Motion To Strike Form Without Leave To Amend In San Diego
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FAQ
Demurrers typically come in two forms: general and specific. A general demurrer challenges a broader problem with a pleading that affects all of the claims brought, such as improper venue.
What happens next? If we filed the motion to strike in a trial court, then we will set the motion to be heard by a judge or magistrate, and be ruled upon. If we filed it in an appeals court, the appeals court will read the motion and offending document and will rule on it without hearing.
A demurrer must state, on the first page immediately below the number of the case, the name of the party filing the demurrer and the name of the party whose pleading is the subject of the demurrer. (Subd (e) amended and relettered effective January 1, 2007; adopted as subd (c).)
C.C.P. § 436 allows for a motion to strike “any irrelevant, false, or improper matter asserted in any pleading” or portion of a pleading “not drawn of filed in conformity with the laws of this state.” A motion to strike is proper “when a substantive defect is clear from the face of a complaint.” (PH II, Inc.
(a) When any court makes an order sustaining a demurrer without leave to amend the question as to whether or not such court abused its discretion in making such an order is open on appeal even though no request to amend such pleading was made.
Or just file it before the hearing. (Under Code Civ. Proc., § 472, if the complaint has not yet been amended, you can file an amendment complaint as of right, right up until the date set for hearing on the demurrer.
472c. (a) When any court makes an order sustaining a demurrer without leave to amend the question as to whether or not such court abused its discretion in making such an order is open on appeal even though no request to amend such pleading was made.
The court may deem a motion to file an amendment to a pleading to be a motion to file an amended pleading and require the filing of the entire previous pleading with the approved amendments incorporated into it.
