Demurrers to Answers: Changing the Practice of Drafting Defenses

Author: Scripta Ad Astra Staff

Usually, when answering an unverified complaint in California Superior Court, counsel for the defendant will file a general denial, along with a laundry list of “boilerplate” affirmative defenses that might apply to the plaintiff’s claims.  More often than not, the defendant’s answer will fail to include any specific facts supporting those defenses.

At first blush, this common practice may appear to be the result of sloppy or lazy work.  However, vagueness in the defendant’s answer is often a result of the fact that most defendants do not have the ability to prove their defenses at the initial answering phase, usually well-before conducting any discovery.  In addition, the defendant has significant incentive to be over-inclusive when it comes to affirmative defenses, as a party waives un-pled defenses.  An argument can be made that requiring specific facts at the preliminary answering phase of the proceeding may result in significant prejudice and a miscarriage of justice to the defendant who is unable to specifically plead all of its potential affirmative defenses.

On the other hand, the defendant’s inclusion of copious amounts of affirmative defenses that are not likely to ever be used in the case may be so excessive it borders on abuse.  More and more plaintiffs’ attorneys are bringing demurrers to the affirmative defenses in answers.  These demurrers are based upon the respective defendant’s failure to state facts sufficient to constitute a defense pursuant to the requirements of California Code of Civil Procedure Section 430.20.

Many practitioners on both sides do not realize that the affirmative defenses stated in the answer must aver facts as carefully and with as much detail as the facts which constitute the cause of action alleged in the complaint: the defendant is required to plead ultimate facts, rather than evidentiary matters or legal conclusions.  See Doe v. City of Los Angeles, (2007) 42 Cal. 4th 531, 550, and FPI Development Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384.  However, even where a defense is defectively pled, it may be allowed if the defendant’s pleading gives sufficient notice to enable the plaintiff to prepare to meet the defense, in part because un-pled defenses are waived.  See Harris v. City of Santa Monica (2013) 56 Cal. 4th 203, 240.

When the defendant has filed a factually unsupported answer, there is a strong probability that a judge will sustain the plaintiffs’ demurrer to the answer, but will simultaneously grant the defendant leave to amend.  Therefore, it is best practice to determine whether the demurrer is necessary.   The plaintiff’s attorney should ask whether the motion will ultimately save costs on discovery by eliminating meritless affirmative defenses at the outset, or whether it is going to burn attorney’s fees with little benefit to the client.  In cases with a “burning limits” insurance policy or with a defendant with limited funds, creating more work for your opponent ultimately reduces the funds available for settlement.  Expedient trial scheduling may also be adversely affected by a demurer to the answer.  Many courts have a considerable backlog for dates to hear demurrers, and, as result, the demurrer may still be pending at the time of the initial case management conference. When that happens, because the case is not at issue, the likelihood of obtaining the earliest-possible trial date is slim to none.  The defendant’s attorney faced with a demurrer to the answer must determine whether it is cost-effective to oppose a motion that will likely be granted, or to offer to amend the answer.  Although unlikely, a court could potentially sustain the demurrer as to some or all of the affirmative defenses without leave to amend.

The answering defendant is in the position of avoiding the situation altogether by being more careful in drafting affirmative defenses.  However, if there is a dispute as to the factual sufficiency of affirmative defenses in an answer, the most expedient solution is to simply attempt to informally resolve the dispute by meeting and conferring with opposing counsel to discuss the defenses.  If possible, the parties should agree to amend the answer to remove unnecessary affirmative defenses and include some facts within the defendant’s knowledge to give notice of the bases for the meritorious defenses.
If the parties can be reasonable and informally resolve their dispute, they will: (1) avoid unnecessary attorneys’ fees (which the clients will appreciate), (2) advance the case beyond the pleading phase (which the attorneys should appreciate), and (3) prevent excessive motion practice in the already-over-burdened courts (which the judge will appreciate).

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