The only issue is whether each party performed what it was required to perform under the contract. Whether any acts or omissions of either party could be “negligent” as defined by tort law is irrelevant in a contract dispute. The contract, itself - not any tort law - governed the relationship of the parties and the issues in the lawsuit. For example, consider a case where the complaint only alleges a cause of action for breach of contract, but the answer comes back with numerous tort defenses. Often, this discovery leads to expensive discovery disputes and pointless consumption of court time.Ĭalifornia superior courts are taking note and sustaining demurrers to particular affirmative defenses in appropriate situations. On the plaintiff’s side, those defenses require at least minimal discovery to ascertain whether they have any substance. Even before trial, legally incompetent affirmative defenses open up the defendant’s discovery for enormous, irrelevant fishing expeditions, ostensibly to uncover facts that hopefully will prove the defenses. However, resolving admissibility during a trial is fraught with danger that irrelevant evidence will come in first and prejudice the trier of fact. No such evidence should be offered or admitted at trial. If an affirmative defense is not legally competent, then no evidence pertaining to that defense is relevant. No evidence is relevant that fails to prove or disprove allegations in the pleadings. Just like a complaint, affirmative defenses in an answer frame the case. What kind of nut demurs to an answer? Well, sometimes it is not so nutty. (a version of this article appeared in the Los Angeles Daily Journal)
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