Filing a motion for an answer to a complaint or counterclaim in California is the subject of this article. Section 435 (a) of the Code of Civil Procedure states that a motion to strike can be directed to a response. However, there is a very short time limit of only 10 calendar days after the answer is served to file a motion for an answer pursuant to Section 435 (b) of the Code of Civil Procedure.
If a party also wishes to file an objection to the response, both the objection and the motion to strike must be filed at the same time and scheduled for the hearing at the same time. Many responses that contain grounds for an objection also contain grounds for a strike motion.
There are several reasons for filing a strike motion in California. To reject an irrelevant, false or inappropriate matter inserted in any allegation pursuant to Section 436 (a) of the Code of Civil Procedure, and to reject an allegation or part of an allegation not elaborated or presented in accordance with the laws of this state , a court rule or court order pursuant to Section 436 (b) of the Code of Civil Procedure.
The second reason clearly authorizes an unverified response to a verified complaint. Section 446 of the Code of Civil Procedure establishes in the pertinent part that, “When the complaint is verified, the response will be verified.” Section 446 also specifies other situations in which the response to a complaint or counterclaim must be verified. This is not as common as the first terrain.
The first reason mentioned above is seen quite frequently in California litigation. A defendant will often include numerous “repetitive” affirmative defenses in an answer that generally consist entirely of allegations that are totally irrelevant to the causes of action alleged in the lawsuit, as a result, they constitute immaterial allegations under California law.
An immaterial allegation is defined in section 431 of the Code of Civil Procedure. 10. The author has seen responses that include a repetitive affirmative defense, such as “lack of consideration” in a response to a personal injury complaint, or other defenses that have absolutely nothing to do with any of the causes of action in the complaint or counterclaim. . These are clearly immaterial and irrelevant and are found in about 50% of the answers that the author reviews in his work.
The author sincerely hopes that you have enjoyed this article and found it informative. If you liked this article, tell others about it.
Sincerely,
Stan burman