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.
- Abandonment of Trademark
- Accord and Satisfaction
- Acquiescence
- Act of God
- Adequate Warning
- Adhesion
- Adverse Possession
- Agency
- Alteration of Product
- Anticipatory Breach
- Anticipatory Repudiation
- Arbitration and Award
- Assumption of Risk
- Assumption of the Risk
- At-Will Employment
- Attorney Fees Are Not Recoverable
- Bankruptcy Discharge
- Bona Fide Purchaser for Value
- Borrowed Servant
- Breach By Plaintiff
- Breach of Confidentiality Agreement
- Breach of Contract
- Breach of Express Warranty
- Breach of Implied Warranty
- Business Judgement Rule
- Cancellation of Contract
- Cardinal Change
- Charitable Immunity
- Circuitry of Action
- Claimants Own Conduct, or By the Conduct of Its Agents, Representatives, and Consultants
- Claim of Right
- Collateral Source Rule
- Comparative Fault of Third Parties
- Complete Performance
- Conditions Precedent
- Consent (i.e. Express, Implied)
- Contrary to Public Policy
- Contribution
- Contributory Negligence
- Damages Were the Result of Unrelated, Pre-Existing, or Subsequent Conditions Unrelated to Defendant's Conduct
- Default By Plaintiff
- Discharge
- Discharge in Bankruptcy
- Doctrine of Primary or Exclusive Jurisdiction
- Doe Defendant Is Liable
- Duress
- Economic Loss Rule
- Election of Parties
- Election of Remedies
- Estoppel
- Equitable Estoppel
- Equitable Tolling
- Execution of Public Duty
- Exemption
- Failing to Plead Fraud with Particularity
- Failure of Condition Precedent
- Failure of Consideration
- Failure to Act in a Commercially Reasonable Manner
- Failure to Exhaust Administrative Remedies
- Failure to Join an Indispensable Party
- Failure to Mitigate Damages
- Failure to Perform
- Failure to Preserve Confidentiality
- Failure to Serve
- Failure to State a Claim Upon Which Relief Can Be Granted
- Failure to Take Advantage of Effective System to Report/stop Harassment (i.e. Faragher-Ellerth Doctrine)
- Fair Use
- False Claims
- Filed Rate Doctrine
- Fleeting and Incidental Use
- Force Majeure
- Fraud
- Fraud in the Inducement
- Free Speech
- Frustration of Purpose
- Good Faith
- Good Faith By Answering Defendant
- Hindrance of Contract
- Ignorance of the Law
- Illegality
- Immunity
- Implied Repeal of Statute
- Impossibility
- Improper Notice of Breach
- Improper Service
- Improper Venue
- Indemnification
- Injury By Fellow Servant
- Innocent Infringement
- Insanity
- Intervening Cause
- Joint Venture
- Justification
- Laches
- Lack of Authority
- Lack of Causal Relationship
- Lack of Causation
- Lack of Consent
- Lack of Consideration
- Lack of Equity
- Lack of Privity
- Lack of Standing
- Learned Intermediary Doctrine
- License
- Manufacturing/Labeling/Marketing in Conformity with the State of the Art At the Time
- Merger Doctrine
- Misnomer of Parties
- Mistake
- Misuse of Product
- Mutual Acquiescence in Boundary
- Mutual Mistake
- Mutual Mistake of Fact
- Necessity
- No Actual Injury
- No Adequate Remedy At Law
- No Damages
- Noerr-Pennington Doctrine
- No Evidence That Modified Warning Would Have Been Followed or Would Have
- Prevented Injury
- No Government Action
- No Private Right of Action
- No Privity
- No Reliance
- Novation
- Offset
- Parol Evidence Rule
- Payment
- Peril of the Sea
- Preemption
- Prevention and Frustration (defendant Was Ready, Willing and Able to Perform the Contract, and Plaintiff Prevented and Frustrated Such Performance)
- Prevention of Performance
- Prior Pending Action
- Privilege
- Product Provides Net Benefits for a Class of Patients
- Product Was Unavoidably Unsafe
- Punitive Damages Not Permissible
- Ratification
- Real Party in Interest
- Reasonable Accommodation
- Recoupment
- Rejection of Goods
- Release (i.e. Express, Implied, or Equitable Release of Rights)
- Res Judicata
- Restraint of Trade
- Retraction
- Revocation of Acceptance of Goods
- Reservation of Right to Add Additional Affirmative Defenses
- Safety of Employee
- Same Decision Defense
- Self Defense
- Set Off
- Sole Negligence of Co-Defendant
- Sophisticated User Doctrine
- Sovereign Immunity
- Speculative Damages
- Spoliation of Evidence
- Statute of Frauds
- Statute of Limitations
- Statutory Compliance
- Statutory Defenses Prerequisites
- Statutory Immunity
- Suicide
- Supervening Cause
- Termination of Employment
- Truth
- Truth in Lending Recoupmet
- Unclean Hands
- Unconscionability
- Unconstitutional
- Undue Burden
- Undue Influence
- Unjust Enrichment
- Usury
- Waiver
- Wrong Party