Skip to main content

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.

+ Read More

Attorney answers 4

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.

I am licensed in California only and my answers on Avvo assume California law. Answers provided by me are for general information only. They are not legal advice or counsel. Answers must not be relied upon. Legal advice and counsel must be based on the interplay between specific exact facts and the law. This forum does not allow for the discussion of that interplay. My answer to any specific question would likely be different if that interplay were explored during an attorney-client relationship. I provide legal advice and counsel during the course of an attorney-client relationship only. The exchange of information through this forum does not establish such a relationship. That relationship is established only by personal and direct consultation with me followed by the execution of a written attorney-client agreement signed by each of us. The communications on this website are not privileged or confidential and I assume no duty to anyone by my participation on Avvo or because I have answered or commented on a question. All legal proceedings involve deadlines and time limiting statutes. So that legal rights are not lost for failure to timely take appropriate action and because I do not provide legal advice or counsel in answer to any question, if you are an interested party you should promptly and personally consult with an attorney for advice and counsel. Also, see Avvo's terms and conditions of use, specifically item 9, incorporated by this reference



What if it's a fraud case? Since the plaintiff is required to plead with particularity, I believe the defendant must also, right? If they are supposed to and they didn't, then what can I do?


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.


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.

Robert Stempler (please see DISCLAIMER below)
Twitter: @RStempler

NOTICE: The above statements are provided for general information purposes only and are not intended as legal advice or advice of any sort for a specific case or legal matter. If you do not have a signed attorney-client fee agreement with the Consumer Law Office of Robert Stempler, APC ("the Firm"), then until such written fee agreement is provided and signed by both a prospective client and attorney for a particular case, neither Mr. Stempler nor the Firm will represent you nor will they be your attorney in any matter and you remain responsible for retaining your own attorney and for compliance with any and all deadlines and for any statutes of limitations that may pertain to potential claims. Comments made on a public forum, such as, to not have any confidentiality because others may read them. If you desire a private consultation with Mr. Stempler that is confidential, please go to and submit a free eCase Review. The result portrayed for a client was dependent on the facts of that case. Results will differ if based on different facts. The Firm and Mr. Stempler are a debt relief agency. The Firm and Mr. Stempler help people file for bankruptcy relief under the Bankruptcy Code.


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.

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer