The California motion to strike: meet and confer five days out, or take the automatic 30 days

California pairs its demurrer with a motion to strike, and since 2018 both carry a mandatory conferral step with an unusual consequence: if you cannot get the conference to happen in time, you get an extra 30 days by filing a declaration saying so.

That extension is available on request, without a court order, and it is the most useful thing in either section.

When you may move

CCP 435(b)(1): "Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof."

"Pleading" is defined broadly — subdivision (a)(2): it "means a demurrer, answer, complaint, or cross-complaint." And "complaint" includes a cross-complaint under subdivision (a)(1).

So a motion to strike can be aimed at an answer or even at a demurrer, not only at a complaint.

Hearing dates — subdivision (b)(2) and (3):

• a motion to strike an answer or complaint "shall specify a hearing date set in accordance with Section 1005" — the ordinary 16 court days' notice, plus service extensions;
• a motion to strike a demurrer "shall set the hearing thereon concurrently with the hearing on the demurrer."

What filing one does to your other deadlines

Two provisions that pull in opposite directions, and both matter.

CCP 435(c) — it extends the time to answer:

If a party serves and files a notice of motion to strike without demurring to the complaint, the time to answer is extended and no default may be entered against that defendant, except as provided in Sections 585 and 586.

CCP 435(d) — but not the time to demur:

The filing of a notice of motion to strike an answer or complaint, or portion thereof, shall not extend the time within which to demur.

Read together: a standalone motion to strike protects you from default and postpones the answer, but it does not buy time to file a demurrer. If you intend to do both, they go together — and CCP 430.41(a)(3) allows the same conferral declaration to cover both.

What can be struck

CCP 436: the court may, on a CCP 435 motion "or at any time in its discretion, and upon terms it deems proper":

(a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.

Subdivision (b) is broader than it looks. A pleading that violates a court rule or a prior order is strikeable on that basis alone, regardless of its substance.

Note also "or at any time in its discretion." The court can strike on its own motion.

Where the grounds must come from

CCP 437(a):

The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.

This is the same evidentiary confinement that governs a demurrer. You cannot attach a declaration to a motion to strike and expect the court to weigh it.

Subdivision (b): where the motion is based on matter of which the court may take judicial notice under Evidence Code section 452 or 453, "such matter shall be specified in the notice of motion, or in the supporting points and authorities," except as the court may otherwise permit.

Judicially noticeable material has to be identified in the papers, not raised at the hearing.

The conferral requirement

CCP 435.5(a): before filing a motion to strike, the moving party "shall meet and confer in person, by telephone, or by video conference" with the party who filed the pleading, "for the purpose of determining if an agreement can be reached that resolves the objections to be raised."

And again after an amendment: "If an amended pleading is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion to strike the amended pleading."

Three permitted formats — in person, telephone, or video. A letter or an email exchange is not one of them.

What each side must bring — subdivision (a)(1):

the moving party shall identify all of the specific allegations that it believes are subject to being stricken and identify with legal support the basis of the deficiencies. The party who filed the pleading shall provide legal support for its position that the pleading is legally sufficient, or, in the alternative, how the pleading could be amended to cure any legal insufficiency.

The obligation runs both ways. The responding party is required to engage, either by defending the pleading with authority or by saying how it would fix it.

The automatic 30 days

CCP 435.5(a)(2) is the provision worth memorising:

• The parties shall meet and confer at least 5 days before the date a motion to strike must be filed. If the parties are unable to meet and confer at least 5 days before that date, the moving party shall be granted an automatic 30-day extension of time within which to file a motion to strike, by filing and serving, on or before the date a motion to strike must be filed, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the motion to strike was previously due, and the moving party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.

Four features:

It is automatic. No application, no hearing, no discretion. Filing and serving the declaration is what grants it.

The declaration must be filed by the original due date, not afterwards.

It must explain why the conference did not happen — a bare assertion of a good faith attempt does not match the statute, which requires the reasons.

And you are protected from default throughout.

CCP 430.41(a)(2) contains the identical mechanism for demurrers, on the same five-day trigger and the same 30-day extension.

Filed with the motion — subdivision (a)(3): the moving party "shall file and serve with the motion to strike a declaration" stating the outcome of the conferral process.

Where it sits beside the demurrer

The guide on the California demurrer covers CCP 430.10 and the grounds available there.

A short checklist

1. Calendar the response date, then count back five days. That is the conferral deadline, not the filing deadline.
2. Confer by phone, video or in person. Letters do not satisfy CCP 435.5(a).
3. Come with specifics — every allegation you say should be struck, with legal support.
4. If the conference cannot happen in time, file the declaration on or before the due date and take the automatic 30 days. Explain why it could not happen.
5. Do not rely on a motion to strike to buy time to demur. CCP 435(d) says it does not.
6. If you are doing both, file them together and set them for the same hearing.
7. Keep the grounds on the face of the pleading, and identify any judicially noticeable material in the notice or the points and authorities.
8. Confer again after an amended pleading. The requirement resets.
9. File the outcome declaration with the motion.

Where these sections live

• CCP 430.10 — Grounds for demurrer
• CCP 430.41 — Meet and confer before a demurrer
• CCP 435 — Motion to strike; timing
• CCP 435.5 — Meet and confer before a motion to strike
• CCP 436 — What the court may strike
• CCP 437 — Where the grounds must appear
• CCP 1005 — Notice periods for motions
• CCP 472 — Amending as of course

This page explains what the Code says. It isn't legal advice, and Evidence Code sections 452 and 453, which govern judicial notice, are outside what this site reproduces.