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Is it true that when a defendant uses affirmative defense(s) in his answer, that he must EXPLAIN in detail?

Lancaster, CA |

Meaning, if the defendant is wanting to use any affirmative defense(s), then they have the burden of proof, right? If that is the case, then do they have to plead with particularity in their answer? I don't know what I'm doing here, but the defendant in my case simply gave statements like: "Plaintiff's claim is barred by the doctrine of laches because she waited an unreasonable amount of time to bring this suit.." Don't they have to give more specific details? Thanks for any help.

Attorney Answers 4


  1. Best answer

    You are correct that affirmative defenses should be pled with as much specificity as a cause of action. If they are not, you may demurrer to the answer, file a motion to strike, and/or file a motion for judgment on the pleadings. See, In FPI Development, Inc vs. A1 Nakashima, (1991) 231 Cal.App.3d 367 at 384. Note that a demurrer to the answer must be filed within 10 days of service. Failure to raise your objection by one of these methods is viewed as a waiver. Generally, even if you prevail by way of demurrer, defendant would be given time to amend the answer so many practitioners will simply ignore the defective, boilerplate affirmative defenses.

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  2. You are correct that the defendant will ultimately have the burden of proof with an affirmative defense. What an affirmative defense means is that even if the plaintiff proves all the elements of her claim, the defendant still has a defense nonetheless (such as laches, as used in your example). On the pleadings, however, the defendant does not have to prove his case. Rather, a short and plain statement suffices. Thus, the quote above is sufficient to preserve the affirmative defense of laches at the pleadings stage. Once discovery has commenced, if the defendant wants to move for summary judgment, then the defendant would have to provide the court with evidence supporting the claim for laches or whatever other affirmative defense he moves upon.

    Nothing in this message should be construed as legal advice nor should the questioner act upon any of the information provided here. The attorney strongly encourages the questioner to seek independent legal counsel before acting.


  3. Affirmative defenses can be challenged in several ways: (a) demurrer, (b) motion for judgment on the pleadings, (c) motion for summary judgment, (d) at trial. Most judges don't like dealing with form allegations in an answer to complaint. The better practice is to develop during discovery the proof that each affirmative defense has no basis in fact, then either knock them out with a motion for summary judgment or at trial. Unless you are a lawyer and this big business litigation, I would not worry about a form allegation of laches, which a fancy way of saying that you filed the lawsuit too late. Either you did or you did not.

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  4. Yes. You can file a demurrer within 10 days. Most attorneys propound form interrogatories - specifically form rog 15.1 and hold the defendant to the fire to provide a thorough answer.