Not quite sure how the defendant's affirmative defenses will get resolved. I would like to get them thrown out before trial. The case is set for trial already. I can still file motions, right?
You can still file certain motions but probably not a motion to strike affirmative defenses if the case is set for trial. Pursuant to CCP § 430.40.(b) a motion to strike portions of an answer must be filed with 10 days after the answer is served. You are probably left only with a motion for summary adjudication of issues -- if you still have time -- with respect to a “resolution” of the affirmative defenses short of trial.
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No, a motion to strike would normally not be used to strike affirmative defenses. While it is possible to demur to an answer, it is rarely done.
Your efforts ought to be focused on propounding written discovery to ascertain what evidence exists (facts, witnesses and documents) to support each affirmative defenses. You can use Form Interrogatories - General, No. 15.1 for this purpose.
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No. The proper way to eliminate affirmative defenses would be (a) through discovery directed at the affirmative defenses and/or (b) through a motion for summary adjudication pursuant to Code of Civil Procedure 437c(f). In most instances, summary adjudication as to affirmative defenses would be a waste of time/effort. Service of Judicial Counsel Form Interrogatories with box 15.1 checked should give you a general idea of the defendant's valid affirmative defenses and the facts supporting them.
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