of plaintiff. Trial resulted in judgment for plaintiff. Defendant appealed, arguing, inter alia, that the court had erred in striking its amended answer and refusing permission to file the amended answer until the defendant had dropped certain pleas from it.

On appeal, the defendant argued that under Code Civ. Proc. § 472[Deering's] , it had an absolute right to amend its answer at any time before trial, since the plaintiff had not closed the time within which a pleading may be amended by filing a demurrer to the answer (151 Cal. 1, 9). Plaintiff argued that Code Civ. Proc. § 472[Deering's] conferred a right only on the plaintiff to amend a complaint and did not extend to amendment of the answer (151 Cal. 1, 9). The Supreme Court upheld the decision of the trial court to strike the amended answer, but did not accept either of the proffered interpretations of Code Civ. Proc. § 472[Deering's] . Rather, the Court held that under Code Civ. Proc. § 472[Deering's] , the right of a plaintiff to amend his or her complaint as a matter of course is extended only up to the time when defendant's answer is filed or, if defendant demurs, only while the issue of law raised by the demurrer is undetermined. Thus, the Court stated that plaintiff's right to amend under Code Civ. Proc. § 472[Deering's] is gone if defendant answers without demurring or if defendant's demurrer is overruled (151 Cal. 1, 10-11). As to amendments by defendant, the Court held that under Code Civ. Proc. § 472[Deering's] , if plaintiff demurs to the answer, the right to amend can be exercised only during the time when the issues raised by the demurrer are undetermined. If plaintiff does not demur, the Court held that defendant's right to amend extends only up to the end of the time within which the demurrer might have been interposed (151 Cal. 1, 11).

In supporting its conclusion, the Court stated that the obvious purpose of Code Civ. Proc. § 472[Deering's] is to aid and further the right of all parties to a litigation to amend all pleadings with a view of presenting for trial the real merits, assertive and defensive, of the controversy (151 Cal. 1, 9). Thus, the Court stated that it would be unjust to read that statute in such a way as to confer a right to amend on either party that is not conferred on the other, or to work a hardship on either party, or to interfere with the progress of a trial after the issues of fact have been made. The Court held that therefore, while the right to amend is granted to both parties, it is limited to the time period within which either party may exercise it (151 Cal. 1, 9-10).

Asia Investment Co. v. Borowski (1982) 133 Cal. App. 3d 832, 184 Cal. Rptr. 317 , involved an action for malicious prosecution and interference with contract based on a prior action filed by the present defendants that had been dismissed for laches. This action was ultimately consoli dated with other actions in a complex series of litigations. Defendants answered the malicious prosecution aspect of the action and subsequently moved for summary judgment, on the ground that dismissal of the prior action because of laches did not constitute a termination favorable to the present plaintiffs in the sense in which such a favorable termination is required in order to prosecute a malicious prosecution action. Plaintiff opposed the summary judgment motion and moved, inter alia, for leave to amend its complaint. The trial court granted defendants' summary judgment motion, and denied plaintiff's request for leave to amend. Plaintiff appealed, arguing, inter alia, that it should have been granted leave to amend since it had a right to amend its complaint as a matter of course, pursuant to Code Civ. Proc. § 472[Deering's] .

The court of appeal upheld the trial court's decision. With respect to the plaintiff's argument that it had a right to amend its complaint as a matter of course, the court stated the rule that the right of a plaintiff to amend his or her complaint under Code Civ. Proc. § 472[Deering's] is extended only up to the time that the defendant's answer is filed, and that once the answer is filed, plaintiff's right to amend as a matter of course is gone. In the case before it, the court noted that defendants had answered some time before plaintiff had filed its motion for leave to amend (133 Cal. App. 3d 832, 840).

Amendment Adding New Parties Always Requires Permission

In Taliaferro v. Davis (1963) 220 Cal. App. 2d 793, 34 Cal. Rptr. 120 , a demurrer to plaintiff's original complaint was sustained and motions to strike several portions of the complaint were granted. Plaintiff was allowed to amend his complaint and subsequently filed an amended complaint bringing in an additional defendant. The new defendant thus brought in moved to have the amended complaint stricken insofar as it attempted to add her as a defendant. The trial court granted the motion to strike on the grounds that the complaint was filed without leave of the court. Plaintiff appealed this ruling.

The court of appeal upheld the trial court's striking of the amended complaint. The court held that the right to amend as a matter of course that is set out in Code Civ. Proc. § 472[Deering's] does not permit the bringing in of new parties (220 Cal. App. 2d 793, 795). Rather, the court stated, the bringing in of new parties is dealt with by Code Civ. Proc. § 473[Deering's] , which requires express permission of the court (220 Cal. App. 2d 793, 795).

Permission to Amend Does Not Authorize Addition of New Parties

The facts and procedural background to Taliaferro v. Davis (1963) 220 Cal. App. 2d 793, 34 Cal. Rptr. 120 , are discussed under Amendment Adding New Parties Always Requires Permission, above. In that case, the demurrer of one of the defendants to the original complaint was sustained and the same defendant's motion to strike portions of the complaint was granted, the plaintiff being allowed to amend his complaint. An amended complaint was filed bringing in the present respondent as defendant. This defendant moved to strike the amended complaint insofar as it attempted to add her as a party defendant on the ground that it was filed without authority from the court. The trial couurt granted the motion and plaintiff appealed.

The court of appeal upheld the trial court's order granting the motion to strike. Plaintiff had argued that the permission to amend the original complaint, which the trial court had given on sustaining the originally named defendant's demurrer to the original complaint, authorized plaintiff to bring in an additional party in his amended complaint. The court labeled this argument a non sequitur. The court stated that the permission to amend granted by the court pertained only to the cause of action against the originally named defendant (220 Cal. App. 2d 793, 794). In conclusion, the court stated that leave of court specifically to add new parties was required under Code Civ. Proc. § 473[Deering's] before new parties could properly be added (220 Cal. App. 2d 793, 795).

Phoenix of Hartford Ins. Companies v. Colony Kitchens (1976) 57 Cal. App. 3d 140, 128 Cal. Rptr. 893 , involved a personal injury action in which the original plaintiff alleged that he had sustained damages as a result of an automobile accident caused by negligence of defendant's servant. Defendant answered the original complaint and moved for judgment on the pleadings, asserting that the original complaint showed on its face that the action was barred by the statute of limitations. The trial court sustained the motion for judgment on the pleadings with leave to plaintiff to amend the complaint. Subsequently, an amended complaint was filed adding the original plaintiff's insurer, who had made payments to the original plaintiff under an uninsured motorist policy provision, as a party plaintiff suing by and through its assured, the original plaintiff. In the amended complaint the insurer sought to recover the money it had paid to the original defendant under the uninsured motorist's provision pursuant to Ins. Code § 11580.2[Deering's] (uninsured motorist insurer as subrogated to rights of insured against persons causing damage). The trial court entered judgment in favor of the plaintiffs, and defendant appealed.

The court of appeal reversed the trial court's decision, holding inter alia, that the insurer's action had been improperly joined to that of the original plaintiff. The court stated that the insured's cause of action as stated in the amended complaint was distinct from the original plaintiff's cause of action in that the insurer was seeking to enforce statutorily conferred subrogation rights, while the original plaintiff had been suing in common law tort. The court stated further that if the insurer's action could have been joined to that of the original plaintiff, the joinder might have been effected only on permission by the court to file an amendment pursuant to Code Civ. Proc. § 473[Deering's] , or to intervene pursuant to Code Civ. Proc. § 387[Deering's] (57 Cal. App. 3d 140, 146). The court found such permission to be lacking, holding that the trial court's order that granted permission to amend the original complaint did not authorize an amendment to add a new cause of action on behalf of a new party (57 Cal. App. 3d 140, 147).

The court stated that this was not a case in which a plaintiff in an original complaint amends the complaint so as to prosecute the action in a representative capacity, since the amendment did not state a cause of action under Ins. Code § 11580.2[Deering's] on behalf of the original defendant in any capacity, and Ins. Code § 11580.2[Deering's] did not authorize the original plaintiff to bring a suit under its terms on the insurer's behalf (57 Cal. App. 3d 140, 147).

ADDITIONAL AUTHORITIES

Permission Required After Responsive Pleading Is Filed or Time for Filing Response Passes

The facts and procedural backround of Loser v. E.R. Bacon Co. (1962) 201 Cal. App. 2d 387, 20 Cal. Rptr. 221 , are set out under Discussion of Authorities, Permission Is Required Unless Statute Provides for Amendment of Course, above. In that case, the court held that the right of a plaintiff to amend his or her complaint under the provisions of Code Civ. Proc. § 472[Deering's] (one timely amendment to pleading allowed as a matter of course) is extended only up to the time when the answer is filed (201 Cal. App. 2d 387, 389). The court held that once the answer is filed, the plaintiff's right to amend as a matter of course is gone (201 Cal. App. 2d 387, 389). Thus, the court applied Code Civ. Proc. § 473[Deering's] to the amended complaint filed by the plaintiff (201 Cal. App. 2d 387, 389-390; see discussion under Permission Is Required Unless Statute Provides for Amendment of Course, above).
Form 4 Supporting Motion to Strike Whole or Part of Pleading [Code Civ. Proc. § 435]--Pleading Matter Not Filed or Drawn in Conformity With Law [Code Civ. Proc. § 436(b)]--Pleading Filed by Stranger to Action [Code Civ. Proc. § 387]
[This form should be used in combination with a general form of memorandum of points and authorities supporting a motion to strike (see Form 1), and with a memorandum setting out the point that pleading matter may be stricken for failure to conform to state law (see Form 2). ]

THE _________________ [specify pleading, e.g., COMPLAINT] FILED BY _________________ [name ] SHOULD BE STRICKEN BECAUSE HE/SHE/IT IS NOT A PARTY TO THIS ACTION AND HAS NOT BEEN GRANTED LEAVE TO INTERVENE.

A. Leave of Court Required for Intervention by Nonparty. An intervention takes place when a third person is permitted to become a party to an action between other persons and is made by complaint filed by leave of court ( Code Civ. Proc. § 387[Deering's] ; see Mercantile T. Co. v. Stockton etc. Co. (1919) 44 Cal. App. 558, 186 P. 1049 (case decided under former Code Civ. Proc. § 24 ; now see Code Civ. Proc. § 387[Deering's] )).

B. Pleading Filed Without Permission by Stranger to Action May Be Stricken. A pleading by means of which a person not named as a party defendant seeks to interject himself or herself into a case without leave of the court may be stricken ( Milstein v. Turner (1951) 107 Cal. App. 2d 184, 185, 236 P.2d 606 ).

COMMENTS

Use of Form

These points and authorities may be submitted in support of a motion to strike a pleading filed by a person who was not named as a party to the action and who has not obtained leave of the court to intervene in the action. This form sets out the points that leave of court is required for a nonparty to intervene in an action, and that a pleading filed by a nonparty without such leave may be stricken. The form should be used in combination with a general form of points and authorities [see Form 1] and a form of points and authorities setting out the point that pleading matter that was not drawn or filed in conformity with the laws of this state may be stricken [see Form 2].

Counsel should insert argument in the form, showing the relationship between the facts of the case and the points of law stated.

Use of Pre-1982 Case Law

The cases cited in this form were decided before the 1982 revision of the statutory scheme governing motions to strike. However, since none of the rules set out in these cases are inconsistent with the current statutory provisions, it appears that they are still good law. For discussion of the effect of the 1982 reorganization on prior case law, see 1982 Reorganization of Governing Statutes and Prior Case Law in the Introduction to this chapter, above.

Related Points and Authorities

For forms of points and authorities relating to intervention by third parties generally, see Ch. 124, Intervention, in this set.

DISCUSSION OF AUTHORITIES

Leave of Court Required for Intervention by Nonparty

Mercantile T. Co. v. Stockton etc. Co. (1919) 44 Cal. App. 558, 186 P. 1049 , involved an action to foreclose on a mortgage. The complaint named a railroad company and several fictitious persons under the names of First Doe, Second Doe, etc. as defendants. The complaint alleged that the true names of the fictitious defendants were unknown to plaintiff and prayed that when their names were ascertained the complaint might be amended by inserting their true names in place of the fictitious names. Before the case came to trial, a person who had not been named in the complaint and had not been served with process filed a demurrer to the complaint, identifying himself as a stockholder in the named defendant corporation and alleging that he was in fact the unknown First Doe defendant named in the complaint. Plaintiff moved to strike the demurrer, and the trial court upheld the motion. The person who had filed the demurrer appealed.

The court of appeal upheld the striking of the demurrer. In support of its holding, the court, stated inter alia, that if the person who had filed the demurrer had in fact had an interest that he felt it was his duty to protect by becoming a party to the suit, he could have asked leave of the court to file a petition in intervention pursuant to former Code Civ. Proc. § 24 [now see Code Civ. Proc. § 387[Deering's] ]. Citing extensively from an earlier case on the same point, the court stated that former Code Civ. Proc. § 24 [now see Code Civ. Proc. § 387[Deering's] ] clearly provides that the court and not the intervener determines whether the intervener may come into the case. The court further stated that in order to come into a case, an intervener must obtain leave of the court to make a showing by complaint and must serve the complaint on the other parties, who may answer or demur (44 Cal. App 558, 563).

Pleading Filed Without Permission by Stranger to Action May Be Stricken

Milstein v. Turner (1951) 107 Cal. App. 2d 184, 236 P.2d 606 , involved an action for ejectment. An action had originally been brought by plaintiff against one Turner Sr. to quiet title to a certain plot of land. The decree in that action adjudged that title to the land was vested absolutely in plaintiff with a right to immediate possession. Turner Sr. subsequently brought an action against plaintiff charging that any title that plaintiff had in the land was based on judgments obtained through fraud. This action was still undetermined at the time of the present action. The present action for possession of the premises and damages was brought by plaintiff against one Turner Jr., son of Turner Sr., and his wife, who were in actual possession of the land. Turner Jr. and his wife answered, alleging that since the action for fraud brought by Turner Sr. was still undetermined, plaintiff's title to the land was unclear. After the case had been tried and submitted to the court for decision, Turner Sr., who had not been named a party defendant in the ejectment action, filed an answer, without leave of court and without notice to plaintiff. Plaintiff moved to strike this answer, and the trial court granted the motion. Turner Sr. thereupon appealed.

The court of appeal upheld the trial court's striking of the answer without referring to the facts on which Turner Sr. rested his appeal. The court stated that it was enough to say that, even if Turner Sr. had a most meritorious case against plaintiff, he was not entitled to inject that case into a case instituted by the plaintiff against other parties by the simple device of filing an answer to it. The court therefore concluded that the trial court's order striking Turner Sr.'s answer was correct (107 Cal. App. 2d 184, 187).
Form 5 Supporting Motion to Strike Whole or Part of Pleading [Code Civ. Proc. § 435]--Pleading Matter Not Filed or Drawn in Conformity With Law [Code Civ. Proc. § 436(b)]--Untimely Responsive Pleading [Code Civ. Proc. §§ 412.20(a)(3), 430.40, 432.10, 438(i)(1), 472a(b);
Cal. Rules of Ct., Rule 325(e)]
[This form should be used in combination with a general form of memorandum of points and authorities supporting a motion to strike (see Form 1) and a form of memorandum of points and authorities setting out the point that pleading matter may be stricken for failure to conform to California law (see Form 2). ]

THE _________________ [specify responsive pleading, e.g., ANSWER or DEMURRER] SHOULD BE STRICKEN BECAUSE IT WAS NOT FILED WITHIN THE TIME FOR FILING SUCH PLEADINGS.

A. An Untimely Responsive Pleading Filed Before Entry of Default May Be Stricken. Although the filing of an untimely responsive pleading before entry of default will prevent the default from being entered, the court may in its sound discretion grant a motion to strike such a pleading ( Buck v. Morrossis (1952) 114 Cal. App. 2d 461, 464-465, 250 P.2d 270 ).

[Optional ] B. Time to Respond to Complaint Is 30 Days. The summons served on a defendant must contain a direction that the defendant file or cause to be entered on the docket a pleading in response to the complaint within 30 days of service of the complaint ( Code Civ. Proc. § 412.20(a)(3)[Deering's] ; see Code Civ. Proc. § 430.40(a)[Deering's] (time to demur)).

[Optional ] C. Time to Respond to Cross Complaint Is 30 Days. A party served with a cross complaint may within 30 days after service move, demur, or otherwise plead to the cross complaint in the same manner as to an original complaint ( Code Civ. Proc. § 432.10[Deering's] ).

[Optional ] D. Time to Answer or Amend After Demurrer. If a demurrer is overruled, leave to answer within 10 days is deemed granted, unless the court orders otherwise on terms as may seem just ( Cal. Rules of Ct., Rule 325(e)[Deering's] ; see Code Civ. Proc. § 472a(b)[Deering's] (terms of leave to answer after demurrer as set by court)).

[Optional ] E. Time to Demur to Answer Is 10 Days. A party who has filed a complaint or cross complaint may, within 10 days after service of the answer to his or her pleading, demur to the answer ( Code Civ. Proc. § 430.40(b)[Deering's] ).

[Optional ] F. Failure to Timely File an Amended Pleading After Losing Motion for Judgment on the Pleadings. The party against whom a Code of Civil Procedure Section 438[Deering's] motion for judgment on the pleadings is granted with leave to amend has 30 days to file an amended pleading ( Code Civ. Proc. § 438(h)(2)[Deering's] ). If the party fails to file an amended pleading within that time, or otherwise violates the court order granting the motion, the party that brought the motion for judgment on the pleadings must respond by bringing a motion to strike the amended pleading and for entry of judgment in its favor ( Code Civ. Proc. § 438 (i)(1)(A)[Deering's] ). The provision of Code of Civil Procedure Section 435(b)(1)[Deering's] , limiting the time for motions to strike to the time allowed for responding to a pleading, does not apply when the motion to strike is being made as part of a motion pursuant to Code of Civil Procedure Section 438(i)(1)(A)[Deering's] ( Code Civ. Proc. § 435(b)(1)[Deering's], (e)[Deering's] ).

COMMENTS

Use of Form

These points and authorities may be submitted in support of a motion to strike when the defendant has filed his or her pleading in response to the complaint or other pleading after the time allowed for such response, but before default was entered. This form sets out the point that late-filed responsive pleadings are subject to be stricken at the discretion of the court, and sets out the statutory response times for various responsive pleadings. The form should be used in combination with a general form of points and authorities, setting out the statutory basis for making a motion to strike [see Form 1] and a form of points and authorities setting out the point that pleading matter that was not drawn or filed in conformity with the laws of this state may be stricken [see Form 2].

Counsel should insert argument in the form, showing the relationship between the facts of the case and the points of law stated. In particular, counsel should cite the statute setting out the response time for the responsive pleading and show that the time had run before the the responsive pleading was filed by calling the court's attention to the appropriate filing dates. Counsel should insert additional argument showing why the court, in its discretion, should strike the untimely pleading.

Use of Pre-1982 Case Law

The cases cited in this form were decided before the 1982 revision of the statutory scheme governing motions to strike. However, since none of the rules set out in these cases are inconsistent with the current statutory provisions, it appears that they are still good law. For discussion of the effect of the 1982 reorganization on prior case law, see 1982 Reorganization of Governing Statutes and Prior Case Law in the Introduction to this chapter, above.

Necessity of Moving to Strike Before Default Entered

A responsive pleading does not become a nullity because it was untimely filed, and it will serve to preclude the taking of default unless it is stricken. Thus, when the defendant files a responsive pleading late but before default has been entered, the plaintiff must move to strike the pleading and the motion must be granted before the plaintiff can proceed to obtain entry of default [ Goddard v. Pollock (1974) 37 Cal. App. 3d 137, 141-142, 112 Cal. Rptr. 215 (see discussion under Additional Authorities, An Untimely Responsive Pleading Filed Before Entry of Default May Be Stricken, below)].

It should be noted that in Goddard, above, plaintiffs had filed a motion to strike defendants' untimely responsive pleading after the trial court had erroneously directed entry of the default despite the fact that the pleading was on file before the default had been entered. The court of appeal did not consider this motion to strike in directing that the default be vacated, but stated that the case would have created no problem if the court had had an opportunity to consider the plaintiffs' motion to strike before entry of default had been directed. Thus, it is particularly important that counsel move to strike before attempting to obtain entry of default.

No Necessity of Moving to Strike in Case of Untimely Amended Complaint

The proper procedure for the defendant to follow when a plaintiff untimely files an amended complaint after a demurrer has been sustained is to move to strike the complaint. After the complaint is striken, the defendant may then move for dismissal under Code Civ. Proc. § 581(f)(2)[Deering's] [ Gitmed v. General Motors Corp. (1994) 26 Cal. App. 4th 824, 828, 31 Cal. Rptr. 2d 625 ].

Opposing Points and Authorities

In an appropriate case, the points and authorities set out in Form 41 may be submitted in opposition to a motion to strike supported by the foregoing points and authorities.

DISCUSSION OF AUTHORITIES

An Untimely Responsive Pleading Filed Before Entry of Default May Be Stricken

Buck v. Morrossis (1952) 114 Cal. App. 2d 461, 250 P.2d 270 , involved an action for unlawful detainer and damages brought by plaintiffs as owners and lessors of certain business property against defendant as subtenant in possession of the property. The complaint alleged that defendant had refused to vacate the premises after the lease under which defendant had come into possession of the premises had expired, despite notice from plaintiffs that the lease would not be renewed after it expired. Defendant filed a general and special demurrer 14 days after he had been served with the complaint. Plaintiffs thereupon moved to strike the demurrer on the grounds that it was filed too late, and that it was sham and frivolous. The trial court granted the motion to strike without designating its reasons for so doing, and ordered that defendant's default be entered. The default judgment that was subsequently entered recited inter alia that the demurrer had been stricken for untimeliness. Defendant appealed.

The court of appeal upheld the striking of the demurrer. In framing its holding, the court assumed without deciding that the defendant can raise the question of whether the court had power to strike its demurrer after he had defaulted (p. 464). The court also proceeded from the premise that the demurrer was clearly 11 days late, since the defendant in an unlawful detainer action must plead within three days after service of summons and the defendant in the present case had not filed its demurrer until 14 days after service of summons, and since defendant had conceded that the demurrer was not timely (p. 464).

Preliminarily, the court stated that it is probably the law that a default cannot properly be entered if there is already a pleading on file before the entry of default is made, even if that pleading was untimely (p. 464). With respect to the propriety of the court's order to strike the demurrer, the court restated at length the rule and discussion set out on the point by the court in Cuddahy v. Gragg (1920) 46 Cal. App. 578, 580-581, 189 P. 721 . Citing Cuddahy, the court stated that it is proper practice for the plaintiff to move to strike a pleading that was filed late, but before entry of default, and that the trial court may very properly grant such a motion in the exercise of a sound discretion. The court further restated from Cuddahy the thesis that the plaintiff has no absolute right to have a pleading stricken from the files merely because it was not filed in time; and that on the other hand the defendant has no right to have his or her belated pleading remain in the files, since a defendant cannot as of right after the expiration of the time prescribed by statute (p. 465). The court further stated that it would be a logical absurdity to hold that a defendant in an unlawful detainer proceeding, which under the law is entitled to priority and in which speedy determination is essential, could stall proceedings and engage in dilatory tactics by the simple device of filing a late demurrer (p. 465).

The court dismissed defendant's argument that the court had no power to strike the demurrer as sham and frivolous, stating that it was because of its lateness and not because of its character as sham that the demurrer was stricken. Thus, the court noted that although the strike order itself had not stated a reason for striking the demurrer, the default judgment had recited that the demurrer had been stricken on the grounds of untimeliness. The court stated furthermore that even if this judgment cannot be used to explain the order, the order standing alone would have to be upheld if it can be sustained on any of the grounds urged in the motion (p. 465).

ADDITIONAL AUTHORITIES

An Untimely Responsive Pleading Filed Before Entry of Default May Be Stricken

In Goddard v. Pollock (1974) 37 Cal. App. 3d 137, 112 Cal. Rptr. 215 , plaintiffs alleged that they had purchased certain bonds from defendants that defendants had refused to redeem and on which defendants had refused to pay interest. After the time for a responsive pleading stated in the complaint had passed, defendants filed a motion to quash service. Plaintiffs' request to enter defendants' default was received after the motion to quash had been filed. The trial court subsequently ordered defendants' default to be entered and denied a motion by defendants to vacate the default. After the trial court had directed the entry of default, plaintiffs filed a motion to strike defendants' motion to quash. Defendants appealed the trial court's order denying the motion to vacate the default.

The court of appeal overturned the trial court's order. The court held that the notice of motion to quash had been in the files at the time when the request for entry of default was received by the clerk and that the presence of this motion in the files was sufficient to preclude entry of the default (37 Cal. App. 3d 137, 141-143). The court cited Buck v. Morrossis (1952) 114 Cal. App. 2d 461, 464-465, 250 P.2d 270 , for the rule that the proper procedure in a case in which an untimely pleading has been filed is for the plaintiff to move to strike the defendant's untimely pleading and if the court grants such relief, thereafter to proceed to obtain the entry of default (37 Cal. App. 3d 137, 141). The court further stated that the case would have created no problem if plaintiffs had filed their motion to strike the defendants' motion to quash service before the court had directed the clerk to enter the default. However, the court noted that the plaintiffs did not file their motion to strike until 12 days after the court had directed entry of the default, and made no futher comment as to whether the motion should or should not have been granted (37 Cal. App. 3d 137, 141, 142).
Form 6 Supporting Motion to Strike Whole or Part of Pleading [Code Civ. Proc. § 435]--Pleading Matter Not Filed or Drawn in Conformity With Law [Code Civ. Proc. § 436(b)]--Unverified Answer to Verified Complaint [Code Civ. Proc. §§ 431.30(d), 446]
[This form should be used in combination with a general form of memorandum of points and authorities supporting a motion to strike (see Form 1), and a memorandum of points and authorities setting out the point that pleading matter not drawn or filed in conformity with California law may be stricken (see Form 2). ]

AN UNVERIFIED ANSWER TO A VERIFIED COMPLAINT IS SUBJECT TO BE STRICKEN.

A. Answer to Verified Complaint Must Be Verified. When the complaint is verified, the answer must be verified, unless the complaint is subject to Code of Civil Procedure Sections 90-100[Deering's] , governing economic litigation in limited civil cases ( Code Civ. Proc. §§ 92(b)[Deering's], 446[Deering's] ). In addition, subject to the same exception, the answer to a verified complaint, must deny allegations positively or according to the information and belief of the defendant ( Code Civ. Proc. § 431.30(d)[Deering's] ). [Even if the complaint is subject to Code of Civil Procedure Sections 90-100[Deering's] , if the cause of action is a claim assigned to a third party for collection, the answer must deny allegations positively or according to the information and belief of the defendant ( Code Civ. Proc. §§ 431.30(d)[Deering's] ).]

B. An Unverified Answer to a Verified Complaint Is Subject to Motion to Strike. When verification of the complaint requires the defendant to file an verified answer, the defendant's unverified answer constitutes an admission of all material allegation in the verified complaint, and either an order granting a motion to strike the answer or an order granting a motion for judgment on the pleadings may properly be made by the court (see Code Civ. Proc. § 431.30(d)[Deering's]; see also DeCamp v. First Kensington Corp. (1978) 83 Cal. App. 3d 268, 282-283, 147 Cal. Rptr. 869 ).

COMMENTS

Use of Form

These points and authorities may be submitted in support of a motion to strike an unverified answer to a verified complaint. The form sets out the point that an unverified answer to a verified complaint may be stricken, unless the complaint is subject to Code Civ. Proc. § 90[Deering's] et seq. (economic litigation in limited civil cases) [ Code Civ. Proc. §§ 92(b)[Deering's], 446[Deering's] ]. Verification of the complaint also precludes a general denial, unless the compliant is subject to Code of Civil Procedure Sections 90-100[Deering's] . However, even if the complaint is subject to Sections 90-100, if the cause of action is a claim assigned to a third party for collection, general denial is precluded [ Code Civ. Proc. § 431.30(d)[Deering's] ]. The optional phrase in brackets at the end of Paragraph A, is for use in the latter situation.

The form should be used in combination with a general form of points and authorities setting out the statutory basis for making a motion to strike [see Form 1] and a form of points and authorities setting out the point that pleading matter that was not drawn or filed in conformity with the laws of this state may be stricken [see Form 2].

Counsel should insert argument in the form, showing the relationship between the facts of the case and the points of law stated.

When Answer to Verified Complaint Must Be Verified

The general rule of verification of pleadings is that when the complaint is verified, the answer must be verified [see Code Civ. Proc. § 446[Deering's] ]. However, an answer to a complaint or cross complaint filed pursuant to economic litigation procedures in limited civil cases need not be verified, even if the complaint or cross complaint is verified [ Code Civ. Proc. § 92(b)[Deering's] ]. All limited civil cases are subject to the economic litigation provisions of Code Civ. Proc. § 90[Deering's] et seq. except actions in small claims court, unlawful detainer, forcible detainer, and forcible entry [ Code Civ. Proc. § 91(b)[Deering's] ].

If the complaint is not verified or if it is subject to the economic litigation procedures, a general denial is sufficient, but only puts in issue the material allegations of the complaint. If the complaint is verified, the denial of the allegations must be made positively or according to the information and belief of the defendant, unless the complaint is subject to the economic litigation procedures. Even if the verified complaint is subject to the economic litigation procedures, if the cause of action is a claim assigned to a third party for collection, the answer must be made positively or according to the information and belief of the defendant [ Code Civ. Proc. § 431.30(d)[Deering's] ].

Validity of Pre-1985 Case Law

DeCamp v. First Kensington Corp. (1978) 83 Cal. App. 3d 268, 147 Cal. Rptr. 869 , which is cited in Paragraph B of this form, was decided before the 1985 amendments to Code Civ. Proc. § 431.30[Deering's] , operative January 1, 1986. In addition, the action was decided before the 1982 revision of the statutory scheme governing motions to strike. Because the rule set out in Decamp is not inconsistent with the current statutory provisions, it appears that it is still good law. For discussion of the effect of the 1982 reorganization on prior case law, see 1982 Reorganization of Governing Statutes and Prior Case Law in the Introduction to this chapter, above.

Necessity of Raising Objection

If there is a defect in the verification of the defendant's answer, the plaintiff must move in timely fashion, either to strike the answer or for judgment for want of an answer. If the plaintiff goes to trial on the merits without objecting to the verification defect he or she will be deemed to have waived all objections on the point [ McCullough v. Clark (1871) 41 Cal. 298, 302 ; Zavala v. Board of Trustees (1993) 61 Cal. App. 4th 1755, 1761, 20 Cal. Rptr. 2d 768 ; Ware v. Stafford (1962) 206 Cal. App. 2d 232, 237, 24 Cal. Rptr. 153 ].

Motion for Judgment on Pleadings as Alternative

Under Code Civ. Proc. § 446[Deering's] , the filing of an unverified answer to a verified complaint constitutes an admission of all of the allegations of the complaint, unless the complaint is subject to Code Civ. Proc. § 90[Deering's] et seq. (economic litigation in limited civil cases) [see Code Civ. Proc. §§ 92(b)[Deering's], 446[Deering's] ]. Thus, a motion for judgment on the pleadings on the grounds that the answer does not state a defense may be used as an alternative procedure to a motion to strike the answer when the answer is unverified and not within any statutory exception to Code Civ. Proc. § 446[Deering's] [see Code Civ. Proc. § 431.30(d)[Deering's] ; see also Hearst v. Hart (1900) 128 Cal. 327, 328, 60 P. 846 ; DeCamp v. First Kensington Corp. (1978) 83 Cal. App. 3d 268, 282, 283, 147 Cal. Rptr. 869 (decided prior to 1985 amendment to Code Civ. Proc. § 431.30(d)[Deering's] )].

DISCUSSION OF AUTHORITIES

An Unverified Answer to a Verified Complaint Is Subject to Be Stricken

DeCamp v. First Kensington Corp. (1978) 83 Cal. App. 3d 268, 147 Cal. Rptr. 869 , was an action for fraud. After defendants' demurrer was overruled, defendants filed an unverified answer to the complaint containing only a general denial. A statement was included in the answer asserting that to require defendants to verify their answer would violate defendants' right to protection from self-incrimination under the Fifth and Fourteenth Amendments to the United States Constitution . Plaintiff thereupon filed a motion to strike the answer or, alternatively, for judgment on the pleadings on the ground that the answer failed to comply with former Code Civ. Proc. §§ 431.30(d) (denials to verified complaint as required to be made positively or according to information and belief) and 446 (answer to verified complaint as required to be verified) and therefore constituted an admission of the allegations of the complaint. After continuing hearing on the motion several times due to the continuing absence of the personal defendant and all officers of the corporate defendant from the state, the court granted plaintiff's motion to strike the unverified answer and entered defendants' default. Defendants appealed.

The court of appeal upheld the trial court's decision. The court cited Hearst v. Hart (1900) 128 Cal. 327, 328, 60 P. 846 , for the rule that when the defendant's answer is not properly verified the plaintiff should move in the trial court either to strike out the answer or for judgment for want of an answer (83 Cal. App. 3d 268, 283).

Defendants had argued that the trial court should have granted them leave to amend by verifying the answer after ordering the answer stricken, relying on a rule that a party who has sustained an adverse judgment on the pleadings is entitled to the same opportunity to amend his or her pleading that such party would have had after normal ruling on a demurrer. The court acknowledged that this argument would have merit if the court's order were a judgment on the pleadings based on substantive insufficiency of the allegations. However, the court stated that the basis of the court's ruling was not substantive insufficiency, but rather the fact that the unverified complaint constituted an admission of all of the material allegations of the complaint (83 Cal. App. 3d 268, 282). In support of this holding, the court cited Hearst, above, to the effect that there is no substantive difference between a judgment rendered on default for want of an answer, as was done after the answer was stricken in the present case, and a judgment rendered on an answer that under the Code of Civil Procedure admits all of the allegations of the complaint (83 Cal. App. 3d 268, 283). The court concluded that while, as noted above, either an order striking the answer or a judgment on the pleadings would have been appropriate under the circumstances, neither type of order was equivalent to sustaining a demurrer under the circumstances of the case (83 Cal. App. 3d 268, 282).

The court did, however, hold that the personal defendant should have the opportunity to add a verification by way of amendment for the separate reason that because the law had not yet been clarified on the point when the defendant had filed his answer, the defendant had reasonably feared that a verified answer might be used against him in criminal proceedings (83 Cal. App. 3d 268, 283). The court stated that the corporate defendant had no right to add a verification on this ground, since as a corporation it had no self-incrimination privilege of its own and it had never had standing to assert the personal defendant's self-incrimination privilege on its own behalf (83 Cal. App. 3d 268, 280, 282).

ADDITIONAL AUTHORITIES

An Unverified Answer to a Verified Complaint Is Subject to Motion to Strike

Hearst v. Hart (1900) 128 Cal. 327, 60 P. 846 , was a suit on a promissory note in which defendant responded to the complaint with an unverified answer containing a general denial. Plaintiff moved for and the trial court granted judgment on the pleadings, from which defendant appealed.

The Supreme Court affirmed the judgment of the trial court. The Court stated in response to the defendant's argument that the proper procedure for plaintiff would have been to move to strike the answer that either a motion to strike or a motion for judgment on the pleadings on the ground that the answer set up no defense would have been proper (128 Cal. 327, 328).

In Zavala v. Board of Trustees (1993) 61 Cal. App. 4th 1755, 20 Cal. Rptr. 2d 768 , a medical malpractice action, the defendant filed an unverified answer to the complaint, which had been verified by the plaintiff's attorney. When the defendant moved for nonsuit after the plaintiff had presented her case, the plaintiff moved for judgment on the pleadings based on defendant's failure to verify the answer. On appeal, the court held that the plaintiff had waived the objection by proceeding to trial. The court noted that the proper objection where a party fails to verify a pleading is a motion to strike (61 Cal. App. 4th 1755, 1761).
Form 7 Supporting Motion to Strike Whole or Part of Pleading [Code Civ. Proc. § 435]--Irremediable Failure to State Cause of Action [Code Civ. Proc. §§ 426, 431.10, 436]
[This form should be used in combination with a general form of memorandum of points and authorities supporting a motion to strike (see Form 1). This form may also be used in combination with a form of memorandum of points and authorities setting out the point that improper pleading matter may be stricken (see Form 30), a form of memorandum of points and authorities setting out the point that irrelevant matter may be stricken from a pleading (see Form 20) and a form of memorandum of points and authorities setting out the point that pleading matter may be stricken for failure to comform to the laws of California (see Form 2). ]

THE COMPLAINT SHOULD BE STRICKEN BECAUSE IT IS EVIDENTLY UNABLE TO STATE A CAUSE OF ACTION.

A. Complaint Must State Facts Constituting Cause of Action. A complaint or cross complaint must contain a statement of facts constituting a cause of action in ordinary and concise language ( Code Civ. Proc. § 425.10(a)[Deering's] ).

B. Demand for Relief Not Supported by Allegations May Be Stricken. A demand for judgment requesting relief not supported by the allegations of the complaint or cross complaint is an immaterial allegation and may be stricken as irrelevant matter ( Code Civ. Proc. § 431.10(b)(3)[Deering's] ; see Code Civ. Proc. §§ 431.10(c)[Deering's], 436(a)[Deering's] ).

C. Allegations That Cannot Be Rendered Sufficient to State Cause of Action May Be Stricken. Allegations that do not state a cause of action may be stricken from a pleading if it appears that amendments could not have corrected the defects of any part of the pleading and the party who filed the challenged pleading is not prejudiced by the order to strike ( Wilson v. Sharp (1954) 42 Cal. 2d 675, 677, 268 P.2d 1062 ; see Hill v. Wrather (1958) 158 Cal. App. 2d 818, 823, 323 P.2d 567 (decided under former Code Civ. Proc. § 453 ; now see Code Civ. Proc. § 436(a)[Deering's] ).

COMMENTS

Use of Form

These points and authorities should be used when the opposing party's complaint or cross complaint fails to state a cause of action, and it is evident that the complaint or cross complaint would not be able to state a cause of action even if it were amended. The form should be combined with Form 1, which sets out the basic statutory authority for making a motion to strike. This form may also be combined with Form 20, which sets out the statutory basis for the court's power to strike immaterial allegations from a pleading as irrelevant matter, and Form 2, which sets out the statutory basis for the court's authority to wholly or partially strike a pleading that was not drawn in conformity with law.

Counsel should insert argument in the foregoing form, showing the relationship between the facts of the case and the points of law stated.

Basis of Authority for Striking

Most of the pre-1982 cases upholding the striking of pleading allegations that irremediably fail to state a cause of action simply uphold such orders to strike without discussing the authority therefore [see, e.g., Wilson v. Sharp (1954) 42 Cal. 2d 675, 677, 268 P.2d 1062 (discussed in Discussion of Authorities, Allegations That Cannot Be Rendered Sufficient to State Cause of Action May Be Stricken, infra); Garza v. Kantor (1976) 54 Cal. App. 3d 1025, 1026-1029, 127 Cal. Rptr. 124 (discussed in Additional Authorities, under Allegations That Cannot Be Rendered Sufficient to State Cause of Action May Be Stricken, infra)]. Hill v. Wrather (1958) 158 Cal. App. 2d 818, 823, 323 P.2d 567 (discussed in Discussion of Authorities, infra) states that a cross complaint that consists entirely of allegations that fail irremediably to state a cause of action may be stricken as irrelevant and redundant. Irrelevant material may now be stricken under the statutory authority of Code Civ. Proc. § 436(a)[Deering's] . A demand for judgment requesting relief not supported by the allegations of the complaint or cross complaint may be stricken under Code Civ. Proc. § 431.10(b)(1)[Deering's] (immaterial allegations), together with Code Civ. Proc. § 431.10(c)[Deering's] (immaterial allegation as irrelevant matter) and Code Civ. Proc. § 436(a)[Deering's] (irrelevant matter as subject to be stricken). For discussion of the striking of irrelevant pleading matter generally, see Form 20, below.

Since Code Civ. Proc. § 425.10(a)[Deering's] requires that a complaint state a cause of action, counsel might also urge that a complaint or cross complaint that irremediably fails to state a cause of action should be stricken under Code Civ. Proc. § 436(b)[Deering's] as being not in conformity with the laws of California.

Related Points and Authorities

For points and authorities supporting and opposing a demurrer which asserts that a complaint fails to state a cause of action, see Ch. 71, Demurrers and Motions for Judgment on the Pleadings in this set.

DISCUSSION OF AUTHORITIES

Allegations Which Cannot Be Rendered Sufficient to State Cause of Action May Be Stricken

Wilson v. Sharp (1954) 42 Cal. 2d 675, 268 P.2d 1062 , involved an action by a taxpayer purporting to be acting on behalf of the county to recover salary alleged to have been illegally paid to one of the defendants, to enjoin future payment of such salary, and to obtain judgment declaring the rights and duties of the defendants. The complaint alleged that the defendant who had received the salary had been appointed to his position through an invalid promotional examination. An amended complaint filed by the plaintiff, inter alia, purported to state a cause of action against the county counsel of the county that had employed the defendant official for failure to act to recover the salary paid to the official before the statute of limitations for such recovery ran. The trial court granted a motion to strike this cause of action. This order removed the only cause of action alleged against the county counsel, thus rendering the order appealable (p. 677). The plaintiff appealed.

The court of appeal upheld the trial court's order. The plaintiff had argued that Gov. Code § 26525[Deering's] (illegal payments by Board of Supervisors) required the county counsel to take action to recover salary paid illegally by the county to county officials (pp. 677-678). The court held, however, that Gov. Code § 26525[Deering's] did not create a cause of action for private persons against a county counsel who, in exercising his or her discretion, failed to take action to recover salaries that were purportedly illegally paid to county officials (pp. 678-679). The court held that it followed from this that the challenged allegations of the amended complaint failed to state a cause of action, and that the plaintiff was therefore not prejudiced by the order striking the allegation (p. 679).

The court did not specify what it meant in holding that the plaintiff was not prejudiced by the order to strike the challenged allegations. However, at page 677, the court cited a series of cases in support of its holding in which the court had found the challenged pleading matter to have not only failed to state a cause of action as written, but to be incapable of stating a cause of action even if amended [see Barr Lbr. Co. v. Shaffer (1951) 108 Cal. App. 2d 14, 23, 238 P.2d 99 ].

The court also held that the objection that a complaint does not state a cause of action is not waived by a failure to demur, but may be raised at any time (p. 677).

Hill v. Wrather (1958) 158 Cal. App. 2d 818, 323 P.2d 567 , was an action on a promissory note arising out of a transaction involving transfer of interest in a television station. Defendants filed a cross complaint and a first amended answer alleging fraud on the part of plaintiff. The factual basis of defendants' fraud allegation was that plaintiff and one Alvarez, who held interest in the television station with plaintiff, had misrepresented the nature of their relationship, causing the defendants to believe that they were dealing at arms length with each other, when they were in fact either married or living as husband and wife. Defen- dants alleged that they had relied on their belief that plaintiff and Alvarez were dealing with each other at arms length in agreeing to purchase the plaintiff's interest in the television station and convey a portion of their interest in the station to Alvarez in return for her services in managing the station. The trial court granted a motion to strike the cross complaint and those portions of the first amended answer that set out the fraud allegations, and placed plaintiff's demurrer to the cross complaint off calendar. Judgment for plaintiff followed, and defendants appealed.

The court of appeal upheld the trial court's order to strike. The court cited language of former Code Civ. Proc. § 453 providing that irrelevant and redundant material may be stricken from a pleading as authority for striking the material in the present case [now see Code Civ. Proc. § 436(a)[Deering's] (irrelevant material as subject to be stricken)] (158 Cal. App. 2d 818, 823). However, the court acknowledged that the rule that irrelevant and redundant material may be stricken from a pleading was qualified by the rule that a motion to strike cannot be made to serve the purposes of a special demurrer, and that when a motion to strike is so broad as to reach matters that are relevant it should be denied in its entirety. In this case in particular, the court noted that since the entire cross complaint was stricken and the demurrer to it was placed off calendar without ruling, the defendants were deprived of the right to amend if the pleading was faulty in any particular way that could have been corrected by amendment. Thus, the court indicated that the basic issues were whether the cross complaint stated a cause of action, and whether under the facts alleged an amendment might correct any defects in the pleading (158 Cal. App. 2d 818, 823).

Applying the above-stated reasoning to the facts, the court stated that there was no allegation or suggestion that the concealed relationship caused the value of the stock purchased to be less than it would otherwise have been, or that Alvarez failed to carry out the services that she was expected to perform in managing the station (158 Cal. App. 2d 818, 824-825). The court held that measured against the rules governing pleading of fraud, the cross complaint failed to state a cause of action in that its allegations failed to establish that the defendants had suffered any detriment as a result of the claimed fraud, and that it further appeared from the facts pleaded that the amendment could not serve to correct this defect (158 Cal. App. 2d 818, 823).

ADDITIONAL AUTHORITIES

Allegations That Cannot Be Rendered Sufficient to State Cause of Action May Be Stricken

In Lodi v. Lodi (1985) 173 Cal. App. 3d 628, 219 Cal. Rptr. 117 , plaintiff filed a complaint against himself, in which he alleged that defendant was the beneficiary of a ``charitable trust,'' the estate of which was to revert to plaintiff on notice. Plaintiff further alleged that he had given defendant written notice of termination of the trust, but defendant refused to relinquish control of the estate. Plaintiff sought to terminate all claims to his estate by defendant or any person claiming under him. Plaintiff served himself, as defendant, and mailed a complimentary copy of the complaint to the Internal Revenue Service. Defendant failed to file a timely answer, and plaintiff requested entry of a default judgment. The trial court denied this request and dismissed the complaint. Plaintiff appealed the dismissal, and the court of appeal affirmed (173 Cal. App. 3d 628, 630, 632). The court held that the trial court was empowered to strike or dismiss the complaint sua sponte under Code Civ. Proc. § 436(b)[Deering's] , because the complaint failed to state a cause of action under Code Civ. Proc. § 425.10[Deering's] and was therefore not drawn in conformity with the laws of the state. The court noted that there was no apparent prospect of saving the pleading by amendment (173 Cal. App. 3d 628, 630-631).

Garza v. Kantor (1976) 54 Cal. App. 3d 1025, 127 Cal. Rptr. 124 , involved an action by several minor children for the loss of consortium of their father. The trial court entered a minute order striking plaintiffs' allegations as to loss of parental consortium from the first amended complaint, and plaintiffs appealed. The court of appeal upheld the order to strike for the stated reason that there was no cause of action for loss of parental consortium under California law, without comment on the propriety of striking pleading matter that thus fails to state a cause of action (54 Cal. App. 3d 1025, 1027-1028).
Forms 8-9 [Reserved]

Form 10 Supporting Special Motion to Strike Action Against Constitutionally Privileged Conduct (SLAPP Suit)
[Code Civ. Proc. § 425.16(b)]
SUPERIOR COURT OF CALIFORNIA
COUNTY OF __________________________________


)NO. _______________
_________________________ [name ])MEMORANDUM OF POINTS
)AND AUTHORITIES IN
)SUPPORT OF SPECIAL
)MOTION TO STRIKE
Plaintiff, )Date: _______________
vs. )Time: _______________
_________________________ [name ],)Location: _____________
Defendant. )[Judge: _______________
)]
)Date Action Filed: ____
)[Trial Date: __________
)]
)


THE COURT SHOULD STRIKE _________________ [specify the matter identified in the notice of motion, e.g., THE COMPLAINT FOR INTERFERENCE WITH CONTRACTUAL AND PROSPECTIVE ECONOMIC RELATIONS] BECAUSE DEFENDANT'S CONSTITUTIONAL RIGHT[S] OF _________________ [specify, e.g., PETITION AND FREE SPEECH] WILL BE CHILLED IF IT IS ALLOWED TO STAND AND PLAINTIFF IS ALLOWED TO CONTINUE PROSECUTING IT.

A. Action Against Constitutionally Privileged Conduct Is Subject to Special Motion to Strike. A cause of action against a person arising from any act of that person in furtherance of the person's constitutional right of petition or free speech in connection with a public issue is subject to a special motion to strike unless plaintiff establishes that there is a probability that plaintiff will prevail on the claim ( Code Civ. Proc. § 425.16(b)[Deering's] ). Code of Civil Procedure § 425.16[Deering's] is to be construed broadly ( Code Civ. Proc. § 425.16(a)[Deering's] ).

B. Act in Furtherance of a Person's Constitutional Right of Petition or Free Speech in Connection with a Public Issue Defined. As used in Section 425.16[Deering's] of the Code of Civil Procedure , ``act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue'' includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest ( Code Civ. Proc. § 425.16(e)[Deering's] ).

C. Defendant is Not Required to Demonstrate or Plead an Intent to Chill First Amendment Rights. Code of Civil Procedure § 425.16[Deering's] contains no requirement that a defendant show that the plaintiff brought the lawsuit with an intent to chill defendant's rights, nor does the statue require an intent-to-chill pleading or proof requirement ( Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 60, 124 Cal. Rptr. 2d 507 ; City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 75, 124 Cal. Rptr. 2d 519 ; Navellier v. Sletten (2002) 29 Cal. 4th 82, 88, 124 Cal. Rptr. 2d 530 ).

[Optional ] D. No Separate Showing of Public Significance Required if Action Arises From Statements Made Before, or in Connection With Issue Under Consideration by, Official Proceeding. A defendant moving to strike a cause of action arising from a statement made before, or in connection with an issue under consideration by, a legally authorized official proceeding need not separately demonstrate that the statement concerned an issue of public significance ( Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal. 4th 1106, 1123, 81 Cal. Rptr. 2d 471, 969 P.2d 564 ).

E. Plaintiff's Burden Arises After Defendant's Prima Facie Showing That Code of Civil Procedure Section 425.16[Deering's] Applies. To prevail on a special motion to strike under Code of Civil Procedure Section 425.16[Deering's] , defendant must make a threshold showing that plaintiff's suit arises from defendant's acts in furtherance of his or her rights of petition and free speech under the United States or California Constitution in connection with a public issue. Once the defendant has made such a showing, the burden shifts to the plaintiff to establish a probability that he/she/it will prevail on the claim ( Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 60, 124 Cal. Rptr. 2d 507 ; City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 75, 124 Cal. Rptr. 2d 519 ; Navellier v. Sletten (2002) 29 Cal. 4th 82, 88, 124 Cal. Rptr. 2d 530 ; Fox Searchlight Pictures v. Paladino (2001) 89 Cal. App. 4th 294, 307, 106 Cal. Rptr. 2d 906 ; Dixon v. Superior Court (1994) 30 Cal. App. 4th 733, 742, 36 Cal. Rptr. 2d 687 ; Wilcox v. Superior Court (1994) 27 Cal. App. 4th 809, 820, 33 Cal. Rptr. 2d 446 ). Defendant has clearly met his/her/its burden in that _________________ [tie facts in with one or more of the four Code Civ. Proc. § 425.16(e)[Deering's] definitions of acts in furtherance of a person's rights of petition and free speech under the United States or California Constitution in connection with a public issue ].

[Optional ] F. Plaintiff Cannot Establish Probability of Prevailing on Claims Against Defendant. To establish a probability of success on the merits, the plaintiff must make a prima facie showing of facts that would, if proved at trial, support a judgment in plaintiff's favor ( Dixon v. Superior Court (1994) 30 Cal. App. 4th 733, 744, 36 Cal. Rptr. 2d 687 ; Wilcox v. Superior Court (1994) 27 Cal. App. 4th 809, 824, 33 Cal. Rptr. 2d 446 ). [Plaintiff must make this showing with admissible evidence. In other word, plaintiff must produce evidence which, if presented at trial, would withstand motions for a nonsuit or directed verdict ( Marich v. QRZ Media, Inc. (1999) 73 Cal. App. 4th 299, 306-307, 86 Cal. Rptr. 2d 406 (Petition for Review pending before California Supreme Court; S081294).]

[Optional ] G. Constitutional Protection Available for Speech Alleged to Constitute Intentional Interference with Prospective Economic Advantage. The First Amendment to the United States Constitution protects speech consisting either of true facts or opinions that are alleged to constitute intentional interference with prospective economic advantage ( Hofmann Co. v. E.I. Du Pont de Nemours and Co. (1988) 202 Cal. App. 3d 390, 402-403, 248 Cal. Rptr. 384 ; accord, Paradise Hills Associates v. Procel (1991) 235 Cal. App. 3d 1528, 1542-1545, 1 Cal. Rptr. 2d 514 ).

[Optional ] H. Averments on Information and Belief Are Inadequate in Supporting Declaration. An averment on information and belief is inadmissible at trial, and thus cannot show a probability of prevailing on a claim ( Evans v. Unkow (1995) 38 Cal. App. 4th 1490, 1498, 45 Cal. Rptr. 2d 624 ).

[Optional ] I. Timely Motion to Strike Is Proper. The special motion to strike may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper ( Code Civ. Proc. § 425.16(f)[Deering's] ).

[Optional ] J. Prevailing Defendant Is Entitled to Attorney's Fees and Costs. A defendant prevailing on a special motion to strike is entitled to recover his or her attorney's fees and costs ( Code Civ. Proc. § 425.16(c)[Deering's] ).

[Optional ] K. Discovery Proceedings Are Stayed. All discovery proceedings are stayed upon the filing of a notice of special motion to strike ( Code Civ. Proc. § 425.16(g)[Deering's] ).

[Optional ] L. Commercial Conduct and Speech. Commercial conduct and speech made in connection with an issue of public concern under consideration by a legislative body are subject to protection under Code of Civil Procedure Section 425.16[Deering's] . Code of Civil Procedure Section 425.16[Deering's] is to be broadly construed to be applicable to any statement, writing or conduct made in connection with an issue of public concern which is under consideration or review by a legislative body or which is made in preparation for such review ( Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal. App. 4th 713, 728, 77 Cal. Rptr. 2d 1 (disapproved on other grounds in Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal. 4th 1106, 1123 n.10, 81 Cal. Rptr. 2d 471, 969 P.2d 564 )).

[Optional ] M. Code Civ. Proc. § 425.16[Deering's] to Be Construed Broadly. In Section 425.16(a)[Deering's] of the Code of Civil Procedure the Legislature has declared that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, the section shall be construed broadly ( Code Civ. Proc. § 425.16(a)[Deering's] ; last sentence added by Stats. 1997, ch. 271 § 1). The 1997 amendment to Section 425.16 mandates a broad construction of that section ( Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal. 4th 1106, 1119-1121, 81 Cal. Rptr. 2d 471, 969 P.2d 564 ).

Respectfully submitted,
_________________ [firm name, if any ]
By: _________________ [signature ]
_________________ [typed name ]
Attorney for Defendant _________________
[name ]

COMMENTS

Use of Form

These points and authorities may be submitted in support of a special motion to strike the whole or any part of a complaint or cross complaint setting forth a cause of action against a person arising from any act of that person in furtherance of the person's constitutionally protected right of petition or free speech in connection with a public issue [ Code Civ. Proc. § 425.16(b)[Deering's] ]. That is, this motion provides a procedure to cut off strategic lawsuits against public participation, commonly known as SLAPP suits.

Depending on the circumstances, the language in the parenthetical in optional point E, and optional point G, may be more appropriate to be included in a defendant reply memorandum of points and authorities.

Counsel should insert facts and argument in the form to show the relationship between the facts of the case and the points of law stated.

Timing of Motion and Hearing

In contrast to the usual form of motion to strike matters from a complaint or cross complaint [see Code Civ. Proc. § 435(b)(1)[Deering's] (notice of motion must be filed within time allowed to file response to pleading)], the special motion may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms the court deems proper [ Code Civ. Proc. § 425.16(f)[Deering's] ]. One court has held that the 60-day requirement in Code Civ. Proc. § 425.16(f)[Deering's] for filing an anti-SLAPP motion runs from the service of the complaint or an amended complaint, and if the amended complaint is served by mail, defendant has an extra 5 days in which to file the motion [ Lam v. Ngo (2001) 91 Cal. App. 4th 832, 840-842, 111 Cal. Rptr. 2d 582 ].

The motion must be noticed for hearing not more than 30 days after service unless the docket conditions of the court require a later hearing [ Code Civ. Proc. § 425.16(f)[Deering's] ].

Attorney's Fees and Costs

Code Civ. Proc. § 425.16(c)[Deering's] expressly authorizes a defendant who prevails on a special motion to strike to recover attorney's fees and costs. Conversely, if the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court is required to award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Code Civ. Proc. § 128.5[Deering's] [ Code Civ. Proc. § 425.16(c)[Deering's] ].

Code Civ. Proc. § 128.5[Deering's] applies only to actions filed before 1995. Code Civ. Proc. § 128.7[Deering's] provides for sanctions with regard to complaints filed on or after January 1, 1995 (and through 2002), and with regard to pleadings and other papers filed in those matters. On and after January 1, 2003, Code Civ. Proc. § 128.6[Deering's] will govern sanctions unless the Legislature changes that date. Although Code Civ. Proc. § 425.16[Deering's] refers expressly only to Code Civ. Proc. § 128.5[Deering's] , Code Civ. Proc. § 128.7[Deering's] by its own terms applies to all papers presented to the court. For points and authorities pertaining to sanctions under Code Civ. Proc. § 128.7[Deering's] , see Ch. 207, Sanctions, Pt. II, in this publication. For further discussion of Code Civ. Proc. §§ 128.5[Deering's], 128.6[Deering's], and 128.7[Deering's] , see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 510, Sanctions (Matthew Bender).

When a plaintiff voluntarily dismisses an alleged SLAPP suit while a motion to strike is pending under Code Civ. Proc. § 425.16[Deering's] , one court has held that the trial court has discretion to determine whether the defendant is the prevailing party for purposes of attorney's fees under Code Civ. Proc. § 425.16(c)[Deering's] [ Coltrain v. Shewalter (1998) 66 Cal. App. 4th 94, 107, 77 Cal. Rptr. 2d 600 (Fourth Dist., Div. Two; voluntary dismissal without prejudice)]. Another court has held that a defendant who voluntarily dismisses, with or without prejudice, after filing a Code Civ. Proc. § 425.16[Deering's] motion to strike, is nevertheless entitled to have the merits of the motion heard as a predicate to a determination of the defendant's motion for attorney's fees and costs under Code Civ. Proc. § 425.16(c)[Deering's] [ Liu v. Moore (1999) 69 Cal. App. 4th 745, 751, 81 Cal. Rptr. 2d 807 (Second Dist., Div. Three; disagreed with Coltrain reasoning)]. Moreover, it has been held that Code Civ. Proc. § 128.7[Deering's] is not a viable alternative to the attorney's fees and costs relief afforded by Code Civ. Proc. § 425.16[Deering's] when there has been a voluntary dismissal while a Section 425.16 motion to strike is pending [ Liu v. Moore (1999) 69 Cal. App. 4th 745, 750-751, 81 Cal. Rptr. 2d 807 (also discussing relationship of Code Civ. Proc. §§ 425.16[Deering's], 1032[Deering's] and 1033.5(a)(10)(B)[Deering's] )].

Stay of Discovery

All discovery proceedings are stayed upon the filing of a notice of special motion to strike until notice of entry of the order ruling on the motion, unless the court, on noticed motion and for good cause shown, orders that specified discovery be conducted notwithstanding the statutory stay [ Code Civ. Proc. § 425.16(g)[Deering's] ].

Statutory Exceptions to Anti-SLAPP Motion

There are exceptions to the anti-SLAPP motion to strike that make it unavailable in certain circumstances defined by statute [ Code Civ. Proc. § 425.17[Deering's] ].

The special motion to strike procedure of Code Civ. Proc. § 425.16[Deering's] does not apply to any action brought solely in the public interest or on behalf of the general public provided that all of the following conditions exist [ Code Civ. Proc. § 425.17(b)[Deering's] ]:

· The plaintiff does not seek any relief greater than or different from the relief sought for the general public or a class of which the plaintiff is a member. Claims for attorney's fees, costs, or other penalties do not count as seeking ``greater'' or ``different'' relief.

· The action, if successful, would enforce an important right affecting the public interest, and would confer a significant benefit, whether pecuniary or nonpecuniary, on the general public or a large class of persons.

· Private enforcement is necessary and places a disproportionate financial burden on the plaintiff in relation to the plaintiff's stake in the matter.

In addition, the special motion to strike procedure of Code Civ. Proc. § 425.16[Deering's] does not apply to any action brought against a person primarily engaged in the business of selling or leasing goods or services, including, but not limited to, insurance, securities, or financial instruments, arising from any statement or conduct by that person. Both of the following conditions must exist [ Code Civ. Proc. § 425.17(c)[Deering's] ]:

· The statement or conduct consists of representations of fact about that person's or a business competitor's business operations, goods, or services, that is made for the purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial transactions in, the person's goods or services, or the statement or conduct was made in the course of delivering the person's goods or services.

· The intended audience is an actual or potential buyer or customer, or a person likely to repeat the statement to, or otherwise influence, an actual or potential buyer or customer, or the statement or conduct arose out of or within the context of a regulatory approval process, proceeding or investigation not withstanding that the conduct or statement concerns an important public issue.

· The exception found in this provision does not apply where the statement or conduct was made by a telephone corporation in the course of a proceeding before the California Public Utilities Commission and is the subject of a lawsuit brought by a competitor.



Circumstances Under Which Statutory Exceptions Are Inapplicable

There are circumstances when the foregoing statutory prohibitions against bringing a special motion to strike do not apply. An anti-SLAPP motion is permitted as an exception to the foregoing prohibitions as follows [ Code Civ. Proc. § 425.17(d)[Deering's] ]:

· The anti-SLAPP motion can be employed against claims arising from gathering, receiving or processing information for communication to the publisher, editor, reporter or other person connected or employed upon a newspaper, magazine or other periodical publication, press association or wire service, or a person engaged in the dissemination of ideas or expression in any book or academic journal [ Code Civ. Proc. § 425.17(d)(1)[Deering's] ].

· The anti-SLAPP motion can be employed against claims against any person or entity based upon the creation, dissemination, exhibition, advertisement or other promotion of any dramatic, literary, musical, political or artistic work [ Code Civ. Proc. § 425.17(d)(2)[Deering's] ].

· The anti-SLAPP motion can be employed against claims against any non-profit organization that receives more than 50% of its annual revenue from federal, state, or local government grants, awards, programs, or reimbursements for services rendered [ Code Civ. Proc. § 425.17(d)(3)[Deering's] ].



Motion Not Available in Action Brought by Public Prosecutor

The anti-SLAPP motion to strike is not available to defendants in any enforcement action brought in the named of the people of the State of California by the Attorney General, a district attorney, or a city attorney acting as a public prosecutor [ Code Civ. Proc. § 425.16(d)[Deering's] ]. This provision does not violate the equal protection clause of the constitution [ People v. Health Laboratories of North America, Inc. (2001) 87 Cal. App. 4th 442, 451, 104 Cal. Rptr. 2d 618 ].

Related Pleading and Practice Forms

For forms and discussion relating to the special motion to strike, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 375, Motions to Strike, and Ch. 565, Unfair Competition, Pt. IV (Matthew Bender).

Opposing Points and Authorities

The contention set out in the Forms 50-52 may be used in opposition to the points and authorities in this form.

DISCUSSION OF AUTHORITIES

Defendant is Not Required to Demonstrate or Plead an Intent to Chill First Amendment Rights

Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 124 Cal. Rptr. 2d 507 resolved a split in the California Courts of Appeal over whether a defendant who moves under the SLAPP statute must, in order to prevail, demonstrate that the cause of action was brought with the intent of chilling the defendant's exercise of constitutional speech or petition rights. In Equilon, defendant Consumer Cause, Inc. served on Shell Pipe Line Corporation and Texaco, Inc., predecessors in interest to Equilon Enterprises, LLC, a notice of intent to sue arising out of Equilon's alleged violations of Proposition 65. Equilon then filed a lawsuit for declaratory and injunctive relief claiming the notice did not comply with the California Code of Regulations. Consumer Cause responded by moving under the anti-SLAPP statute to strike Equilon's complaint. The trial court granted the motion and the Court of Appeal affirmed. The Supreme Court agreed to hear the case and noted that the courts of appeal had divided over the issue of ``intent to chill.''

The court began by explaining that the plain language of Code Civ. Proc. § 425.16[Deering's] contains no requirement that a defendant show plaintiff brought the lawsuit with an intent to chill defendant's rights. The court, quoting Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal. App. 4th 294, 307, 106 Cal. Rptr. 2d 906 stated that `` `[t]he legislative concern,' rather, `is that the cause of action arise from an act in furtherance of the constitutional right to petition or free speech' '' (29 Cal. 4th 53, 59). The court then examined legislative intent in attempting to determine whether an intent-to-chill requirement would be appropriate. The court concluded that the legislature's objective was to ensure that public participation not be chilled, and imposing an intent-to-chill proof requirement would undermine that objective (29 Cal. 4th 53, 60).

The court concluded by summarizing the court's task in deciding the outcome of an anti-SLAPP motion to strike. First, the court should decide whether the defendant has made a ``threshold showing'' that the challenged cause of action is one arising from protected activity. The defendant must prove that the act or acts of which plaintiff complains were taken `` `in furtherance of [defendant]'s right of petition or free speech under the United States or California Constitution in connection with a public issue' '' (29 Cal. 4th 53, 58, quoting Code Civ. Proc. § 425.16(b)(1)[Deering's] ). If the court finds the defendant has made this showing, it is then to determine whether plaintiff has demonstrated a probability of prevailing on the claim. Based on the above standards, the California Supreme Court affirmed the Court of Appeal's decision in the Equilon case (29 Cal. 4th 53, 68).

The Equilon case has two companion cases, one of which is City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 124 Cal. Rptr. 2d 519 . In Cotati, the California Supreme Court reiterated that the anti-SLAPP statute in Code Civ. Proc. § 425.16[Deering's] does not contain an intent-to-chill pleading or proof requirement. The Cotati court also explained that the anti-SLAPP statute's requirement that the cause of action be one ``arising from'' protected activity is not synonymous with ``in response to'' protected activity. In Cotati, plaintiff City of Cotati adopted a mobile home park rent stabilization program, and subsequent owners of mobile home parks sued the City in federal court. City then sued the owners in state court, outlining a cause of action for declaratory relief. The owners responded to the state court lawsuit with a SLAPP motion to strike, alleging that the City's state court action arose from the owners' filing of their earlier federal action. The court held that simply because City filed its state court action after owners had filed their federal lawsuit did not mean the state court action was ``arising from'' the federal court action within the meaning of the anti-SLAPP statute. The court pointed out that to construe ``arising from'' as meaning ``in response to'' would in effect render all cross-actions potential SLAPPs (29 Cal. 4th 69, 77-78). The court held that City's state court cause of action arose from the actual controversy giving rise to both the federal and state actions--the City's rent stabilization program--and not the owners' federal lawsuit. Therefore, City's state court action was not subject to a special motion to strike (29 Cal. 4th 69, 80-81).

Equilon's other companion case is Navellier v. Sletten (2002) 29 Cal. 4th 82, 124 Cal. Rptr. 2d 530 In Navellier, plaintiffs had organized an investment company and defendant Sletten was an independent trustee of the fund. Years later, Sletten and the other trustees terminated Navallier's management contract for the fund. Plaintiffs then sued Sletten and the other trustees in federal court claiming that the trustees had breached fiduciary duties to the fund. After plaintiffs filed the federal suit, the parties came to an agreement whereby plaintiffs would return as investment advisor to the fund. As a part of this agreement, Sletten signed a general release of all claims. Thereafter, plaintiffs filed an amended complaint in federal court and Sletten filed counterclaims. Defendants won the jury trial in the federal case, and plaintiffs appealed. The Ninth Circuit Court of Appeals affirmed the judgment. A few days before plaintiffs noticed their federal appeal, they filed a state action alleging that Sletten had committed fraud in misrepresenting his intention to be bound by the release. Defendant Sletten responded by filing a motion to strike under the anti-SLAPP statute. The trial court denied the motion and the Court of Appeal affirmed, citing the intent-to-chill requirement.

The California Supreme Court began to stating that the Court of Appeal had erred in ruling that the case turned on whether plaintiffs subjectively intended to chill Sletton's speech. The court noted that they had discussed this issue at length in companion case Equilon (29 Cal. 4th 82, 88). The court also reiterated its Cotati holding, stating that the mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for purposes of the anti-SLAPP statute (29 Cal. 4th 82, 89-95). But for the federal lawsuit, the court reasoned, plaintiffs' present claims would have no basis; therefore, the action fell squarely within the ``arising from'' prong of the anti-SLAPP statute. The court reversed the Court of Appeal's holding and remanded the case to the appellate court for a determination on the second prong of the anti-SLAPP test, whether the plaintiffs have established a probability of prevailing (29 Cal. 4th 82, 95-96).

On remand, the appellate court held that plaintiffs had not established a probability of prevailing on their fraud or breach of contract causes of action. Plaintiffs' claims did not have the minimal merit required to survive the SLAPP motion, and therefore the motion to strike was granted [ Navellier v. Sletten (2003) 106 Cal. App. 4th 763, 767, 131 Cal. Rptr. 2d 201 ].

No Separate Showing of Public Significance Required if Action Arises From Statements Made Before, or in Connection With Issue Under Consideration by, Official Proceeding

Plaintiffs in Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal. 4th 1106, 81 Cal. Rptr. 2d 471, 969 P.2d 564 , owned residential rental properties. The defendant (ECHO) was a nonprofit corporation, partly funded by city and county grants, that counseled tenants and mediated landlord-tenant disputes. ECHO provided assistance to tenants of the plaintiffs in filing a discrimination complaint with the Department of Housing and Development and in prosecuting a small claims suits against the plaintiffs. Plaintiffs, alleging that ECHO employees referred to one of them as racist and that ECHO directors had discussed whether one of the plaintiffs was mentally unbalanced, brought suit for defamation and intentional and negligent infliction of emotional distress. ECHO filed a special motion to strike the complaint pursuant to the anti-SLAPP statute. The trial court granted the motion and dismissed the complaint. On plaintiff's appeal, the court of appeal reversed, and the Supreme Court granted ECHO's petition for review.

The Supreme Court reversed the court of appeal. The Court recognized that the courts of appeal were split on the question whether a defendant moving to strike a cause of action arising from a statement made before, or in connection with an issue under consideration by, a legally authorized official proceeding must separately demonstrate that the statement concerned an issue of public significance (19 Cal. 4th 1106, 1113). Analyzing the statutory language and the Legislature's 1997 amendment of Code Civ. Proc. § 425.16[Deering's] , which expressly rejected the narrow view, the court held that a defendant need not separately demonstrate that the statement concerned an issue of public significance in that situation (19 Cal. 4th 1106, 1113-1121). To the extent they hold to the contrary, the Court disapproved Linsco/Private Ledger, Inc. v. Investors Arbitration Services, Inc. (1996) 50 Cal. App. 4th 1633, 1639-1640, 58 Cal. Rptr. 2d 613 , Ericsson GE Mobile Communications, Inc. v. C.S.I. Telecommunications Engineers (1996) 49 Cal. App. 4th 1591, 57 Cal. Rptr. 2d 491 , Zhao v. Wong (1996) 48 Cal. App. 4th 1114, 55 Cal. Rptr. 2d 909 , and Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal. App. 4th 713, 77 Cal. Rptr. 2d 1 (19 Cal. 4th 1106, 1123 n.10).

Because in the case before it, the plaintiffs' causes of action all arose from ECHO's statements or writings made in connection with issues under consideration or review by official bodies (HUD or the courts), it was not necessary to consider whether ECHO's statements in fact concerned issues of public significance (19 Cal. 4th 1106, 1115).

Plaintiff's Burden Arises After Defendant's Prima Facie Showing That Code of Civil Procedure Section 425.16[Deering's] Applies

The facts and holdings of Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 124 Cal. Rptr. 2d 507 , City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 75, 124 Cal. Rptr. 2d 519 , and Navellier v. Sletten (2002) 29 Cal. 4th 82, 88, 124 Cal. Rptr. 2d 530 ) are discussed in the previous analysis entitled: Defendant is Not Required to Demonstrate or Plead an Intent to Chill First Amendment Rights, above.

In Fox Searchlight Pictures v. Paladino (2001) 89 Cal. App. 4th 294, 307, 106 Cal. Rptr. 2d 906, on learning that its former in-house counsel planned to sue for wrongful termination, the corporation sued the former counsel for disclosing confidential information. The defendant filed an anti-SLAPP motion to strike. In opposition to defendant's SLAPP motion to strike and in support of its own disqualification motions, plaintiff corporation submitted documents under seal which purported to establish certain information contained in defendant's complaint for wrongful termination was privileged or confidential. The court reviewed the sealed documents in ruling on the SLAPP motion and denied the defendant's motion (89 Cal. App. 4th 294, 299-300).

The court of appeal reversed, holding that the only thing defendant need establish in bringing an anti-SLAPP motion to strike is that the challenged lawsuit arose from an act on the part of the defendant in furtherance of defendant's right of petition or free speech. From that fact the court may presume that the purpose of the action was to chill the defendant's exercise of First Amendment rights. Plaintiff corporation argued that the motion should be denied because defendant did not show that the complaint was intended to chill defendant's first amendment right to petition for the redress of grievances through litigation. No mention is made in the controlling statute regarding proof of the plaintiff's motives or intent, and the court refused to impose a burden on the party seeking protection from the SLAPP statute of proving the plaintiff was motivated by an improper purpose. The intent and purpose of the lawsuit may be addressed by the plaintiff when it attempts to establish its ability to prevail on the merits (89 Cal. App. 4th 294, 306-307).

In Dixon v. Superior Court (1994) 30 Cal. App. 4th 733, 36 Cal. Rptr. 2d 687 , a firm that had performed archaeological tests on a site on the campus of California State University at Long Beach, believed by many Native American Indians to be an ancient village, brought an action for intentional and negligent interference with contractual relations and prospective economic advantage, libel, slander, and trade libel against a professor who opposed development on the site through a letter-writing campaign. Defendant professor allegedly wrote the letters for the sole purpose of participating in the California Environmental Quality Act (CEQA) public comment and review process by informing university officials about the cultural, historical, and archaeological significance of the site and potential environmental effects that further excavation and commercial development would cause. Defendant filed a motion to strike the complaint pursuant to Code Civ. Proc. § 425.16[Deering's] , which the trial court denied (30 Cal. App. 4th 733, 750).

The court of appeal issued a peremptory writ of mandate directing the trial court to vacate its order denying the motion to strike and to enter a new order granting the motion and dismissing the complaint (30 Cal. App. 4th 733, 746). It described SLAPP (strategic lawsuits against public participation) suits as generally meritless suits brought by large private interests to deter common citizens from exercising their political or legal rights or to punish them for doing so. It then applied the rule set forth in Wilcox v. Superior Court (1994) 27 Cal. App. 4th 809, 820, 33 Cal. Rptr. 2d 446 (discussed below), that the party moving to strike a complaint under Code Civ. Proc. § 425.16[Deering's] has the burden of making a prima facie showing that the lawsuit arises from an act of defendant in furtherance of defendant's right of petition or free speech under the United States or California Constitution in connection with a public issue (30 Cal. App. 4th 733, 741-742). It noted that the dispute in this case was whether the professor's allegedly tortious statements were made in connection with the CEQA proceedings. The court rejected the plaintiff's argument that the defendant's statements were not made in connection with the CEQA proceedings and concluded that the professor had made a prima facie showing under Code Civ. Proc. § 425.16[Deering's] (30 Cal. App. 4th 733, 742-744). The court went on to hold that the plaintiff failed to establish a probability of success on its complaint and ordered the trial court to grant defendant's motion to strike the complaint (30 Cal. App. 4th 733, 744-746).

In Wilcox v. Superior Court (1994) 27 Cal. App. 4th 809, 33 Cal. Rptr. 2d 446 , certified shorthand reporters brought suit against a certified shorthand reporters' alliance, alleging that ``direct contracting,'' as practiced by defendants, constituted an unfair business practice, intentional interference with plaintiffs' prospective economic advantages, and interference with existing contracts. Defendants filed a cross complaint against plaintiffs, and other individuals, for defamation and conspiracy to unlawfully restrain trade through a boycott of defendants' reporting services. Wilcox, one of the cross defendants, filed a motion to strike the cross complaint against her based on Code Civ. Proc. § 425.16[Deering's] , the anti-SLAPP suit statute. The trial court denied the motion, and Wilcox filed a petition for writ of mandate (27 Cal. App. 4th 809, 814-815).

The court of appeal issu