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Affirmative Defenses

When any type of legal action is being taken against you – whether it be that you are being formally sued (i.e. served with a complaint, or counter-complaint or cross-complaint) or if you are the recipient of a notice of adverse action in public employment or you received an accusation seeking to revoke your license – you have a right to raise “affirmative defenses” that would defeat the claims of the party raising the claims or taking the action against you. In particular, when answering a complaint, you must raise all possible affirmative defenses based upon known facts that you can raise at that time. If you fail to do so, the other side can oppose a tardy raising of the affirmative defense on the grounds that you waived it. In the event the affirmative defense is only discovered at a later time, then it can be properly added by way of amendment.

New facts need to be sufficiently pleaded to establish each element of a claimed affirmative defense. (Code Civ. Proc., § 431.30(b).) Thus, the rules for pleading that are so commonly used in demurrers to complaints are also applicable to demurrers to answers.  (See e.g. Ostling v. Loring (1994) 27 Cal.App.4th 1731, 33 [“Our system of code pleading requires only fact pleading.”); Butler vs. Wyman (1933) 128 Cal.App. 736, 740 [“It is a cardinal rule of pleading that every statement of fact must be direct and certain and not by way of inference”.].) Significantly, a pleading must allege facts and not mere legal conclusions. (Jones v. Grewe (1987) 189 Cal.App.3d 950, 954.) Similarly, in federal court, Rule 11 requires that you have a good faith basis for believing an affirmative defense actually applies before pleading it, and in discovery you will likely need to respond to an interrogatory identifying all factual bases for every affirmative defense you plead.

In the vast majority of cases, the defendant/respondent bears the burden of proof regarding the claimed affirmative defense. However, some of the affirmative defenses are more properly styled “additional defenses” where the plaintiff/claimant bears the burden of proving that the defense does not apply (e.g. service of process).

List of Affirmative Defenses

Below, please find a list of common affirmative defenses. This list is long. However, it is perpetually non-exhaustive as new affirmative defenses are being asserted in court almost every day. The list includes defenses from the state of California and the 9th circuit (federal). If you believe one is missing, please let us know by contacting us and it will be added. In addition, more detailed descriptions and explanations of each defense is forthcoming.

Please note that there will never be a case in which ALL of these defenses are appropriate. Rather, many are specific to circumstances where a particular cause of action has been pleaded.

Hopefully, this list will assist you in brainstorming the defense of your case. Or, in the alternative, it will serve as a check-list to review before finalizing your answer or responsive pleading.

  1. Abandonment of Trademark
  2. Accord and Satisfaction
  3. Acquiescence
  4. Act of God
  5. Adequate Warning
  6. Adhesion
  7. Adverse Possession
  8. Agency
  9. Alteration of Product
  10. Anticipatory Breach
  11. Anticipatory Repudiation
  12. Arbitration and Award
  13. Assumption of Risk
  14. Assumption of the Risk
  15. At-Will Employment
  16. Attorney Fees Are Not Recoverable
  17. Bankruptcy Discharge
  18. Bona Fide Purchaser for Value
  19. Borrowed Servant
  20. Breach By Plaintiff
  21. Breach of Confidentiality Agreement
  22. Breach of Contract
  23. Breach of Express Warranty
  24. Breach of Implied Warranty
  25. Business Judgement Rule
  26. Cancellation of Contract
  27. Cardinal Change
  28. Charitable Immunity
  29. Circuitry of Action
  30. Claimants Own Conduct, or By the Conduct of Its Agents, Representatives, and Consultants
  31. Claim of Right
  32. Collateral Source Rule
  33. Comparative Fault of Third Parties
  34. Complete Performance
  35. Conditions Precedent
  36. Consent (i.e. Express, Implied)
  37. Contrary to Public Policy
  38. Contribution
  39. Contributory Negligence
  40. Damages Were the Result of Unrelated, Pre-Existing, or Subsequent Conditions Unrelated to Defendant’s Conduct
  41. Default By Plaintiff
  42. Discharge
  43. Discharge in Bankruptcy
  44. Doctrine of Primary or Exclusive Jurisdiction
  45. Doe Defendant Is Liable
  46. Duress
  47. Economic Loss Rule
  48. Election of Parties
  49. Election of Remedies
  50. Estoppel
  51. Equitable Estoppel
  52. Equitable Tolling
  53. Execution of Public Duty
  54. Exemption
  55. Failing to Plead Fraud with Particularity
  56. Failure of Condition Precedent
  57. Failure of Consideration
  58. Failure to Act in a Commercially Reasonable Manner
  59. Failure to Exhaust Administrative Remedies
  60. Failure to Join an Indispensable Party
  61. Failure to Mitigate Damages
  62. Failure to Perform
  63. Failure to Preserve Confidentiality
  64. Failure to Serve
  65. Failure to State a Claim Upon Which Relief Can Be Granted
  66. Failure to Take Advantage of Effective System to Report/stop Harassment (i.e. Faragher-Ellerth Doctrine)
  67. Fair Use
  68. False Claims
  69. Filed Rate Doctrine
  70. Fleeting and Incidental Use
  71. Force Majeure
  72. Fraud
  73. Fraud in the Inducement
  74. Free Speech
  75. Frustration of Purpose
  76. Good Faith
  77. Good Faith By Answering Defendant
  78. Hindrance of Contract
  79. Ignorance of the Law
  80. Illegality
  81. Immunity
  82. Implied Repeal of Statute
  83. Impossibility
  84. Improper Notice of Breach
  85. Improper Service
  86. Improper Venue
  87. Indemnification
  88. Injury By Fellow Servant
  89. Innocent Infringement
  90. Insanity
  91. Intervening Cause
  92. Joint Venture
  93. Justification
  94. Laches
  95. Lack of Authority
  96. Lack of Causal Relationship
  97. Lack of Causation
  98. Lack of Consent
  99. Lack of Consideration
  100. Lack of Equity
  101. Lack of Privity
  102. Lack of Standing
  103. Learned Intermediary Doctrine
  104. License
  105. Manufacturing/Labeling/Marketing in Conformity with the State of the Art At the Time
  106. Merger Doctrine
  107. Misnomer of Parties
  108. Mistake
  109. Misuse of Product
  110. Mutual Acquiescence in Boundary
  111. Mutual Mistake
  112. Mutual Mistake of Fact
  113. Necessity
  114. No Actual Injury
  115. No Adequate Remedy At Law
  116. No Damages
  117. Noerr-Pennington Doctrine
  118. No Evidence That Modified Warning Would Have Been Followed or Would Have
  119. Prevented Injury
  120. No Government Action
  121. No Private Right of Action
  122. No Privity
  123. No Reliance
  124. Novation
  125. Offset
  126. Parol Evidence Rule
  127. Payment
  128. Peril of the Sea
  129. Preemption
  130. Prevention and Frustration (defendant Was Ready, Willing and Able to Perform the Contract, and Plaintiff Prevented and Frustrated Such Performance)
  131. Prevention of Performance
  132. Prior Pending Action
  133. Privilege
  134. Product Provides Net Benefits for a Class of Patients
  135. Product Was Unavoidably Unsafe
  136. Punitive Damages Not Permissible
  137. Ratification
  138. Real Party in Interest
  139. Reasonable Accommodation
  140. Recoupment
  141. Rejection of Goods
  142. Release (i.e. Express, Implied, or Equitable Release of Rights)
  143. Res Judicata
  144. Restraint of Trade
  145. Retraction
  146. Revocation of Acceptance of Goods
  147. Reservation of Right to Add Additional Affirmative Defenses
  148. Safety of Employee
  149. Same Decision Defense
  150. Self Defense
  151. Set Off
  152. Sole Negligence of Co-Defendant
  153. Sophisticated User Doctrine
  154. Sovereign Immunity
  155. Speculative Damages
  156. Spoliation of Evidence
  157. Statute of Frauds
  158. Statute of Limitations
  159. Statutory Compliance
  160. Statutory Defenses Prerequisites
  161. Statutory Immunity
  162. Suicide
  163. Supervening Cause
  164. Termination of Employment
  165. Truth
  166. Truth in Lending Recoupmet
  167. Unclean Hands
  168. Unconscionability
  169. Unconstitutional
  170. Undue Burden
  171. Undue Influence
  172. Unjust Enrichment
  173. Usury
  174. Waiver
  175. Wrong Party