I filed an unlimited civil case in superior court. In their answer the defendants list an affirmative defense called “Additional Affirmative Defenses” pleaded as follows: “These answering defendants presently have insufficient knowledge or information upon which to form a belief as to whether it may have additional, as yet unstated, affirmative defenses available. Accordingly, these answering defendants reserve the right to assert additional affirmative defenses in the event discovery indicates that they would be appropriate.” It seems silly to consider “additional affirmative defenses” an affirmative defense in itself. More fundamentally, I thought that a defendant could only plead affirmative defenses once, if not lose them later. Plus, I’ve never heard of affirmative defenses being raised after discovery. If so, what is the proper objection to such an affirmative defense?
Your assessment is correct.
There's really no need to object to the "additional affirmative defense:" affirmative defense. However, if you wished to do so, you would file a Demurrer to Answer pursuant to California Code of Civil Procedure section 430.20 within 10 days after service of the answer, unless this period has been extended by stipulation or court order. (Cal. Code Civ. Proc. § 430.40(b).)
Generally it is a waste of time to fight over the defenses because it is their burden to prove them. They can assert a defenses whenever it arises but certain claims are waived if not asserted initially. You can move to strike the defenses or just wait and deal with them at trial which is probably easier and cheaper.
Agree with the other lawyers who have answered so far, but just wanted to give some further thoughts.
This "defense" is pleaded quite often in the courts that we practice before (not California courts). It is very rare for it to lead to any new defenses being asserted, so I would not pay much attention to it at this point. If something truly new that points to a new potential defense is revealed during the discovery process, the defense may be able to move to amend the answer to include the new defense anyway.
Mr. Chen is right.
And there is no such thing as a reservation of a right to assert an affirmative defense. The defense is a silly one and meaningless. If the defendant finds a basis for another defense, it will have to amend the answer and seek court approval whether or not that silly affirmative defense is stated.
