Motion to Strike in California: Removing Punitive Damages and Improper Allegations

Last updated: November 2026. Reviewed by Pavel Kolmogorov, California business litigation attorney (State Bar No. 321018).

A motion to strike asks a California court to remove part of a pleading, or all of it, without deciding the case. It is the tool for taking a punitive damages demand out of a complaint that pleads only breach of contract, because punitive damages require an obligation not arising from contract. The motion is due within the time to respond to the complaint, after a required meet and confer. Kolmogorov Law, P.C., a business litigation firm in Irvine, files and opposes these motions.

Call (909) 235-6116 or contact us online to discuss a complaint your company has been served with.

What a court may strike

On motion, or at any time in its discretion, a court may strike out any irrelevant, false, or improper matter inserted in any pleading. It may also strike all or part of a pleading not drawn or filed in conformity with California law, a court rule, or a court order. (Code Civ. Proc., § 436.)

"Irrelevant matter" has a statutory meaning. It is an immaterial allegation: one not essential to the claim or defense, or one neither pertinent to nor supported by an otherwise sufficient claim. It also includes a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subds. (b), (c).) That last category is why the motion reaches a prayer for punitive damages that the pleaded facts do not support.

The motion is decided on the pleading. Its grounds must appear on the face of the challenged pleading or from matter subject to judicial notice. (Code Civ. Proc., § 437.) Declarations about what really happened do not belong in it.

Timing and the effect on your answer deadline

A party may serve and file a notice of motion to strike within the time allowed to respond to the pleading. (Code Civ. Proc., § 435, subd. (b)(1).) For a complaint, that is ordinarily the same 30 days after service that applies to a demurrer. (Code Civ. Proc., § 430.40, subd. (a).)

Served and filed without a demurrer, the notice of motion extends the time to answer, and no default may be entered against that defendant in the meantime, except as the default statutes provide. (Code Civ. Proc., § 435, subd. (c).) It does not extend the time to demur. (Code Civ. Proc., § 435, subd. (d).) "Pleading" includes an answer, so a plaintiff may move to strike improper matter from a defendant's answer. (Code Civ. Proc., § 435, subd. (a).)

The meet and confer comes first

Before filing, the moving party must meet and confer with the party who filed the pleading, in person, by telephone, or by video conference. The moving party identifies the allegations it wants stricken and gives legal support. The other side explains why the pleading is sufficient or how it could be amended.

The conference must take place at least 5 days before the motion is due. If it cannot, the moving party receives an automatic 30-day extension. To get it, the moving party files and serves a declaration, on or before the due date, stating that a good faith attempt was made and why the parties could not confer. A declaration about the conference must accompany the motion, and a finding that the conference was insufficient is not a ground to grant or deny it. (Code Civ. Proc., § 435.5, subd. (a).)

The requirement does not apply to an anti-SLAPP special motion, an unlawful detainer, or a motion brought less than 30 days before trial. (Code Civ. Proc., § 435.5, subd. (d).) Our meet and confer guide covers the practice.

Striking a punitive damages demand

Punitive damages are available in an action for breach of an obligation not arising from contract, on clear and convincing proof of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) A complaint that pleads only breach of contract has no basis for them. The demand is a request for relief the allegations do not support.

Where a tort is pleaded, the question is whether facts are alleged. The Court of Appeal has held that calling conduct willful, malicious, fraudulent, and oppressive is not enough. Facts showing oppression, fraud, or malice must be pleaded, and a motion to strike is the way to test them. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 164, 166.) Our page on punitive damages explains the substantive standard, including the added proof required against a corporate employer.

After the ruling

If the motion is granted, the court may order that an amended pleading be filed on terms it deems proper. If a motion to strike a complaint is denied, the court must allow the moving party to file an answer. (Code Civ. Proc., § 472a, subd. (d).)

Two limits shape the next round. Before the case is at issue, a pleading may not be amended more than three times in response to a motion to strike, unless the pleader offers additional facts showing a reasonable possibility the defect can be cured. And once a motion to strike has been granted, a party moving to strike the amended pleading may not raise grounds it could have raised against the earlier version. (Code Civ. Proc., § 435.5, subds. (b), (e).) A plaintiff that has not yet amended may do so once without leave if the amended pleading is filed and served by its opposition date, as our page on amending a complaint explains.

How it compares with a demurrer and an anti-SLAPP motion

A demurrer attacks an entire cause of action for failing to state a claim. A motion to strike removes specific matter and can leave the cause of action standing. The two can be filed together.

The anti-SLAPP motion is called a special motion to strike, but it is a separate procedure under a different statute. Our anti-SLAPP page explains when it is available. After a motion for judgment on the pleadings is granted with leave to amend, a motion to strike is how the moving party challenges an amended pleading filed late or in violation of that ruling. (Code Civ. Proc., §§ 435, subd. (e), 438, subd. (i)(1)(A).)

If you are the plaintiff

Use the meet and confer. If the objection is that facts are missing, an amendment may resolve it without a hearing. Plead the conduct, who engaged in it, and why it meets the punitive damages standard.

What to bring to the first meeting

Bring the complaint or other pleading, the proof of service showing when it was served, and any contract the claims rest on. Add any letters between counsel about the pleading and any stipulation or order extending the response date.

Frequently asked questions

The complaint against our company demands punitive damages on a simple contract claim. Can we get that removed early?

A motion to strike is the way to ask. California Civil Code section 3294 allows punitive damages only for breach of an obligation not arising from contract, so a complaint pleading contract breach alone does not support them. Code of Civil Procedure section 436 lets the court strike a demand for relief the allegations do not support. The motion follows a meet and confer.

What is the deadline to file a motion to strike in California?

Code of Civil Procedure section 435 requires the notice of motion within the time allowed to respond to the pleading. For a complaint, that is ordinarily the same 30 days after service that applies to a demurrer. If the parties cannot meet and confer at least five days before the due date, a timely declaration earns an automatic 30-day extension under section 435.5.

Does a motion to strike extend the time to answer?

Yes, when it is served and filed without a demurrer. Under California Code of Civil Procedure section 435, subdivision (c), a notice of motion to strike served and filed without demurring extends the time to answer. No default may be entered against that defendant except as the default statutes provide. The motion does not extend the time to demur, so a defendant planning both should file both on time.

Do we have to meet and confer with the plaintiff's lawyer before filing a motion to strike, and what if they will not respond?

Yes. California Code of Civil Procedure section 435.5 requires a conference in person, by telephone, or by video before the motion is filed. If the other side does not respond, the moving party says so in the declaration filed with the motion. If the conference could not occur at least five days before the deadline, a declaration filed by the deadline gives an automatic 30-day extension.

What is the difference between a motion to strike and a demurrer?

A demurrer challenges whether a cause of action states a claim at all. A motion to strike under California Code of Civil Procedure section 436 removes particular matter: irrelevant, false, or improper allegations, or a pleading not drawn in conformity with law. A motion to strike is decided on the face of the pleading and judicially noticeable matter, without evidence.

Talk to a California business litigation attorney about a complaint

If your company has been served with a complaint that overreaches, call (909) 235-6116 or contact us online before the response date. Kolmogorov Law, P.C. is located in Irvine, California. Related reading: our civil litigation practice and our page on demurrers.

This page provides general information about California law and is not legal advice. Outcomes depend on the pleading, the facts, and the court.