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Negating defenses vs. affirmative defenses.

San Diego, CA |

What are some examples of a negating defenses and how do you distinguish these from affirmative defenses in an answer to a complaint?

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Attorney answers 3

Posted

Are you referring to a civil lawsuit in the Superior Court of California? There is no such thing as negating defenses in a civil case in California.

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.

Asker

Posted

Yes. I am referring to a California superior court case. In studying affirmative defenses online I came across negating defenses. Apparently with an affirmative defense a defendant states that "even if" the plaintiff's claim is true it is barred from relief. A negating defense does not include the "even if" proposition but rather negates the plaintiff's claim altogether, basically saying it has no basis, which is similar to a denial. For example, a negating defense could be mistake of fact. Apparently these types of defenses get mixed together with affirmative defenses. Maybe there's something I'm not understanding about the nature of affirmative defenses. It appears they are just optional ways to counter a plaintiff's claims.

Christine C McCall

Christine C McCall

Posted

There are denials, and there are affirmative defenses. And it's not clear what you are asking because except for the description, you seem to understand the difference just fine.

Posted

"Negating defenses"? Never heard of 'em.

Posted

Perhaps you want to know what is the difference between a General Denial and Affirmitive Defenses in an Answer.

An Answer is the most common way to respond to a lawsuit. The Answer is the defendant's
opportunity to admit or deny the specific allegations brought against them in the complaint. Any statements in the complaint that are not denied will be taken as true for the purposes of this case. (CCP 431.30(b)(1)).

In the Answer, all defenses to the allegations of the complaint must be raised, and all facts essential to supporting the particular defense must be included. These are called Affirmative Defenses. If you do not raise a particular defense in your answer, you will be prohibited from using or raising it later on.

A General Denial is a simple response to an action. In one sentence, the defendant denies every allegation in the complaint. A defendant's Answer may assert only general denial or both general denial and affirmitive defenses.

This response is for information purpose only and does not constitute a legal advice. This response does not create an attorney-client relationship.

Asker

Posted

If the complaint, unlimited as in my case, is verified then I think the answer must also be verified (CCP 446), in which case ar the denials called "specific denials"? And, would that also include specific admissions? I've seen answers where the specific, paragraph by paragraph denials are accompanied by specific admissions vis a vis the original complaint. Are such specific admissions obviated when a general denial is asserted in an answer to an unverified complaint?

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