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Affirmative Defense Checklist by Attorney Steve®

Posted by Steve Vondran | Mar 19, 2015 | 0 Comments

Attorney Steve® Litigation Essentials – How to defend your lawsuit!  General legal information. [Raising Affirmative Defenses in Answering Complaint, Cross-complaint or Counterclaim]

affirmative defenses checklist


This is a great resource if you are either involved in a lawsuit, or legal action appears to be “brewing” and you want to know what potential defenses to various causes of action might be.  Many of the defenses are interchangeable to various causes of action and sometimes you have to be creative in defending yourself.


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Affirmative Defense Checklist

When you are being sued (i.e. served with a complaint, or cross-claim or cross-complaint) you have a right to raise “affirmative defenses” including all legal and equitable defenses that might defeat the claims of the Plaintiff or other party raising the claims against you or your company.  If you don't raise your defenses, you could be found to have “waived” your defenses.  So it's important to be aware of what your potential defenses are.

WAIVER:  A waiver is defined as a voluntary relinquishment of a known and appreciated right.  When it comes to answering a complaint, you need to MAKE SURE YOU RAISE ALL POSSIBLE DEFENSES at the beginning of the case.  This page of our website seeks to help you understand some of the common defenses.  Go here if you were looking for our LITIGATION WHITEBOARD VIDEOS.

To the best of my knowledge, this web page is one of the most detailed and comprehensive list of potential affirmative defenses available on the internet.  Because there are so many possible defenses, this is a work in progress and I plan to start supplementing each defense with a short video to help you understand each term in one minute or less (of course, I have to find the time with my busy legal calendar).

At any rate, for now, we hope this list is helpful if you are litigating a case or are in arbitration or mediation.  There may be other defenses not listed below, so please make sure to consult with a litigation counsel before undertaking any action.  We can help you with arbitration, mediation and state and federal litigation matters.  We accept federal copyright and trademark cases nationwide.  Keep in mind, there may be different defenses depending upon what state you are in and what statute you are dealing with and the “caselaw” that interprets these statutes.  This is general legal information only and not legal advice.  Do not rely on this without speaking to a lawyer in your jurisdiction.

Requirement to plead with “specificity or factual particularity” to avoid a Motion to Strike

When you are answering a complaint and raising affirmative defenses, you need to think about how detailed you want to get, and how detailed you are REQUIRED to get under the law.  In general, I would plead the facts that are known and available to you, and not likely to change.  Explain the grounds for your affirmative defense to the extent you know them.  However, if you have information and belief that a defense may apply, you might be required to raise those defenses the best you can in order to avoid any claim that you “waived” them.

In some cases, you might get an aggressive Plaintiff lawyer who wants to bill up a storm (possibly copying multiple associates on an email), and will threaten to file a “Motion to Strike” your affirmative defenses if you don't amend your affirmative defenses to add more facts (it might be noted that they have not set forth all their facts in the complaint, as all that is needed is a “short and plain” statement of the facts to give notice of the claim), yet these same litigation attorney might want to play the bully by forcing you to allege every single fact you know.

This could raise a “meet and confer” issue with opposing counsel and you need to decide whether you want to drop certain affirmative defenses, or amend what you alleged (to add more facts), or simply let them go file their motion to strike if that is their burning desire.

Here are a few things to consider (certainly not an exhaustive analysis of this point):

Pleading requirements for affirmative defenses: The answer must “state in short and plain terms” the defendant's defenses to each claim asserted against it. [FRCP 8(b)(1)(A);

“Fair notice” requirement: An affirmative defense must be pleaded with enough specificity or factual particularity to give plaintiff “fair notice” of the defense being advanced. [Simmons v. Navajo County, Arizona (9th Cir. 2010) 609 F3d 1011, 1023; Woodfield v. Bowman (5th Cir. 1999) 193 F3d 354, 362]

What constitutes “fair notice” depends on the particular defense:

Some cases hold a statute of limitations defense can be raised simply by alleging “This claim is barred by the statute of limitations.” It is not necessary to identify the particular statute relied upon to give plaintiff “fair notice” of a limitations defense. See Daingerfield Island Protective Soc. v. Babbitt (DC Cir. 1994) 40 F3d 442, 445—limitations defense “sufficiently raised for purposes of Rule 8 by its bare assertion;”

Other courts require a statute of limitations defense to reference a particular statute of limitations and relevant time periods. See Racick v. Dominion Law Assocs. (ED NC 2010) 270 FRD 228, 235-236; see Hayne v. Green Ford Sales, Inc. (D KS 2009) 263 FRD 647, 651-652—bare assertion of limitations bar “too conclusory to give Plaintiffs fair notice”]

An affirmative defense stating simply “Plaintiffs' claims are barred by the doctrine of res judicata” gave plaintiff “fair notice” of the defense. [Davis v. Sun Oil Co. (6th Cir. 1998) 148 F3d 606, 612].

So as you can see, the cases can be all over the board.  At any rate, this is an issue you can discuss on a meet and confer with opposing counsel if they persist in not wanting you to allege defenses that you believe may, or do apply to the case.

Attorney Steve discusses the Motion to Strike

VIDEO:  Click on the picture above to watch our legal video discussing in general terms what a motion to strike is.  Make sure to SUBSCRIBE to our legal channel by clicking on the Red “V” for Victory!

A quick word about the Demurrer

Attorney Steve Litigation Tip:  Keep in mind a Plaintiff can always file a Demurrer (see video below) against any affirmative defenses that are just raised in boilerplate fashion in Defendant's answer (although this does not usually happen, it can).  The main point being, however, that if you are asserting defenses without good faith belief in the basis for the defense or that you have or will have facts to support them, then you could be subject to sanctions under F.R.C.P. Rule 11 or some other rule against frivolous legal filings in your jurisdiction.  Believe me, I just knocked out a major law firm on a Anti-SLAPP motion and hit a $19,000 attorney fee award because they had no idea what they were filing against my Client to try to stop his Right of Publicity claim.  So be careful to think about what you are raising as a defense and what evidence you have, or might be able to get, that will support your defense.  Remember, in law, EVIDENCE is everything!!!

Attorney Steve Discusses the Demurrer (You can also try to dismiss the case BEFORE filing your answer with affirmative defenses).

Bonus materials: Click on the picture above to watch our video on this topic.  Make sure to SUBSCRIBE TO OUR FREE LEGAL CHANNEL by clicking on the RED “V” for victory!  We now have over 2,300 subscribers and 340,000 page views!  Thank you for all your support!!

This may not apply in all cases, but in some cases, if the Plaintiff cannot state a cause of action against you, then your and your counsel should discuss filing a Demurrer.  This is a strategy questions, but many of the big banks I have litigated against (ex. Wells Fargo, Bank of America, Chase, Countrywide, etc.) would routinely file a Demurrer to try to see if the judge might kick the case out, or to make a Plaintiff re-write the complaint to fit the jury instructions.  I don't want to go into too much detail, so watch the video for more information.

Motion to dismiss – Plaintiff is a VEXATIOUS LITIGANT YOUR HONOR!!!

VIDEO:  Watch Attorney Steve® explain how you may be able to dismiss your lawsuit if you can prove the Plaintiff is a “Vexatious” Plaintiff.  Make sure to SUBSCRIBE to our popular YouTube legal channel.  We are getting close to 12k subscribers!!

List of Possible Affirmative Defenses (“If you don't raise, you might have waived“).

1.  Statute of limitations bars Plaintiff's claim(s).  This is always one of the first defenses you look for in every case.  This means that the time to bring the cause of action has as a matter of law.  This will differ depending on what types of causes of action were asserted in the lawsuit.  For example, a statute of limitations claim on a Right of Publicity action may be two years, whereas a breach of written contract in California may be four years.  An action for willful copyright infringement filed in the Northern District Court may be three years.  As a litigant, either plaintiff or defendant (or if you are involved in an arbitration or mediation). you need to look up each claim being made against you, and see how long a Plaintiff has to bring their lawsuit before it will be deemed stale and suffer a death by the statute of limitations.

A.  The “discovery doctrine” – (this can affect your statute of limitations analysis) and the Courts may not start the running of the statute of limitations clock until the Plaintiff actually discovered the grounds for the lawsuit, or when Plaintiff “should have learned” of the facts giving rise to the lawsuit.  This can be a tough question in every case.  So usually you will have to look up the case law and see if this applies in your case.

B.  “Equitable Tolling“: Also, a litigant must also keep in mind that some courts may “equitably toll” the statute of limitations, meaning for example if there were periods of insanity or mental problems, the Court might toll the statute of limitations for the period of time in which the Plaintiff was dealing with the problem.  There are several other grounds for equitable tolling.  VIDEO:  How to TOLL the statute of limitations.

Click below to watch the video as Attorney Steve® explains this legal concept in regard to TILA rescission cases.

Resources: Here is a good list of California statute of limitations

2.  Laches – This is a strange term, and a strange defense that I am not sure I have ever seen or hear actually works (not to say it's not worth a try).  The definition of it is basically an “unreasonable delay in filing a lawsuit” (even if the statute of limitations has NOT run).  In other words, “you know you had a right to sue why did you wait three years to sue me for breach of contract.”  If the delay was unwarranted, and prejudicial to the Defendant, who knows the court might buy it.  Remember, as with all affirmative defenses “either raise them at the first initial opportunity or waive them goodbye.“

VIDEO:  Watch Attorney Steve® explain this affirmative defense.  Make sure to SUBSCRIBE to join over 8,500 other people who love our videos.  No one cares about your alleged knowledge in POLITICS so take a different road.

3.  Failure to state a claim upon which relief can be granted (meaning, even if all the facts pleaded are true, there is still no legal grounds for recovery).  This is often what a “moving party” Defendant will do in a case when they file a Demurrer (California state court) or “Motion to Dismiss” (if you are in federal court, for example, on a copyright infringement lawsuit).  The gist of this defense is “even if everything the complaining party is saying is true, there is still no legally recognizable claim, so the lawsuit must be dismissed without leave to amend.”  Note: Judges will normally give you leave to amend if there are some facts that can add that might make your cause of action worthy to be considered.  If you are stuck trying to amend, this is where you might need legal counsel to assist you.

4.  Some statutes may have a defense (statutory defenses) – ex California Homeowner Bill of Rights defense to foreclosure for compliance with National Mortgage Settlement.  This statute has a defense to foreclosure if certain statutory violations are present.  Another example might be scandalous and immoral use of trademark in a trademark infringement lawsuit.  CHECK THE STATUTES AT ISSUE.

5.  Privilege (Defendant was privileged to engage in the conduct in question that is alleged to have caused injury or damages).  Some types of privilege may include raising self-defense in an intentional tort case.  Another might be an attorney raising the Litigation privilege in an extortion case, or a defamation defendant raising “truth” as a defense (i.e. a privilege to defame). Another example could be raising the defense of “privilege” in a intentional interference with prospective business advantage case.  For example, in one California case the court noted the privilege to compete:

The one significant difference between the two torts is that when it is a prospective advantage that has been interfered with the law recognizes more extensive privileges to interfere for the sake of Bona fide  competition.“ See A. F. Arnold & Co. v. Pac. Prof'l Ins., Inc., 27 Cal. App. 3d 710, 715, 104 Cal. Rptr. 96, 100 (Ct. App. 1972).

6.  Unclean hands (Plaintiff cannot seek damages or equity because the Defendant comes to the Court with unclean hands).  This is a very common defense you see many defendants raise.  The defense basically argues that the Plaintiff did something really bad too, so they should not be allowed to win their lawsuit.  I am not sure I have ever seen or heard of this actual defense being the winner, so I decided to look it up!  I only looked at one case involving two wineries fighting with each-other, but here is what I found:

“The doctrine of unclean hands does not deny relief to a plaintiff guilty of any past misconduct; only misconduct directly related to the matter in which he seeks relief triggers the defense.  See 11 Witkin, Summary of Cal. Law (9th ed. 1990) Equity, § 10, p. 686.) The trial court found that Kendall–Jackson Winery, Ltd. (Kendall–Jackson), the defendant in a malicious prosecution action, had no relevant evidence that the plaintiff, E. & J. Gallo Winery (Gallo), acted with unclean hands in relation to its claim and ordered summary adjudication for the plaintiff on Kendall–Jackson's unclean hands defense.  See Kendall-Jackson Winery, Ltd. v. Superior Court, 76 Cal. App. 4th 970, 974, 90 Cal. Rptr. 2d 743, 746 (1999), as modified on denial of reh'g (Jan. 3, 2000).

7.  Accord and Satisfaction (for example, there is no breach of contract because the parties reached an “accord” and “satisfaction” basically satisfied the debt or other obligation).    For example, when a creditor accepts a check tendered as full satisfaction of a larger debt, the law under certain circumstances recognizes an accord and satisfaction which discharges the original obligation. However, in order for this principle to apply, there must first be a “bona fide dispute” between the parties regarding the amount owed.   See Teledyne Mid-Am. Corp. v. HOH Corp., 486 F.2d 987, 992 (9th Cir. 1973)

8. Duress – Meaning the Defendant did something out of “duress” due to some outside force that left Defendant without any reasonable alternatives.  A defendant is not entitled to present a duress defense at trial or receive a jury instruction on duress unless the defendant makes a prima facie showing of duress in a pretrial offer of proof, Vasquez–Landaver, 527 F.3d at 802 (citing Moreno, 102 F.3d at 998–99), or in evidence presented at trial, United States v. Jennell, 749 F.2d 1302, 1305 (9th Cir.1984).

“In order to make a prima facie showing for a duress defense or a jury instruction, a defendant must establish:

(1) an immediate threat of death or serious bodily injury,

(2) a well-grounded fear that the threat will be carried out,


(3) lack of a reasonable opportunity to escape the threatened harm.' Vasquez–Landaver, 527 F.3d at 802 (quoting Moreno, 102 F.3d at 997).  In the absence of a prima facie showing of duress, evidence of duress is irrelevant and may be excluded, and a jury instruction is not appropriate. Id. (citing *1005 Moreno, 102 F.3d at 998–99; Jennell, 749 F.2d at 1305).”

See United States v. Ibarra-Pino, 657 F.3d 1000, 1004–05 (9th Cir. 2011).

9.  Assumption of the Risk (for example in a personal injury case – ex. getting hit by a baseball bat at a baseball game – the Plaintiff may be prevented from seeking monetary damages because they voluntarily “assumed the risk” of injury)

‘A finding of primary assumption of risk “embodies a legal conclusion that there is ‘no duty' on the part of the defendant to protect the plaintiff from a particular risk.” Knight v. Jewett, 3 Cal.4th 296, 308, 11 Cal.Rptr.2d 2, 9, 834 P.2d 696 (1992). The doctrine holds that voluntary participation in sports or similar activities constitutes an implied assumption of the risks inherent in those activities, and thus that neither co-participants in sports nor operators of recreational facilities owe any duty to reduce these risks. See id. The Supreme Court has indicated that the primary assumption of risk doctrine derives from a policy judgment that tort law should not impose a duty where the duty would either chill participation in the activity or fundamentally alter its nature. See id. at 318, 11 Cal.Rptr.2d at 16, 834 P.2d 696; see also Allan v. Snow Summit, 51 Cal.App.4th 1358, 1367, 59 Cal.Rptr.2d 813, 818 (1996). Whether a duty exists in any particular fact setting is resolved by the court as a matter of law even though the duty determination inevitably rests on certain factual assumptions or findings about the particular activity of sport. This case requires the court to decide whether the risks involved in navigating the particular obstacles that injured Randall are inherent to the sport of skiing.  See  Randall v. Mammoth Mountain Ski Area, 63 F. Supp. 2d 1251, 1253 (E.D. Cal. 1999). Sometimes when you give your car to a valet they give you a ticket that on the back (usually in tiny print) has a contractual assumption of risk clause, meaning, by “contract” supposedly, you have agreed that if something bad happens to your vehicle they are not liable.  Sometimes you see these on the back of a hotel room door as well.  Whether or not these contractual assumptions of the risk are enforceable or not is a question for the Courts.

10.  Statute of Frauds (certain documents need to be in writing to be enforceable, for example contracts for interests in real estate – ex. an agreement to purchase residential or commercial real estate).  If there is no written evidence of the deal, there is no deal based on the statute of frauds defense.  See California Civil Code Section 1624.

Modern statutes of frauds find their roots in a 1677 English statute, 29 Charles II, c. 3, An Act for the Prevention of Frauds and Perjuries.This statute was intended to serve an evidentiary purpose by providing evidence of the existence and terms of a contract more reliable than easily fabricated oral claims.  The classes of contracts covered by the statute, including land contracts, were selected because of their importance or complexity. Today, all 49 states, and the District of Columbia, have enacted some variation on the original, with Black's Law Dictionary defining the statute of frauds generally as “[ statutes] designed to prevent fraud and perjury by requiring certain contracts to be in writing and signed by the party to be charged.   In Arizona, for a promise or agreement related to the sale of real property or an interest therein to be enforceable, the promise or agreement upon which the action is brought, or some memorandum thereof, must be in writing and signed by the party to be charged or his authorized agent. Also, an agreement to loan money, to grant or extend credit, or to renew or modify a loan or other extension of credit involving an amount greater than two hundred fifty thousand dollars that is not made or extended for personal or family purposes must be a signed writing. A mortgage or deed of trust is an interest in real property for the purposes of the Arizona Statute of Frauds.  SEE  In re Peter Peter Cottontail, LLC, 498 B.R. 242, 246–47 (Bankr. D. Ariz. 2013). IF THE REQUIRED WRITING IS NON EXISTENT, THEN RAISE THE DEFENSE.  Check your state law statutes to see what types of things are REQUIRED to be in WRITING to be enforceable. California Civil Code Section 1624 identifies certain things that MUST be in WRITING to be enforceable: 1624. (a) The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party's agent: (1) An agreement that by its terms is not to be performed within a year from the making thereof. (2) A special promise to answer for the debt, default, or miscarriage of another, except in the cases provided for in Section 2794. (3) An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein; such an agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent is in writing, subscribed by the party sought to be charged. (4) An agreement authorizing or employing an agent, broker, or any other person to purchase or sell real estate, or to lease real estate for a longer period than one year, or to procure, introduce, or find a purchaser or seller of real estate or a lessee or lessor of real estate where the lease is for a longer period than one year, for compensation or a commission. (5) An agreement that by its terms is not to be performed during the lifetime of the promisor. (6) An agreement by a purchaser of real property to pay an indebtedness secured by a mortgage or deed of trust upon the property purchased, unless assumption of the indebtedness by the purchaser is specifically provided for in the conveyance of the property. (7) A contract, promise, undertaking, or commitment to loan money or to grant or extend credit, in an amount greater than one hundred thousand dollars ($100,000), not primarily for personal, family, or household purposes, made by a person engaged in the business of lending or arranging for the lending of money or extending credit. For purposes of this section, a contract, promise, undertaking, or commitment to loan money secured solely by residential property consisting of one to four dwelling units shall be deemed to be for personal, family, or household purposes.  This should hopefully give the the general idea of things to look for.

Breach of Contract Defenses covered

Bonus Video – Click on the picture to hear Attorney Steve explain the top 25 ays to break a lease or terminate a contract.

11.  Defense of necessity (to prevent a nuisance, or trespass to chattels) – For example, you were protecting your person or property from damage that another person reasonably appears intent to inflict.

Trespass to Chattels and Nuisance – Necessity is a complete defense to these torts. “ A defendant who acts to prevent a threatened injury from some force of nature, or some other independent cause not connected with the plaintiff, is said to be acting under necessity.  Where the danger affects the entire community, or so many people that the public interest is involved, that interest serves as a complete justification to the defendant who acts to avert the peril to all (Prosser and Keeton, Torts, (5th ed.) pp. 145–146).

See Farmers Ins. Exch. v. State of California, 175 Cal. App. 3d 494, 503, 221 Cal. Rptr. 225, 230 (Ct. App. 1985).  You might be able to try this defense against other types of causes of action as well.

12.  Novation (there was an agreement between two parties that relieved the Defendant of liability to Plaintiff).  Say for example Joe and Stan have an agreement whereby Joe is going to write a song for Stan.  Stan will pay $500 once he receives the song.  However, before the song is to be delivered, Joe gets a sore throat and is unable to perform.  But Joe has a friend Milt who will sing the song that Stan wants.  Stan agrees is writing to NOT hold Joe liable, and to look to Milt for performance.  If all parties agree, this is a novation.  Thus, if sued, Joe has the defense that his liability was released due to a “novation.”

13.  Res judicata (Plaintiff is prevented from re-litigating claims that were previously brought or which could have been brought between the same parties to the litigation).

14.  Necessity for others (third party) – You were defending the person or property of another.

15.  Justification (the conduct of Defendant was legally justified).  There could be a lot of different reasons why an act or omission might be considered legally justified.  Look at the facts of your case and make an argument.

16.  Merger doctrine – this can apply in contract cases where one party claims there was a “side deal” that is not included in the contract.  One party may say for example “you promised me you were also going to throw in three free copies of Autodesk software.”  The other party might say “read the contract, there is a merger clause in there, if the deal is not in the contract you have NO DEAL and NO SOFTWARE.

17.  Unconscionability (Plaintiff cannot enforce the contract because the terms are substantively or procedurally unconscionable)

18.  Preemption (for example, a bank might argue that a Plaintiff cannot bring a wrongful foreclosure or predatory loan servicing case due to HOLA federal banking law)

19.  Estoppel

A.  Equitable Estoppel  (Plaintiff is estopped to take the positions being taken in the current litigation due to some equitable reason).

B.  Judicial Estoppel – This is the defense to raise when a Plaintiff or Defendant changes their arguments and position during the course of a litigation – which happens more than you might think.  For example, they say one thing in a Demurrer pleading and another in their motion for summary judgement.  This is something that should be pointed out (possibly in a request for judicial notice showing the inconsistent pleadings).  As one California Court Noted:

“ Judicial estoppel prevents a party from asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding. The doctrine serves a clear purpose: to protect the integrity of the judicial process.  This obviously contemplates something other than the permissible practice of simultaneously advancing in the same action inconsistent claims or defenses which can then, under appropriate judicial control, be evaluated as such by the same tribunal, thus allowing an internally consistent final decision to be reached.”See  Allen v. Zurich Ins. Co. (4th Cir.1982) 667 F.2d 1162, 1167.  Judicial estoppel is intended to protect against a litigant playing fast and loose with the courts.”  See  Jackson v. Cty. of Los Angeles, 60 Cal. App. 4th 171, 181, 70 Cal. Rptr. 2d 96, 101-02 (1997).

20.  Unjust enrichment (getting something you are not entitled

21.  Consent (express or implied) – Plaintiff cannot be harmed where he/she consented to the act causing the alleged harm, unless the Defendant exceeded the scope of the consent.

22.  Ratification (Plaintiff ratified the acts of Defendant and cannot now complain)

23.  Waiver (Plaintiff voluntarily and knowingly relinquished a known and appreciated right they had) - WATCH THE VIDEO BELOW!!

how to answer a complaint

24.  Release (express, implied, or equitable release of rights now complaining of)

25.  Breach of contract (Plaintiff cannot recover on a breach of contract claim where Plaintiff was the party who committed the material breach)

BONUS MATERIALS:  Click on the picture above to watch our video on Affirmative Defenses.  Subscribe to our litigation channel for free updates.  Click on the Red “V”

26.  Failure to mitigate damages (Plaintiff cannot recover damages that result from a failure to mitigate damages)

VIDEO:  Watch Attorney Steve® explain the Duty to Mitigate Damages – IMPORTANT DEFENSE!!!  Don't forget to SUBSCRIBE to our popular legal youtube channel and join almost 10,000 viewers who want more than politics out of life!!

27.  Anticipatory breach (Plaintiff's breach of contract claims are barred due to the anticipatory breach by Plaintiff)

28.  No actual injury (Plaintiff suffered no actual injury, for example, in a California right of publicity case the Plaintiff must show some type of harm resulted from an unlawful use of the name, image and likeness)

29.  Lack of standing (Plaintiff did not suffer a concrete injury and has not standing to file suit)

30. Real party in interest (Plaintiff is not the real estate party in interest to file the suit)

31.  Good faith by answering Defendant (conduct of Defendant was in good faith).  Here is a blog I wrote on good faith defense in regard to allegations of Pay Per View (PPV) boxing piracy.

32.  Lack of Causation (Defendant was not the proximate or legal cause of Plaintiff's injury)

33.  Failure to perform (Defendant was excused from performing the terms of the contract due to Plaintiff's failure to perform)

34.  Prevention and Frustration (Defendant was ready, willing and able to perform the contract, and Plaintiff prevented and frustrated such performance)

35.  Parol evidence (Plaintiff's claims are barred by the Parol evidence rule.  The Court cannot consider extrinsic evidence of what the terms of a clear and explicit contract are)

36.  Attorney fees are not recoverable (there is no statute or contract that allows Plaintiff to seek recovery of attorney fees)

37.   Speculative damages (Plaintiff is seeking to recover lost profits or damages that are completely speculative in nature).

38.  Default by Plaintiff (Defendants conduct is justified due to Plaintiff's default)

39.  Right to add additional affirmative defenses (this is an important one to make sure you add.  You never know when new affirmative defenses will arise in a case, so this should go down to preserve all future defenses a Defendant may want to waive)

40.  Comparative fault of third parties (there is a third party that is responsible for all or part of Plaintiff's damages)

41.  Lack of consideration (the contract alleged to have been breached is unenforceable due to lack of consideration)

42.  Complete performance (Defendant is discharged from all liability due to fully performing and discharging all duties)

43.  No privity

44.  Doe Defendant is liable (this may require a Plaintiff to make a “doe amendment” and add an additional defendant).

45.  Lack of equity (the equities of the case do not preponderate in failure of Plaintiff).

46.  Contribution (third party owes contribution for damages alleged to have been suffered by Plaintiff).

47.  False claims (Plaintiff's claims are barred as a matter of law as the complaint makes numerous blatantly false claims).

48.  Indemnification (third parties are responsible to pick up and tender the defense on said claims, counts, and causes of action set forth in the Complaint).  Click here to read about indemnification in the context of software infringement.

49.  Failure to join necessary parties

50.  Bona fide purchaser for value (“BFP”) for example in a wrongful foreclosure case where the Plaintiff is suing the high bidder at the trustee's sale

51.  Abandonment of trademark.  One who abandons something cannot then claim rights to it.

Here is a video that discusses the Copyright Infringement defense of abandonment, but this applies in trademark as well (and likely in other areas of law, think about whether it may apply to your situation where someone is claiming legal rights exist).

52.  “Fair Use” Defense (ex. first amendment free speech parody excuses any allegation of copyright infringement).  To learn more about copyright fair use watch this video from our youtube legal channel.  Make sure to SUBSCRIBE to join over 8,000 other people who love our informational videos

BONUS:  Click here for a detailed list of defenses to copyright infringement.

53.  Free speech / fleeting and incidental uses (ex. in a right of publicity litigation case – Defendant only used name, image and likeness for a limited purpose protected by right of free speech)

54.  License – (ex. there is no copyright infringement because the Defendant had a license)

55.  Innocent infringement (another copyright infringement affirmative defense).  This defense is not to say that there was NO INFRINGEMENT, rather, it is saying there is only “innocent infringement” which should be considered as a means of reducing the damages.

56.  Restraint of trade (Plaintiff is violating antitrust laws and cannot recover)

57.  Improper venue (Plaintiff is pursuing case in the wrong court)

58.  Rejection of Goods (Plaintiff cannot recover on a breach of contract claim because Defendant timely rejected goods)

59.  Contrary to public policy (Plaintiff should be barred from recovering because his/her acts are in violation of public policy)

60.  Immunity (Defendants allege they are not liable due to one or more immunities).  One example would be a governmental immunity for a state or local company.

61.  Undue influence – some exerted undue force and influence over you forcing you to do something that was illegal.  This normally needs to be a high amount of pressure to overcome your free will.

62   Self defense – you violated the law because you were trying to defend your person or property

63.  Business judgement rule – directors and officers may be shielded from liability for taking actions that are reasonable and prudent.

64.  Implied repeal of statute – According to wikipedia:

The doctrine of implied repeal is a concept in constitutional theory which states that where an Act of Parliament or an Act of Congress (or of some other legislature in a common law system) conflicts with an earlier one, the later Act takes precedence and the conflicting parts of the earlier Act becomes legally inoperable. This doctrine is expressed in the Latin phrase “leges posteriores priores contrarias abrogant”.

Implied repeal is to be contrasted with the express repeal of legislation by the legislative body.

Under United States law, “implied repeal” is a disfavored doctrine. That is, if a court can reconcile the two statutes with any reasonable interpretation, that interpretation is preferred to one that treats the earlier statute as invalidated by the later one

65.  Truth (is a defense in a defamation lawsuit) (Click here for a list of four defamation defenses to be aware of)

66.  Mutual mistake (mutual mistake of fact in a contract action precludes contract formation)

67.  Breach of confidentiality agreement (by bring the lawsuit Plaintiff is in breach of a non-disclosure or confidentiality agreement)

68.   Statutory compliance – where something is allowed or authorized by statute this could be a defense.

“acts done pursuant to express statutory authority are by definition not a nuisance. Section 3482 of the Civil Code reads: “Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.” Plaintiffs' argument here is that the governor's proclamation pursuant to the Emergency Services Act did not “expressly authorize” the State to damage automobile paint finishes. This misses the point. The authorizing statute need not predict the precise nature of the damages. It need only authorize the governmental action.”

See Farmers Ins. Exch. v. State of California, 175 Cal. App. 3d 494, 503, 221 Cal. Rptr. 225, 230 (Ct. App. 1985).

69.  Fraud in the inducement – If someone fraudulent induces you to do something (ex. sign a contract) this may be grounds to get out of the contract and cancel, terminate, or nullify the agreement.

70.  Intervening / Supervening causes  Or other unforeseeable or intentional acts of third parties cuts off Plaintiff's liability.  For example, if an company has a data breach, and a third party hacker runs around and causes havoc against the Plaintiff, the Plaintiff may sue. However, the acts of the third party hacker/criminal who stole from the computer and misused data may be deemed the intervening cause which could “break the causal chain of liability” and the Defendant who was hacked might have no legal liability.  It will depend on the facts of the case.

71.  Bankruptcy discharge (Chapter 7, 11, or 13 bankruptcy discharge prohibits enforcement of claims and creates a “stay violation”)

72.  Setoff  (Plaintiff's claim for damages must be reduced for setoffs)

73. Illegality (The subject matter and gravamen of Plaintiff's complaint involves illegality – ex. collecting on a illegal debt)

74.  Failure to plead fraud with specificity

75.  No private right of action (the statute Plaintiff is suing under provides no private right of action)

76.  Failure to exhaust administrative remedies

77.  Force majeure (act of god) – Sometimes an “act of god” will make something happen and this will relieve a Defendant of legal liability.  For example, if you are renting a sports bar and a hurricane blows it down, (check the contract first) but you may have grounds to break the lease.

78.  Improper notice of breach – If a contract calls for a party, such as an architect or engineer, to give notice of breach to a contractor, the failure to provide the proper notice, to the peropr place (usually set forth in the written contract), may be a defense to an alleged breach of contract.

79.  Acquiescence – If a Plaintiff “goes along with” the Defendant and strings them along, allows them to do a certain act (saying nothing, or not objecting), they may be deemed to have “acquiesced” which is a form of consent.

80.  Retraction – Retraction may be a defense (or possibly a mitigating factor) where someone sued for defamation, lets say, “retracts” the negative comments in the newspaper or in online media.  This may not provide a complete defense, but it might help trim down damages.  You see these sometimes in defamation, slander or libel case and possibly in a right of publicity case.

81.  Wrong party sued – If you were not the partied that engaged in the wrongful conduct, you may have been improperly named int he lawsuit.  For example, say Microsoft or Autodesk sues your company alleging willful software infringement (but the only problem is they sue the wrong company), the company could conceivably file a motion to dismiss once the lawsuit is filed.

82.  Spoliation of evidence – this is more of a rule of evidence, but if one Party, say the Plaintiff, has destroy critical evidence in the case after knowing they would be filing a lawsuit, or perhaps even after the lawsuit was filed, (ex they fail to produce requested documents in a software audit case), this could provide the grounds for a potential defense.

83.  Usury  (charging illegal interest rates) – If you have a mortgage loan that was based on a loan that violates the “usury laws” (ex. the maximum legal interest rate that can be charged), it might be possible to invalidate the loan as part of your defense.

84.  Breach of implied warranty – Some products may carry an implied warranty of fitness (for a specific purpose) or a general implied warranty against defects.  If the product at issue contains material defects, or create safety issues, this could be a breach of the implied warranty of merchantability (general workmanship) or warranty of fitness (when the retailer knows of how you were going to use a product but the recommended product was defective for said use.

85.  Failure to act in a commercially reasonable manner – A Plaintiff who refuses to act in a commercially reasonable manner may find that his or her defenses get chopped down.  For example, in a copyright86. Truth in Lending Recoupment (“TILA”)

87.  Business Necessity Defense

This is an interesting defense I stumbled upon.  Here is one case from the 9th circuit that discussed this: While an individualized assessment of the applicant's ability to perform the essential functions of the job is normally required by the ADA, see, e.g., McGregor v. National R.R. Passenger Corp., 187 F.3d 1113, 1116 (9th Cir.1999), an employer may require disabled employees as well as others to meet an across-the-board qualification standard if it can establish the stringent elements of the business necessity defense. Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 568, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999); Cripe, 261 F.3d at 890.  See  Morton v. United Parcel Serv., Inc., 272 F.3d 1249, 1257–58 (9th Cir. 2001) overruled by Bates v. United Parcel Serv., Inc., 511 F.3d 974 (9th Cir. 2007).

I didn't do it – someone else did it Defenses

Here are a few possible defenses to assert when you believe someone else is responsible for the alleged wrongdoing (not you):


            1.  These answering defendants are not legally responsible for the alleged acts/omissions of those defendants named herein as DOES 1-XXX. 


            (Comparative Negligence)

            2.  Any and all alleged events and happenings, injuries, losses or damages referred to in the Complaint were directly and proximately caused and contributed to, in whole or in part, by the carelessness and negligence of plaintiff herein, and therefore the extent of loss, damages or injury sustained by plaintiff, if any, should be reduced in proportion to the amount of negligence or fault attributable to said plaintiff.



            3.  Although the Complaint is groundless and without merit, if the court finds there is a contestable issue, plaintiff is barred from recovery herein in that the conduct of plaintiff, and other persons unknown to this answering defendant, constituted a supervening, intervening cause of the damages, injuries and losses allegedly sustained by plaintiff. 

88.  Doctrine of Superior Equities (applies when an insurance company is trying to recover losses they suffered after they pay off an insurance claim)

“The doctrine of superior equities prevents a subrogated party from recovering against a party having equal or superior equities. (State Farm General Ins. Co. v. Wells Fargo Bank, N.A. (2006) 143 Cal.App.4th 1098, 1107, 49 Cal.Rptr.3d 785.) “Under the doctrine of superior equities, although an insurer might have a subrogation interest in the insured's claim against the party that caused the loss, it cannot enforce its subrogation rights unless it has equities superior to those of the wrongdoer.” (Id. at p. 1108, 49 Cal.Rptr.3d 785.).  See Chicago Title Ins. Co. v. AMZ Ins. Servs., Inc., 188 Cal. App. 4th 401, 430, 115 Cal. Rptr. 3d 707, 731 (2010).

89.  “Volunteerism” – this is another defense that can arise in an insurance subrogation case.  This arises where the Insurance company seeking to subrogate its claims pays the company alleging a loss “voluntarily” (with no rationale or legal obligation to pay the claim).  There are many fact patters this can apply to.  Look for a bogus payment, or over-payment of a claim.  As one California case noted:

“The objection here raised is not that plaintiffs' cause of action was barred but that no cause of action ever existed. The issue in this case is not whether the note was barred at the time of payment, but whether the payment was voluntary. The fact that the note was barred when paid by plaintiffs is merely evidence that the payment was voluntary. No reason appears why such evidence should have been pleaded by defendants, any more than that other evidence should have been so pleaded. Plaintiffs' second cause of action not only fails to show that the alleged payment was made under necessity, but affirmatively shows that it was made without any legal necessity. It therefore failed to state a cause of action.”  See Schlitz v. Thomas, 61 Cal. App. 635, 639, 216 P. 51, 53 (Cal. Ct. App. 1923).

90.    DMCA copyright infringement “safe harbor” – if you are an online service provider (“OSP”) and you have a registered agent for service of copyright complaints, and a process for rejecting repeat offenders (ex. Youtube has a three copyright strikes and you are booted off their platform) then you may be immune from copyright infringement lawsuits under the “Safe harbor” provisions.  Call us for more information about this.

91 First Sale Doctrine – in copyright infringement cases this can arise as a means to defeat an infringement claim.  When you purchase a copyrighted product (not license, but actually get title to a work), you have the legal right to sell it.  Some copyright holders do not understand this rather simple concept and you may have to raise it as a defense to infringement.

92.  Scenes-a-faire (defenses to copyright infringement)

VIDEO:  Watch Attorney Steve® explain this copyright law defense along with the Merger Doctrine,.  Make sure to SUBSCRIBE to our popular legal channel.  You cannot live on Politics Alone!

Contact a California civil litigation law firm

If you find yourself named as a Defendant in a civil lawsuit (state or federal court), or arbitration and you need to respond to the complaint by filing an ANSWER or a and want to make sure you raise all available AFFIRMATIVE DEFENSES, give us a call.  Our firm offers tenacious legal representation in the area of business law (ex. breach of contract), real estate (ex. financial elder abuse), intellectual property litigation (copyright, trademark, software, internet law, Cal. right of publicity, and technology cases).

We can be reached at (877) 276-5084. We offer flexible and affordable legal fees

About the Author

Steve Vondran

Thank you for viewing our blogs, videos and podcasts. As noted, all information on this website is Attorney Advertising. Decisions to hire an attorney should never be based on advertising alone. Any past results discussed herein do not guarantee or predict any future results. All blogs are written by Steve Vondran, Esq. unless otherwise indicated. Our firm handles a wide variety of intellectual property and entertainment law cases from music and video law, Youtube disputes, DMCA litigation, copyright infringement cases involving software licensing disputes (ex. BSA, SIIA, Siemens, Autodesk, Vero, CNC, VB Conversion and others), torrent internet file-sharing (Strike 3 and Malibu Media), California right of publicity, TV Signal Piracy, and many other types of IP, piracy, technology, and social media disputes. Call us at (877) 276-5084. AZ Bar Lic. #025911 CA. Bar Lic. #232337


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