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Legal Memorandum: Denial of Motion to Strike

Issue: Burden for denial of Motion to Strike.

Area of Law: Litigation & Procedure
Keywords: Denial of motion to strike; Burden
Jurisdiction: California
Cited Cases: 83 Cal. App. 4th 523; 20 Cal. 4th 119
Cited Statutes: Cal. Civ. Proc. Code § 436
Date: 01/01/2006

The correct “strike” statute is Cal. Civ. Proc. Code § 436.  See People v. Williams (1999) 20 Cal. 4th 119, 129. (“In general the moving party must carry the initial burden of informing its opponent and the court of the specific basis for its motion.”) 

A failure to specify the ground for the Motion would cause the exact infirmity the California Supreme Court has cautioned against.  Requiring the movant to specify the exact ground of the motion is required because

If the rule were otherwise, then the party opposing the motion would have to try to guess, and then refute, every possible basis for the motion, which would always be inefficient and would often produce arbitrary results.

Williams, 20 Cal. 4th at 129. 

Second, It is not enough for Defendants to assert portions of the Complaint are untrue; Defendants must support their assertions with record evidence.  See Vallejo v. Montebello Sewer Co. (1st Div. 1962) 209 Cal. App. 721, 730 n.1.

Similarly, commingling is directly relevant to a determination of whether the alter ego doctrine should apply in a particular case. See Sonora Diamond Corp. v. Superior Court (5th Dist. 2000) 83 Cal. App. 4th 523, 538-39.

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