Key Takeaways

  • Affirmative defenses in California breach of contract cases allow defendants to admit the facts but provide legal reasons why liability should not apply.
  • Defenses must be raised in the answer to avoid being waived; courts require timely and specific pleading.
  • Common defenses include statute of limitations, laches, unclean hands, duress, and the statute of frauds.
  • California courts recognize dozens of possible defenses, such as illegality, impossibility, mistake, waiver, ratification, and lack of consideration.
  • Each defense places the burden of proof on the defendant, except when procedural defenses shift the burden back to the plaintiff.

Affirmative defenses to breach of contract California are important. When a legal action, like a complaint, cross-complaint, or counter-complaint, is brought against you, you have the right to raise an affirmative defense. Such a defense would concede but mitigate the other party's claims and prevent them from taking further action against the defendant.

For example, the defendant might be able to raise a defense under the merger doctrine, which applies when one party claims there was a side deal that wasn't included in the contract. Or if the plaintiff "ratified," or permitted, the acts of the defendant, the plaintiff cannot file a complaint. And of course, if the contract was breached by the plaintiff, he cannot recover damages.

If the defendant doesn't raise an affirmative defense in a timely manner, the court could say he “waived” these rights. You must raise all possible defenses at the time you file your answer to the complaint, which occurs at the beginning of the case. You'll need to determine how detailed you want to be and how detailed the law requires you to be. Explain why you are bringing each affirmative defense in as much detail as you can. However, if you don't have enough information but believe an affirmative defense applies, you still need to raise it in your answer so the other side can't say you waived your rights.

In most cases, the respondent-defendant has the burden to prove any claimed affirmative defenses. Some affirmative defenses are more like properly styled additional defenses, and the plaintiff-claimant has to prove that it doesn't apply. For example, if a defendant claims they were not properly served with the complaint, the plaintiff must prove that such notice was provided.

In order to raise all possible defenses in your answer, you need to be familiar with what types of potential defenses are available.

10 Possible Affirmative Defenses

You won't ever see a case where all affirmative defenses are applicable. Most affirmative defenses are specific to the circumstances of a particular cause of action. There are hundreds of affirmative defenses, but here are 10 of the most common ones:

  • Statute of Limitations: The discovery doctrine can affect the way the statute of limitations is interpreted. In certain cases, the court may determine the clock didn't start running until the plaintiff learned there were grounds for a lawsuit. In others, the clock starts ticking when the plaintiff should have discovered the injury, regardless of when the injury was actually discovered. This defense is raised when the defendant essentially states that the events took place so long ago that they cannot be properly litigated.
  • Failure to state a claim for which relief can be granted: This means even if all the facts of the case are accurate, the plaintiff has no legal grounds for recovery.
  • Laches: The defendant claims there was an unreasonable delay in filing a lawsuit, even if the statute of limitations has not yet expired.
  • Statutory defense: Sometimes, the defendant can cite statutes or case law to build his defense. For example, the California Homeowner Bill of Rights can be cited to defend against a foreclosure action if the defendant is in compliance with National Mortgage Settlement.
  • Privilege: The defendant asserts that he had the privilege to engage in the activity that allegedly caused the damage or injuries in question.
  • Unclean hands: This defense states that the plaintiff cannot seek damages because he has dirty hands," meaning he did something unlawful as well. As a result, the plaintiff should not entitled to any remedies.
  • Accord and satisfaction: The defendant states there is no breach of contract because the parties had already reached an agreement that satisfied the obligation or debt.
  • Duress: The defendant states force was exerted against him, leaving him without any reasonable options.
  • Assumption of risk: The plaintiff is barred from recovery because they knowingly and voluntarily assumed the risk of getting injured.
  • Statute of Frauds: This statute states that certain documents are only enforceable if they are in writing. For example, real estate contracts must be in writing in order to be enforced.

Additional Common Affirmative Defenses in California

Beyond the ten examples discussed above, California recognizes a wide range of affirmative defenses that may apply in breach of contract cases. While not every defense will be relevant to every case, defendants often consider the following:

  • Illegality: A contract formed for an unlawful purpose, such as violating state licensing laws or regulatory requirements, cannot be enforced.
  • Impossibility or Impracticability: Performance may be excused if unforeseen events, such as natural disasters or new laws, make performance impossible or excessively burdensome.
  • Mutual or Unilateral Mistake: If both parties were mistaken about a material fact at the time of contract formation, or one party was mistaken and the other knew or caused it, the agreement may be voidable.
  • Waiver: When the plaintiff voluntarily gives up a known contractual right, they may not later sue for its enforcement.
  • Ratification: If the plaintiff accepted the defendant’s conduct or benefits after the alleged breach, they may be barred from seeking remedies.
  • Failure of Consideration: A contract requires mutual exchange; if one party never provided the promised consideration, enforcement may fail.
  • Fraud or Misrepresentation: A contract induced by intentional deception may be voidable.
  • Unconscionability: Contracts that are overly one-sided or oppressive at the time of formation may be deemed unenforceable.
  • Estoppel: A plaintiff who previously represented that a contract obligation would not be enforced may be barred from contradicting that position in court.
  • Rescission: If both parties agreed to cancel the contract or if rescission is justified by law, no breach occurs.

These defenses illustrate how California courts balance fairness and prevent parties from using contract enforcement as a tool for unjust advantage.

Checklist of Affirmative Defenses for Defendants

Attorneys often rely on a checklist to ensure that all possible affirmative defenses are raised in a timely manner. Some additional defenses to consider include:

  • Accord and Satisfaction: The dispute was already resolved through an alternative agreement.
  • Failure of Condition Precedent: A required event never occurred, so obligations under the contract never became enforceable.
  • Lack of Capacity: A party lacked the legal ability to enter into the agreement (e.g., minor status, mental incapacity).
  • Release: The plaintiff signed a release or settlement waiving claims.
  • Arbitration and Award: The dispute was already resolved in arbitration.
  • Res Judicata (Claim Preclusion): The claim has already been litigated and resolved in a prior action.
  • Collateral Estoppel (Issue Preclusion): A specific issue has already been determined in another proceeding and cannot be relitigated.
  • Bankruptcy Discharge: The obligation was discharged in bankruptcy proceedings.

Because affirmative defenses California litigation often hinges on whether the defense was pled at the start of the case, defendants should raise all potentially applicable defenses—even those that may later be narrowed or dismissed.

Frequently Asked Questions

  1. What is the difference between an affirmative defense and a denial?
    A denial challenges the truth of the plaintiff’s allegations, while an affirmative defense accepts the facts but argues there is a legal reason the defendant should not be liable.
  2. Do I have to raise all affirmative defenses in my first answer?
    Yes. In California, if you fail to raise an affirmative defense in your initial answer, the court may rule that you waived it.
  3. How many affirmative defenses are recognized in California contract law?
    There are dozens—California courts recognize well over 70 possible defenses, though only a handful are commonly applicable in breach of contract disputes.
  4. Who has the burden of proof for affirmative defenses?
    Generally, the defendant must prove the facts supporting an affirmative defense, though procedural defenses (like improper service) may shift the burden back to the plaintiff.
  5. Can an affirmative defense dismiss a case entirely?
    Yes. If successfully proven, certain defenses—such as illegality, statute of limitations, or accord and satisfaction—can prevent the plaintiff from recovering damages.

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