An affirmative defense is an allegation for justification for the defendant have acted or not acted as is alleged in the complaint. The defendant is simply arguing that he has a good reason for having done what is alleged in the complaint, and therefore should be entirely or partially excused from all criminal liability. Defendants in commercial collections cases often try to use these types of justifications as to why he/she should not have to pay the money alleged in the complaint.
However, if a defendant is going to raise the issue of affirmative defenses, he or she must meet certain criteria. A California Court of Appeal has stated that the affirmative defenses alleged (in an answer to a complaint filed by the plaintiff) must be pled in the same fashion and with the same specificity as a cause of action in a complaint (i.e. quite detailed), and that conclusory and “boilerplate” affirmative defenses are insufficient. What’s more, an affirmative defense cannot be pled in the form of “terse legal conclusions”. For example, in the case mentioned, the Court found that an answer alleging defenses such as “fraud in the inducement” and “failure of consideration” was demurrable as containing mere conclusions.
As stated above, a demurrer to an answer can be an excellent tool for eliminating “boilerplate” affirmative defenses that often rear their ugly head such as estoppels, unclean hands, and laches. A demurrer to these type of affirmative defenses is typically on the ground of failure to plead sufficient facts to constitute a defense.
Although an answer that fails to state facts sufficient to constitute a defense may be raised at any time, other grounds for challenging the sufficiency of the answer must be raised by demurrer, or they are waived. California Code of Civil Procedure § 430.80(b). Also keep in mind that in pleading the statute of limitations, it is not necessary to state facts showing the defense, but it can be stated generally that the cause of action is barred by the provisions of a Section (giving the number of the section and the appropriate subdivision, if applicable). California Code of Civil Procedure § 458.
Furthermore, each affirmative defense 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.” California Code of Civil Procedure § 431.30(g). Thus, an answer which fails to separately state the various affirmative defenses and refer to the causes of action to which they relate can form the basis of a special demurrer on the grounds of uncertainty.
To discuss utilizing savvy litigation tactics in your commercial collections claim, contact attorney Ronald P. Slates today.
