I was under the impression that when a defendant files their Answer, and they include Affirmative Defenses, that if they failed to include a certain defense (ie statute of limitations) that if they left that out, then they would not be able to raise that defense later in the suit. If I am correct, then isn't it unethical for an attorney to make his last affirmative defense read: "the defendant reserves the right to use additional affirmative defenses as different matters arise during the course of discovery in the case."
Your impression is basically correct. “An affirmative defense must be pleaded in the same manner as if the facts were set forth in a complaint. In other words, the general requirement of stating the ultimate facts applies and, where particularity in pleading is necessary in a complaint, it is equally necessary in an affirmative defense involving the issue.” (5 Witkin Cal. Proc. 4th (1997) Plead, § 1009, p. 463.)
The various affirmative defenses must be separately stated and must refer to the causes of action to which they relate in a manner by which they may be intelligently distinguished.” (Code Civ. Proc., § 431.30(g).)
The reservation of the right to use additional affirmative defenses after discovery is not necessary, nor would it be considered unethical. If it really turns out that additional affirmative defrenses which were not originally pled are necessary, the defendant must make a motion for leave to amend the answer,
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.
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I agree with Mr. Chen's answers. Unfortunately, boilerplate affirmative defenses void of facts are all too common. They are subject to a motion to strike. They do provide notice, however, such that a later motion to amend to include the facts necessary to support them may not be determined to prejudice the rights of the party against whom the defenses were asserted.
Aggressive litigators, and even no so aggressive ones when the stakes merit it, will file a motion to strike such extraneous matter as well as prayers for attorney’s fees when not authorized by contract or statute.
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