160 Motions to Strike

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:

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

З 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].

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

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

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

З 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. Ї 435[Deering's] . Grounds for which pleading matter may be stricken are set out in Code Civ. Proc. ЇЇ 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. Ї 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. Ї 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. ЇЇ 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. Ї 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. Ї 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. Ї 436[Deering's] or Code Civ. Proc. Ї 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. Ї 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. ЇЇ 91(a)[Deering's], 92(d)[Deering's] ; see Code Civ. Proc. ЇЇ 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. Ї 435(a)[Deering's] provides that the term complaint includes a cross-complaint. Code Civ. Proc. Ї 92(d)[Deering's] only uses the term complaint. Although it is probable that Code Civ. Proc. Ї 92(d)[Deering's] may be read in light of the language of Code Civ. Proc. Ї 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. Ї 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. Ї 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. Ї 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. Ї 435(c)[Deering's] ]. However, after the motion has been heard, within the time specified by Code Civ. Proc. Ї 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. Ї 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. ЇЇ 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. ЇЇ 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. Ї 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 Ї 68608(b)[Deering's] ; see, e.g., Los Angeles Super. Ct. Rules, Rules 7.13, 8.0 ; see also Code Civ. Proc. Ї 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, Ї 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. Ї 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. Ї 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. Ї 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. Ї 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. Ї 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. Ї 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. Ї 435]--Pleading Matter Not Filed or Drawn in Conformity With Law [Code Civ. Proc. Ї 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. Ї 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. Ї 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. Ї 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 ЇЇ 451[Deering's], 452[Deering's], 453[Deering's] ]. Matter subject to judicial notice under Evid. Code Ї 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. Ї 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. Ї 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. Ї 436(b)[Deering's] and ask the court to take notice of the order that the matter violates, pursuant to Evid. Code ЇЇ 452[Deering's], 453[Deering's] ; see Evid. Code Ї 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. Ї 435 ]--Pleading Matter Not Filed or Drawn in Conformity With Law [ Code Civ. Proc. Ї 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. Ї 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 ЇЇ 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. Ї 435]--Pleading Matter Not Filed or Drawn in Conformity With Law [Code Civ. Proc. Ї 436(b)]--Amended Pleading Without Permission of Court
[Code Civ. Proc. ЇЇ 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. Ї 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. Ї 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. Ї 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. ЇЇ 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. Ї 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. Ї 435[Deering's] , which provided for motion to strike a complaint in whole or in part [now see Code Civ. Proc. Ї 435[Deering's] as amended, authorizing motions to strike pleadings in general; see also Code Civ. Proc. Ї 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. Ї 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. Ї 473[Deering's] appears to overlap partially with Code Civ. Proc. Ї 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. Ї 472[Deering's] are not met, an amended pleading must be filed pursuant to Code Civ. Proc. Ї 473(a)(1)[Deering's] . However, since Code Civ. Proc. Ї 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. Ї 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. Ї 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. Ї 473[Deering's] (201 Cal. App. 2d 387, 389-390). The court held that under Code Civ. Proc. Ї 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. Ї 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. Ї 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. Ї 473(a)[Deering's] , Code Civ. Proc. Ї 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. ЇЇ 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. Ї 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. Ї 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. Ї 472[Deering's] . Rather, the Court held that under Code Civ. Proc. Ї 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. Ї 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. Ї 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. Ї 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. Ї 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. Ї 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. Ї 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. Ї 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. Ї 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 Ї 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. Ї 473[Deering's] , or to intervene pursuant to Code Civ. Proc. Ї 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 Ї 11580.2[Deering's] on behalf of the original defendant in any capacity, and Ins. Code Ї 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. Ї 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. Ї 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. Ї 435]--Pleading Matter Not Filed or Drawn in Conformity With Law [Code Civ. Proc. Ї 436(b)]--Pleading Filed by Stranger to Action [Code Civ. Proc. Ї 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. Ї 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. Ї 24 ; now see Code Civ. Proc. Ї 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. Ї 24 [now see Code Civ. Proc. Ї 387[Deering's] ]. Citing extensively from an earlier case on the same point, the court stated that former Code Civ. Proc. Ї 24 [now see Code Civ. Proc. Ї 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. Ї 435]--Pleading Matter Not Filed or Drawn in Conformity With Law [Code Civ. Proc. Ї 436(b)]--Untimely Responsive Pleading [Code Civ. Proc. ЇЇ 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. Ї 412.20(a)(3)[Deering's] ; see Code Civ. Proc. Ї 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. Ї 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. Ї 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. Ї 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. Ї 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. Ї 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. Ї 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. Ї 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. Ї 435]--Pleading Matter Not Filed or Drawn in Conformity With Law [Code Civ. Proc. Ї 436(b)]--Unverified Answer to Verified Complaint [Code Civ. Proc. ЇЇ 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. ЇЇ 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. Ї 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. ЇЇ 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. Ї 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. Ї 90[Deering's] et seq. (economic litigation in limited civil cases) [ Code Civ. Proc. ЇЇ 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. Ї 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. Ї 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. Ї 92(b)[Deering's] ]. All limited civil cases are subject to the economic litigation provisions of Code Civ. Proc. Ї 90[Deering's] et seq. except actions in small claims court, unlawful detainer, forcible detainer, and forcible entry [ Code Civ. Proc. Ї 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. Ї 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. Ї 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. Ї 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. Ї 90[Deering's] et seq. (economic litigation in limited civil cases) [see Code Civ. Proc. ЇЇ 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. Ї 446[Deering's] [see Code Civ. Proc. Ї 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. Ї 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. ЇЇ 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. Ї 435]--Irremediable Failure to State Cause of Action [Code Civ. Proc. ЇЇ 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. Ї 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. Ї 431.10(b)(3)[Deering's] ; see Code Civ. Proc. ЇЇ 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. Ї 453 ; now see Code Civ. Proc. Ї 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. Ї 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. Ї 431.10(b)(1)[Deering's] (immaterial allegations), together with Code Civ. Proc. Ї 431.10(c)[Deering's] (immaterial allegation as irrelevant matter) and Code Civ. Proc. Ї 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. Ї 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. Ї 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 Ї 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 Ї 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. Ї 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. Ї 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. Ї 436(b)[Deering's] , because the complaint failed to state a cause of action under Code Civ. Proc. Ї 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. Ї 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. Ї 425.16(b)[Deering's] ). Code of Civil Procedure Ї 425.16[Deering's] is to be construed broadly ( Code Civ. Proc. Ї 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. Ї 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 Ї 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. Ї 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. Ї 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. Ї 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. Ї 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. Ї 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. Ї 425.16(a)[Deering's] ; last sentence added by Stats. 1997, ch. 271 Ї 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. Ї 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. Ї 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. Ї 425.16(f)[Deering's] ]. One court has held that the 60-day requirement in Code Civ. Proc. Ї 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. Ї 425.16(f)[Deering's] ].

Attorney's Fees and Costs

Code Civ. Proc. Ї 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. Ї 128.5[Deering's] [ Code Civ. Proc. Ї 425.16(c)[Deering's] ].

Code Civ. Proc. Ї 128.5[Deering's] applies only to actions filed before 1995. Code Civ. Proc. Ї 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. Ї 128.6[Deering's] will govern sanctions unless the Legislature changes that date. Although Code Civ. Proc. Ї 425.16[Deering's] refers expressly only to Code Civ. Proc. Ї 128.5[Deering's] , Code Civ. Proc. Ї 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. Ї 128.7[Deering's] , see Ch. 207, Sanctions, Pt. II, in this publication. For further discussion of Code Civ. Proc. ЇЇ 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. Ї 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. Ї 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. Ї 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. Ї 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. Ї 128.7[Deering's] is not a viable alternative to the attorney's fees and costs relief afforded by Code Civ. Proc. Ї 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. ЇЇ 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. Ї 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. Ї 425.17[Deering's] ].

The special motion to strike procedure of Code Civ. Proc. Ї 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. Ї 425.17(b)[Deering's] ]:

З 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.

З 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.

З 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. Ї 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. Ї 425.17(c)[Deering's] ]:

З 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.

З 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.

З 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. Ї 425.17(d)[Deering's] ]:

З 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. Ї 425.17(d)(1)[Deering's] ].

З 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. Ї 425.17(d)(2)[Deering's] ].

З 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. Ї 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. Ї 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. Ї 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. Ї 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. Ї 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. Ї 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. Ї 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. Ї 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. Ї 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. Ї 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 issued a peremptory writ directing the lower court to vacate its order and to enter a new order strking the cross-complaint in its entirety as to Wilcox (27 Cal. App. 4th 809, 830-831). The court noted that the although the statute clearly places the burden on the plaintiff or cross complainant to establish a probability of prevailing on the claim, the burden does not arise unless the claim falls within the ambit of the statute. The court observed that the statute is unclear as to whether the moving party bears the burden of establishing the action arose out of acts in furtherance of his or her First Amendment rights in connection with a public issue or whether the plaintiff bears the burden of showing its claim does not arise out of such acts by the defendant. The court concluded that it was not only logical but fundamentally fair that, before putting the plaintiff to the burden of establishing probability of success on the merits, the defendant be required to show that imposing that burden was justified by the nature of the plaintiff's complaint (27 Cal. App. 4th 809, 819). It then held that Code Civ. Proc. Ї 425.16(b)[Deering's] , requires the defendant to make a prima facie showing the plaintiff's suit 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. The defendant may meet this burden by showing that the act that forms the basis for the plaintiff's cause of action was a written or oral statement made before a legislative, executive, or judicial proceeding; a statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body; or a statement made in a place open to the public or a public forum in connection with an issue of public interest, citing Code Civ. Proc. Ї 425.16(e)[Deering's] . The court also made clear that the definition of an ``act in furtherance of'' a person's First Amendment rights is not limited to oral and witten statements (27 Cal. App. 4th 809, 820-821).

The court rejected the cross complainants' contention that defendant had failed to show the acts alleged in the cross complaint were done in connection with the consideration of direct contracting by any legislative, executive, or judicial body, and that there was no rational connection between legislative, administrative and judicial challenges to direct contracting and defendant's alleged defamatory statement and conspiracy to injure the cross-complainants' businesses. It noted that this argument highlights the reason for the anti-SLAPP suit legislation since in a SLAPP complaint, the defendant's acts in petitioning the government are made to appear as defamation, restraint of trade, and the like. The court stated that for this reason, the Legislature specifically provided in subdivision (b) to Code Civ. Proc. Ї 425.16[Deering's] that ``the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.'' It then found that Wilcox's alleged defamatory statements were clearly made in connection with the underlying judicial challenge to direct contracting and that the alleged economic boycott of cross-complainants' businesses was arguably protected by the petition clause of the First Amendment (27 Cal. App. 4th 809, 821-822). The court went on to hold that the cross complainants had failed to establish a probability of success on the merits of the cross complaint and ordered the trial court to grant Wilcox's motion to strike the cross complaint (27 Cal. App. 4th 809, 823-829).

Plaintiff Cannot Establish Probability of Prevailing on Claims Against Defendant

In Marich v. QRZ Media, Inc. (1999) 73 Cal. App. 4th 299, 306-309, 318-319, 86 Cal. Rptr. 2d 406 (Petition for Review pending before California Supreme Court; S081294), plaintiffs had received an unexpected call from the police that their child had died from an overdose of an illegal drug. Unknown to them, the entire incident, from discovery of the body through the telephone call, was being recorded by a television crew who thereafter published it as segment of a television show. Plaintiffs sued three media defendants for invasion of privacy by intrusion, invasion of privacy by disclosure of private facts, intentional infliction of emotional distress and violation of Pen. Code ЇЇ 631[Deering's], 632[Deering's], and 634[Deering's] , although the claims for violation of Pen. Code ЇЇ 631[Deering's] and 634[Deering's] ) were abandoned on appeal. In response, defendants filed demurrers and a motion to strike pursuant to Code Civ. Proc. Ї 425.16[Deering's] . In connection with the motion to strike, at the request of defendants, the court took judicial notice of a videotape copy of the program. Plaintiffs did not offer any declarations or affidavits in opposition to the motion. Thus, the only evidence before the trial court was the videotape. The trial court granted defendants' motion (73 Cal. App. 4th 299, 303, 307-310).

In reversing the judgment dismissing plaintiffs' action, the court of appeal noted that ruling on a Code Civ. Proc. Ї 425.16[Deering's] motion to strike a complaint requires a two-step approach. First, the trial court must determine if the defense has met its burden of showing that the plaintiff's lawsuit arises out of the defendants' constitutionally protected actions. If the court finds in favor of the defense on that issue, the burden then shifts to the plaintiff to establish, as set forth in Code Civ. Proc. Ї 425.16(b)(1)[Deering's] , a probability that the plaintiff will prevail. In making its determination, the court must consider the pleadings, and supporting and opposing affidavits stating the facts on which the liability or defense is based. This means a plaintiff must present evidence showing it would establish a prima facie case at trial. Plaintiff must make this showing with admissible evidence. In other words, a plaintiff must produce evidence which, if presented at trial, would withstand motions for a nonsuit or directed verdict. A plaintiff may not rely on the allegations in its complaint to make the required evidentiary showing. The allegations in the complaint are relevant only to the extent to which they framed the issues to be decided (73 Cal. App. 4th 299, 306-307). After discussing the law concerning invasion of privacy and Pen. Code Ї 632[Deering's] and noting that the subject of the broadcast was newsworthy for purposes of Code Civ. Proc. Ї 416.16 (see 73 Cal. App. 4th 299, 310-318), the court concluded that the video tape demonstrated a prima facie case of invasion of privacy by intrusion well as violation of Pen. Code Ї 632[Deering's] . Therefore, the trial court erred in granting the Code Civ. Proc. Ї 425.16[Deering's] motion on those causes of action (73 Cal. App. 4th 299, 38). However, the court also concluded that the trial court properly granted defendants' motion under Code Civ. Proc. Ї 425.16[Deering's] to strike plaintiffs' causes of action for invasion of privacy based on publication of private facts and intentional infliction of emotional distress because plaintiffs failed to meet their burden of establishing a probability of succeeding on those claims (73 Cal. App. 4th 299, 318-319).

The facts and procedural background of Dixon v. Superior Court (1994) 30 Cal. App. 4th 733, 36 Cal. Rptr. 2d 687 , are discussed under Plaintiff's Burden Arises After Defendant's Prima Facie Showing That Code of Civil Procedure Section 425.16[Deering's] Applies, above. In that case, the plaintiff contended that its evidence submitted in opposition to the motion demonstrated that the defendant-professor's statements were made with actual malice and with knowledge of their falsity or with reckless disregard for their truth. It argued that since defendant was not entitled to First Amendment protection, it had established a probability of prevailing at trial. The court of appeal disagreed. It found that where there is a statutory invitation for public participation and comment, such as existed here with the California Environmental Quality Act (CEQA) public comment period, any inquiry into the motives behind such statements or comments is barred. Since there was no dispute that the defendant's statments were made in response to a matter of public concern, the statements were entitled to absolute immunity, and plaintiff could not establish a probability of prevailing at trial (30 Cal. App. 4th 733, 745).

The court also rejected plaintiff's constitutional challenge to Code Civ. Proc. Ї 425.16[Deering's] on the grounds that it violates the right to due process by requiring a plaintiff to establish probability of success without the opportunity to conduct discovery. Although it did not directly address the issue of the statute's constitutionality, the court found that in this case, discovery would not have benefited plaintiff's case since defendant's motivation behind his statements was irrelevant (30 Cal. App. 4th 733, 746). It further found that in ruling on the motion, the court does not weigh the evidence but accepts as true all evidence favorable to the plaintiff, thus rejecting plaintiff's contention that the statute violated its rights to trial by jury (30 Cal. App. 4th 733, 746).

The facts and procedural background of Wilcox v. Superior Court (1994) 27 Cal. App. 4th 809, 33 Cal. Rptr. 2d 446 , are discussed under Plaintiff's Burden Arises After Defendant's Prima Facie Showing That Code of Civil Procedure Section 425.16[Deering's] Applies, above.

The court determined what the Legislature meant by requiring the plaintiff to establish a probability that the plaintiff will prevail on the claim in Code Civ. Proc. Ї 425.16(b)[Deering's] , by examining the legislative purpose behind the statute as well as the constitutional rights of the plaintiff to due process and a jury trial. It noted that the statute was intended to provide a fast and inexpensive unmasking and dismissal of SLAPP suits. It stated that to satisfy due process, the burden placed on plaintiff must be compatible with the early stage at which the motion is brought and the limited opportunity to conduct discovery and to preserve the right to a jury trial. The court cannot weigh the evidence (27 Cal. App. 4th 809, 823).

The court then adopted the standard for establishing a substantial or reasonable probability of success enunciated in Hung v. Wang (1992) 8 Cal. App. 4th 908, 931, 11 Cal. Rptr. 2d 113 , which held that the plaintiff must demonstrate the complaint is legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. If either requirement is not met, the motion to strike must be granted; if both are satisfied, it must be denied (27 Cal. App. 4th 809, 823-824). Applying this standard, the court found that cross complainants failed to establish a probability of prevailing on the defamation claim, since the defendant would have a qualified privilege defense, or on the conspiracy claim since cross complainants failed to submit legally sufficient evidence that defendant had concurred with anyone in a tortious scheme to injure them (27 Cal. App. 4th 809, 826-828).

Constitutional Protection Available for Speech Alleged to Constitute Intentional Interference With Prospective Economic Advantage

In Hofmann Co. v. E.I. Du Pont de Nemours and Co. (1988) 202 Cal. App. 3d 390, 248 Cal. Rptr. 384 , two plant managers of the defendant toxic chemical plant made statements that appeared in a front-page news story criticizing a housing development proposed to be constructed next to the plant. The developer brought an action against the chemical company and the plant managers alleging that the employees' comments constituted false statements of fact actionable as trade libel and as intentional interference with prospective economic advantage (202 Cal. App. 3d 390, 395-396). The trial court sustained defendants' demurrers to the two causes of action without leave to amend.

The court of appeal affirmed, holding that the statements were either assertions of true facts or ambiguous opinions, and thus not actionable as trade libel (202 Cal. App. 3d 390, 401). The court further held that the statements, which involved a matter of public concern, were constitutionally protected (202 Cal. App. 3d 390, 407-408).

In Paradise Hills Associates v. Procel (1991) 235 Cal. App. 3d 1528, 1 Cal. Rptr. 2d 514 , plaintiff was the owner and developer of a residential subdivision. Defendant and her husband, who purchased a house from plaintiff, asserted numerous construction defects and breaches of contract. Defendant posted signs on her house to call attention to her dispute with plaintiff, spoke to newspaper reporters about her house, distributed leaflets in front of plaintiff's model home, spoke to prospective customers, urging them not to buy from plaintiff, and displayed large signs that disparaged plaintiff. Plaintiff obtained a preliminary injunction restricting defendant from the above and other activities. Defendant appealed the denial of her application for an extraordinary writ reversing the injunction (235 Cal. App. 3d 1528, 1534-1536).

The court of appeal reversed the order granting the preliminary injunction. The court found that the injunctive relief granted was overbroad to the extent it restricted protected speech, such as truthful information and honestly held opinions, and activity, such as peaceful picketing (235 Cal. App. 3d 1528, 1545-1546).

Averments on Information and Belief Are Inadequate in Supporting Declaration

In Evans v. Unkow (1995) 38 Cal. App. 4th 1490, 45 Cal. Rptr. 2d 624 , plaintiff had been recalled from political office in a recall election. He then brought an action for defamation against 10 defendants who had initiated the recall drive. The defendants filed a SLAPP motion to strike. In opposing the motion, plaintiff submitted a declaration alleging on the basis of information and belief that a political adversarial relationship between himself and the individual who was the main source of information for defendants was a matter of common knowledge. The trial court granted the motion to strike, and also said that it had not considered substantial portions of plaintiff's declaration which were argument and mere opinion.

The court of appeal agreed with the trial court, noting initially that in opposing the motion to strike plaintiff had the burden of establishing a ``probability'' that he would prevail, so that he had to present evidence showing he would establish a prima facie case at trial (38 Cal. App. 4th 1490, 1496). The court agreed that if defendants were relying solely on a source known to be hostile toward the plaintiff, that would support a finding or reason to doubt the source's veracity. However, it concluded that plaintiff failed to establish that the defendants knew of such hostility. Plaintiff's sole assertion on this point was his averment, on information and belief that the ``adversarial relationship'' between the two was a matter of common knowledge. However, an averment on information and belief is inadequate to show a probability that the plaintiff will prevail on the claim sufficient to satisfy Code Civ. Proc. Ї 425.16(b)[Deering's] . An assessment of the probability of prevailing on the claim looks to trial, and the evidence that will be presented at that time. Such evidence must be admissible, and the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter. Therefore, an averment on information and belief is inadmissible at trial, and thus cannot show a probability of prevailing on the claim (38 Cal. App. 4th 1490, 1497-1498). The court thus affirmed the judgment of dismissal.

Commercial Conduct and Speech

In Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal. App. 4th 713, 77 Cal. Rptr. 2d 1 , a developer, who was disgruntled with the findings of a draft environmental impact report (DEIR) prepared by a consultant the county had hired to evaluate the developer's proposed project, hired its own consultant who prepared and submitted a report that contradicted the DEIR. The county's final environmental impact report (FEIR) adhered to the DEIR, and the county's planning commission recommended denial of the project. The board of supervisors, after holding four hearings, denied the project proposal and adopted findings and conclusions in support of its decision. Ultimately, the developer sued the county, the county's consultant, and others over the denial of project approval. Except for a Williamson Act ( Gov. Code Ї 51200[Deering's] et seq. ) claim concerning agricultural preserves, the trial court sustained defendants' demurrers without leave to amend and granted the consultants' special motion to strike pursuant to Code Civ. Proc. Ї 425.16[Deering's] . Plaintiff then dismissed the Williamson Act claim, and the trial court entered judgment in favor of the defendants. Pursuant to stipulation of the parties, the court awarded attorney's fees and costs to the individual defendants, but denied attorney fees to the County. Plaintiff appealed, and the defendant county cross-appealed regarding attorney's fees (65 Cal. App. 4th 713, 718-720).

The court of appeal affirmed the judgment in all respects except the denial of attorney's fees and costs to the county and remanded the cause to the trial court to determine and award reasonable attorney's fees to the county at trial and on appeal (65 Cal. App. 4th 713, 730-731). Initially the court held that administrative mandamus is the exclusive means by which to attack compliance with the California Environmental Quality Act, and that plaintiff could not sue the county for damages for failure to prepare a proper EIR. Moreover, the action against the county was untimely (65 Cal. App. 4th 713, 722). Furthermore, the county owed no duty to provide an EIR acceptable to the plaintiff (65 Cal. App. 4th 713, 723-724). The court then disposed of other claims against the consultants concluding under the facts that the consultant defendants could not be held liable for negligence and that plaintiff's allegations did not support a claim for misrepresentation or a conspiracy to commit tortious conduct (65 Cal. App. 4th 713, 724-727). Moreover, plaintiff's tort claims could not be prosecuted because the privilege of Civ. Code Ї 47[Deering's] applies to the preparation and certification of an EIR (65 Cal. App. 4th 713, 726-727).

Regarding the special motion to strike under Code Civ. Proc. Ї 425.15[Deering's] , the court noted that Code Civ. Proc. Ї 425.15[Deering's] applies to the defendants. The court rejected plaintiff's argument that because it sued the consultant for conduct as a paid environmental consultant SLAPP does not apply. Commercial conduct and speech made in connection with an issue of public concern under consideration by a legislature body are subject to SLAPP. Code Civ. Proc. Ї 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 (65 Cal. App. 4th 713, 727-728). The court also rejected plaintiff's argument that the instant situation was akin to the one presented in Ericsson GE Mobile Communications, Inc. v. C.S.I. Telecommunications Engineers (1996) 49 Cal. App. 4th 1591, 57 Cal. Rptr. 2d 491 , which simply involved two companies competing for a contract to provide a product in the absence of public participation or concern. The instant case differed from Ericsson in that the contracts before it directly concerned the preparation of an environmental impact report for required public hearings concerning the potential development of projects. Ericsson merely involved private concerns regarding the sale of a telecommunications system without public hearings or interest (65 Cal. App. 4th 713, 728-729). (Ericsson is discussed in Form 50, Discussion of Authorities, Code of Civil Procedure Section 425.16[Deering's] Does Not Apply When the Defendant's Acts Are Not Done in Furtherance of Defendant's Right of Petition or Free Speech in Connection With a Public Issue.)

In the instant case, defendants met their burden of proof to establish a prima facie case showing that SLAPP applies to the facts alleged, and the burden to establish the probability of success on the merits of its allegations shifted to the plaintiff. Plaintiff did not and could not bear its burden to show the probability of success on the merits of the causes of action it alleged. Plaintiff sought to coerce the county and the consultants to change their views on its development proposal. SLAPP is designed to quickly put an end to suits such as this one (65 Cal. App. 4th 713, 729).

Mission Oaks has been disapproved by 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 , to the extent it may suggest that 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 ( Code Civ. Proc. Ї 425.16(e)(1)[Deering's], (2)[Deering's] ) must separately demonstrate that the statement concerned an issue of public interest.

Code Civ. Proc. Ї 425.16[Deering's] to Be Construed Broadly

The facts and procedural background of Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal. 4th 1106, 81 Cal. Rptr. 2d 471, 969 P.2d 564 , are discussed under No Separate Showing of Public Significance Required if Action Arises From Statements Made Before, or in Connection With Issue Under Consideration by, Official Proceeding, above. In Briggs, the court noted the 1997 legislative amendment to Code Civ. Proc. Ї 425.16[Deering's] mandates a broad construction of that section (19 Cal. 4th 1106, 1120) and disapproved of several cases that narrowly construed the scope of Code Civ. Proc. Ї 425.16[Deering's] (see 19 Cal. 4th 1106, 1114, 1120-1121, 1123 n.10).

ADDITIONAL AUTHORITIES

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

In Sipple v. Foundation for Nat. Progress (1999) 71 Cal. App. 4th 226, 83 Cal. Rptr. 2d 677 , plaintiff, a nationally known political consultant, brought an action for libel, intentional interference with contract, and intentional interference with prospective economic advantage concerning an article that focused on a custody dispute between the plaintiff and his first wife. The trial court granted defendants' motion to strike under Code Civ. Proc. Ї 425.16[Deering's] . In affirming, the court of appeal noted with regard to Code Civ. Proc. Ї 425.16(e)(1)[Deering's] and (2)[Deering's] that in crafting the statute, the Legislature equated public issue with the authorized official proceeding to which it connects. Thus, in making a motion to strike, a defendant need not demonstrate the existence of a public issue for purposes of Code Civ. Proc. Ї 425.16(e)(1)[Deering's] and (2)[Deering's] (71 Cal. App. 4th 226, 237). The court concluded that the custody dispute came within Code Civ. Proc. Ї 425.16(e)(1)[Deering's] as a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, and hence the article insofar as it discussed statements made during the deposition, or at the hearing at the custody trial, fell within the ambit of subsection (e)(1) and defendants did not need to separately show that these statements concerned an issue of public interest (71 Cal. App. 4th 226, 237-238). The plaintiff also contended that wife-beating allegations gathered from interviews that were not part of the custody hearing fell within Code Civ. Proc. Ї 425.16(e)(3)[Deering's] and that the article should not be privileged because wife-beating is not an issue of public interest. The court rejected this argument noting that domestic violence is an extremely important public issue (71 Cal. App. 4th 226, 238).

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

Conroy v. Spitzer (1999) 70 Cal. App. 4th 1446, 83 Cal. Rptr. 2d 443 , involved an action for libel, slander per se, intentional infliction of emotional distress and negligent infliction of emotional distress brought by plaintiff against a political rival in 1996 elections for the Orange County Board of Supervisors. The trial court's granted defendants' motion to strike under Code Civ. Proc. Ї 425.16[Deering's] . In affirming, the court of appeal noted that once defendant showed that his statements were acts in furtherance of his right of free speech and made in connection with a public issue, plaintiff, to defeat defendant's motion, had the burden of showing a probability of prevailing on his defamation claim which he failed to do (70 Cal. App. 4th 1446, 1450-1454).

Monterey Plaza Hotel v. Hotel Employees & Restaurant Employees (1999) 69 Cal. App. 4th 1057, 82 Cal. Rptr. 2d 10 , involved a defamation action brought by plaintiff against a labor union and its research analyst based on a statement made by the analyst during a television newscast concerning plaintiff's firing of two of employees. The trial court's granted defendants' motion to strike under Code Civ. Proc. Ї 425.16[Deering's] . In affirming, the court of appeal noted the defendants carried the initial burden of establishing a prima facie showing that plaintiff's complaint arose from defendants' free speech activity. The burden then shifted to plaintiff to establish a probability that the plaintiff would prevail on the claim of defamation, i.e., make a prima facie showing of facts that would, if proved at trial, support a judgment in plaintiff's favor (69 Cal. App. 4th 1057, 1063-1064). Plaintiff failed to make such a prima facie showing supporting its defamation claim (69 Cal. App. 4th 1057, 1064-1066).br>
In Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal. App. 4th 777, 54 Cal. Rptr. 2d 830 , a law firm sent letters to various individuals in preparation of a lawsuit in which it stated that its client had been damaged by business activities of the plaintiff. Plaintiff then filed an action against the law firm for libel and interference with economic relationship. The law firm moved to strike the complaint as a SLAPP suit. The trial court granted the motion and dismissed the complaint. On appeal, plaintiff argued that its action did not fall within the statutory definition of a SLAPP suit because neither of its causes of actions related to a statement made before a legislative, executive, or judicial proceeding, or made in a place open to the public or in a public forum. However, the court of appeal held that the fact that the communication was made to other private citizens rather than to an official agency does not exclude it from the shelter of the anti-SLAPP suit statute. The court also stated that the constitutional right to petition, which includes the act of filing litigation, covers communications preparatory to or in anticipation of the bringing of an action (47 Cal. App. 4th 777, 784). Concluding that the trial court correctly applied Code Civ. Proc. Ї 425.16[Deering's] , the court affirmed the judgment of dismissal.

In Averill v. Superior Court (1996) 42 Cal. App. 4th 1170, 50 Cal. Rptr. 2d 62 , plaintiff, a company developing a plan for a housing shelter for battered women, filed an action for slander against an opponent of the shelter project based on comments the defendant had made to co-employees. Defendant filed a motion to strike pursuant to Code Civ. Proc. Ї 425.16[Deering's] . Plaintiff argued that the action did not fall within the scope of the SLAPP statute because the allegedly slanderous comments were not made in public. The trial court denied the motion and defendant filed a petition for writ of mandate. The plaintiff's argument was founded on Code Civ. Proc. Ї 425.16(e)[Deering's] , which states that the SLAPP statutes protects an act in furtherance of a person's First Amendment rights, including any written or oral statement or writing made in a place open to the public or a public forum. However, the court of appeal held that even if the defendant's statements were not expressly covered under subdivision (e) of the statute, the categories there are not all inclusive because the acts identified there are preceded by the word ``includes.'' The court concluded that it could not say that the Legislature intended to exclude private conversations from protection since the list of covered activities does not act to eliminate such conversations from protection (42 Cal. App. 4th 1170, 1175). The Court thus issued a peremptory writ of mandate directing the trial court to vacate its order denying the motion to strike the complaint, and to enter a new order granting the motion (but see Zhoa v. Wong (1996) 48 Cal. App. 4th 1114, 1128, 55 Cal. Rptr. 2d 909 , discussed under Form 50, Discussion of Authorities, Defendant Bears Initial Burden to Make a Prima Facie Showing, in which the court gave a narrow interpretation to the statute, disagreeing with the statement in Averill that the legilature intended the statute to have broad application).

In Church of Scientology v. Wollersheim (1996) 42 Cal. App. 4th 628, 49 Cal. Rptr. 2d 620 , a church filed an action to set aside a judgment the defendant had obtained against the church on the basis of newly discovered evidence. The trial court granted a defense motion to dismiss the complaint pursuant to Code Civ. Proc. Ї 425.16[Deering's] . On appeal the church contended that the trial court erred because its action to set aside the judgment was not a SLAPP suit. The court of appeal agreed with the trial court. The court reasoned that Code Civ. Proc. Ї 425.16[Deering's] applies to a cause of action against a person arising from any act of that person in furtherance of the person's right to petition in connection with a public issue, and that the right of access to the courts is an aspect of the First Amendment right to petition the government for redress of grievances. Furthermore, the church's lawsuit was consistent with a pattern of employing every means to frustrate or undermine the defendant's attempts to petition, and the court held that when one party to a lawsuit uses the litigation process to bludgeon the opponent into submission then those actions must be closely scrutinized for constitutional implications (42 Cal. App. 4th 628, 649). The court thus affirmed the judgment of dismissal.

In Robertson v. Rodriguez (1995) 36 Cal. App. 4th 347, 42 Cal. Rptr. 2d 464 , the plaintiff appealed from a judgment striking the plaintiff's complaint and dismissing the action pursuant to Code Civ. Proc. Ї 425.16[Deering's] . The court of appeal affirmed. The court held that Code Civ. Proc. Ї 425.16[Deering's] applies to causes of action that accrued before that statute's effective date. Thus, the court rejected the plaintiff's contention that the statute was inapplicable to the plaintiff's libel claim because the cause of action arose in October, 1992, the complaint was filed in November, 1992, and the statute became effective January 1, 1995 (36 Cal. App. 4th 347, 356).

Ludwig v. Superior Court (1995) 37 Cal. App. 4th 8, 43 Cal. Rptr. 2d 350 , involved a defendant that wished to build a discount mall in a city and had taken at least preliminary steps to do so. The plaintiff, another city, desired to have such a mall built in its city. Because of the geographic proximity of locations and their situation along the same transportation corridor, however, it would be economically advantageous for either mall not to face competition from the other. Plaintiff alleged causes of action for interference with contractual relations, interference with prospective advantage, and unfair competition (37 Cal. App. 4th 8, 11). The crux of plaintiff's case was that, based on self interest, the defendant was behind, encouraged and instigated various third parties to oppose the development in plaintiff city by appearances at public meetings and filing two lawsuits (37 Cal. App. 4th 8, 12-13, 18). The trial court denied the defendant's special motion to strike under Code Civ. Proc. Ї 425.16[Deering's] and the defendant sought a writ of mandate to compel the trial court to grant the motion (37 Cal. App. 4th 8, 11).

The court of appeal issued a peremptory writ holding that the plaintiff failed to show a probability of success on the merits within the scope of Code Civ. Proc. Ї 425.16[Deering's] (37 Cal. App. 4th 8, 11, 30). Initially, the court noted that Section 425.16 is appropriately applied to litigation involving defendant's conduct that was directed to obtaining a financial advantage. On the face of the matter, the defendant's activities qualified under Code Civ. Proc. Ї 425.16[Deering's] in that development of the city's mall with potential environmental effects such as increased traffic and impaction on natural drainage, was clearly a matter of public interest (37 Cal. App. 4th 8, 15).

The court also rejected plaintiff's arguments that the defendant could not claim the protection of the statute because he did not personally perform any of the challenged acts, citing Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal. 3d 1118, 1135-1136, 270 Cal. Rptr. 1 (37 Cal. App. 4th 8, 17). Therefore, as a threshold matter, the plaintiff was seeking to hold the defendant liable for the exercise of rights protected by Section 425.16 (37 Cal. App. 4th 8, 18).

The court also rejected the plaintiff's argument that the defendant could not shelter under Section 425.16 because the statute only protects communicative conduct and that the plaintiff sought to hold the defendant liable for noncommunicative conduct. Rather, the court concluded that the defendant's activities in recruiting and encouraging the defendant's agents were communicative (37 Cal. App. 4th 8, 18-20).

Plaintiff Cannot Establish Probability of Prevailing on Claims Against Defendant

The background of Conroy v. Spitzer (1999) 70 Cal. App. 4th 1446, 83 Cal. Rptr. 2d 443 is discussed under Plaintiff's Burden Arises After Defendant's Prima Facie Showing That Code of Civil Procedure Section 425.16[Deering's] Applies, above. In concluding that the plaintiff failed to show a probability of prevailing on the defamation action, the court noted that to establish a probability of prevailing on a defamation claim, a plaintiff has to make a prima facie showing of facts which would, if credited, support a judgment in plaintiff's favor. As a public official, plaintiff could not recover damages for defendant's statements about plaintiff's fitness for office unless plaintiff proved by clear and convincing evidence that the statements were made with actual malice, i.e., with knowledge that they were false or with reckless disregard of whether they were false or not. The factual statements made during the campaign by the defendant were true or based on reliable evidence (i.e., an Assembly investigation report and reprimand letter, newspaper articles and plaintiff's own statements) and thus defendant did not make them with actual malice. Moreover, defendant's expressions of personal opinion about plaintiff's fitness for office are not actionable (70 Cal. App. 4th 1446, 1451-1452).

The background of Monterey Plaza Hotel v. Hotel Employees & Restaurant Employees (1999) 69 Cal. App. 4th 1057, 82 Cal. Rptr. 2d 10 , is discussed under Plaintiff's Burden Arises After Defendant's Prima Facie Showing That Code of Civil Procedure Section 425.16[Deering's] Applies, above. In concluding that the plaintiff failed to make a prima facie showing in its pleadings and supporting declarations to support its defamation claim, the court of appeal, quoting from Gregory v. McDonnell Douglas Corp. (1976) 17 Cal. 3d. 596, 600, 131 Cal. Rptr. 641, 552 P.2d 425 , noted that California courts early extended constitutional protection to statements relating to labor disputes provided they are not made maliciously. Similarly, the United States Supreme Court in Linn v. Plant Guard Workers (1966) 383 U.S., 86 S. Ct 657, 15 L. Ed. 2d 582 applied the standard of New York Times Co. v. Sullivan (1964) 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 , formulated to protect statements made regarding public officials, to statements issued during labor controversies. This standard requires a determination of whether a statement was made with knowledge that it was false or with reckless disregard whether or not the statement was false (69 Cal. App. 4th 1057, 1064-1066).

In Beilenson v. Superior Court (1996) 44 Cal. App. 4th 944, 52 Cal. Rptr. 2d 357 , plaintiff, a defeated candidate for political office, sued his political opponent for libel based on a campaign mailer which stated that plaintiff ``ripped off'' California taxpayers because he maintained a private law practice on the side while he was on the public payroll. Defendant brought a SLAPP motion to dismiss the action. The trial court denied the motion, finding that plaintiff met his burden of proof that there was a ``possibility'' that he would prevail. Defendant sought relief by way of extraordinary writ. The parties subsequently settled the dispute, but the court of appeal issued a decision because of the importance of the issues. The court initially held that the term ``rip off'' is hyperbole that is common in political debates, and was not defamatory. The court then noted that plaintiff established that there was nothing illegal or unethical in keeping his law practice while in the employ of the state. However, the court reasoned that a citizen could possess the belief that doing so violated a higher code of ethical precepts. The court held that the accusation that plaintiff committed a breach of ethics was a statement of opinion entitled to the protection of the First Amendment (44 Cal. App. 4th 944, 951-952). Concluding that plaintiff did not establish the probability that he would prevail, the court dismissed the petition as moot.

In Matson v. Dvorak (1995) 40 Cal. App. 4th 539, 46 Cal. Rptr. 2d 880 , plaintiff sued the primary contributor to a group which had opposed plaintiff in his campaign for a political office, alleging libel and invasion of privacy based on the contents of a campaign flyer. The defendant moved to strike the complaint, and the trial court granted the motion. On appeal, plaintiff contented that he had made a sufficient prima facie showing of libel. However, plaintiff did not allege that defendant participated in preparing the mailing, knew of its contents, or knew that the charges in the mailer were false. The court of appeal concluded that one whose only contribution to a political campaign is financial, and is not involved in the preparation of campaign literature, cannot be subjected to liability in a defamation action for statements contained in that literature (40 Cal. App. 4th 539, 549).

In Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal. App. 4th 855, 44 Cal. Rptr. 2d 46 , a university filed a libel complaint against a newspaper for publishing articles which described the school as a ``sensuality school'' and stating that it offered a ``unique course in carnal knowledge.'' The trial court granted the newspaper's SLAPP motion to strike the cause of action. The court of appeal affirmed, rejecting plaintiff's contention that it had established a probability that it would prevail. The court stated that plaintiff failed to identify what evidence was sufficient to meet the requirements of Code Civ. Proc. Ї 425.16[Deering's] , and that its briefs did not even include a statement of facts. Furthermore, the court found all of plaintiff's examples of alleged libel to be statements which were either true or to be statements not capable of being proven true or false (37 Cal. App. 4th 855, 868-869).

In Robertson v. Rodriguez (1995) 36 Cal. App. 4th 347, 42 Cal. Rptr. 2d 464 , the plaintiff appealed from a judgment striking plaintiff's complaint and dismissing the action pursuant to Code Civ. Proc. Ї 425.16[Deering's] . The court of appeal affirmed the judgment. The plaintiff was a city council person as were the defendants. The defendants were the proponents of a recall petition against the plaintiff. Plaintiff brought a libel action against the defendants alleging that the defendants made several libelous statements, but plaintiff's brief only challenged the trial court's ruling concerning an alleged libelous statement contained in a recall mailer. The court of appeal concluded that a plaintiff may withstand a motion to strike by demonstrating sufficient facts to establish a prima facie case (36 Cal. App. 4th 347, 352, 357). An analysis of the pleadings and affidavits pursuant to the applicable standard disclosed that the trial court correctly concluded that the plaintiff could not establish a probability of prevailing on the plaintiff's libel claim, given the requirement of showing actual malice (36 Cal. App. 4th 347, 357-358). The plaintiff did not make an adequate prima facie showing of actual malice, and thus, the plaintiff failed to establish a probability of prevailing on the claim (36 Cal. App. 4th 347, 357-359).

The facts and procedural background of Ludwig v. Superior Court (1995) 37 Cal. App. 4th 8, 43 Cal. Rptr. 2d 350 , are discussed under Plaintiff's Burden Arises After Defendants's Prima Facie Showing That Code of Civil Procedure Section 425.16[Deering's] Applies, above. In Ludwig, the court of appeal issued a peremptory writ, holding that the plaintiff failed to show a probability of success on the merits within the scope of Code Civ. Proc. Ї 425.16[Deering's], and therefore the trial court had erred in denying the defendant's motion to strike (37 Cal. App. 4th 8, 11, 30). The court noted that Section 425.16 does not bar lawsuits against persons who are involved in matters of public interest. Rather it merely requires that the plaintiff show that there is a probability that the claim asserted will be successful (37 Cal. App. 4th 8, 20). Thus, assuming the section applies, the plaintiff had the burden of establishing probability of success on the merits. In this regard, the court followed College Hospital, Inc. v. Superior Court (1994) 8 Cal. 4th 704, 32 Cal. Rptr. 2d 898 (construing Code Civ. Proc. Ї 425.13[Deering's] , which requires the plaintiff to establish a substantial probability of prevailing on a punitive damage claim against health care providers before the claim can be made) to hold that the court should not weigh the evidence in making an assessment of the claim. Rather, the determination should be based on whether the evidence introduced either negates or fails to reveal the actual existence of a triable claim. The showing must be made on competent admissible evidence within the declarant's personal knowledge, similar to the standard applied to evidentiary showings on summary judgment motions ( Code Civ. Proc. Ї 437c(b)[Deering's], (d)[Deering's] ) (37 Cal. App. 4th 8, 15). The court rejected the plaintiff's argument that the standard is too high in the context of Section 425.16, which requires the motion to be made within 60 days of service of the coplaint, when the plaintiff has only had a limited opportunity to conduct discovery (37 Cal. App. 4th 8, 16).

The court then recognized the principle that generally those that petition the government are immune from liability, and that this principle applies to commercial speech and competitive activity, and even anticompetitive activity. The court then determined that the plaintiff failed to show a probability of proving that portion of its claims based on appearances at public meetings because it failed to show that the concerns expressed were without merit, as would be required to prevail (37 Cal. App. 4th 8, 21-23).

Similarly, with regard to the filing of the two earlier lawsuits that were subsequently settled, the court noted that the plaintiff had to allege that the litigation was brought without probable cause and that it was concluded in the plaintiff's favor (37 Cal. App. 4th 8, 21-25). The court concluded that the plaintiff failed to do so and could not do so because the dismissal of the earlier lawsuits resulted from a settlement that did not reflect on the merits (37 Cal. App. 4th 8, 27-29).

Prevailing Defendant Is Entitled to Attorney's Fees and Costs

In Ketchum v. Moses (2001) 24 Cal. 4th 1122, 104 Cal. Rptr. 2d 377 , the defendant sought mandatory attorney fees after he prevailed on a motion strike allegations in a SLAPP action under Code Civ. Proc. Ї 425.16[Deering's] . The trial court awarded attorney fees to the defendant's counsel, using a lodestar amount of approximately $70,000 and then applying a fee enhancement of 2.0 to that figure based on contingent risk and the exceptional quality of the legal services provided, for a total of approximately $140,000. The court later awarded supplemental attorney fees and costs of approximately $112,000. The court of appeal reversed the trial court's judgment, concluding that the trial court lacked authority to apply a fee enhancement to the lodestar figure.

The Supreme Court reversed the court of appeal decision and remanded the case for recalculation of the attorney fee award. The court noted that the fee-shifting provision encourages private representation in SLAPP cases, including situations where the defendant is unable to afford fees or the lack of potential monetary damages precludes a standard contingency fee arrangement (24 Cal. 4th 1122,11237). The court held that by its terms, Code Civ. Proc. Ї 425.16[Deering's] permitted the use of the lodestar adjustment method whereby the lodestar is the number of hours reasonably expended multiplied by the reasonable hourly rate, and that figure may be adjusted based on consideration of factors specific to the case, in order to fix the fee at the market rate for legal services provided. (24 Cal. 4th 1122, 1136). The court noted that where the Legislature has determined that that lodestar adjustment approach is not appropriate, it has expressly so stated in a particular statutory provision; thus where the anti-SLAPP provisions referred to attorney fees and costs without indicating any restrictions on how they are to be calculated, the Legislature presumably intended courts to use the prevailing lodestar method (24 Cal. 4th 1122, 1135-1136).

The Supreme Court held that the court of appeal erred in concluding that the trial court lacked authority to award a fee enhancement under Code Civ. Proc. Ї 425.16[Deering's] (24 Cal. 4th 1122, 1136). The court rejected the contentions that permitting a fee enhancement for contingency cases under Code Civ. Proc. Ї 425.16[Deering's] would (1) encourage unmeritorious claims; (2) permit attorneys to pool the risk in contingency cases and thus, in effect, receive payment for cases in which their clients did not prevail; or (3) inevitably result in unfair double counting or a windfall to attorneys representing SLAPP defendants (24 Cal. 4th 1122, 1137-1138). Noting that the trial court is not required to include a fee enhancement to the basic lodestar figure for contingent risk, exceptional skill or other factors, but retains discretion to do so, the Supreme Court remanded the case as to the amount of the fee enhancement (24 Cal. 4th 1122, 1138, 1142). The court found that it was improper to impose an enhancement for contingent risk as to the attorney fees on fees accrued after the motion to strike was granted. The court also remanded on the issue of whether the enhancement factor for exceptional representation had been improperly double counted. Lastly, the court directed that any disapproval on the part of the trial court as to the plaintiff's litigation strategy (to keep the defendant in court) could not be a basis of imposing an enhancement for contingent risk or quality of representation merely for the purpose of punishing the plaintiff (24 Cal. 4th 1122, 1142).

The background of Conroy v. Spitzer (1999) 70 Cal. App. 4th 1446, 83 Cal. Rptr. 2d 443 is discussed under Plaintiff's Burden Arises After Defendant's Prima Facie Showing That Code of Civil Procedure Section 425.16[Deering's] Applies, above. In affirming the trial court's granting of defendants' motion to strike under Code Civ. Proc. Ї 425.16[Deering's] , the court of appeal noted that Section 425.16(c) authorizes an award of attorney fees and costs to the prevailing party. Further, the right of a prevailing defendant to recover attorney fees and costs adequately compensates the defendant for the expense of responding to a baseless lawsuit (70 Cal. App. 4th 1446, 1454-1455).

In Robertson v. Rodriguez (1995) 36 Cal. App. 4th 347, 42 Cal. Rptr. 2d 464 , the plaintiff appealed from a judgment striking plaintiff's complaint, dismissing the action pursuant to Code Civ. Proc. Ї 425.16[Deering's] , and awarding the defendants a certain amount of attorney fees. The defendants also appealed the award of attorney fees contending that they were entitled to a larger amount. The court of appeal affirmed. The court held that Section 425.16 limits a prevailing party's recovery to reasonable attorneys fees, irrespective of whether the prevailing party is the plaintiff or the defendant (36 Cal. App. 4th 347, 360-361). The defendants contended that the trial court erred in awarding only $15,000 rather than their incurred attorney fees and costs of $23,847. The court concluded that the trial court was not bound by the amount sought by the defendants and had discretion to award them a lesser sum. The defendants failed to show that the trial court abused its discretion and thus the attorney fees award had to be upheld (36 Cal. App. 4th 347, 362).
Form 10.1 Supporting Special Motion to Strike Action Against Constitutionally Privileged Conduct (SLAPP Suit) [ Code Civ. Proc. Ї 425.16(b) ]--Governmental Entities and Their Employees, Like Private Parties, May Bring A Special Motion to Strike
[This form should be used in combination with the form of memorandum of points and authorities supporting a special motion to strike action against constitutionally privileged conduct (see Form 10) ].

WHEN A GOVERNMENTAL ENTITY AND ITS EMPLOYEES ARE SUED AS A RESULT OF WRITTEN AND VERBAL COMMENTS ON ISSUES OF PUBLIC INTEREST RELATING TO THEIR OFFICIAL DUTIES, BOTH MAY SPECIFICALLY MOVE TO STRIKE UNDER CODE CIV. PROC. Ї 425.16[Deering's] .

A. Code Civ. Proc. Ї 425.16[Deering's] Applies to Governmental Entities, Their Employees, and Private Parties. Public entities are ``persons'' for the purpose of the SLAPP statute. The anti-SLAPP suit statute is designed to protect the speech interests of private citizens, the public, and governmental speakers ( Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal. App. 4th 713, 730, 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 ); Bradbury v. Superior Court (1996) 49 Cal. App. 4th 1108, 1113, 1117, 57 Cal. Rptr. 2d 207 ).

B. Public Employee's Comment on Issues of Public Interest Relating to Official Duties Is Protected. The word ``person'' as used in Code Civ. Proc. Ї 425.16[Deering's] includes a governmental entity, and extends to public employees who issue reports and comment on issues of public interest relating to their official duties. If a governmental entity and public employee are sued as a result of written and verbal comments on issues of public interest relating to the employee's official duties, both may move to specially strike under Code Civ. Proc. Ї 425.16[Deering's] ( Bradbury v. Superior Court (1996) 49 Cal. App. 4th 1108, 1113-1117, 57 Cal. Rptr. 2d 207 ).

[Optional ] C. Government Is Protected in Performing its Role in CEQA. Government has a legitimate, independent, statutory role to play in the consideration of environmental impact reports and the approval of development proposals. As suc, it should be protected in performing its role on matters of public interest, including purported inadequate performance of its role under under the California Environmental Quality Act ( Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal. App. 4th 713, 730, 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 )).

COMMENT

Use of Form

These points and authorities, combined with the appropriate points and authorities contained in Form 10, 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 public entity and its employees arising from any of their acts in furtherance of their constitutionally protected right to petition or free speech in connection with a public issue [Code Civ. Proc. Ї 425.16(b)[Deering's]; for further discussion, see Comment to Form 10].

DISCUSSION OF AUTHORITIES

Code Civ. Proc. Ї 425.16[Deering's] Applies to Governmental Entities, Their Employees, and Private Parties

The facts and procedural background of Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal. App. 4th 713, 77 Cal. Rptr. 2d 1 , are discussed in Form 10, Discussion of Authorities, Commercial Conduct and Speech. Although the trial court, ruled in the County's favor on the Code Civ. Proc. Ї 425.16[Deering's] motion, it denied attorney fees to the County by ruling that the county was not a ``person'' for purposes of SLAPP, and because the County did not prevail on the Williamson Act claim.

On County's cross-appeal regarding attorney's fees, the court held that public entities are ``persons'' for the purpose of the SLAPP statute. The anti-SLAPP suit statute is designed to protect the speech interests of private citizens, the public, and governmental speakers. In particular the court recognized the govenrment's legitimate role in considering environmental impact reports and develpment proposals (65 Cal. App. 4th 713, 730).

That the demurrers were not sustained on one of the eight causes of action, the Williamson Act cause, did not preclude an award of attorney's fees and costs. The trial court did not believe it had merit, but simply did not have the agricultural contract before it, and plaintiff voluntarily dismissed that cause of action (65 Cal. App. 4th 713, 730).

In Bradbury v. Superior Court (1996) 49 Cal. App. 4th 1108, 57 Cal. Rptr. 2d 207 , a Los Angeles County Deputy Sheriff shot and killed an individual during a search of the individual's residence. A search warrant had been issued. The incident was highly publicized and resulted in a federal civil rights action against the Los Angeles County Sheriff, the deputy county sheriff who killed the individual, and others. The district attorney conducted an investigation, and then issued a report that exculpated the deputy sheriff from criminal liability. However, the report questioned the veracity of the search warrant affidavit suggesting that the county deputy sheriff's primary motivation was to seize property as part of a drug forfeiture. The report in part stated that the county deputy sheriff had obtained a search warrant unsupported by probable cause, and that the search warrant became the individual's death warrant (49 Cal. App. 4th 1108, 1112). The sheriff conducted his own investigation, exculpating the county deputy sheriff, and reached a conclusion contrary to that of the district attorney. (In the court of appeal's view, however, there was no need to resolve this dispute, and none was attempted, in that a theoretical resolution of this dispute was irrelevant to the first amendment issues presented (49 Cal. App. 4th 1108, 1112).) Thereafter, the deputy county sheriff brought suit against the county, the district attorney, several assistant district attorneys, and a district attorney investigator, alleging several causes of action including defamation, intentional infliction of emotional distress, and violation of federal civil rights. The complaint alleged that the defendants defamed the plaintiff in the report, and in subsequent media interviews, including an appearance on the television show ``20/20.'' The defendants successfully demurred to some of the causes of action, but when their demurrers were overruled as to other causes of action they filed a petitio for writ of mandate challenging the court's ruling on the demurrer. While the writ proceeding was pending, the defendants brought a special motion to dismiss pursuant to Code Civ. Proc. Ї 425.16[Deering's] . The trial court denied the motion on the ground that Code Civ. Proc. Ї 425.16[Deering's] does not protect a governmental entity or its representative on the theory that a governmental entity and its representatives have no First Amendment rights (49 Cal. App. 4th 1108, 1113-1114).

The court of appeal issued an alternative writ, stayed the trial court proceedings, consolidated both writ proceedings (49 Cal. App. 4th 1108, 1113), and thereafter issued a peremptory writ of mandate directing the trial court to vacate its order and enter a new order granting the motion to dismiss, and denied the petition for writ of mandate challenging the orders on the demurrer as moot (49 Cal. App. 4th 1108, 1119). The court held that the trial court erred in finding that Code Civ. Proc. Ї 425.16[Deering's] , the anti-SLAPP suit statute, did not apply to governmental comment on a matter of public interest (49 Cal. App. 4th 1108, 1116). A governmental entity and its representatives have First Amendment rights (49 Cal. App. 4th 1108, 1114-1115). First amendment principles applied in this case because the investigation, report, and utterances made thereafter involved a matter of public interest (49 Cal. App. 4th 1108, 1116). The word ``person'' as used in Code Civ. Proc. Ї 425.16[Deering's] includes a governmental entity, and extends to public employees who issue reports and comment on issues of public interest relating to their official duties (49 Cal. App. 4th 1108, 1115). If a governmental entity and public employee are sued as a result of written and verbal comments on issues of public interest relating to the employee's official duties, both may move to specially strike under Code Civ. Proc. Ї 425.16[Deering's] (49 Cal. App. 4th 1108, 1115). With regard to the burden of proof, the court noted that the defendants made a prima facie showing that the report and media statements related to an official investigation, were made in a public forum, and involved an issue of public interest. Private conversations concerning the report were also protected under the anti-SLAPP statute. Moreover, the request that the Los Angeles County and other law enforcement agencies investigate the matter was in furtherence of the right to petition the government for grievances. The defendants also submitted declarations establishing their good faith belief in the accuracy of the report and media statements (49 Cal. App. 4th 1108, 1117). The burden shifted to the plaintiff to show that he met the test enunciated in New York Times Co. v. Sullivan (1964) 376 U.S. 254, 279-280, 11 L. Ed. 2d 686, 84 S. Ct. 710 , and that he would probably prevail at the trial. The plaintiff had to show by competent evidence that the defendants made the statements with actual malice, i.e., knowing they were false or making them with a reckless disregard of the truth. The plaintiff failed to do this in that no evidence was offered in the opposition papers on this issue (4 Cal. App. 4th 1108, 1117).

Public Employee's Comment on Issues of Public Interest Relating to Official Duties Is Protected

Bradbury v. Superior Court (1996) 49 Cal. App. 4th 1108, 57 Cal. Rptr. 2d 207 , is discussed under Code Civ. Proc. Ї 425.16[Deering's] Applies to Governmental Entities, Their Employees, and Private Parties, above.

Government Is Protected in Performing its Role in CEQA

Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal. App. 4th 713, 77 Cal. Rptr. 2d 1 , is discussed under Code Civ. Proc. Ї 425.16[Deering's] Applies to Governmental Entities, Their Employees, and Private Parties, above.
Forms 11-19 [Reserved]

Form 20 Supporting Motion to Strike Whole or Part of Pleading
[Code Civ. Proc. Ї 435]--Irrelevant Matter in Pleading
[Code Civ. Proc. Ї 436(a)]
[This form should be used in combination with a general form of memorandum of points and authorities supporting a motion to strike, which sets out the statutory basis for making such a motion (see Form 1). ]

THE COURT SHOULD STRIKE THE MATTER SPECIFIED IN THE NOTICE OF MOTION FROM THE _________________ [specify pleading, e.g., COMPLAINT] BECAUSE THAT MATTER IS IRRELEVANT TO THIS ACTION.

A. Irrelevant Matter May Be Stricken From Any Pleading. The court may on timely motion to strike by a party, or at any time in its discretion, strike from any pleading any irrelevant matter ( Code Civ. Proc. Ї 436(a)[Deering's] ).

[Optional ] B. Immaterial Allegation Is Subject to Be Stricken. Immaterial allegation as defined by statute means irrelevant matter that is subject to be stricken ( Code Civ. Proc. ЇЇ 431.10(c)[Deering's], 436(a)[Deering's] ).

[Optional ] C. Nonessential Allegation Is Subject to Be Stricken. An allegation that is not essential to the statement of a claim or defense is an immaterial allegation that is subject to be stricken as irrelevant matter ( Code Civ. Proc. ЇЇ 431.10(b)(1)[Deering's], (c)[Deering's], 436(a)[Deering's] ).

[Optional ] D. Allegation of Probative Facts Is Subject to Be Stricken. Allegations of probative facts in a pleading are surplusage and may be stricken ( Dabney v. Key (1922) 57 Cal. App. 762, 763, 207 P. 921 ; see Code Civ. Proc. ЇЇ 431.10(b)(1)[Deering's], (c)[Deering's], 436(a)[Deering's] ).

[Optional ] E. Allegation Not Related to Claim or Defense Is Subject to Be Stricken. An allegation that is not pertinent to or supported by an otherwise sufficient claim or defense is an immaterial allegation that is subject to be stricken as an irrelevant matter ( Code Civ. Proc. ЇЇ 431.10(b)(2)[Deering's], (c)[Deering's], 436(a)[Deering's] ).

[Optional ] F. Unsupported Demand for Judgment Is Subject to Be Stricken. A demand for judgment requesting relief not sup- ported by the allegations of the complaint or cross complaint is an immaterial allegation that is subject to be stricken as irrelevant matter ( Code Civ. Proc. ЇЇ 431.10(b)(3)[Deering's], (c)[Deering's], 436(a)[Deering's] ).

COMMENTS

Use of Form

The foregoing form of memorandum of points and authorities may be used together with a general form of memorandum of points and authorities, supporting a motion to strike when counsel wishes to move to strike irrelevant matter from a pleading. The foregoing sets out the basis for the court's power to strike irrelevant matter from any pleading, the point that an immaterial allegation constitutes irrelevant matter for purposes of a motion to strike, and the statutory definition of an immaterial allegation. Paragraph A may be cited in all cases in which matter is sought to be stricken from a pleading as irrelevant. If the matter to be stricken falls within one or more of the statutory definitions of an immaterial allegation, optional Paragraph B and any of the optional paragraphs following it that apply to the challenged pleading matter should also be cited. The foregoing also sets out the point that allegations of probative facts may be stricken as surplusage.

The foregoing 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].

Counsel should insert facts and arguments into this form and any form it is used in combination with, showing how the particular matter to be stricken is irrelevant to the questions at issue in the case, or how the matter to be stricken constitutes an immaterial allegation.

Use of Pre-1982 Case Law

The current statutory scheme governing motions to strike [ Code Civ. Proc. ЇЇ 431.10(b)[Deering's],(c)[Deering's], 435-437[Deering's] ] was enacted in 1982. However, prior to 1982, a number of cases had upheld the striking of irrelevant matter from pleadings. The statutory scheme has added to this body of case law the explicit statutory authorization to strike irrelevant matter [see Code Civ. Proc. Ї 436(a)[Deering's] ] and an explicit definition of an immaterial allegation that may be stricken as irrelevant matter [see Code Civ. Proc. ЇЇ 431.10(b)[Deering's] (definition of immaterial allegation), 431.10(c)[Deering's] (immaterial allegation as irrelevant matter), 436(a)[Deering's] (irrelevant matter as subject to motion to strike)]. However, these provisions do not appear to restrict the types of pleading matter that may be stricken as irrelevant [see discussion under Irrelevant Matter, infra], nor are there any other provisions in the statutory scheme that set out such restrictions. Thus, the statute appears only to clarify and not to restrict the courts' power as it existed before 1982 to strike pleading matter as irrelevant. Pre-1982 case law on the striking of irrelevant matter from pleadings is therefore probably still good law.

Those cases dealing with pleading matter that is now covered by the statutory definition of immaterial pleadings should be cited together with Code Civ. Proc. ЇЇ 431.10(c)[Deering's] and 436(a)[Deering's] and with the paragraph or paragraphs of Code Civ. Proc. Ї 431.10(b)[Deering's] that apply to the pleading matter in question.

Irrelevant Matter

Code Civ. Proc. Ї 431.10(c)[Deering's] , which provides that an immaterial allegation as defined in Code Civ. Proc. Ї 431.10(b)[Deering's] constitutes irrelevant matter, contains no provision stating that only such an immaterial allegation may be deemed irrelevant matter. That an allegation may be material as defined in Code Civ. Proc. Ї 431.10(a)[Deering's] (see discussion under Immaterial Allegation as Irrelevant Matter, infra) but still subject to be stricken as irrelevant is suggested by a pre-1982 case that is probably still valid under the current statutory scheme. In that case the court upheld the striking from a complaint as irrelevant of certain allegations that stated no issue on which plaintiff could legally have tendered proof even though the striking of such allegation rendered the complaint subject to a general demurrer under applicable substantive law [ Kline v. San Francisco Unified School District (1940) 40 Cal. App. 2d 174, 178, 104 P.2d 661, 105 P.2d 362 ]. Thus, the definitions set out in Code Civ. Proc. Ї 431.10(b)[Deering's] do not appear to be exhaustive of the types of pleading matter that may be deemed to be irrelevant.

An overall definition of irrelevant matter, other than the one for immaterial allegations, discussed above, is not given in either the statutes or cases. However, the Supreme Court in an early case based its upholding of the striking of certain factual allegations from a complaint on the observation that the claim that the facts alleged had a bearing on the rights of the parties to the case was without foundation in law or reason [ People v. Hawley (1929) 207 Cal. 395, 407, 279 P. 136 ]. This reasoning suggests a rule of thumb criterion for determining whether pleading matter is irrelevant that appears to be representative of the reasoning of subsequent cases.

The following are some of the circumstances in which irrelevant ma - terial has been held to be subject to be stricken. Allegations supporting a claim that the pleading party could not legally make have been held properly stricken [see Doran v. Biscailuz (1954) 128 Cal. App. 2d 55, 61, 274 P.2d 691 (allegation of losing candidate as to own participation in election in case challenging winning candidate's eligibility when finding of winner's ineligibility would not have given loser right to take office); Kline v. San Francisco Unified School District (1940) 40 Cal. App. 2d 174, 178, 104 P.2d 661, 105 P.2d 362 (allegation of timely letter to defendant's officer detailing injury when under law such letter is no substitute for required verified demand)]. Allegations that for one reason or another were deemed insufficient to support particular claims they were asserted to support have also been stricken as irrelevant [see Enos v. Murtaugh (1941) 47 Cal. App. 2d 269, 274, 117 P.2d 905 (unembroidered allegation that land deed had mistakenly named wrong grantee as neither stating independent cause of action nor supporting claim of prescriptive title); Woodson v. Winchester (1911) 16 Cal. App 472, 474, 117 P. 565 (allegations of misrepresentations designed to induce persons to move to California and to buy land in colony being offered for sale by seller, but not relating to specific land parcels bought by buyer as not satisfying fullness and particularity requirement for fraud claims)]. Finally, allegations of facts that in context of the general fact situation alleged would not have affected the rights of any of the parties have been held properly stricken [see People v. Hawley (1929) 207 Cal. 395, 407, 279 P. 136 (allegations as to location of land in flood control district as irrelevant in abatement action); McCarthy v. McColgan (1929) 99 Cal. App 492, 498-499, 278 P. 918 (allegation of forgerythat would have affected only persons not arty to case as irrelevant)].

Related Points and Authorities

For points and authorities supporting and opposing motions for summary judgment, see Ch. 221, Summary Judgments in this set.

Opposing Points and Authorities

In an appropriate case, the points and authorities set out in Forms 40-43 and 46 may be submitted in opposition to a motion to strike supported by the foregoing points and authorities.

DISCUSSION OF AUTHORITIES

Allegation of Probative Facts Is Subject to Be Stricken

Dabney v. Key (1922) 57 Cal. App. 762, 207 P. 921 , involved an action to enforce a specific contract to lease certain lands for the purpose of developing oil wells. Plaintiffs filed an amended complaint and defendants interposed a demurrer and a motion to strike. The motion to strike was granted in part and denied in part, and the demurrer was sustained with leave to amend. One of the assignments of the motion to strike with respect to which the motion was granted was directed to language in an allegation that at the time of the execution of the agreement, plaintiff J.B. Dabney had paid a sum of money in consideration of the lease by and through one Clifford R. Dabney. Acting on the assignment in the motion to strike, the trial court struck out the words by and through Clifford R. Dabney. Plaintiffs did not amend their complaint, and judgment was awarded to defendants. Plaintiffs appealed from this judgment.

The court of appeal affirmed the judgment. With respect to the motion to strike, the court noted preliminarily that the whole of the complaint clearly showed that it was plaintiffs' theory that if a lease were made, if would run to plaintiff J.B. Dabney and that the negotiations were carried out at least in part by one Clifford R. Dabney acting as agent for J.B. Dabney (p. 762). The court held that the clause in the complaint averring that plaintiffs' alleged payment to defendants in consideration of the lease was made ``by and through Clifford R. Dabney'' stated only a probative fact that was not necessary to the sufficiency of the pleading. Thus, the court concluded that the clause was properly stricken (p. 763).

ADDITIONAL AUTHORITIES

Allegation of Probative Facts Is Subject to Be Stricken

Stafford v. Shultz (1954) 42 Cal. 2d 767, 270 P.2d 1 , involved a medical malpractice action alleging that injury to plaintiff resulted from the defendants' failure to properly care for the plaintiff's injured leg. Before trial, two of the defendants successfully demurred on the grounds that, inter alia, the complaint was uncertain in that it did not state in what respect defendants had been negligent in caring for plaintiff's leg. On appeal, the Supreme Court held it was not necessary to allege in what respect the treatment given the plaintiff might have been deficient as long as the allegations of the complaint charged the breach of a legal duty, proximate causation, and resulting damage (p. 782). In concluding that defendants' demurrer should have been overruled, the Court stated that probative facts alleged in a pleading are surplusage and may be stricken out or disregarded (p. 782).

Forms 21-29 [Reserved]

Form 30 Supporting Motion to Strike Whole or Part of Pleading [Code Civ. Proc. Ї 435]--False or Improper Pleading Matter [Code Civ. Proc. Ї 436(a)]
[This form of memorandum of points and authorities should be used in combination with a general form of memorandum of points and authorities supporting a motion to strike (see Form 1). ]

THE MATTER IN THE _________________ [specify pleading, e.g., AMENDED COMPLAINT] SHOULD BE STRICKEN BECAUSE IT IS _________________ [FALSE and/or IMPROPER].

A. Court May Strike False or Improper Matter. The court may, on timely motion to strike by any party, or at any time in its discretion, strike from any pleading any false or improper matter ( Code Civ. Proc. Ї 436(a)[Deering's] ).

[Optional ] B. Inconsistency With Prior Pleadings May Show Matter in Pleading to Be False or Improper. Allegations in an amended pleading that contradict sworn allegations in earlier pleadings may show that the subsequent allegations are sham or filed in bad faith (see Tostevin v. Douglas (1958) 160 Cal. App. 2d 321, 330, 331, 325 P.2d 130 ; see also Evid. Code ЇЇ 452(d)[Deering's], 453[Deering's] (records of court subject to judicial notice)).

[Optional ] C. Denial on Information and Belief of Matters Within Defendants' Knowlege May Be Stricken. If a matter alleged in a complaint is within the defendant's actual knowledge or by its nature is presumed to be within the defendant's actual knowledge, or the defendant has the means of ascertaining whether or not the matter is true, a denial on information and belief or for lack of either will be deemed sham and evasive and may be stricken out or disregarded ( Mulcahy v. Buckley (1893) 100 Cal. 484, 487-489, 35 P. 144 ; Dobbins v. Hardister (1966) 242 Cal. App. 2d 787, 791, 51 Cal. Rptr. 866 ).

[Optional ] D. Allegations Inconsistent With Unambiguous Instrument Incorporated Into Complaint May Be Stricken. When a written instrument is unambiguous and incorporated by reference into the complaint, any allegations in the pleading inconsistent with the incorporated instrument may be stricken ( Nichols v. Canoga Industries (1978) 83 Cal. App. 3d 956, 965, 148 Cal. Rptr. 459 ).

[Optional ] E. Allegations Requesting Improper Relief. A motion to strike is an appropriate vehicle to attack allegations requesting improper relief ( Satz v. Superior Court (1990) 225 Cal. App. 3d 1525, 1533 n.9, 275 Cal. Rptr. 710 ; Saberi v. Bakhtiari (1985) 169 Cal. App. 3d 509, 517, 215 Cal. Rptr. 359 ).

COMMENTS

Use of Form

The foregoing form of memorandum of points and authorities may be combined with a general form of memorandum of points and authorities, supporting a motion to strike [see Form 1] when matter in an opposing party's pleading can be shown to be false or improper without resort to extrinsic evidence [see discussion under Defect Must Appear on Face of Pleading or From Matter Subject to Judicial Notice, below ]. This form sets out the statutory basis for the court's power to strike false or improper matter from any pleading. This form also sets out the point that falseness of matter in a pleading other than the original complaint may be shown by comparing averments in the challenged pleading with sworn allegations in prior pleadings, which are subject to judicial notice, and the point that denial on information and belief of matters presumably within a defendant's knowledge or allegations inconsistent with an unambiguous instrument incorporated into a pleading are false or improper. The point set out in this form that an amended pleading may be shown by comparison with prior pleadings to be false or improper is often related to the points that an amended pleading has failed to amend a prior pleading that was found to be deficient, or that an amended pleading has attempted to withdraw a sworn allegation in a prior pleading [see Kronsberg v. Milton J. Wershow Co. (1965) 238 Cal. App. 2d 170, 173, 47 Cal. Rptr. 592 ; Tostevin v. Douglas (1958) 160 Cal. App. 2d 321, 327, 325 P.2d 130 ]. Thus, when appropriate, this form may be used in combination with a form of points and authorities setting out the above stated points regarding amended pleadings [see Form 31].

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

Validity of Pre-1982 Case Law

For a full discussion of the effect of the 1982 statutory revision of the statutory law governing motions to strike, see Sham Pleadings, below.

Sham Pleadings

Both statutory law and case law in effect before 1982 permitted the striking of pleading matter as sham [see former Code Civ. Proc. Ї 453[Deering's] (repealed by Stats. 1982, ch. 704, Ї 5 ); Kronsberg v. Milton J. Wershaw Co. (1965) 238 Cal. App. 2d 170, 173, 47 Cal. Rptr. 592 ]. A sham pleading was traditionally defined as a pleading that is good on its face but false in fact and pleaded in bad faith [see Gustorfs v. Taafe, McCahill & Co. (1861) 18 Cal. 385 , 387-388]. The 1982 revision of statutory law governing motions to strike deleted reference to sham pleadings, and no post 1982 cases have ruled on the point. However, it is probable that the types of pleadings and pleading matter that the pre-1982 cases held to be subject to striking as sham may now be stricken under the provisions of Code Civ. Proc. Ї 436(a)[Deering's] , authorizing the court to strike false or improper matter, provided that the sham character of the pleading matter can be shown without resort to extrinsic evidence [see discussion under Defect Must Appear on Face of Pleading or From Matter Subject to Judicial Notice, infra]. If statutory law is no longer sufficient to provide authority for the striking of sham pleadings, such pleadings can still probably be stricken under the court's inherent power to prevent frustration, abuse, or disregard of their judicial processes, by summary means [ Tostevin v. Douglas (1958) 160 Cal. App. 2d 321, 330, 331, 325 P.2d 130 ]. For discussion of the court's inherent power to summarily strike pleadings, see Introduction, Court's Inherent Power to Strike, Introduction, Court's Inherent Power to Strike, above.

Defect Must Appear on Face of Pleading or From Matter Subject to Judicial Notice

Code Civ. Proc. Ї 437(a)[Deering's] , which was enacted in 1982, provides that the grounds for a motion to strike must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Counsel should be aware that under Code Civ. Proc. Ї 437(a)[Deering's] , certain pre-1982 cases that upheld the striking of pleading matter as frivolous and sham based on affidavits or other extrinsic evidence are no longer good law. The restriction on motions to strike based on extrinsic evidence particularly affects motions to strike a party's original pleadings. By the nature of the concept, the character of a defect which, according to the traditional definition of a sham pleading, shows a pleading to be false in fact and pleaded in bad faith, though the pleading is good in form, is unlikely to appear on the face of the pleading [see discussion under Sham Pleadings, supra]. Unlike amended pleadings that may be shown to be false by comparison with prior pleadings [see Paragraph B, supra], original pleadings ordinarily have no judicially noticeable matter to which they may be compared to demonstrate their falsity. Thus, a challenge to matter in an original pleading on the ground that it is sham or frivolous cannot usually be made without resort to extrinsic evidence. Such a challenge should therefore be made by way of motion for summary judgment rather than motion to strike. For a full discussion of motions to strike that purport to rely on extrinsic evidence and the treatment given to such motions by the courts, see Form 40, below.

For further discussion of the striking of improper amended pleadings as sham, see Form 31, below.

Matter Subject to Judicial Notice Must Be Identified

Code Civ. Proc. Ї 437(b)[Deering's] provides that when a motion to strike is based on matter of which the court should take notice pursuant to Evid. Code ЇЇ 452[Deering's] or 453[Deering's] , such matter must be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit. Evid. Code Ї 452(e)[Deering's] provides for judicial notice of the records of any court in the state [see Evid. Code Ї 453[Deering's] (permissive judicial notice provided for in Evid. Code Ї 452[Deering's] as becoming mandatory when conditions are met)]. Thus, a motion to strike relying on prior pleadings on record in the case should specify the pleadings relied on in the notice of motion or the accompanying points and authorities.

DISCUSSION OF AUTHORITIES

Inconsistency With Prior Pleadings May Show Matter in Pleading to Be False or Improper

Tostevin v. Douglas (1958) 160 Cal. App. 2d 321, 325 P.2d 130 , involved an action for declaratory relief and accounting on an alleged oral, personal service contract. Plaintiff filed one original complaint and three amended complaints. Demurrers to the original, first, and second complaints were sustained with leave to amend. Leave to amend the second amended complaint was qualified by direction that any variation from the previous verified complaint in the allegations set out in the forthcoming amended complaint must be explained. Plaintiff filed a third amended complaint, which defendant moved to strike. The trial court granted the motion to strike, stating that the amended complaint had made no substantial amendment of and had given no explanations for changes from the former complaint. Plaintiff filed no further amend- ments, and the trial court entered a judgment of dismissal. Plaintiff appealed.

The court of appeal upheld the trial court's action. The court noted from the record that the complaints filed by plaintiff showed numerous changes in essential averments, including omissions, variations, and contradictions in material allegations relating to the services required to be performed by plaintiff under the contract, the termination date of the contract, and the date of defendant's repudiation of the contract, none of which were explained or accounted for by plaintiff (p. 324). The court also noted that although entitled ``Complaint for Declaratory Judgment and an Accounting,'' the complaint was really one to recover an amount due for breach of the terms of an oral agreement. The court stated that on the facts alleged no real cause of action for accounting appeared in any of the pleadings, and concluded that plaintiff's reason for filing an action for an accounting was that the statute of limitations had run on an action for breach of contract and plaintiff was attempting to seek refuge in the longer limitations period provided for accounting actions (pp. 328, 329).

Looking at the pattern of averments in the various complaints in detail, the court concluded that plaintiff was in essence attempting to correct fatal defects in the earlier complaints by avoiding the effect of the statute of frauds and the statute of limitations (pp. 327-330). However, the court held that the second and third amended complaints utterly failed to and could not under the sworn facts remedy the defects in the previous pleadings. The court stated that the later pleadings made no substantial amendments even though plaintiff was given substantial opportunity to clarify ambiguities, amend insufficiencies, eliminate surplusages and explain mistaken statements, and that plaintiff simply changed his story with regard to the terms and conditions of the oral agreement and the time of repudiation. The court stated that it could only conclude from this that the various changes made by plaintiff in his second and third amended complaints were the result of efforts to conform to a theory of recovery, rather than to the facts as they actually existed. The court held that the trial court has the right to strike pleadings of this kind from the files on the ground that it is frivolous and a sham under the courts' inherent power to prevent, by summary means, the frustration, abuse, or disregard of their processes (p. 331).

Denial on Information and Belief of Matters Within Defendants' Knowledge May Be Stricken

Mulcahy v. Buckley (1893) 100 Cal. 484, 35 P. 144 , was an action to enforce a mechanic's lien. The complaint alleged, inter alia, that plaintiff had recorded a claim of lien in the recorder's office. In his answer, defendant stated that he had no information or belief on the subject sufficient to enable him to answer the allegation or any allegation contained in the paragraph in which the allegation was set out, and that he placed his denial of the allegations on this ground. After trying the case without a jury, the trial court disregarded this part of the answer and, holding that all material allegations of this paragraph of the complaint should be deemed admitted, entered judgment for plaintiff. Defendant appealed.

The Supreme Court upheld the trial court's action. The Court acknowledged that former Code Civ. Proc. Ї 437 [now see Code Civ. Proc. Ї 431.30(e)[Deering's] ] provides that if the defendant has no information or belief on the subject to enable him or her to answer an allegation of the complaint, he or she may so state in the answer, and place the denial on that ground. However, the Court held that this provision did not give a defendant the right to answer an allegation on information and belief, or lack of these, when he or she may be presumed to know whether or not the allegation is true, or when he or she is aware that the means of ascertaining the truth of falsity of the allegation is available (p. 487). Citing a commentary on code pleading, the Court noted that because the obligation to verify implies the obligation to tell the truth, an answer based on a denial of information and belief when the fact charged is evidently within the defendant's knowledge is clearly false or evasive, and should be disregarded (pp. 487-489).

The Court noted from the commentary that a fact is evidently within the defendant's knowledge so as to require a positive denial when it concerns an act done by the defendant himself or herself within the period of memory, or when the defendant has the means of information (p. 487). Along the lines of this rule, the Court cited out-of-state authority for the proposition that a party cannot plead ignorance of a public record to which he or she has access, and that affords all the means of information necessary to obtain positive knowlege of the fact (p. 488). In the present case, the Court noted that defendant knew at least that he could ascertain whether or not plaintiff had recorded his claim of lien, as alleged in the complaint, by examining a public record in the city and county in which the lots on which the lien is claimed were situated (p. 487). The Court limited its opinion to the circumstances and facts disclosed by the record before it (p. 489).

Dobbins v. Hardister (1966) 242 Cal. App. 2d 787, 51 Cal. Rptr. 866 , was an action to recover the purchase price of certain goods that plaintiff alleged he had sold and delivered to defendant at defendant's special request and instance. Defendant answered, denying all of plaintiff's allegations on the basis of information and belief. Plaintiff demurred to the answer, arguing that the answer did not state a defense since a denial based on information and belief is not sufficient to controvert allegations of fact that are presumptively within the defendant's knowledge, as were the facts alleged by plaintiff in this case. The trial court overruled the demurrer. However, plaintiff subsequently moved for judgment on the pleadings on the same grounds, and the trial court sustained the motion. Defendant appealed from the resulting judgment for plaintiff.

The court of appeal overturned the judgment in the lower court, holding that the trial court should have given defendant an opportunity to amend his answer so as to state positive denials before ruling on the motion for judgment on the pleadings (pp. 795-798). However, the court upheld the trial court's determination that the denials based on lack of information and belief stated in the original answer were insufficient.

The court cited an extensive series of cases, beginning with Mulcahy v. Buckley (1893) 100 Cal. 484, 486-489, 35 P. 144 (discussed supra), for the rule that if the matter alleged by the plaintiff is within the defendant's actual knowledge or by its nature is presumed to be within his or her knowledge, or if the defendant has the means of ascertaining whether or not it is true, a denial on information or belief or lack of either will be deemed sham and evasive and may be stricken out or disregarded (p. 791). Citing other authorities, the court held that the facts as to whether goods were sold and delivered by plaintiff to defendant and whether defendant made any payments to plaintiff for such goods are matters presumptively within defendant's knowledge. The court held further that if defendant were actually ignorant of the items of the account or of the payments, if any, for such items at the time when defendant was served by the complaint, it was defendant's duty to become informed before he filed his answer since these were material facts that he should have known (p. 794). The court stated that it made no difference for the operation of this rule whether the facts alleged by plaintiff encompassed only a single sales transaction, or whether they encompassed multiple transactions, as in the present case (p. 793).

The court stated that since the complaint was framed in the form of common counts, defendant was entitled to demand a bill of particu- lars under Code Civ. Proc. Ї 454[Deering's] , requiring plaintiff to furnish defendant with the details regarding the items charged against him (p. 794). This, stated the court, clearly gave defendant access to a legal procedure that afforded him the means of obtaining positive knowledge of the facts charged in the complaint (p. 795). In citing demand for a bill of particulars as a procedure available to defendant, the court acknowledged the theoretical possibility that the trial court might decline to extend defendant's time for answering so as to give defendant the time to demand a bill of particulars or that plaintiff might not return the bill within the time the court is empowered to extend the time to plead. If either of these circumstances should occur, the court stated that they should be averred in the answer, together with the other circumstances indicating actual ignorance of the facts that the defendant ought to know, in explanation of the defendant's inability to answer positively (p. 795).

The court concluded that on remand defendant should be given the election of standing on his answer or amending it so as to state positive denials (p. 797).

Allegations Inconsistent With Unambiguous Instrument Incorporated Into Complaint May Be Stricken

Nichols v. Canoga Industries (1978) 83 Cal. App. 3d 956, 148 Cal. Rptr. 459 , was an action on a contract wherein plaintiff agreed that he and the corporation of which he was sole shareholder would transfer substantially all assets of the corporation, subject to the corporation's liabilities, to defendant corporation in return for stock in defendant corporation. The written agreement stated in part that (1) in consideration of the transfer of the assets of plaintiff's corporation, defendant corporation would sell to plaintiff's corporation 20,000 shares of its own stock and (2) in the event that during a specified period the value of the 20,000 shares of stock thus transferred dropped below $20.00 per share, defendant corporation would issue up to 12,000 additional shares to plaintiff's corporation to make up the difference between the existing value of the 20,000 shares and the value of the shares at $20.00 per share. In addition, the agreement included a warranty of the defendant corporation's financial condition. Plaintiff incorporated the written agreement into his complaint by reference and alleged that he had carried out his part of the agreement, that a total of 32,000 shares of defendant's stock were finally transferred to his corporation, but that as of a specified date the 32,000 shares were worth only $100,000. Finally, plaintiff alleged that defendant had breached the warranties of its fi- nancial condition, damaging plaintiff in the amount of $300,000. Plaintiff's claim for damages rested on a paragraph in the complaint that alleged that defendant had agreed to pay the plaintiff $400,000 in the form of 20,000 shares of the defendant's stock, to be supplemented with the additional transfer of up to 12,000 shares in the event of the fall in stock value as recited in the agreement.

Defendant demurred, raising the bar of the statute of limitations, and moved to strike the portion of the complaint alleging that the defendant had agreed to pay $400,000 in the form of its stock shares and the portion asking for damages. The trial court sustained the demurrer, granted the motion to strike, declared that its ruling on the demurrer compelled denial of leave to amend the complaint, and dismissed the action. Defendant appealed.

The court of appeal upheld the motion to strike but overturned the demurrer, holding for unrelated reasons that the action was not barred by the statute of limitations, and remanded the action to the trial court for further proceedings as set out below. The court held that when a written instrument is unambiguous and is incorporated into a complaint, any allegations in the pleadings inconsistent with the incorporated writing may be stricken (p. 965). The court observed that while the complaint alleged an agreement calling for consideration of $400,000 payable in the form of stock, the agreement that the complaint incorporated by reference in facially unambiguous terms treated the $20.00 per share value of the stocks that made up the consideration merely as the standard by which shares of defendant in addition to the 20,000 contemplated by the agreement would be issued, while limiting the additional shares to 12,000 (p. 965). The court stated that no facts were alleged establishing the ambiguity of the written instrument. As to the allegation of damages in the complaint, the court stated that it depended on the stricken allegation of the promise of $400,000 consideration and was therefore also properly stricken.

The court further stated, however, that conceivably facts may exist to establish ambiguity of the agreement within the definition of existing law (pp. 965-966). Since the trial court's decision to refuse leave to amend was based on that court's holding that the action was barred by the statute of limitations, which holding the court of appeal overturned, the court ordered the case remanded to the trial court to permit plaintiff to amend his complaint if he can truthfully allege facts which establish that the additional 12,000 shares were not to be his exclusive compensation for diminution in value of the shares (p. 966).

It should be noted that the case was decided before the 1982 enactment of the legislative scheme governing motions to strike, and the court did not cite any authority for striking the allegations, nor did the court state that allegations were properly stricken as sham, irrelevant, or for any other general grounds. It is probable, however, that allegations of the sort in issue could now be stricken as false matter under Code Civ. Proc. Ї 436(a)[Deering's] .

Allegations Requesting Improper Relief

Satz v. Superior Court (1990) 225 Cal. App. 3d 1525, 275 Cal. Rptr. 710 , was an action for defamation by persons who had previously been defendants in a child abuse prosecution. The defendants in the defamation action included a television newscaster who had reported on the earlier prosecution. The newscaster's motion to strike portions of the complaint based on broadcasts aired more than one year before the defamation action was filed on the ground they were barred by the statute of limitations [ Code Civ. Proc. Ї 340(3)[Deering's] ] was denied, and the newscaster petitioned the court of appeal for a writ of mandate. The court of appeal held that the newscaster was not a witness, within the meaning of Civ. Code Ї 48.7[Deering's] , which prevents a person charged with abuse from suing the child, parent, or any witness for defamation arising from statements made by the child, parent, or witness until after the criminal charges are resolved (pp. 1527, 1532), and ordered issuance of the writ with directions to vacate the order denying the motion to strike and to grant it insofar as it was based on Civ. Code Ї 48.7[Deering's] . In so doing, the court cited Saberi v. Bakhtiari (1985) 169 Cal. App. 3d 509, 517, 215 Cal. Rptr. 359 , discussed below, for the proposition that a motion to strike is an appropriate vehicle to attack allegations requesting improper relief (p. 1533 n.9).

Saberi v. Bakhtiari (1985) 169 Cal. App. 3d 509, 215 Cal. Rptr. 359 , was a proceeding in unlawful detainer in which a default judgment awarding plaintiff possession of commercial premises plus damages and costs was entered. Defendant appealed contending, among other things, that the complaint was jurisdictionally defective because it combined a request for possession of the premises based on service of a 30-day notice to quit with a request for rent due prior to termination of the tenancy. Although the court of appeal reversed the judgment on other grounds, it rejected the jurisdiction argument, stating the inclusion in the complaint of an improper request for pretermination rent did not render the entire complaint invalid because an objection to the request could be made by a motion to strike the improper allegations or as a defense in the answer to the complaint (169 Cal. App. 3d 509, 517).

ADDITIONAL AUTHORITIES

Denial on Information and Belief of Matters Within Defendants' Knowledge May Be Stricken

Sociedade Do Espirito Santo v. Santa Clara Valley Bank (1914) 24 Cal. App. 592, 141 P. 1054 , involved an action to recover money that plaintiff alleged had been received by defendants for the use and benefit of plaintiff. One of the defendants answered, averring, inter alia, that he had no information or belief sufficient to enable him to answer the allegation that the plaintiff had demanded payment of the money before commencement of the action, and denying the allegation on the basis of this. On motion, the trial court struck this averment. On appeal, the court of appeal held that it was not error to strike the averment, since a defendant cannot deny knowledge of his or her own acts, or knowledge of his or her personal transactions. The court stated that with respect to allegations of such facts a positive answer is required (24 Cal. App. 592, 594).
Form 31 Supporting Motion to Strike [Code Civ. Proc. ЇЇ 435, 436]--Improper Amended Pleading [Code Civ. Proc. ЇЇ 472, 473(a)]--Amendment Fails to Correct Defect
in Original Pleading
[This 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). When appropriate, this form may be used in combination with a form of points and authorities setting out the point that sham or frivolous pleadings may be stricken as false or improper matter (see Form 30) or a form of points and authorities setting out the point that a pleading not filed or drawn in comformity with California law may be stricken (see Form 2). ]

A. Court Not Required to Tolerate Improper Amended Complaint. A court is not required to tolerate a purported amended complaint that fails to amend the previous pleading, is not filed in good faith, is filed in disregard of established procedural requirements, or is otherwise violative of orderly judicial administration ( Kronsberg v. Milton J. Wershow Co. (1965) 238 Cal. App. 2d 170, 173, 47 Cal. Rptr. 592 ).

[Optional ] B. Court May Strike Amended Pleading That Merely Repeats Original Pleading. A pleading that in its essential averments repeats a pleading previously found to be insufficient is properly stricken ( Kronsberg v. Milton J. Wershow Co. (1965) 238 Cal. App. 2d 170, 174, 47 Cal. Rptr. 592 ).

[Optional ] C. Amendment Cannot Revive Defective Complaint by Omitting Previously Sworn Facts. A party may not withdraw facts once alleged under oath by simply filing an amended pleading eliminating such facts without explanation ( Tostevin v. Douglas (1958) 160 Cal. App. 2d 321, 327, 325 P.2d 130 (complaint); see Silica Brick Co. v. Winsor (1915) 171 Cal. 18, 22, 151 P. 425 (answer)).

COMMENTS

Use of Form

These points and authorities may be submitted in support of a motion to strike an amended pleading that either entirely fails to remedy a defect already found in a prior pleading, or that attempts to remedy the defect by omitting previously sworn allegations of fact without explanation. This form sets out the points that a court need not tolerate a frivolous amended pleading, that an amended pleading that merely repeats the essential averments of the previous pleading may be stricken, and that facts sworn to in a prior pleading may not be withdrawn from consideration by omitting them from an amended pleading. 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]. When appropriate, this form may also be used in combination with a form of points and authorities, showing that pleading matter that is sham or frivolous may be stricken as false or improper matter [see Form 30], and a form of points and authorities showing that pleading matter that is not filed or drawn in conformity with the laws of California may be stricken [see Form 2].

Counsel should insert facts and arguments into this form, showing how the points of law stated relate to the facts of the case.

Sources of Court's Authority to Strike

The cases upholding the striking of ineffective amended pleadings that were decided before the 1982 revision of the statutory law governing motions to strike [see discussion under Introduction, 1982 Reorganization of Governing Statutes and Prior Case Law, Introduction, 1982 Reorganization of Governing Statutes and Prior Case Law, supra] have generally characterized such pleadings as sham or frivolous, or as being filed in bad faith [see Kronsberg v. Milton J. Wershow Co. (1965) 238 Cal. App. 2d 170, 173, 47 Cal. Rptr. 592 ]. Under the statutory scheme enacted in 1982, such pleadings may probably be stricken under Code Civ. Proc. Ї 436(a)[Deering's] (power of court to strike improper pleading matter). For a dicsussion of the law regarding sham pleadings or false or improper pleading matter, see Form 30.

Statutory authority for striking ineffective amended pleadings filed by leave of court may also be found under the provisions of Code Civ. Proc. Ї 436(b)[Deering's] , which authorizes the court to strike pleading matter that was not drawn or filed in conformity with the laws of California or of any order of the court. Thus, it may be said that when the court grants leave to amend an original pleading after it has been found to be defective, such leave should not be construed to authorize an amendment that merely repeats the previous defective pleading, is filed in bad faith or disregard of established procedural requirements, or is otherwise violative of orderly judicial administration. Thus, an amended pleading that shows any of these improprieties may be said to be out of conformity with the terms of the leave to amend and therefore subject to be stricken under Code Civ. Proc. Ї 436(b)[Deering's] . Furthermore, it may be said that since under Code Civ. Proc. Ї 473(a)[Deering's] it is only by leave of court that a party may amend a pleading after a demurrer has been ruled on, an amended pleading that is out of conformity with the leave to amend is also out of conformity with Code Civ. Proc. Ї 473[Deering's] [see Code Civ. Proc. Ї 472[Deering's] (right to amend as a matter of course only until demurrer tried)].

DISCUSSION OF AUTHORITIES

Court Not Required to Tolerate Improper Amended Complaint

Kronsberg v. Milton J. Wershow Co. (1965) 238 Cal. App. 2d 170, 47 Cal. Rptr. 592 , involved a written agreement for sale at auction by defen- - dant of certain property belonging originally to plaintiff. Plaintiff alleged that defendant had failed to sell the two major items included in the property as had been agreed and had failed to reconvey one of the items to plaintiff. Plaintiff filed numerous complaints and amended complaints, all of which were found to be deficient on demurrer or on motion to strike. After the trial court had sustained a demurrer to the second amended complaint it filed a seven page memorandum in support of its rulings. After the third complaint had been filed, the court sustained yet another demurrer, stating that its written views on the deficiencies in the earlier pleadings had still largely been disregarded. After a fourth amended complaint had been filed, defendant filed a motion to dismiss. The trial court, stating that its views on the deficiencies of the pleading had still been disregarded, treated the motion to dismiss as a motion to strike and ordered the pleading stricken, with leave to amend within 20 days. Plaintiff filed no amendment, and the trial court granted defendant's motion to dismiss. Plaintiff appealed.

The court of appeal upheld the action of the trial court. The court stated that if the rulings in which the trial court had found the pleadings filed by plaintiff prior to the fourth and final amended complaint to be defective were correct, it cannot be doubted that the trial court had discretion to strike the fourth amended complaint on the ground that it was frivolous and sham. The court stated that the fundamental principle running through the prior case law on the subject is that the court is not required to tolerate a purported amended complaint that fails to amend the previous pleading, is not filed in good faith, is filed in disregard of established procedural requirements, or is otherwise violative of orderly judicial administration (p. 173).

Reviewing the original complaint and the amendments following it, the court concluded that the trial court's rulings as to the pleadings preceding the fourth amended complaint had been correct.

Court May Strike Amended Pleading That Merely Repeats Original Pleading

The facts and procedural background of Kronsberg v. Milton J. Wershow Co. (1965) 238 Cal. App. 2d 170, 47 Cal. Rptr. 592 , are set out in the discussion under Court Not Required to Tolerate Improper Amended Complaint, above. In that case, the court of appeal, after discussing the facts alleged and causes of action averred in the pleading preceding the stricken fourth amended complaint, concluded that the fourth amended complaint failed, and in fact did not attempt, to remedy the defect in the pleading that preceded it. The court held that it is proper to strike such a pleading on the ground that it is in all its essential averments merely a repetition of a complaint previously found to be deficient (p. 174).

Amendment Cannot Revive Defective Complaint by Omitting Previously Sworn Facts

The facts and procedural background of Tostevin v. Douglas (1958) 160 Cal. App. 2d 321, 325 P.2d 130 , are set out in Form 30 under Discussion of Authorities, Inconsistency With Prior Pleadings May Show Matter in Pleading to Be False or Improper. In that case, the court noted that throughout the various pleadings filed by plaintiff in an attempt to state a cause of action, numerous material facts alleged under oath had been withdrawn from consideration, entire allegations set out in earlier pleadings had been omitted from subsequent amendments, and variations and changes in essential allegations resulting in contradictions and ambiguity had been effected, all without any justification or explanation (p. 326). The court stated the well-settled rule that facts once alleged under oath cannot be withdrawn from consideration by merely filing an amended pleading eliminating them without explanation. The court further stated that a party should not be allowed to breathe life into a complaint by omitting facts, previously alleged in a verified pleading, which made it fatally defective (p. 327).

Silica Brick Co. v. Winsor (1915) 171 Cal. 18, 151 P. 425 , was an action to recover the amount of a subscription for capital stock. In his second amended answer, defendant admitted that he had executed the document by which he had subscribed for the capital stock, and that he had refused a demand for payment on the subscription. By way of excuse, defendant averred the existence of a complex agreement of stock exchanges, and alleged that an oral agreement to cancel the stock subscription had been part of this agreement. A resolution of the stockholders of the corporation that had issued the stock, which defendant averred embodied the agreement, was included in the answer. The trial court rejected defendant's second amended answer. Defendant filed a third amended answer, which omitted reference to the resolution, but averred that certain individual members of the corporation's board of directors had orally told defendant that he could rely on the corporation to carry out the understanding to surrender the stock subscription. The third amended complaint further averred that the corporation had never demanded payment on the subscription until a specified date and had treated the subscription as cancelled and anulled until this date. The court also rejected this pleading. After judgment on the pleadings had been entered for plaintiff, defendant appealed.

The Supreme Court upheld the action of the trial court. Preliminarily, the Court held that the shareholder's agreement that had originally been included in defendant's answer represented a written executed agreement that was fundamental to the transaction on which defendant must stand or fall (p. 22). Since the resolution made no reference to an agreement to cancel defendant's stock subscription, the court held that it was fatal to defendant's defense (pp. 20-21).

Regarding the third amended complaint, the Court held that the trial court was justified in refusing to file it, since the answer was sham and not made in good faith. The Court noted that wherever the third amended complaint deviated from its predecessor, it sought to aver conclusions instead of facts. The Court stated its view that defendant was trying to avoid the effect of the shareholders' resolution as a written executed agreement by omitting it from the third amended answer. Regarding this attempt to avoid the effect of the resolution, the Court held that defendant should not be permitted to allege, as ultimate facts, matters at variance with facts to which he had previously sworn. The Court held further that it could look to earlier pleadings to determine whether the one finally offered was sham (p. 23).

Forms 32-39 [Reserved]

Form 40 Opposing Motion to Strike Whole or Part of Pleading [Code Civ. Proc. Ї 435]--Speaking Motion Not Permitted [Code Civ. Proc. Ї 437]
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF __________________________________

_________________________ [name ],)NO. __________
Plaintiff, )MEMORANDUM OF POINTS
)AND AUTHORITIES IN
)OPPOSITION TO MOTION
)TO STRIKE _____________
)__ [WHOLE or
vs. )PART OF] ______________
)_ [specify
_________________________ [name ],)pleading, e.g.,
)COMPLAINT]
Defendant. )[Code Civ. Proc. Ї 435[Deering's]]
)

THE MOTION TO STRIKE SHOULD NOT BE GRANTED BECAUSE IT RELIES ON EXTRINSIC EVIDENCE TO ESTABLISH THE GROUNDS OF THE MOTION.

A. Grounds for Motion to Strike Cannot Be Established by Extrinsic Evidence. The grounds for a motion to strike must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice ( Code Civ. Proc. Ї 437(a)[Deering's] ).

B. Matters Subject to Judicial Notice Must Be Specified. When the motion to strike is based on matter of which the court may take judicial notice pursuant to Section 452[Deering's] or 453[Deering's] of the Evidence Code (matters subject to permissive judicial notice, or mandatory judicial notice if conditions are met), such matter must be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit ( Code Civ. Proc. Ї 437(b)[Deering's] ).

C. Motion Relying on Extrinsic Evidence Is to Be Treated as Motion for Summary Judgment. Speaking motions relying on extrinsic evidence are governed by the procedure governing motions for summary judgments set out in Code Civ. Proc. Ї 437c[Deering's] , and such motions will be treated as motions for summary judgment even if labeled as motions to strike by the moving party ( Vesely v. Sager (1971) 5 Cal. 3d 153, 157, 167-169, 95 Cal. Rptr. 623, 486 P.2d 151 (specifically overruled on unrelated point by Bus. & Prof. Code Ї 25602(b)[Deering's],(c)[Deering's] and Civ. Code Ї 1714(b)[Deering's],(c)[Deering's] ); Mediterranean Exports, Inc. v. Superior Court (1981) 119 Cal. App. 3d 605, 615, 174 Cal. Rptr. 169 (both cases decided before enactment of Code Civ. Proc. Ї 437[Deering's] , as set out in Paragraph A., supra)).

Respectfully submitted,
_________________ [signature ]
Attorney for _________________
[opposing party, e.g., Plaintiff]

COMMENTS

Use of Form

The foregoing points and authorities may be submitted in opposition to a motion to strike the whole or part of any pleading when the motion purports to rely on extrinsic evidence to establish the grounds for striking. The foregoing sets out the points that the grounds for striking a pleading upon a motion to strike must appear on the face of the challenged pleading or from matters of which the court may take judicial notice, and that a motion to strike that relies on extrinsic evidence in order to establish grounds for striking pleading matter will be treated as a motion for summary judgment. The foregoing points and authorities may be submitted in opposition to any speaking motion to strike, including, when appropriate, any motion to strike supported by the points and authorities memoranda in this chapter [see Forms 1-31].

Counsel should insert argument in the foregoing form, showing the relationship between the facts of the case and the points of law stated. Such facts and arguments should point out any extrinsic evidence of which the court cannot properly take judicial notice that was included with the motion to strike, and should show that the grounds for striking stated in the motion cannot be established without resort to such evidence. When appropriate, counsel may also insert argument, showing that matters that do not appear on the face of the challenged pleading, but on which the motion relies in purporting to establish grounds for striking, are not subject to judicial notice (see discussion under Judicial Notice, infra). Counsel should also be prepared to argue that the motion is insufficient as a motion for summary judgment as well as improper as a motion to strike. For forms of points and authorities opposing a motion for summary judgment, see Ch. 221, Summary Judgments.

Judicial Notice

Those matters of which the court must in all cases take judicial notice are set out in Evid. Code Ї 451[Deering's] . Additional matters of which judicial notice may be taken are set out in Code Civ. Proc. Ї 452[Deering's] . The court may take judicial notice of the matters set out in Code Civ. Proc. Ї 452[Deering's] on its own initiative [see Code Civ. Proc. Ї 452[Deering's] ]. The court must take notice of the matters set out in Code Civ. Proc. Ї 452[Deering's] if a party requests it and (1) gives each adverse party sufficient notice, through the pleading or otherwise, to enable such adverse party to prepare to meet the request and (2) furnishes the court with sufficient information to take judicial notice of the matter [ Code Civ. Proc. Ї 453[Deering's] ].

Validity of Pre-1982 Case Law

The cases cited in this chapter were decided before the enactment of Code Civ. Proc. Ї 437[Deering's] in 1982. In enacting Code Civ. Proc. Ї 437[Deering's] , the Legislature essentially adopted the basic rule prohibiting speaking motions to strike that was set out in those cases. The corollary to the basic rule set out in Vesely v. Sager (1971) 5 Cal. 3d 153, 157, 167-169, 95 Cal. Rptr. 623, 486 P.2d 151 (specifically overruled on unrelated point by Bus. & Prof. Code Ї 25602(b)[Deering's],(c)[Deering's] and Civ. Code Ї 1714 (b)[Deering's],(c)[Deering's] ), and the cases following it that a speaking motion to strike shall be treated as a motion for summary judgment also still appears to be good law under Code Civ. Proc. Ї 437[Deering's] .

Related Points and Authorities

For forms of points and authorities opposing and supporting a motion for summary judgment, see Ch. 221, Summary Judgments.

DISCUSSION OF AUTHORITIES

Motion Relying on Extrinsic Evidence Is to Be Treated as Motion for Summary Judgment

Vesely v. Sager (1971) 5 Cal. 3d 153, 95 Cal. Rptr. 623, 486 P.2d 151 (decided before the enactment of Code Civ. Proc. Ї 437[Deering's] , which is set out in Paragraph A, above), involved an action for personal injuries and property damage sustained in an automobile accident. The complaint alleged, inter alia, that defendant driver of the automobile stated to be responsible for the accident was driving the automobile with the consent, knowledge, and permission of the remaining defendants, that each defendant was the agent and employee of the other defendant, and that each of the defendants was at all times acting within the purpose and scope of this agency and employment. The only defendant involved in the present appeal moved to strike these allegations. In support of the motion to strike, the appealing defendant submitted his own declaration stating that the defendant driver and owner of the automobile were not in his employment on the date of the accident, and that the declarant had never had any ownership interest or other interest in the automobile. The trial court granted the motion to strike, sustained a demurrer interposed by the appealing defendant on an unrelated point witout leave to amend, and dismissed the case as to the appealing defendant. Plaintiff appealed.

The Supreme Court reversed the action of the trial court in granting the motion to strike. The Court noted from the points and authorities submitted in support of the motion that the motion was intended as a speaking motion (defined as a motion supported by facts outside of the pleadings) addressed to the inherent right of a court to strike or dismiss a complaint when it is made to appear by extraneous evidence that the complaint is sham and based on false allegations (5 Cal. 3d 153, 167). The Court then cited Pianka v. State of California (1956) 46 Cal. 2d 208, 211, 293 P.2d 458 (see Additional Authorities, Motion, Additional Authorities, Motion Relying on Extrinsic Evidence Is to Be Treated as Motion for Summary Judgment, infra) in which it had earlier held that such nonstatutory speaking motions have been superseded by the procedure governing motions for summary judgment contained in Code Civ. Proc. Ї 437c[Deering's] (5 Cal. 3d 153, 167-168). The Court disapproved a court of appeal case decided subsequently to Pianka, which had held that the Legislature's enactment of Code Civ. Proc. Ї 435[Deering's] (authorizing motions to strikE; see Form 1 for present provisions of statute) had reaffirmed the right to make a speaking motion to strike. In disapproving that case, the Court stated that the legislative history of Code Civ. Proc. Ї 435[Deering's] indicated that this statute had been enacted merely to make the motion to strike a pleading, and to establish procedures for its use, so that it did not have the substantive effect of reinstating the speaking motion to strike (5 Cal. 3d 153, 168-169). The Court concluded by stating that it would treat defendant's motion to strike as a motion for summary judgment (5 Cal. 3d 153, 169).

Reviewing the motion under the standards for determining whether summary judgment should be granted, the Court concluded that the defendant's declaration was insufficient to warrant summary judg- - ment, despite the fact that the plaintiff had not filed a counteraffidavit or declaration. The Court held that since the declaration had not negated the possibility that the driver of the car might have been acting in an agency relationship with the defendant, it did not meet the burden of establishing the facts of every element necessary to entitle the moving party to a judgment, as is required under summary judgment procedure (5 Cal. 3d 153, 169-170).

It should be noted that the Legislature has subsequently enacted Bus. & Prof. Code Ї 25602(b)[Deering's],(c)[Deering's] and Civ. Code Ї 1744(b)[Deering's],(c)[Deering's] , which specifically overruled this case on an unrelated point, dealing with the liability of a commercial provider of alcoholic beverages for injuries caused to third persons.

Mediterranean Exports, Inc. v. Superior Court (1981) 119 Cal. App. 3d 605, 174 Cal. Rptr. 169 (decided before the enactment of Code Civ. Proc. Ї 437[Deering's] , which is set out in Paragraph A, supra) involved an action for damages arising out of an alleged breach of a written lease. The real party in interest, a corporation that was the defendant in the underlying action, filed an answer and cross complaint. Plaintiff thereupon filed a motion to strike both of the real party's pleadings on the grounds that the real party was a foreign corporation doing intrastate business in California, which was delinquent in paying corporate franchise tax owed to the state, and had therefore forfeited its right to prosecute and defend actions in the state. Extensive declarations and other documents were filed on the motion by both parties, and further documents were requested by the trial court. The trial court subsequently granted the motion, and the real party in interest petitioned for writ of mandamus.

The court of appeal overturned the trial court's action in granting the motion to strike and ordered the real party's pleadings to be reinstated. Preliminarily, the court stated that under applicable statutes and case law a mandatory forfeiture of the right to defend or appeal an action in California, which would deprive the real party of the right to file the pleadings that it had attempted to file, is prescribed for foreign corporations doing intrastate business (119 Cal. App. 3d 605, 614-615). Addressing plaintiff's motion to strike, the court noted that plaintiff had made its motion to strike under Code Civ. Proc. Ї 435[Deering's] and former Code Civ. Proc. Ї 453, which authorized the striking of cross complaints and sham and irrelevant answers (moving to strike both types of pleadings is now authorized by Code Civ. Proc. Ї 435[Deering's] , while striking pleadings on grounds substantively similar to those stated above is now authorized by Code Civ. Proc. Ї 436[Deering's] ; see Form 1). The court noted, however, that the extensive evidentiary showing on the motion made it a speaking motion. The court cited Vesely v. Sager (1971) 5 Cal. 3d 153, 157, 167-169, 95 Cal. Rptr. 623, 486 P.2d 151 (discussed supra) for the rule that such a speaking motion to strike was not authorized by Code Civ. Proc. ЇЇ 435[Deering's] and 453[Deering's] and must therefore be treated by the court as if it were a motion for summary judgment (119 Cal. App. 3d 605, 615).

Treating the motion as a motion for summary judgment, the court held that the evidence presented was not sufficient to sustain a judgment in favor of the plaintiff, and that the motion therefore failed under the applicable test for summary judgment (119 Cal. App. 3d 605, 616). The court stated that the evidence failed to show that summary judgment was warranted for two reasons: (1) There remained at least a triable issue of fact as to whether the real party's activities in the state constituted intrastate business, and (2) the forfeiture prescribed by statute for failure to pay franchise tax owed takes effect only when the Franchise Tax Board transmits the name of the delinquent corporation to the Secretary of State, and the showing on the motion in the present case included uncontradicted evidence that this had not been done in the present case (119 Cal. App. 3d 605, 615, 619).

Finally, the court held that mandamus was the proper procedure for real party to seek relief in the present case, since the forfeiture urged by the defendant would deprive the real party of the right to seek relief by appealing from the judgment, and in any event, the final judgment from which the real party might appeal would necessarily be a default judgment since the trial court's order had stricken both the answer and the cross complaint of the real party (119 Cal. App. 3d 605, 618).

ADDITIONAL AUTHORITIES

Motion Relying on Extrinsic Evidence Is to Be Treated as Motion for Summary Judgment

Pianka v. State of California (1956) 46 Cal. 2d 208, 293 P.2d 458 , involved an action against the National Guard for injuries sustained by a minor resulting from the explosion of a shell left on a firing ground after a public demonstration. Without answering, defendants filed a motion to dismiss. An affidavit supporting the motion stated facts indicating that the public demonstration had been a proprietary activity of the state that is protected by the doctrine of sovereign immunity. The trial court granted the motion, and plaintiff appealed from the judgment of dismissal.

The Supreme Court reversed. The Court stated that although a speaking motion of the sort that defendants had filed had been permitted by the courts under certain circumstances, such speaking motions have been superseded by the procedure govenerning motions for summary judgment contained in Code Civ. Proc. Ї 437c[Deering's] (46 Cal. 2d 208, 211). Thus, the Court stated that in the interest of orderly and efficient administration of justice, the litigant should be required to employ the statutory remedy set out in Code Civ. Proc. Ї 437c[Deering's] , and a speaking motion to dismiss should be treated as a motion for summary judgment in order to preserve the safeguard provided by the statute (46 Cal. 2d 208, 212).

In City and County of San Francisco v. Strahlendorf (1992) 7 Cal. App. 4th 1911, 9 Cal. Rptr. 2d 817 , plaintiff City filed a paternity suit against Strahlendorf, identified by a woman on public assistance as the father of her infant son. After filing an answer, Strahlendorf purported to challenge the complaint through a motion to strike. Despite the lack of timeliness of the motion, and the lack of grounds for the motion on the face of the pleading, the trial court relied on factual representations made by counsel for both parties, and granted the motion (7 Cal. App. 4th 1911, 1913). The court of appeal declined to reverse on procedural grounds, instead treating the procedurally deficient motion to strike as a ``speaking motion'' supported by facts outside the pleading, and applied the standards for a motion for summary judgment. Under those standards, the court of appeal reversed the trial court's ruling on the merits (7 Cal. App. 4th 1911, 1914).
Form 41 Opposing Motion to Strike Whole or Part of Pleading [Code Civ. Proc. Ї 435]--Motion Not Timely [Code Civ. Proc. Ї 435(b)(1)]
[Caption. See Form 40. ]

THE MOTION TO STRIKE SHOULD BE DENIED AS UNTIMELY BECAUSE IT WAS NOT FILED WITHIN THE TIME ALLOWED TO RESPOND TO THE _________________ [specify pleading, e.g., COMPLAINT].

A. Time Limit for Filing Motion to Strike. A notice of motion to strike must be filed within the time allowed to respond to the challenged pleading (see Code Civ. Proc. Ї 435(b)(1)[Deering's] ).

[Optional ] B. Motion to Strike Complaint After Answer Has Been Filed Is Improper. From the language of former Code of Civil Procedure Section 435 stating that the defendant, within the time required in the summons to answer, may serve and file a notice of motion to strike, and that if the defendant serves and files such a notice of motion without demurring, his time to answer the complaint shall be extended, it expressly appears that a defendant can move to strike a complaint only before he or she has answered it and not afterward ( Adohr Milk Farms, Inc. v. Love (1967) 255 Cal. App. 2d 366, 370-371, 63 Cal. Rptr. 123 ). Substantially similar language is continued in Section 435 as amended by Stats. 1993, ch. 456, which provides that any party may serve and file the motion within the time allowed to respond to a pleading ( Code Civ. Proc. Ї 435(b)(1)[Deering's] (also giving one exception)) and that the service and filing of the notice of motion to strike a complaint without demurring extends the time to answer ( Code Civ. Proc. Ї 435(c)[Deering's] ).

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

COMMENTS

CAUTION: The time restriction stated in Paragraph A of this form does not apply if the motion to strike is made as part of a motion under Code Civ. Proc. Ї 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. Ї 435(b)(1)[Deering's], (e)[Deering's] ; see also Form 5, above, and Ch. 71, Demurrers and Motions for Judgment on the Pleadings ].

Counsel using this form must be aware of Code Civ. Proc. Ї 436[Deering's] , under which the court has discretion to strike matter without any time limit. For discussion, see No Time Limit on Court's Power to Strike, below.

Use of Form

The foregoing form of memorandum of points and authorities may be used to oppose a motion to wholly or partially strike any pleading on any grounds if the motion was not timely. This form sets out the point that a motion to strike must be filed within the time allowed to respond to the challenged pleading. It also sets out the point that a defendant's motion to strike a complaint must be filed before filing the answer. Counsel should insert facts and arguments into this form showing how the points of law stated relate to the facts of the case.

Time to Respond to Pleadings

The times within which responses to pleadings must be filed are set out in the Code of Civil Procedure as follows:

(1) Answer or demurrer to complaint--30 days [see Code Civ. Proc. ЇЇ 412.20(a)(3)[Deering's] (response to complaint generally), 430.40(a)[Deering's] (demurrer)];

(2) Answer or demurrer to cross complaint--30 days [ Code Civ. Proc. Ї 432.10[Deering's] ];

(3) Answer to complaint or cross complaint if demurrer overruled--10 days or as otherwise determined by court [see Code Civ. Proc. Ї 472a[Deering's] ; Cal. Rules of Ct., Rule 325(e)[Deering's] ]; and

(4) Demurrer to answer--10 days [see Code Civ. Proc. Ї 431.50(b)[Deering's] .

In determining whether a motion to strike is timely, counsel should determine which statute applies to the pleading that opposing counsel has moved to strike and then determine if the response time limit set out in that statute has been exceeded.

No Time Limit on Court's Power to Strike

The time limits for moving to strike set out in Code Civ. Proc. Ї 435(b)(1)[Deering's] apply only to the making of the motion by a party. In contrast to Code Civ. Proc. Ї 435(b)(1)[Deering's] , Code Civ. Proc. Ї 436[Deering's] , which is the source of the court's power to strike pleading matter, states that the court may strike such matter on a motion made pursuant to Code Civ. Proc. Ї 435[Deering's] or at any time in its discretion. Since the court's power to strike at any time is given in the alternative to the power to strike on a motion made pursuant to Code Civ. Proc. Ї 435[Deering's] (setting forth time limits), it appears that the time limits governing a party's right to move to strike do not apply to the court's power to strike [see Code Civ. Proc. Ї 436[Deering's] ]. It is not clear from the language of these two statutes whether the response time limit of Code Civ. Proc. Ї 435(b)(1)[Deering's] requires the court to deny an untimely motion to strike, or whether the broad language of Code Civ. Proc. Ї 436[Deering's] gives the court the power to strike pleading matter if it deems it proper to do so, even though the motion to strike was untimely.

It should be noted that Code Civ. Proc. Ї 435[Deering's] does not set up new and independent time limits for filing a motion to strike, but rather makes those time limits that apply in general to pleadings responding to the challenged pleading applicable to motions to strike as well [see Code Civ. Proc. Ї 435(b)(1)[Deering's] ]. The courts have read the statutory time limits applying to responsive pleadings such as answers and demurrers to mean that a party cannot as of right file such a pleading after the time has passed, but that the court may in its discretion allow such late filed pleadings to stand [see Form 5]. Although there have been no cases on point, it is possible that in applying the statutory time limits for responsive pleadings generally to motions to strike, the courts will also apply the rule of discretion evolved by the courts to govern the consequences of violating those time limits.

DISCUSSION OF AUTHORITIES

Motion to Strike Complaint After Answer Has Been Filed Is Improper

Adohr Milk Farms, Inc. v. Love (1967) 255 Cal. App. 2d 366, 63 Cal. Rptr. 123 , was an action by an employer to recover from its employee the amount of workers' compensation benefits paid to an employee for damages alleged to have been sustained through the negligence of the employee. The defendant employee answered, pleading as an affirmative defense that the statute of limitations on the action had run. Thereafter, defendant filed a notice of motion stating that she would move for dismissal of the action, or in the alternative that the complaint be stricken or for a judgment on the pleading, on the ground that the statute of limitations had run. The trial court granted the motion in an unsigned minute order without specifying the nature of the motion it was granting, and the plaintiff appealed.

The court of apppeal reversed the trial court's minute order. Preliminarily, the court discussed the nature of the motion that was granted by the trial court's order. The court stated that neither an unsigned motion to dismiss nor a motion for judgment on the pleadings is appealable, and that the appeal would have to be dismissed if the trial court's order were to be treated as one granting either kind of motion (255 Cal. App. 2d 366, 368, 369). However, the court stated that an order granting a motion to strike that would, as in the present case, operate to remove from the case the only cause of action alleged against defendant and leave no issues to be determined between the opposing parties is appealable (255 Cal. App. 2d 366, 370). In order to be able to make its decision on the trial court's order, the court held that it was an order granting a motion to strike, and that defendant's motions to dismiss and for judgment on the pleading were still pending in the trial court (255 Cal. App. 2d 366, 371, 372).

Regarding defendant's motion to strike, the court held that it appears expressly from the language of former Code Civ. Proc. Ї 435 (authorizing motion to strike complaint; now see Code Civ. Proc. Ї 435[Deering's] , authorizing motion to strike most pleadings) that a defendant may move to strike a complaint only before he or she has answered and not afterward (255 Cal. App. 2d 366, 371). In coming to this conclusion, the court relied on language in former Code Civ. Proc. Ї 435 stating that (1) the defendant within the time required by the summons to answer may serve and file a notice of motion to strike [now see Code Civ. Proc. Ї 435(b)(1)[Deering's] , stating that any party within the time allowed to respond to a pleading may file and serve a notice of motion to strike], and (2) if the defendant files and serves a notice of motion to strike without demurring, his or her time to answer the complaint shall be extended [now contained, as amended to expand coverage of the statute to other parties moving to strike as well as defendant, in Code Civ. Proc. Ї 435(c)[Deering's] ] (255 Cal. App. 2d 366, 370-371).

The court held that since the defendant in the present case had already answered when she filed her motion, a motion to strike under Code Civ. Proc. Ї 435[Deering's] did not lie. Thus, the court concluded, the trial court's order, insofar as it purported to grant a motion to strike, was void (255 Cal. App. 2d 366, 370).

For discussion of a possible limitation on the court's statement that an order striking a complaint is void when made on a motion to strike filed after the answer, see CAUTION preceding the Comments to this form, above.
Form 42 Opposing Motion to Strike Whole or Part of Pleading [Code Civ. Proc. Ї 435]--Hearing Date Improperly Specified [Code Civ. Proc. ЇЇ 435(b)(2), 1005]
[Caption. See Form 40. ]

THE MOTION TO STRIKE SHOULD BE DENIED BECAUSE IT DID NOT SPECIFY A HEARING DATE WITHIN THE TIME REQUIRED BY STATUTE.

A. Notice of Motion to Strike Must Specify Hearing Date Within Statutory Time Limits. A notice of motion to strike the answer or the complaint, or a portion thereof, shall specify a hearing date in accordance with Section 1005[Deering's] of the Code of Civil Procedure ( Code Civ. Proc. Ї 435(b)(2)[Deering's] ).

B. Statutory Time Limits. The notice of motion and supporting papers must be served and filed at least 15 calendar days before the time appointed for the hearing; if the notice is served by mail, the required 15-day period of notice before the time appointed for the hearing shall be increased by five days if the place of mailing and the place of address are within the State of California, 10 days if either the place of mailing or the place of address is outside the State of California but within the United States, and 20 days if either the place of mailing or the place of address is outside the United States, and if the notice is served by facsimile transmission, Express Mail, or another method of overnight delivery, the required 15-day period of notice before the time appointed for the hearing is increased by two court days ( Code Civ. Proc. Ї 1005(b)[Deering's] ).

Respectfully submitted,
_________________ [signature ]
Attorney for_________________
[opposing party, e.g., Plaintiff]

COMMENTS

Use of Form

The foregoing form of memorandum of points and authorities may be used to oppose a motion to wholly or partially strike any pleading on any grounds if the notice of motion did not specify a hearing date allowing the minimum amount of time from the time of service of the notice required by statute. This form sets out the minimum amounts of time within which a hearing may be set for notice not served by mail and for notices served by mail to various locations.

Counsel should insert argument in the foregoing form showing the relationship between the facts of the case and the points of law stated. Thus, counsel should indicate the date and mode of service of the notice of motion, the place of address if service was by mail, and the amount of time allowed for between the date of service and the specified hearing date.
Form 43 Opposing Motion to Strike Whole or Part of Pleading [Code Civ. Proc. Ї 435]--Defect Can Be Corrected by Amendment
[Caption. See Form 40. ]

THE MOTION TO STRIKE SHOULD BE DENIED BECAUSE THE DEFECT IN THE _________________ [specify pleading, e.g., COMPLAINT] CAN BE CURED BY AMENDMENT, WAS NOT THE RESULT OF WILLFUL NEGLECT OR INEXCUSABLE CARELESSNESS BY _________________ [specify party opposing motion, e.g., PLAINTIFF], AND WILL NOT CAUSE IRREPARABLE HARM TO _________________ [specify moving party, e.g., DEFENDANT].

A. Striking Should Be Avoided When Defect May Be Corrected. To strike out a pleading that is susceptible to being amended by a statement of facts known to exist and that constitutes a cause of action is a harsh proceeding and should only be resorted to in cases of willfull neglect, inexcusable carelessness, or irreparable injury to the opposing party ( Burns v. Scooffy (1893) 98 Cal. 271, 276, 33 P. 86 ; Allerton v. King (1929) 96 Cal. App. 230, 234, 274 P. 90 ; see Hopkins v. Hopkins (1953) 116 Cal. App. 2d 174, 179, 253 P.2d 723 ).

[Optional ] B. Court May Grant Leave to Verify Answer Rather Than Striking Answer. The court may overrule a motion to strike an answer as unverified and allow the defendant leave to verify the answer before trial unless this in some way takes the plaintiff by surprise ( Angier v. Masterson (1856) 6 Cal. 61 , 62; Jenssen v. R.K.O. Studios, Inc. (1937) 20 Cal. App. 2d 705, 707, 67 P.2d 757 ).

[Counsel should add a proposed amendment and argument showing how the proposed amendment would correct the purported defect in the challenged pleading matter as well as argument showing that neither inexcusable neglect in failing to correct the defect originally nor prejudice to the plaintiff would warrant granting the motion to strike despite the proffered amendment. ]

Respectfully submitted,
_________________ [signature ]
Attorney for _________________
[opposing party ]

COMMENTS

Use of Form

These points and authorities may be submitted in opposition to a motion to strike all or part of a pleading when the defect in the pleading matter, if any, could be corrected by amendment. It sets out the point that when an amendment stating facts known to exist and constituting a cause of action could correct the defect in pleading matter, the matter should not be stricken unless the circumstances of the case show willful neglect or inexcusable carelessness by the party that filed the challenged pleading or irreparable harm to the opposing party. In an appropriate case, these points and authorities may be submitted in opposition to any of the arguments for motion to strike supported by the points and authorities set out in Forms 1-31. The point set out in Paragraph B may be submitted in opposition to the arguments for a motion to strike set out in Form 7.

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

Validity of Pre-1982 Case Law

The cases cited in this form were decided before the Legislature reorganized the law governing motions to strike in 1982. However, since none of the rules set out in these cases are inconsistent with any of the provisions of the 1982 legislative scheme, it appears that the cases are still good law [see Code Civ. Proc. ЇЇ 431.10[Deering's], 435[Deering's], 436[Deering's], 437[Deering's] ]. For a further treatment of the continuing validity of pre-1982 case law, see the discussion in the Introduction under 1982 Reorganization of Governing Statutes and Prior Case Law, above.

Permission to Amend Pleading

In opposing the motion to strike, counsel may also move for permission to amend a challenged pleading. When appropriate, counsel may argue, as an alternative to arguing that the motion to strike should be denied, that if the motion is granted, leave to amend the defective pleading should be also granted [ Code Civ. Proc. Ї 472a(d)[Deering's] ; see also Code Civ. Proc. Ї 473(a)[Deering's] ]. Although leave to amend is deemed granted when a demurrer is sustained unless the court states otherwise, there are no provisions that deem the granting of leave to amend when a motion to strike is granted [see Cal. Rules of Ct., Rule 325(d)[Deering's] ].

Related Points and Authorities

For discussion and forms of points and authorities regarding amended pleadings, see Ch. 16, Amended and Supplemental Pleadings in this publication.

DISCUSSION OF AUTHORITIES

Striking Should Be Avoided When Defect May Be Corrected

In Burns v. Scooffy (1893) 98 Cal. 271, 33 P. 86 , plaintiff filed an action to establish his right to purchase certain land from the state and to have similar applications by defendants to purchase the same land declared invalid. One of the defendants duly answered, setting out his own application to purchase the land in dispute, but failed to aver, as was required by applicable law to prevent the application from becoming void, that he had within six months of filing the application demanded an approval of the application or an order of reference, or that an order of reference to a court had been had. Plaintiff moved to strike the answer. Defendant's counsel offered to file an amendment to the answer making the necessary averments on information and belief, or positively if given time to send the answer to defendant.

The Supreme Court reversed. The Court noted that the affidavits in support of the motion indicated that the omission of the allegations in question was probably an oversight on the part of the attorney who drew up the pleading. The Court held that to strike out a pleading that is susceptible of being amended by a statement of facts known to exist, and that constitutes a cause of action or defense to an action, is a harsh proceeding and should only be resorted to in extreme cases. The Court stated further that to refuse permission to answer with a valid defense in hand can only be justified in the face of facts showing willful neglect, inexcusable carelessness, or irreparable injury to the plaintiff (98 Cal. 271, 276).

This case was decided before the rule stating that grounds for a motion to strike may not be shown by extrinsic evidence was set out [see Code Civ. Proc. Ї 437(a)[Deering's] ]. Under current law, the case would have been treated as a motion for summary judgment [see Vesely v. Sager (1971) 5 Cal. 3d 153, 157, 167-169, 95 Cal. Rptr. 623, 486 P.2d 151 ]. However, it appears that the point that defective pleadings which can be made whole by amendment should not be stricken except in extreme cases is still valid.

The facts and procedural background of Allerton v. King (1929) 96 Cal. App 230, 274 P. 90 , are set out in Form 46 under Discussion of Authorities, Motion Attacking Relevant Matter in Pleading Should Be Denied in Its Entirety. In that case, the court of appeal noted that defendant's answer in an action on an indemnity bond, in a case involving certain disputed property, was inartfully drawn and perhaps uncertain, but that defendant's repeated averment that the property in question was worth no more than an amount that was considerably less than the amount prayed for by plaintiff made it clear that defendant was trying to raise the valid defense that plaintiff's recovery should be limited to the value of the disputed property (96 Cal. App 230, 234). The court held that the proper procedure in the case would have been to file a special demurrer for uncertainty. In connection with this holding, the court cited Burns v. Scooffy (1893) 98 Cal. 271, 276, 33 P. 86 (discussed above) and restated the rule set out in Burns that when an amendment stating a cause of action is known to be possible, a defective pleading should not be stricken except in extreme cases (96 Cal. App 230, 234).

Hopkins v. Hopkins (1953) 116 Cal. App. 2d 174, 253 P.2d 723 , involved an action on a marriage dissolution settlement. Plaintiff alleged a written agreement, incorporated into the judgment of dissolution, providing that defendant would make monthly support payments. The complaint included two counts alleging failure to make any payments. The first count alleged failure to make any payments on the judgment within the five-year period prior to the date on which plaintiff instituted the action. The second count alleged failure to make any payments on the judgment and contract since a date some 18 years prior to commencement of the action. Defendant answered, averring inter alia that the action was barred by laches and by the statute of limitations. Plaintiff did not interpose a demurrer, but moved to strike the averments as to laches and the statute of limitations. With respect to the statute of limi tations, plaintiff argued that the plea was defective in that, while setting forth the code sections in which the applicable limitations were set out, it failed to specify the subsection relied on. After plaintiff made her motion, defendant requested permission to amend his answer so as to be able to specify the required subsections. The trial court granted the motions to strike with respect to both the plea of laches and the plea of the statute of limitations. With respect to the statute of limitations plea, however, the court stated that its ruling was without prejudice to defendant's right to renew his motion to amend the answer at the close of the trial. Defendant did so renew the motion, but the motion was denied by the trial court and judgment was entered for plaintiff. Defendant appealed.

The court of appeal reversed the judgment and remanded the case to the trial court with instructions that defendant be permitted to amend his answer in accordance with the court's opinion. Preliminarily, the court noted that defendant on appeal did not complain of the order striking the plea of laches and stated that this order was clearly correct, since the plea of laches does not lie in an action at law. The court further stated that the trial court's ruling with respect to the plea of limitations was correct as regarded plaintiff's first count, since the first count only sought to recover payments that had accrued within the statutory limitations period.

Concerning the statute of limitations plea as to plaintiff's second count, the court conceded that under applicable law the defendant's answer was insufficient in that it failed to specify the particular subsections relied on, and that this insufficiency would have made the answer susceptible to a demurrer (116 Cal. App. 2d 174, 187, 188). However, the court noted that the answer did allege facts showing that some portion of the claim at least was barred by limitation, and evidenced an intention to plead limitations (116 Cal. App. 2d 174, 178-179). Thus, the court concluded that the answer was not so devoid of allegations of fact as to compel the court to say that it was a nullity or fatally defective in the absence of a demurrer (116 Cal. App. 2d 174, 179).

The court further stated that even if it was in error in the reasoning set out above, it was an abuse of discretion for the trial court not to permit defendant to defend his answer so as to conform it to the applicable pleading requirements (116 Cal. App. 2d 174, 179). In support of its holding the court noted that the proposed amendment would do no more than add the correct subsections for the statutes relied on in raising the bar of limitation. The court further observed that plaintiff's stating her single cause of action in two counts, one of which alleged only failure to pay during a period falling within the limitation period, indicated that plaintiff knew that she would be faced with the statute of limitations.

Court May Grant Leave to Verify Answer Rather Than Striking Answer

Angier v. Masterson (1856) 6 Cal. 61 , involved an action to foreclose on a mortgage. The complaint was verified but the answer was not. On the day of trial, plaintiff moved to strike the answer as unverified. The trial court overruled the motion and allowed defendants to verify the answer. After trial by jury, judgment was entered for defendants. Plaintiff appealed.

The Supreme Court upheld the action of the trial court in denying the motion to strike and allowing defendants to verify the answer. The Court stated that it was not error to allow defendant to verify his answer before trial, unless it in some way took plaintiff by surprise, and it was not shown that this was the case (6 Cal. 61, 62).

In Jenssen v. R.K.O. Studios, Inc. (1937) 20 Cal. App. 2d 705, 67 P.2d 757 , plaintiff's verified complaint alleged that defendants had unlawfully retained and used a literary composition of plaintiff's. At the opening of the trial and before any evidence was introduced, plaintiff moved for judgment on the pleadings on the ground that the verifications of the answers were insufficient in form. The trial court indicated that the motion for judgment would be denied without making a formal ruling on it, and allowed defendants until five o'clock of the following afternoon to file properly verified answers. Plaintiff asked for no postponement of the trial, and trial proceeded immediately. The amended answers were duly filed within the time allowed, without change from the original answers except in the form of the verification and an elaboration of some of the denials. Judgment was entered for defendants, and plaintiff appealed.

The court of appeal upheld the action of the trial court in allowing defendants to verify their answer by way of amendment. The court acknowledged that if the verifications in the original complaint were insufficient, there existed a failure to deny and which constituted an admission of the allegations of the complaint. However, the court stated that proper verification is not a jurisdictional requirement and that a failure to properly verify amounts to no more than a mere defect in the pleading, the right to object to which might have been waived (20 Cal. App. 2d 705, 707). Since the court had jurisdiction to proceed, the court applied the basic rule that permitting or refusing amendments to pleadings is with in the sound discretion of the trial court, which should be exercised liberally, and will be overruled only for gross, clearly apparent abuse (20 Cal. App. 2d 705, 707). The court cited Angier v. Masterson (1856) 6 Cal. 61 (discussed above), for the rule that an amendment may be allowed at the time of trial in the absence of a showing of prejudice to the adverse party (20 Cal. App. 2d 705, 707). The court added in pertinent dicta that in view of the fact that some 16 months had elapsed between the time of filing the original answers and the time that objection was first made as to their sufficiency, it would have been error had the trial court refused permission to amend (20 Cal. App. 2d 705, 707). Finally, the court stated that since plaintiff had not shown that she had suffered prejudice from the trial court's action in permitting the amendments, the trial court's action, if it had been erroneous, would have been harmless error (20 Cal. App. 2d 705, 707).

ADDITIONAL AUTHORITIES

Court May Grant Leave to Verify Answer Rather Than Striking Answer

Ware v. Stafford (1962) 206 Cal. App. 2d 232, 24 Cal. Rptr. 153 , involved an action to cancel an oil lease held by defendant on plaintiffs' land. After judgment had been rendered for plaintiffs and had been affirmed on appeal, defendant unsuccessfully moved the trial court to vacate the judgment, quash summons, and dismiss the action. Defendant then appealed the trial court's denial of the motion. The court of appeal upheld the trial court's action. Defendant had argued, inter alia, that the verification of the complaint had been made by a person not a party to the action and was therefore defective. The court held that the verification was not defective under the circumstances of the case, and that even if it were defective there is no authority for the position that a defective verification deprives the trial court of jurisdiction so as to render its judgment void (206 Cal. App. 2d 232, 237). To illustrate the nonjurisdictional character of a defect in verification, the court cited Jenssen v. R.K.O. Studios, Inc. (1937) 20 Cal. App. 2d 705, 707, 67 P.2d 757 (discussed under Discussion of Authorities, Court May Grant Leave to Verify Answer Rather Than Striking Answer, above) for the rule that such a defect may be cured by amendment.
Form 44 Opposing Motion to Strike Whole or Part of Pleading [Code Civ. Proc. Ї 435]--Pleading Not Filed or Drawn in Conformity With Law [Code Civ. Proc. Ї 436(b)]--Amended Pleading Adding New Parties Without Leave--Only Added Parties May Move to Strike
[Caption. See Form 40. ]

THE MOTION TO STRKE SHOULD BE DENIED WITH RESPECT TO _________________ [specify parties not added by challenged amended pleading ] BECAUSE ONLY PARTIES THAT WERE ADDED BY AN AMENDED PLEADING MAY MOVE TO STRIKE AN AMENDED PLEADING ON THE GROUND THAT THE PLEADING ADDS NEW PARTIES WITHOUT PERMISSION.

Only Added Parties May Move to Strike Amended Pleading Adding New Parties Without Permission. When an amended pleading is defective because new parties were added without permission of the court, only the added parties may move to strike the challenged pleading on this ground (see People ex rel Dept. Pub. Wks. v. Clausen (1967) 248 Cal. App. 2d 770, 782 fn. 7, 57 Cal. Rptr. 227 (cross complaint).

Respectfully submitted,
_________________ [signature ]
Attorney for _________________
[opposing party, e.g., Plaintiff]

COMMENTS

Use of Form

The foregoing points and authorities may be submitted in opposition to a motion to strike an amended pleading that added new parties without permisson of the court when the party that made the motion to strike was not one of the parties added by the challenged pleading. The foregoing sets out the point that a motion to strike on the above-stated grounds should be granted only in favor of those parties who were improperly named as new parties by the challenged pleading. In an appropriate case, the foregoing points and authorities may be submitted in opposition to a motion to strike supported by the points and authorities set out in Form 3.

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

Validity of Pre-1982 Case Law

People ex rel Dept. Pub. Wks. v. Clausen (1967) 248 Cal. App. 2d 770, 782, 57 Cal. Rptr. 227 (cross complaint), which is the basis for this form, was decided before the Legislature reorganized the law governing motions to strike in 1982. However, since none of the rules set out in this case are inconsistent with any of the provisions of the 1982 legislative scheme, it appears that the cases are still good law [see Code Civ. Proc. ЇЇ 431.10[Deering's], 435[Deering's], 436[Deering's], 437[Deering's] ]. For a further treatment of the continuing validity of pre-1982 case law, see the discussion under Introduction, 1982 Reorganization of Governing Statutes and Prior Case Law, above.

DISCUSSION OF AUTHORITIES

Only Added Parties May Move to Strike Amended Pleading Adding New Parties Without Permission

People ex rel Dept. Pub. Wks. v. Clausen (1967) 248 Cal. App. 2d 770, 57 Cal. Rptr. 227 , involved a condemnation action initiated against defendant by the State of California (hereinafter called State). Defendant answered and filed a cross complaint charging State with trespass, to which the trial court sustained State's demurrer with leave to amend. Subsequently, defendant, without obtaining further leave from the court, filed an amended cross complaint that named, inter alia, two corporations as additional cross defendants. State filed a demurrer and moved to strike the cross complaint. The trial court sustained the demurrer without leave to amend and in addition granted the motion to strike on the stated grounds that defendant had not obtained permission of the court either to file an amended cross complaint or to add new parties, and subsequently entered judgments of dismissal of the cross complaint in favor of State and in favor of the added corporate defendants. Defendant appealed.

The court of appeal reversed the order striking the amended cross complaint and judgment of dismissal as to State and upheld the order as to the corporate defendants who had been added by the cross complaint. The court noted that the trial court's granting of leave to amend the original cross complaint in conjunction with sustaining State's demurrer to the answer and cross complaint was sufficient to give defendant permisson to amend the cross complaint (p. 783). However, the court held that permission to file an amended cross complaint did not entitle permission to bring in new parties by means of the amended cross complaint, and that the amended cross complaint was therefore defective as against the corporate defendants brought in by the amended pleading (pp. 784-785). As to the motion by State, however, the court stated in a footnote that the defect created by the addition of the new parties would support the granting of a motion to strike only in favor of the cross defendants who were named in the cross complaint as parties without leave of court and that State cannot, on the basis of this defect, obtain an order striking the amended cross complaint with respect to itself (p. 782 fn. 7).
Form 45 Opposing Motion to Strike Whole or Part of Pleading [Code Civ. Proc. Ї 435]--No Absolute Right to Have Untimely Responsive Pleading Stricken
[Caption. See Form 40. ]

THE PLAINTIFF HAS NO ABSOLUTE RIGHT TO HAVE A RESPONSIVE PLEADING STRICKEN MERELY BECAUSE IT WAS FILED LATE.

A. Technically Late Pleading Should Not Be Stricken When There Was No Purposeful Delay or Prejudice. When it cannot be said that the filing party was purposely dilatory and the opposing party suffered no prejudice from the delay, it would be unjust to deprive the filing party of its day in court by striking the pleading simply because of a minor delay in the filing of the pleading ( Amacorp Ind. Leasing Co. v. Robert C. Young Associates, Inc. (1965) 237 Cal. App. 2d 724, 730, 47 Cal. Rptr. 294 )

B. Opposing Party Has No Absolute Right to Have Untimely Pleading Stricken. When the late filing of a pleading is a mere irregularity, the striking of such a pleading is left to the discretion of the trial court and does not rest on any absolute right of the opposing party to have the pleading stricken ( Bowers v. Dickerson (1861) 18 Cal. 420, 421 ; Tuck v. Thuesen (1970) 10 Cal. App. 3d 193, 196, 88 Cal. Rptr. 759 (disapproved on unrelated grounds in Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal. 3d 176, 190, 98 Cal. Rptr. 837, 491 P.2d 421 ); see Code Civ. Proc. Ї 436[Deering's] (court as empowered to strike on terms it deems proper)).

Respectfully submitted,
_________________ [signature ]
Attorney for _________________
[opposing party, e.g., Plaintiff]

COMMENTS

Use of Form

The foregoing points and authorities may be submitted in opposition to a motion to strike a responsive pleading on the ground that it was not timely filed. The form sets out the point that the opposing party has no absolute right to have a pleading stricken merely because it was untimely filed and that the court may at its discretion permit such a pleading to stand.

In an appropriate case, the foregoing points and authorities may be submitted in opposition to a motion to strike supported by the points and authorities set out in Form 6.

Counsel should insert argument in the foregoing form, showing the relationship between the facts of the case and the points of law stated. Thus, counsel should discuss any facts making it appropriate for the court to permit the untimely pleading to stand, such as facts showing that the failure to file on time was a mere irregularity and that there was neither purposeful delay nor prejudice to the opposing party as a result of the delay.Validity of Pre-1982 Case Law

Validity of Pre-1982 Case Law

The cases cited in this form were decided before the Legislature reorganized the law governing motions to strike in 1982. However, since none of the rules set out in these cases are inconsistent with any of the provisions of the 1982 legislative scheme, it appears that the cases are still good law [see Code Civ. Proc. ЇЇ 431.10[Deering's], 435[Deering's], 436[Deering's], 437[Deering's] ]. For a further treatment of the continuing validity of pre-1982 case law, see the discussion under Introduction, 1982 Reorganization of Governing Statutes and Prior Case Law, above.

DISCUSSION OF AUTHORITIES

Technically Late Pleading Should Not Be Stricken When There Was No Purposeful Delay or Prejudice.

Amacorp Ind. Leasing Co. v. Robert C. Young Associates, Inc. (1965) 237 Cal. App. 2d 724, 47 Cal. Rptr. 294 , was an action for money alleged to be due on a lease contract. Defendant cross complained against plaintiff corporation and added a second corporation as a new cross defendant. The added cross defendant filed a general and special demurrer, which the trial court granted with leave to amend within 10 days. Subsequently, defendant received an extention of the time within which to amend. Defendant thereupon served an amended cross complaint on both the original plaintiff and the added cross defendant, but did not file it with the court. The amended cross complaint was in substance a repetition of the original cross complaint. The added cross defendant again demurred and additionally filed a motion to strike the cross complaint stating as grounds, inter alia, that it had not been timely filed. The original plaintiff answered the cross complaint. Defendant had still not filed the amended cross complaint on the day on which the added cross defendant's demurrer and motion to strike were heard. It was stipulated that the defendant could file the cross complaint on that day, which was a Friday. However, defendant did not actually file its amended cross complaint until the following Monday. The trial court subsequently sustained the demurrer without leave to amend, granted the motion to strike, and entered a judgment of dismissal in favor of the added cross defendant. Defendant appealed from this decision.

The court of appeal overturned the trial court's order to strike the amended complaint. The court acknowledged that there is no doubt that the trial court may in its sound discretion grant a motion to strike a pleading because it was not timely filed (p. 730). However, the court stated that recent California cases upholding the striking of a pleading for untimely filing all involved aggravating circumstances. Thus, the court distinguished Buck v. Morrossis (1952) 114 Cal. App. 2d 461, 464-465, 250 P.2d 270 (cited in Form 5, supporting motion to strike untimely responsive pleading, for the rule that an untimely pleading may be stricken), as involving a purposely dilatory defendant. The court distinguished other cases as involving pleadings that were sham and frivolous as well as untimely (p. 730).

With respect to the present case, the court stated that it could not be said that defendant had been purposely dilatory, nor was the cross complaint sham and frivolous. The court also stated that the added cross defendant suffered no prejudice because of the delay. From these factors, the court concluded that it would be most unjust to prevent defendant from having its day in court because its amended cross complaint had, as appeared from the record, been filed one day beyond the date set. Thus, the court held that the trial court had erred in striking the cross complaint from the files (p. 730).

The court also overturned the trial court's order sustaining the added cross defendant's demurrer to the cross complaint (pp. 727-729).

Opposing Party Has No Absolute Right to Have Untimely Pleading Stricken

Bowers v. Dickerson (1861) 18 Cal. 420 , was a suit on a promissory note. After the complaint was filed and the summons was served, defendant interposed a demurrer, which was overruled. Defendant answered on the same day on which the demurrer was overruled. It was subsequently established that summons had actually been served seven days earlier than the date that appeared on the return, so that both the demurrer and the answer were untimely. The return was corrected, and plaintiff moved to strike the demurrer and answer on the ground of untimely filing. Defendant thereupon, by leave of the court and over exception of plaintiff, produced witnesses to show that the error on the return was the fault of the sheriff, that defendant had supposed summons to be served on the erroneous date appearing on the original return, and that therefore defendant's failure to answer within the time required was due to mistake, surprise, or excusable neglect. The trial court overruled the motion to strike and subsequently entered judgment for defendant, the plaintiff failing to prosecute further. Plaintiff appealed.

The Supreme Court upheld the trial court's decision to overrule the motion to strike. The Court stated that defendant's filing the answer after time had expired without leave of the court was a mere irregularity, for which the answer might have been stricken out, but on account of which plaintiff was not entitled to have it stricken out, unless the court in exercise of its discretion deemed such to be proper. The Court stated further that the trial court had absolute power to either retain the answer or to permit another to be filed, or to pursue whatever course with respect to the striking or retaining of the answer that the justice of the case required (p. 421).

Tuck v. Thuesen (1970) 10 Cal. App. 3d 193, 88 Cal. Rptr. 759 (disap- proved on unrelated grounds in Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal. 3d 176, 190, 98 Cal. Rptr. 837, 491 P.2d 421 ), was a malpractice action against an attorney. Plaintiff filed a complaint and one amended complaint. Defendant filed a demurrer to the amended complaint after the 10-day period for such filing had passed. The demurrer alleged that the statute of limitations had run on the action. Plaintiff moved to strike the demurrer. The trial court denied the motion to strike and sustained the demurrer without leave to amend. Plaintiff thereupon appealed.

The court of appeal upheld the decision of the trial court denying the motion to strike. The court cited Bowers v. Dickerson (1861) 18 Cal. 420 , 421 (discussed above), for the rule that there is no absolute right to have a pleading stricken for lack of timeliness when no question of jurisdiction is involved and when the late filing was a mere irregularity. The court further cited Buck v. Morrossis (1952) 114 Cal. App. 2d 461, 464-465, 250 P.2d 270 (discussed in Form 5, under Discussion of Authorities, An Untimely Responsive Pleading Filed Before Entry of Default May Be Stricken), for the rule that the granting or denial of a motion to strike a pleading for untimely filing is a matter that lies within the discretion of the trial court (10 Cal. App. 3d 193, 196). With respect to the present case, the court stated that defendant's late filing was a mere irregularity, and that there was nothing in the record to show that the trial court abused its discretion in denying the motion, particularly in view of the nature of the issue raised by the demurrer (10 Cal. App. 3d 193, 196).
Form 46 Opposing Motion to Strike Whole or Part of Pleading [Code Civ. Proc. Ї 435]--Irrelevant Matter [Code Civ. Proc. ЇЇ 431.10(b), (c), 436(a)]--Motion Too Broad
[Caption. See Form 40. ]

THE MOTION TO STRIKE SHOULD BE DENIED BECAUSE THE MOTION IS TOO BROAD IN THAT IT ATTACKS RELEVANT MATTER CONTAINED IN THE PLEADING.

Motion Attacking Relevant Matter in Pleading Should Be Denied in Its Entirety. A motion to strike cannot be made to serve the purposes of a special demurrer and should be stricken out in its entirety if it is so broad as to include relevant matters within the scope of its attack ( Triodyne Inc. v. Superior Court (1966) 240 Cal. App. 2d 536, 542, 49 Cal. Rptr. 717 ); Allerton v. King (1929) 96 Cal. App. 230, 234, 274 P. 90 )

Respectfully submitted,
_________________ [signature ]
Attorney for _________________
[opposing party, e.g., Plaintiff]

COMMENTS

Use of Form

This form of points and authorities may be submitted in opposition to a motion to strike all or part of a pleading on the ground of irrelevance when the motion is so broadly framed as to challenge matter in the pleading that is relevant as well as matter that may be irrelevant. It sets out the point that a motion to strike that includes relevant matter in a pleading within the scope of its attack should be denied in its entirety, regardless of whether some of the matter challenged in a pleading might be stricken as irrelevant. In an appropriate case, these points and authorities may be submitted in opposition to a motion to strike supported by the points and authorities set out in Form 20.

When appropriate, counsel may use this form to support an argument offered as an alternative to a basic argument that none of the matter being attacked by the motion to strike is irrelevant.

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

Validity of Pre-1982 Case Law

The cases cited in this form were decided before the Legislature reorganized the law governing motions to strike in 1982. However, since none of the rules set out in these cases are inconsistent with any of the provisions of the 1982 legislative scheme, it appears that the cases are still good law [see Code Civ. Proc. ЇЇ 431.10[Deering's], 435[Deering's], 436[Deering's], 437[Deering's] ]. For discussion of the continuing validity of pre-1982 case law, see the Introduction, under 1982 Reorganization of Governing Statutes and Prior Case Law, above.

DISCUSSION OF AUTHORITIES

Motion Attacking Relevant Matter in Pleading Should Be Denied in Its Entirety

Triodyne, Inc. v. Superior Court (1966) 240 Cal. App. 2d 536, 49 Cal. Rptr. 717 , involved an action on a contract. Plaintiffs sued defendant for breach of contract, and defendant filed a cross complaint. In the fourth count of the cross complaint, defendant alleged that it had been induced to execute the contract by false representations made by plaintiffs. Plaintiffs demurred to the fourth count, arguing that under the law applicable to the case defendant was limited to out-of-pocket expenses as the measure of damages, and that the measure of damages alleged in the fourth count was improper. The trial court sustained the demurrer with leave to amend, and defendants filed an amended fourth count. Plaintiffs moved to strike this amended fourth count on the grounds of sham and irrelevance. The trial court granted the motion to strike, stating in its minute order that the amended fourth count was improperly using the loss of profit rule as the theory on which to base an evaluation to substantiate an out-of-pocket claim. Defendant filed a petition for writ of mandate.

The court of appeal reversed the determination of the trial court. The court acknowledged that it appeared from the record that defendant was mistaken or uncertain as to the proper measure of damages (p. 541). However, the court went on to state that it is the general rule that when the facts stated in the complaint show that the plaintiff is entitled to some sort of damages, it is not a fatal error that the pleader has mistaken the rule by which such damages should be determined (pp. 541-542). In light of this rule, the court stated that the fourth count was sufficient, at least in the absence of a special demurrer. The court stated the rule that a motion to strike cannot be made to serve the purposes of a general demurrer, and that when a motion to strike is so broad as to include relevant matters, the motion should be denied in its entirety (p. 542).

Applying this rule to the motion to strike before it, the court held that insofar as it was made on the purported ground of irrelevance, the motion was not directed to any particular allegations and no showing of irrelevance was made. Thus, the court concluded that the motion must be considered as a motion to strike solely on the ground of sham. The court further concluded that the motion, considered as a motion to strike on the ground of sham, should not have been granted (pp. 542-543).

Allerton v. King (1929) 96 Cal. App 230, 274 P. 90 , involved an action on a bond of indemnity. In that case, defendant had procured a writ of attachment against a certain steam shovel in a justice court action. Plaintiff presented a rival claim based on a promissory note for $6,500, with a chattel mortgage on the same property. On the demand of the constable, defendant gave a bond of indemnity as required by law with himself and two others as sureties. The owners of the steam shovel defaulted in the justice court action, and the steam shovel was sold under execution of the resulting judgment for $550. Subsequently, plaintiff brought an action against the former owners of the steam shovel to foreclose her chattel mortgage, in which judgment was rendered for plaintiff, decreeing that the former owners and all persons claiming under them, including defendant who had intervened in the action, were barred from all interest in the property. When execution on this judgment was returned unsatisfied, plaintiff began the present action against the sureties on the bond of indemnity, including defendant. For undisclosed reasons, the sureties on the bond other than defendant did not further appear in the record. Defendant answered, and plaintiff moved to strike considerable portions of the answer. Plaintiff then demurred generally to the remainder of the answer, and the general demurrer was sustained. When defendant failed to amend his answer, default was entered, and judgment was rendered against defendant for $10,058.44 and costs. Defendant appealed from this judgment.

The court of appeal overturned the trial court's motion striking portions of defendant's answer. Preliminarily, the court stated that the measure of damages on the bond that was the basis of the action was the value of the steam shovel, and that when, as in the present case, the value of the property was less than the amount of the bond, this fact is properly raised as a defense (pp. 232, 233). The court noted further that defendant had clearly tried to make out this defense in his answer (p. 233). However, the court noted that the answer was filled with recitals, legal conclusion, and other irrelevant matters and endeavored to relitigate the validity of the chattel mortgage. The court stated that most of this matter was properly stricken out (p. 233). However, the court also noted that although defendant had failed to make a direct, positive allegation unconnected with irrelevant matter as to the value of the steam shovel when taken, his contention that the shovel was worth no more than $600 appears throughout the answer. The court held that it was error to strike out those contentions (p. 233). The court held further that since the motion was so broad as to include relevant matters it should have been denied in its entirety. The court added that a court should never strike out matter that will leave the complaint defective and thus lead to the dismissal of the action (p. 234). Citing one of the averments in the answer in which defendant had stated the value of the steam shovel, the court stated that read in connection with the irrelevant matter that was averred along with the claim, the averment was at most uncertain, and therefore subject to a special demurrer. However, the court held that a motion to strike cannot be made to serve the purposes of a special demurrer. Finally, the court held that with the allegations as to the value of the shovel in the answer, the general demurrer should not have been sustained, since it was not the facts alleged in the answer, but only their statement, whichwere arguably insufficient (pp. 234-235).
Form 47 Opposing Motion to Strike Whole or Part of Pleading [Code Civ. Proc. Ї 435]--Improper Amended Complaint [Code Civ. Proc. Ї 436]--Reasons Exist Why Earlier Pleading Should Not Bar Later Inconsistent Action
[Caption. See Form 40. ]

THE MOTION TO STRIKE SHOULD BE DENIED BECAUSE A CAUSE OF ACTION STATED IN AN AMENDED PLEADING SHOULD NOT BE BARRED BY SWORN INCONSISTENT ALLEGATIONS IN A PRIOR PLEADING WHEN CIRCUMSTANCES SHOW THAT THE LATER PLEADNG IS NOT SHAM AND THAT A CAUSE OF ACTION MAY BE STATED TRUTHFULLY.

A. Rule Against Dropping Sworn Allegations Applies Only to Sham Amendments. The rules that allegations of fact made under oath may not be dropped without adequate explanation merely to avoid their harmful effect to the pleader and that verified allegations in a prior pleading may be considered at a hearing of a challenge to a later pleading should be applied only when the challenged amended pleading is a sham and when it is apparant that no cause of action can be stated truthfully (see McGee v. McNally (1981) 119 Cal. App. 3d 891, 896, 897, 174 Cal. Rptr. 253 ).

[Optional ] B. Allegations Incidental to Cause of Action May Be Withdrawn. When allegations in the original pleading are lightly traced, without reference to particulars or allegations of specific damages, while obvious emphasis is placed on other allegations, reasons for excluding the allegations are conceivable and the party should be permitted to withdraw them with a proper explanation ( McGee v. McNally (1981) 119 Cal. App. 3d 891, 896, 897, 174 Cal. Rptr. 253 ).

[Optional ] C. Necessary Allegation in an Original Complaint Should Not Bar Inconsistent Cause of Action Against Different Defendant. When the original complaint contained allegations that are required to state a cause of action against a party who has since been dropped from the suit, but that are inconsistent with a cause of action against the present party defendant, such allegations should not bar the cause of action against the present defendant ( Callahan v. City and County of San Francisco (1967) 249 Cal. App. 2d 696, 699-700, 57 Cal. Rptr. 639 ).

Respectfully submitted,
_________________ [signature ]
Attorney for _________________
[opposing party, e.g., Plaintiff]

COMMENTS

Use of Form

The foregoing points and authorities may be submitted in opposition to a motion to strike an amended pleading on the ground that it attempts without explanation to drop, or makes allegations inconsistent with, a sworn allegation in an earlier pleading. The foregoing sets out the point that the rules that a sworn allegation may not be dropped without explanation in order to avoid its harmful effects, and that such an earlier sworn allegation can be considered in ruling on a challenge to a later pleading, must be applied in light of their purpose of avoiding sham amended pleadings when it is clear that no cause of action can be truthfully stated. This form also sets out the points that a sworn allegation that is sketchily drawn and appears incidental to the main thrust of the damages alleged may be withdrawn on proper explanation, and that an earlier allegation that was necessary under the law to state a cause of action against a defendant who was subsequently dropped from the case should not bar an inconsistent cause of action stated in a later pleading. In an appropriate case, the foregoing points and authorities may be submitted in opposition to a motion to strike matter from an amended pleading supported by the points and authorities set out in Form 31.

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

Validity of Pre-1982 Case Law

The cases cited in this form were decided before the Legislature reorganized the law governing motions to strike in 1982. However, since none of the rules set out in these cases are inconsistent with any of the provisions of the 1982 legislative scheme, it appears that the cases are still good law [see Code Civ. Proc. ЇЇ 431.10[Deering's], 435[Deering's], 436[Deering's], 437[Deering's] ]. For a further treatment of the continuing validity of pre-1982 case law, see the discussion under Introduction, 1982 Reorganization of Governing Statutes and Prior Case Law, above.

DISCUSSION OF AUTHORITIES

Rule Against Dropping Sworn Allegations Applies Only to Sham Amendments

McGee v. McNally (1981) 119 Cal. App. 3d 891, 174 Cal. Rptr. 253 , involved an action for intentional infliction of emotional distress in which plaintiff alleged in effect that while employed by defendant hospital he was the victim of a campaign of harassment designed by his supervisors, who were also named as defendants, to deprive him of his job and replace him with a fellow worker. Defendants demurred, arguing that the exclusive remedy for these complaints lies with workers' compensation law. The trial court sustained the demurrer without leave to amend and plaintiff appealed.

The court of appeal upheld the demurrer but held that plaintiff should be granted leave to amend and remanded the case for further proceedings. Preliminarily, the court held that an action against an employer for intentional infliction of emotional distress is not barred by Lab. Code ЇЇ 3600[Deering's] and 3601[Deering's] (exclusivity of workers' compensation remedy) (p. 896). The court agreed, however, with the defendant's argument that the complaint as written did not state a cause of action, since it alleged physical as well as emotional injuries (p. 896). Nevertheless, the court held that plaintiff should be given permission to amend the complaint so as to exclude the allegations of physical injury (p. 896). The court acknowledged the rule that verified allegations may not be discarded without an adequate explanation and that the court may look to verified allegations in an earlier pleading in hearing the demurrer to a later pleading (p. 896). However, the court stated that the purpose of the rule is to prevent amended pleading that is only a sham when it is clear that no cause of action exists. In the present case, the court held that circumstances showed that this was not the case (pp. 896, 897).

Allegations Incidental to Cause of Action May Be Withdrawn

The facts and procedural background of McGee v. McNally (1981) 119 Cal. App. 3d 891, 174 Cal. Rptr. 253 , are set out under Discussion of Authorities, Rule Against Dropping Sworn Allegations Applies Only to Sham Amendments, above. In that case, the court noted that the allegations of physical damage were only lightly traced in the original pleading, without reference to particulars and without allegation of physical disability cognizable by the Workers' Compensation Act, while the obvious and repeated emphasis was placed on the aspects of humiliation and anguish and other forms of purely emotional trauma. Under these circumstances, the court stated, it was able to conceive of a number of reasons why the language regarding physical injury was included that would support its exclusion now without impugning the credibility of the plaintiff's cause of action (p. 897).

Necessary Allegation in an Original Complaint Should Not Bar Inconsistent Cause of Action Against Different Defendant

Callahan v. City and County of San Francisco (1967) 249 Cal. App. 2d 696, 699-700, 57 Cal. Rptr. 639 , involved a personal injury action against the defendant city for negligent maintenance of a traffic intersection that was alleged to have resulted in a traffic accident causing injury to the plaintiff, who was a passenger in a car. The original complaint did not name the city as a defendant and stated a cause of action against the driver of the car, charging the driver and others with willful misconduct and with racing vehicles on the road. The city was first named as defendant in the first amended complaint which, like all subsequent amended complaints, omitted any allegations of willful misconduct or racing cars on the road. At some point, the driver of the car was dropped from the action as defendant. The city demurred to the third amended complaint on the ground that it stated no cause of action, and called on the court to view plaintiff's amended pleadings in light of the original verified complaint. The demurrer was sustained without leave to amend. Plaintiff appealed from the resulting judgment.

The court of appeal overturned the trial court's order sustaining the demurrer. The court recognized that plaintiff's allegation of willful misconduct against the driver might rule out her action against the city if it were taken as proven (p. 700). The court also acknowledged the rule that allegations of fact, once made under oath, may not ordinarily be dropped without adequate explanation merely for the purpose of avoiding their harmful effect to the pleader, and that the verified allegations of an earlier pleading may be considered in ruling on a demurrer to a later pleading (p. 699). However, the court stated that the rule must be taken together with its purpose, which is to prevent amended pleading that is only a sham, when it is apparent that no cause of action can be stated truthfully (p. 699).

In the present case, the court noted that the allegation of willful misconduct was not directed against the city, which was not even a party to the action when the original complaint was filed, but against a third party, and that under the law then applicable such an allegation was necessary in order to establish a cause of action against the driver of the car (p. 699). The court further stated that under then applicable law an allegation of willful misconduct on the part of the driver by the passenger in a car was but an allegation of a conclusion concerning the mental state of the driver and that in the present case it would never be known whether plaintiff would be able to prove her allegation (pp. 699, 700). The court held that to give the city the benefit at the pleading stage of assuming that such generic allegations against another party may be taken as proven would put plaintiff to a choice that the law did not intend to impose on her. Thus, the court noted, if plaintiff alleged willful misconduct on the part of the driver in order to state a cause of action against him she would run the risk of ruling out her action against the city, while if she failed to make this allegation she would have no cause of action against the driver (p. 700).

With respect to plaintiff's original allegation that the driver had been racing with his car, the court held that since under the present structure of the case the allegation of willful misconduct was no longer relevant, such racing was best characterized as merely negligent (pp. 700, 701). The court held that concurrent negligence on the part of the driver would not necessarily absolve the city from liability (p. 701). Thus, the court concluded that the allegations of plaintiff's earlier pleadings were not destructive of her cause of action against the city.
Form 48 Opposing Motion to Strike Whole or Part of Pleading [Code Civ. Proc. Ї 435]--Improper Amended Pleading [Code Civ. Proc. Ї 436]--Amended Complaint Stating Cause of Action Not Sham
[Caption. See Form 40. ]

THE AMENDED COMPLAINT SHOULD NOT BE STRICKEN AS SHAM, EVEN THOUGH IT REPEATS THE SUBSTANCE OF THE PREVIOUS COMPLAINT, BECAUSE IT NEVERTHELESS STATES A CAUSE OF ACTION.

Amended Pleading Stating Cause of Action Not Sham. An amended pleading that states a cause of action is not sham, even if it is in substance a repetition of the original pleading that had been held insufficent ( Amacorp Ind. Leasing Co. v. Robert C. Young Associates, Inc. (1965) 237 Cal. App. 2d 724, 727, 729, 47 Cal. Rptr. 294 ).

Respectfully submitted,
_________________ [signature ]
Attorney for _________________
[opposing party, e.g., Plaintiff]

COMMENTS

Use of Form

The foregoing points and authorities may be submitted in opposition to a motion to strike an amended pleading on the ground that it fails to amend a pleading previously held to be insufficient when it can be shown that the amended pleading nevertheless states a cause of action. The foregoing sets out the point that an amended pleading that states a cause of action is not sham regardless of whether it amends a prior pleading that was held to be insufficient. The procedure of filing an amended pleading that substantially restates a pleading previously held to be insufficient and arguing that it nevertheless states a cause of action may be used as a means of seeking reconsideration of a trial court order holding the original pleading insufficient.

In an appropriate case, the foregoing points and authorities may be submitted in opposition to a motion to strike supported by the points and authorities set out in Form 31.

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

Validity of Pre-1982 Case Law

Amacorp Ind. Leasing Co. v. Robert C. Young Associates, Inc. (1965) 237 Cal. App. 2d 724, 727, 729, 47 Cal. Rptr. 294 , on which this form is based was decided before the Legislature reorganized the law governing motions to strike in 1982. However, since none of the rules set out in this case is inconsistent with any of the provisions of the 1982 legislative scheme, it appears that the case is still good law [see Code Civ. Proc. ЇЇ 431.10[Deering's], 435[Deering's], 436[Deering's], 437[Deering's] ]. For a further treatment of the continuing validity of pre-1982 case law, see the discussion under Introduction, 1982 Reorganization of Governing Statutes and Prior Case Law, above.

DISCUSSION OF AUTHORITIES

Amended Pleading Stating Cause of Action Not Sham

The facts and procedural background of Amacorp Ind. Leasing Co. v. Robert C. Young Associates, Inc. (1965) 237 Cal. App. 2d 724, 47 Cal. Rptr. 294 , are set out in Form 45 under Discussion of Authorities, Technically Late Pleading Should Not Be Stricken When There Was No Purposeful Delay or Prejudice. In that case, the trial court sustained general and special demurrers to defendant's original cross complaint. Defendant thereupon filed an amended cross complaint that was in substance a repetition of the original cross complaint. The trial court sustained a general demurrer without leave to amend and simultaneously granted a motion to strike the cross complaint on the grounds that it was sham and untimely filed. The court of appeal stated that it was clear from reading the amended cross complaint that defendant was trying to state a cause of action for breach of warranty, and that facts establishing such a cause of action were inferable from reading the cross complaint as a whole (p. 728). The court concluded that the allegations of the cross complaint were sufficient as against a general demurrer to afford the defendant an opportu - nity to more fully explain the circumstances of the transaction alleged (p. 729).

Regarding the motion to strike, the court stated that an amended pleading that states a cause of action is not sham, and reiterated that it had decided that the amended cross complaint in the present action did state a cause of action (p. 729).
Form 49 Opposing Motion to Strike Whole or Part of Pleading [Code Civ. Proc. Ї 435]--Amendment of Pleading to Bring in New Parties Allowed as Matter of Course Prior to Answer or Demurrer [Code Civ. Proc. Ї 472]
[Caption. See Form 40. ]

THE MOTION TO STRIKE SHOULD BE DENIED BECAUSE AN AMENDMENT OF A PLEADING TO BRING IN NEW PARTIES IS ALLOWED PURSUANT TO SECTION 472 OF THE CODE OF CIVIL PROCEDURE AS A MATTER OF COURSE WITHOUT LEAVE OF COURT IF IT IS MADE PRIOR TO THE FILING OF AN ANSWER OR DEMURRER BY ANY DEFENDANT.

Amendment of Pleading to Bring in New Parties Is Allowed as Matter of Course Without Leave of Court If Made Prior to Filing of Answer or Demurrer. A complaint may be amended pursuant to Section 472[Deering's] of the Code of Civil Procedure to add new parties without leave of court before any defendant has filed an answer or demurrer, and permission to amend under Section 473[Deering's] of the Code of Civil Procedure is not required under such circumstances ( Code Civ. Proc. Ї 472[Deering's] ; Gross v. Department of Transportation (1986) 180 Cal. App. 3d 1102, 1104, 226 Cal. Rptr. 49 ).

Respectfully submitted,
_________________ [signature ]
Attorney for Plaintiff

COMMENTS

Use of Form

The foregoing points and authorities may be submitted in opposition to a motion to strike an amended pleading on the ground that an amendment adding new parties requires permission of the court. The form sets out the point that the motion to add a new party may be made as a matter of course without the necessity of the granting of leave by the court if no answer or demurrer has been filed by any defendant.

In an appropriate case, the foregoing points and authorities may be submitted in opposition to the motion supported by the points and authorities set out in Form 3.

Counsel should insert argument in the foregoing form, showing the relationship between the facts of the case and the points of law stated. Thus, counsel should discuss the fact that no answer or demurrer had been filed when the amendment of the pleading was made.

DISCUSSION OF AUTHORITIES

Amendment of Pleading to Bring in New Parties Is Allowed as Matter of Course Without Leave of Court If Made Prior to Filing of Answer or Demurrer

In Gross v. Department of Transportation (1986) 180 Cal. App. 3d 1102, 226 Cal. Rptr. 49 , a minor sued several defendants for the wrongful death of her mother in a highway collision. She later added the Department of Transportation (Department) as a defendant because of the alleged defective design of the highway where the accident occurred. At the time plaintiff amended the complaint, none of the defendants named in the initital complaint had been served or appeared. The Department moved to strike the complaint insofar as it was named as defendant. The motion was granted on the ground that Code Civ. Proc. Ї 473[Deering's] requires leave of court prior to amending a complaint to add a party as a defendant. The action against the Department was dismissed, and plaintiff appealed.

The court of appeal reversed. The court stated that Code Civ. Proc. Ї 473[Deering's] was inapplicable in this situation. The court held that the applicable section is Code Civ. Proc. Ї 472[Deering's] , which allows amendment of a complaint to add new parties as a matter of course without leave of court before any defendant has filed an answer or demurrer (pp. 1104-1105). The court stated that the language in Taliaferro v. Davis (1963) 220 Cal. App. 2d 793, 795, 34 Cal. Rptr. 120 (for discussion of Taliaferro, see Form 3, Discussion of Authorities, Amendment Adding New Parties Always Requires Permission), stating that Code Civ. Proc. Ї 473[Deering's] is controlling with respect to all amendments adding parties, was merely dictum because in that case the amendment took place after the sustaining of a demurrer (p. 1106). The court stated that because Code Civ. Proc. Ї 472[Deering's] is a narrower provision than Code Civ. Proc. Ї 473[Deering's], it takes precedence over Code Civ. Proc. Ї 473[Deering's] in all instances in which a plaintiff seeks to amend his or her complaint once prior to the filing of an answer or demurrer ( 180 Cal. App. 3d 1102, 1107 ).
Form 50 Opposing Special Motion to Strike Action Against Constitutionally Privileged Conduct (SLAPP Suit) [ Code Civ. Proc. Ї 425.16(b) ]--Grounds for Motion Lacking
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________

)NO. _______________
)MEMORANDUM OF POINTS
)AND AUTHORITIES IN
)OPPOSITION TO MOTION
)TO STRIKE _____________
)__ [specify
_________________________ [name ],)pleading, e.g.,
)COMPLAINT]
Plaintiff, )Date: _______________
vs. )Time: _______________
_________________________ [name ],)Dept: _______________
Defendant. )Judge: _______________
)Date Action Filed: ____
)Trial Date: ___________
)

THE SPECIAL MOTION TO STRIKE SHOULD NOT BE GRANTED BECAUSE THE DEFENDANT'S ACTS WERE NOT IN FURTHERANCE OF DEFENDANT'S RIGHT OF _________________ [PETITION and/or FREE SPEECH] IN CONNECTION WITH A PUBLIC ISSUE AS DEFINED IN CODE OF CIVIL PROCEDURE SECTION 425.16(e)[Deering's] .

A. Defendant Bears Initial Burden to Make a Prima Facie Showing. A defendant who brings a special motion to strike under Code Civ. Proc. Ї 425.16[Deering's] bears the initial burden of making a prima facie showing that the plaintiff's cause of action arose from the defendant's acts in furtherance of the defendant's right of petition or free speech under the United States or California Constitution in connection with a public issue. A defendant's special motion to strike should be denied if the defendant fails to meet this initial prima facia showing ( Consumer Justice Center v. Trimedica International, Inc. (2003) 107 Cal. App. 4th 595, 599-605, 132 Cal. Rptr. 2d 191; Zhao v. Wong (1996) 48 Cal. App. 4th 1114, 1130-1133, 55 Cal. Rptr. 2d 909 ).

B. Defendant Must Show a Lawful Exercise of Constitutional Rights. Even if the acts alleged in the complaint are done in furtherance of the constitutional rights of free speech or petition for redress of grievances in connection with a public issue, if those acts are themselves illegal, defendant is not entitled to protection under Code Civ. Proc. Ї 425.16[Deering's] ( Paul for Council v. Hanyecz (2001) 85 Cal. App. 4th 1356, 1363-1367, 102 Cal. Rptr. 2d 864 ).

C. Anti-SLAPP Motion Must Be Denied if Plaintiff Demonstrates A Probability of Prevailing on the Claim. Even if the initial burden is met that the plaintiff's cause of action arose from the defendant's acts in furtherance of the rights of petition or free speech, the anti-SLAPP motion should be denied if the opposing party demonstrates the probability that the plaintiff will prevail on the claim; that is, the opposing party demonstrates that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited ( Zamos v. Stroud (2004) 32 Cal. 4th 958, 965, 12 Cal. Rptr. 3d 54, 87, P.3d 802 ).

Dated: _________________.

Respectfully submitted,
_________________ [firm name, if any ]
By: _________________ [signature ]
_________________ [typed name ]
Attorney for _________________
[opposing party, e.g., Plaintiff]

COMMENTS

Use of Form

These points and authorities may be submitted in opposition to a defendant's special motion to strike under Code Civ. Proc. Ї 425.16[Deering's] when the grounds for the motion are lacking, that is, when the defendant's acts were not done ``in furtherance of ... [the defendant's] right of petition or free speech under the United States or California Constitution in connection with a public issue,'' as that phrase is defined in Code Civ. Proc. Ї 425.16(e)[Deering's] .

Counsel should insert argument in the form, to show what element or elements of the definition is missing from the case. In doing so, counsel must be aware that under Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal. 4th 1106, 81 Cal. Rptr. 2d 471, 969 P.2d 564 , cases that have narrowly construed the scope Code Civ. Proc. Ї 425.16[Deering's] have been disapproved. In Briggs the court held that under Section 425.16, 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. 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 [ 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 ]. The analysis should be based on each of the four independent clauses of Code Civ. Proc. Ї 425.16(e)[Deering's] [see Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal. 4th 1106, 1117, 81 Cal. Rptr. 2d 471, 969 P.2d 564 ].

Opposing Points and Authorities

In an appropriate case, this form may be used to oppose the memorandum of points and authorities set out in Form 10.

DISCUSSION OF AUTHORITIES

Defendant Bears Initial Burden to Make a Prima Facie Showing

In Consumer Justice Center v. Trimedica International, Inc. (2003) 107 Cal. App. 4th 595, 132 Cal. Rptr. 2d 191 , plaintiffs sued Trimedica for false advertising, consumer fraud and related claims with respect to the product Grobust. Trimedica's literature states that Grobust is a pill that ``offers a revolutionary breakthrough that provides a 100% natural alternative to breast implants.'' According to a ``doctor'' endorsing Grobust, ``Claims of a breast enlargement of one half inch in 45 days have been substantiated.'' Trimedica filed a special motion to strike pursuant to Code Civ. Proc. Ї 425.16[Deering's] (the anti-SLAPP statute), arguing the complaint constituted a SLAPP suit because the claims arose from acts in furtherance of Trimedica's rights to petition and to engage in free speech under the federal and California Constitutions. CJC countered by arguing the anti- SLAPP statute was not intended to protect allegedly false commercial speech. The trial court denied the motion, stating that Trimedica's commercial speech regarding Grobust did not implicate a public issue within the meaning of the anti-SLAPP statute.

On appeal, the court held defendants were unable to satisfy the first prong of the anti-SLAPP statute because the commercial speech involved did not implicate a matter of public interest within the meaning of Code Civ. Proc. Ї 425.16(e)[Deering's] ; defendant's claims of an ``herbal product that provides a 100% natural alternative to breast implants'' was commercial speech about the specific properties and efficacies of a particular product and not a matter of public interest; if the court were to find a matter of public interest in this case, nearly any product could claim its speech was about a topic of public interest (107 Cal. App. 4th 595, 600-602).

In Zhao v. Wong (1996) 48 Cal. App. 4th 1114, 55 Cal. Rptr. 2d 909 , the plaintiff sued for slander, alleging that defendant made statements to a reporter and to his father accusing the plaintiff of murder and forging a will. The reporter had interviewed defendant about the death and a will contest between plaintiff and defendant's father in which judgment in plaintiff's favor was pending appeal. The trial court granted defendant's motion to strike the complaint under Code Civ. Proc. Ї 425.16[Deering's] and entered a judgment of dismissal. The plaintiff appealed.

The court of appeal reversed. The court's narrow interpretation of Code Civ. Proc. Ї 425.16(e)[Deering's] , that concluded the Legislature intended the statute to be governed by the restricted scope of the statement of legislative purpose in Code Civ. Proc. Ї 425.16(a)[Deering's] (48 Cal. App. 4th 1114, 1128-1129) has been disapproved 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 . However, the Zhao court also made the point that Wilcox v. Superior Court (1994) 27 Cal. App. 4th 809, 820, 33 Cal. Rptr. 2d 446 , established the principle that the moving party bears the initial burden of showing that the plaintiff's cause of action arises from an act of the defendant in furtherance of the defendant's right of petition or free speech under the United States or California Constitution in connection with a public issue (48 Cal. App. 4th 1114, 1130-1131). The court then reviewed the [then] three-part definition of subdivision (e) [prior to its amendment by 1997 Stats., ch. 271, Ї 1], and found that phrase (1) of subdivision (e) could not apply because communications at issue were not made before a legislative, executive, or judicial proceeding, or any other official proceeding. and that phrase (3) could not apply because the statements were not made in a place open to the public or a public forum, a private newspaper not being a public forum (48 Cal. App. 4th 1114, 1131). With regard to phrase (2), the court noted that it could not be seriously contended that every comment on a lawsuit involves a public issue and that although lawsuits may sometimes relate to a public issue, the mere fact that a lawsuit was pending has no significance in determining the existence of a public issue. Also, the question whether statements concern a matter of public interest cannot be determined on the basis of edia coverage, notoriety, or potential newswothiness (48 Cal. App. 4th 1114, 1131). The existence of a public issue depends rather on whether the statements possessed the sort of relevance to self-government that places them in a specially protected category of First Amendment values. Though the unusual and intriguing circumstances surrounding the decedent's death and the discovery of a purported holographic will may have been newsworthy, they did not involve a public issue in the sense interpreted by the court (48 Cal. App. 4th 1114, 1132). The court noted that under the broad interpretation of Code Civ. Proc. Ї 425.16[Deering's] advocated in Averill v. Superior Court (1996) 42 Cal. App. 4th 1170, 50 Cal. Rptr. 2d 62 , the plaintiff's cause of action based on the press interview involving allegations of slander per se with tenuous and speculative links with the petition clause might perhaps be thought to come within the statute (48 Cal. App. 4th 1114, 1132-1133). The Zhao court, however, read the statute as providing an extraordinary remedy for a narrowly defined category of litigation, and required the moving party to show facts from which the court could reasonably conclude that the statements at issue were made in the exercise of the right to participate freely in the public process without the threat of litigation (48 Cal. App. 4th 1114, 1133). For a discussion of Averill v. Superior Court (1996) 42 Cal. App. 4th 1170, 50 Cal. Rptr. 2d 62 , see Form 10, under Additional Authorities, Plaintiff's Burden Arises After Defendant's Prima Facie Showing That Code of Civil Procedure Section 425.16[Deering's] Applies.

Other than in regard to the issue of burden of proof, counsel should use Zhao with caution, given the disapproval of its narrow reading of Code Civ. Proc. Ї 425.16(a)[Deering's] 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 .

Defendant Must Show a Lawful Exercise of Constitutional Rights

In Paul for Council v. Hanyecz (2001) 85 Cal. App. 4th 1356, 102 Cal. Rptr. 2d 864 , a political candidate who unsuccessfully ran for city council filed an action against several defendants who had illegally laundered campaign contributions to plaintiff's opponent. The defendants filed an anti-SLAPP motion to strike, arguing that their campaign activities were covered by Code Civ. Proc. Ї 425.16[Deering's] . The trial court ruled in favor of the defendants and dismissed the action after the plaintiff failed to establish a probability of success on his claims (85 Cal. App. 4th 1356, 1359).

The court of appeal reversed the trial court's ruling and reinstated the action. The court concluded that the making of a political campaign contribution is a type of political speech, and ``[a] contribution serves as a general expression of support for the candidate and his views... .'' However, the court next addressed Code Civ. Proc. Ї 425.16(a)[Deering's] , the preamble of that statute, which states that the statute was enacted to combat suits brought primarily to chill the valid exercise of a defendant's constitutional rights of speech and petition. The probability that the Legislature intended to give defendants protection from a lawsuit based on injuries they are alleged to have caused by their illegal campaign money laundering scheme ``is as unlikely as the probability that such protection would exist for them if they injured plaintiff while robbing a bank to obtain the money for the campaign contributions or while hijacking a car to drive the campaign contributions to the post office for mailing.'' Under the facts demonstrated by this record, the court could not permit the defendants to wrap themselves in this vital legislation. While it is technically true that laundering campaign contributions is an act in furtherance of the giving of such contributions, that is, in furtherance of an act of free speech, the court rejected the notion that the statute exists to protect such illegal activity. Because the defendants did not show that plaintiff's suit was brought primarily to chill a valid exercise of their constitutional rights of free speech or petition for redress of grievances in connection with a public issue, plaintiff had no obligation to establish a probability that he would prevail on his causes of action, and the trial court was therefore required to deny defendants' motion to strike plaintiff's causes of action (85 Cal. App. 4th 1356, 1364-1367).

Anti-SLAPP Motion Must Be Denied if Plaintiff Demonstrates A Probability of Prevailing on the Claim

In Zamos v. Stroud (2004) 32 Cal. 4th 958, 12 Cal. Rptr. 3d 54, 87 P.3d 802 , the plaintiff brought a case for malicious prosecution. The question presented was whether an attorney could be held liable for malicious prosecution when he commenced a lawsuit properly but then continued to prosecute it after learning it was not supported by probable cause. The parties agree that plaintiffs' malicious prosecution action arises from acts in furtherance of defendants' right of petition or free speech. Thus, the issue is whether plaintiffs presented evidence in opposition to defendants' anti-SLAPP motion that, if believed by the trier of fact, was sufficient to support a judgment in plaintiffs' favor. In opposition to defendants' motion, plaintiffs presented evidence that defendants were given transcripts shortly after the fraud lawsuit was filed that showed that defendants knew or should have known that the fraud lawsuit had no merit. Plaintiff presented evidence in support of the anti-SLAPP motion to show that the facts available to Stroud at the time the lawsuit was filed were sufficient to support a cause of action for fraud. But in opposition to the motion, Zamos presented evidence that Stroud was given transcripts shortly after the fraud lawsuit was filed that, Zamos contends, show that Stroud knew or should have known that the fraud lawsuit had no merit. The trial court dismissed the malicious prosecution claim after granting defendants' motion to strike. The appellate court reversed, finding a likelihood of success on the plaintiff's claim.

In a case of first impression, the supreme court affirmed the decision of the court of appeal, finding that plaintiffs presented evidence in opposition to defendants' anti-SLAPP motion that, if believed by the trier of fact, was sufficient to support a judgment in plaintiffs' favor. The court conclude an attorney may be held liable for malicious prosecution for continuing to prosecute a lawsuit discovered to lack probable cause (32 Cal. 4th 958, 973).
Form 51 Opposing Special Motion to Strike Action Against Constitutionally Privileged Conduct (SLAPP Suit) [ Code Civ. Proc. Ї 425.16(b) ]--Action Brought Solely in the Public Interest [ Code Civ. Proc. Ї 425.17(b) ]
[Caption. See Form 50. ]

THE SPECIAL MOTION TO STRIKE SHOULD NOT BE GRANTED BECAUSE THE PLAINTIFF BROUGHT THE ACTION SOLELY ________ [IN THE PUBLIC INTEREST or ON BEHALF OF THE GENERAL PUBLIC] AND PLAINTIFF MEETS THE STATUTORY EXCEPTION REQUIREMENTS OF [ CODE OF CIVIL PROCEDURE Ї 425.17(b)[Deering's] ].

A. Plaintiff Brought the Action Solely in the Public Interest or on Behalf of the General Public. Code Civ. Proc. Ї 425.16(b)[Deering's] does not apply to any action brought solely in the public interest or on behalf of the general public as long as the following conditions are met [ Code Civ. Proc. Ї 425.17(b)[Deering's] ]:

1. Plaintiff does not seek any relief greater than or different from _________________ [the general public or the class of which plaintiff is a member][ Code Civ. Proc. Ї 425.17(b)(1)[Deering's] ].

2. 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][ Code Civ. Proc. Ї 425.17(b)(2)[Deering's] ].

3. Private enforcement is necessary and places a disproportionate financial burden on the plaintiff in relation to the plaintiff's stake in the matter [ Code Civ. Proc. Ї 425.17(b)(3)[Deering's] ].

COMMENTS

Use of Form

These points and authorities may be submitted in opposition to a defendant's special motion to strike under Code Civ. Proc. Ї 425.16[Deering's] when the plaintiff's action was brought solely in the public interest or on behalf of the general public [ Code Civ. Proc. Ї 425.17(b)[Deering's] ]. In 2003, the Legislature determined that there had been a ``disturbing'' abuse of California's anti-SLAPP motion procedure [ Code Civ. Proc. Ї 425.17(a)[Deering's] ]. The Legislature enacted Code Civ. Proc. Ї 425.17[Deering's] to provide statutory exceptions to an anti-SLAPP motion.

To meet this exception, plaintiff must show that all three of the conditions set forth in Code Civ. Proc. Ї 425.17(b)[Deering's] are met. Counsel should set forth argument in the form showing how the listed conditions are met.

Circumstances Under Which Statutory Exceptions Are Inapplicable

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

З 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. Ї 425.17(d)(1)[Deering's] ].

З 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. Ї 425.17(d)(2)[Deering's] ].

З 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. Ї 425.17(d)(3)[Deering's] ].

Opposing Points and Authorities

In an appropriate case, this form may be used to oppose the memorandum of points and authorities set out in Forms 10 or 10.1.
Form 52 Opposing Special Motion to Strike Action Against Constitutionally Privileged Conduct (SLAPP Suit) [ Code Civ. Proc. Ї 425.16(b) ]--Action Brought Against a Person Primarily Engaged in the Business of Selling Goods or Services [ Code Civ. Proc. Ї 425.17(c) ]
THE SPECIAL MOTION TO STRIKE SHOULD NOT BE GRANTED BECAUSE THE PLAINTIFF BROUGHT THE ACTION AGAINST A PERSON PRIMARILY ENGAGED IN THE BUSINESS OF SELLING _________________ [GOODS or SERVICES] AND PLAINTIFF MEETS THE STATUTORY EXCEPTION REQUIREMENTS OF [ CODE OF CIVIL PROCEDURE Ї 425.17(c)[Deering's] ].

A. Plaintiff Brought the Action Against a Person Primarily Engaged in the Business of Selling Goods or Services. Code Civ. Proc. Ї 425.16(b)[Deering's] does not apply to any action brought against a person primarily engaged in the business of selling goods or services if both of the following conditions are met [ Code Civ. Proc. Ї 425.17(c)[Deering's] ]:

[EITHER ]

1. The statement or conduct consists of representations of fact about that person's _________________ [business operations or goods or services] that is made for the purpose of _________________ [obtaining approval for or promoting or securing sales or leases of or commercial transactions in] the person's _________________ [goods or services] [ Code Civ. Proc. Ї 425.17(c)(1)[Deering's] ].

[OR ]

1. The statement or conduct was made in the course of delivering the person's _________________ [goods or services][ Code Civ. Proc. Ї 425.17(c)(1)[Deering's] ].

[EITHER ]

2. 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] [ Code Civ. Proc. Ї 425.17(c)(2)[Deering's] ].

[OR ]

2. The statement or conduct arose out of or within the context of a regulatory approval _________________ [process or proceeding or investigation] not withstanding that the conduct or statement concerns an important public issue [ Code Civ. Proc. Ї 425.17(c)(2)[Deering's] ].

COMMENTS

Use of Form

These points and authorities may be submitted in opposition to a defendant's special motion to strike under Code Civ. Proc. Ї 425.16[Deering's] when the plaintiff's action was brought against a person primarily engaged in the business of selling goods or services [ Code Civ. Proc. Ї 425.17(c)[Deering's] ]. In 2003, the Legislature determined that there had been a ``disturbing'' abuse of California's anti-SLAPP motion procedure [ Code Civ. Proc. Ї 425.17(a)[Deering's] ]. Consumer groups argued that large corporations were invoking the anti-SLAPP statute to delay and discourage litigation against them. The Legislature enacted Code Civ. Proc. Ї 425.17[Deering's] to provide statutory exceptions to an anti-SLAPP motion.

To meet this exception, plaintiff must show both of the conditions set forth in Code Civ. Proc. Ї 425.17(c)[Deering's] are met. Counsel should set forth argument in the form showing how the listed conditions are met.

Exception Does Not Apply in Public Utilities Commission Proceedings

The exception to an anti-SLAPP motion for actions brought against a person primarily engaged in the business of selling goods or services does not apply where the statement or conduct at issue 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 [ Code Civ. Proc. Ї 425.17(c)(2)[Deering's] ].

Circumstances Under Which Statutory Exceptions Are Inapplicable

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

З 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. Ї 425.17(d)(1)[Deering's] ].

З 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. Ї 425.17(d)(2)[Deering's] ].

З 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. Ї 425.17(d)(3)[Deering's] ].

Opposing Points and Authorities

In an appropriate case, this form may be used to oppose the memorandum of points and authorities set out in Forms 10 or 10.1.