Motions to Strike Added to CCP Section 472 in 2018

by McManis Faulkner

McManis Faulkner

Up until 2017, the California Code of Civil Procedure (“Code”) was unclear as to how one was to calculate deadlines for amending pleadings without leave of court within the context of motions to strike.  However, that uncertainty was clarified this year when Section 472 of the Code was revised to expressly include motions to strike.

The Older Version of § 472

Just over a month ago, if parties had a motion to strike filed against their pleading, they were left to figure out for themselves whether Section 472 applied in a situation where amending their challenged pleading was preferable to opposing a motion to strike.  For example, say you answered your opponent’s complaint.  Your opponent moves to strike your answer.  A hearing date for the motion is set.  Now, you’re left with two options: 1) oppose the motion or 2) amend your answer.

You decided to amend, so you turned to Section 472 to calculate your deadlines but found Section 472 made no mention of motions to strike.  In fact, the Section only contemplated amendments of pleadings without leave of court in the context of answers and demurrers.  So, like any diligent lawyer, you turned to a reputable practice guide for insight as to whether Section 472 applied to motions to strike for what appeared to be a glaring omission.

In the Rutter Guide, paragraph 7:166.1, “Motion to strike answer,” stated: “The only pleading allowed to an answer is a demurrer (which must be filed within 10 days after service . . .).  Thus, a motion to strike an answer must be filed within the same period of time. [CCP § 435(b); CRC 3.1322].”  The conclusion followed that because a motion to strike operated in the same way and for the same purpose as a demurrer, Section 472 should likewise apply to amending pleadings within the context of motions to strike.  However, for the ever-cautious lawyer—or an overly cautious one—this interpretation of the rule might not have been enough to allay your concerns.

The 2018 Version of § 472

Clearly this issue plagued the legal community enough to result in an amended version of Section 472, effective January 1, 2018, and operative until January 1, 2021.  Section 472, subdivision (a) now states:

A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike.

Code of Civ. Proc. § 472(a) (emphasis added)

While it is unlikely this new addition to Section 472 changes much, if anything, to the practice of amending pleadings, the 2018 version of Section 472 serves more to clarify the technicalities of amending pleadings against motions to strike, and it is worth highlighting especially to those who had some level of uncertainty in the past about when to amend pleadings within the backdrop of a motion to strike.

In conclusion, parties now no longer need to concern themselves, under the current version of Section 472, as to whether the rule on amending pleadings applies in the context of motions to strike.  The California Legislature has made it quite clear that it does.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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