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Motion to Strike

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Hermano

Junior Member
What is the name of your state (only U.S. law)? CA

Plaintiff has filed what he is calling a "corrected" complaint, which is in actuality an amended complaint. (This was in response to my motion for sanctions, which allows him to withdraw or "otherwise correct" a challenged pleading.) He simply filed this with no leave of court, no notice, no required declaration, and it was improperly served.

Much to my surprise, the court almost fell over backwards accepting this as the new operative complaint, even though I objected on procedural grounds. However, the court even suggested that a motion to strike was the appropriate procedural next step. So I have filed this, and have a hearing coming up in a week or so.

I would like to understand the ramifications if my motion to strike is granted, because I am not getting a clear picture from cases I have reviewed. Since the current operative complaint would be stricken, would this fully dispose of the case? Or would the case simply revert back to the original complaint?

Thanks.
 


CourtClerk

Senior Member
If you ready the CCP, you don't need leave of court to file a first amended complaint as long as an answer hasn't been filed, notice doesn't have to be given nor does a declaration need to be filed.
 

Hermano

Junior Member
Given that I mentioned that I had previously filed a motion for sanctions, you probably should have inferred that an answer had already been filed prior to that. He DID require leave of court in this instance. And I have read the CCP.
 

CourtClerk

Senior Member
Given that I mentioned that I had previously filed a motion for sanctions, you probably should have inferred that an answer had already been filed prior to that. He DID require leave of court in this instance. And I have read the CCP.
No... I shouldn't infer anything. A motion for sanctions is not an answer. It's a motion. If you filed an answer, you should have said so.

Given your response and your attitude, I can see what part of the problem is already and why you ended up where you did in court.
 

Hermano

Junior Member
No... I shouldn't infer anything. <snip>

Given your response and your attitude, I can see what part of the problem is already and why you ended up where you did in court.
I agree, you shouldn't. (Since logical inferences appear to be beyond you.) And yet, here you are drawing spurious conclusions again, anyway.

Any non-trolls out there with something actually helpful -- related to the original question?
 

sandyclaus

Senior Member
Actually CourtClerk is just that - a court clerk. If she's answering your post, then she knows what she's talking about. If you have a problem with her responses, then that's YOUR problem, because they are legally accurate responses.
 

BOR

Senior Member
What is the name of your state (only U.S. law)? CA

Plaintiff has filed what he is calling a "corrected" complaint, which is in actuality an amended complaint. (This was in response to my motion for sanctions, which allows him to withdraw or "otherwise correct" a challenged pleading.) He simply filed this with no leave of court, no notice, no required declaration, and it was improperly served.

Much to my surprise, the court almost fell over backwards accepting this as the new operative complaint, even though I objected on procedural grounds. However, the court even suggested that a motion to strike was the appropriate procedural next step. So I have filed this, and have a hearing coming up in a week or so.
An amended complaint can be filed before an Answer. In my experience, a Motion to strike is an alternative pleading with a Motion to Dismiss, which although one can move the instant action be dismissed, if not granted, then isn't an Answer the next procedural step?

Inference in this matter can or can not be correct.
 

Hermano

Junior Member
Actually CourtClerk is just that - a court clerk. If she's answering your post, then she knows what she's talking about. If you have a problem with her responses, then that's YOUR problem, because they are legally accurate responses.
I did not question the legal accuracy. I questioned the relevancy of the response because 1) a motion for sanctions would have been filed after an answer, 2) I mentioned the judge had already suggested filing a motion to strike, and 3) I did not even ask a question about whether the motion to strike was appropriate. (Not to mention the insulting part about suggesting I read the CCP.)

I was looking for an answer to a question about the effect of a motion to strike, not an irrelevant discussion of the appropriateness of plaintiff's filing of an amended complaint. Further, phrases like "why you ended up where you did in court" are just juvenile.

To respond to everyone's apparent concern about timing: The answer was filed months ago. The plaintiff is not allowed to file an amended complaint at this point without leave of court. Per the CCP -- period.
 
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