Understanding Your Right to Raise a Defense
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.
Common Affirmative Defenses
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.