Filing A Motion To Strike After The Answer Is Filed (CCP § 436)


By D. Dennis La

California state practitioners are aware that a motion to strike must be filed before or at the same time as the defendant files his or her answer. Cal. Civ. Proc. Code § 435(b)(1). However, there is another section under the Code of Civil Procedure (“CCP”) that allows a court to strike pleadings or portions of pleadings “at any time in its discretion.”  CCP § 436 expressly provides: 

§ 436.  Discretion of court to strike pleadings or portions of pleadings

The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

(a) Strike out any irrelevant, false, or improper matter inserted in any pleading.

(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. 

Accordingly so long as there is no abuse of discretion, the court may consider a motion to strike after “the time allowed to respond to a pleading” as mandated by CCP § 435 including leading up to trial. Courts have inherent authority to manage and control their docket, justifying the court’s consideration “at any time”.  Sole Energy Co. v. Petrominerals Corp., 128 Cal.App.4th 187, 193 (2005), citing CCP §§ 128(a), 187; Lucas v. County of Los Angeles, 47 Cal.App.4th 277, 284–285 (1996) (affirming court's grant of a motion for judgment on eve of trial even though procedurally irregular, under court's inherent “equity, supervisory and administrative” powers). Thus for practitioners, a motion under CCP § 436 can be used at a later stage in litigation where the need may arise to strike allegations, limit issues at trial, and/or potentially raise an argument that was not asserted previously. Any motion should show enough good cause to have the court use its discretion in the defendant’s favor.

The Court of Appeal in CPF Agency Corp. v. R&S Towing, 132 Cal. App. 4th 1014, 1021 (2005) considered the lower court’s granting of a motion to strike (although labeled as a motion to dismiss) pursuant to CCP § 436 and its timing, finding: 

Under these principles, the court had inherent authority to treat defendant's motion as a motion to strike, and to consider it on the merits even though the motion was filed after defendant had filed its responsive pleading. Code of Civil Procedure section 436 grants the trial court discretion to consider striking improper matter from pleadings “at any time in its discretion.” Plaintiff has not demonstrated how the trial court's decision to consider the preemption question on the merits was a clear abuse of discretion in view of the court's inherent powers, as well as the express statutory authority to consider the matter at any time.

Depending on the timing of a later motion to strike, a defendant may also not be required to meet and confer with plaintiff prior to filing the motion. CCP § 435.5(d)(4) expressly provides an exception from the meet and confer requirements for motions to strike “brought less than 30 days before trial.” The term “brought” is not defined, however the code seemingly does not require a meet and confer if the motion is set for hearing within 30 days of trial. Caution should be exercised if going this route, as court clerks may resist calendaring a “motion to strike” at such a late juncture as they are aware of CCP § 435 but may not be aware of CCP § 436.

As seen, CCP § 436 may be a powerful tool for practitioners to revisit legal issues or improper allegations that may have been overlooked in an initial response and/or during the pleading stage. Obviously due diligence should be exercised in evaluating claims and pleadings at the outset for possible striking under CCP § 435. If that is no longer an option, CCP § 436 is available to litigants who may be in a pinch or otherwise may strategically wait to bring a motion to strike.

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