Affirmative-defense motions for summary judgment are limited to the pleadings…sort of

planning and prep squareA case out of California’s Second Appellate District this week offers a reminder of a general rule: To win an affirmative-defense motion for summary judgment, the affirmative defense should be included in the answer. Although courts tend to cite the rule that summary judgments are limited by the pleadings, the rule seems to be pretty relaxed when it comes to affirmative defenses.

We’ve talked about how oppositions to motions for summary judgment have to be based on the pleadings. This typically applies in lack-of-proof motions. But the flip side of this is that affirmative-defense motions are supposed to be based on the pleadings too—the affirmative defenses that are the basis of the motion should be included in the answer.

(Just to make sure we’re all using the same language here, a “pleading” in California is a complaint, an answer, a demurrer, or a cross-complaint. (Cal. Code Civ. Proc. § 422.10.) Sometimes it seems that everything filed is referred to as a “pleading.” The required use of “pleading paper” with numbered lines in the margin likely confuses this issue. But “pleadings,” as defined by the Code of Civil Procedure, are actually pretty limited.)

It’s clear that the pleadings define a motion. (See, e.g., Conroy v. Regents of University of Cal. (2009) 45 Cal.4th 1244, 1250.) “[T]he first step [for the court in deciding a motion for summary judgment] is an analysis of the pleadings, i.e., the complaint and  answer, including any affirmative defenses that may be contained therein.” (Lowe v. California League of Prof. Baseball (1997) 56 Cal.App.4th 112, 122.)

So this week in Brown v. Scott, Case No. B240426 (May 3, 2013, unpublished), a case involving a landlord-tenant dispute, the Second Appellate District held that summary judgment was improperly granted, partly based on the pleadings:

Here, defendants’ answer did not allege the defense on which their motion was based. Leave to amend may be liberally granted, but not without a motion for leave to amend that is brought and heard before the hearing on the motion for summary judgment.

It’s a pretty good guideline: If you want to do an affirmative-defense motion for summary judgment on grounds not included in the answer, move to amend the answer first.

Given the rules about summary judgment being limited to the pleadings, this conclusion seems pretty logical. But in practice, it seems like “limited to the pleadings” is pretty soft when it comes to affirmative defenses:

[E]ven if Blue Shield had not pleaded the issue of appellant’s fraud as an affirmative defense, the Court in Cruey v. Gannett Co. (1998) 64 Cal.App.4th 356, 367, 76 Cal.Rptr.2d 670, suggested that an affirmative defense may be raised for the first time in a summary judgment motion absent a showing of prejudice.

(Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 75.)

[W]e believe that a party should be permitted to introduce the defense of privilege in a summary judgment procedure so long as the opposing party has adequate notice and opportunity to respond.

(Cruey v. Gannett Co. (1998) 64 Cal.App.4th 356, 367.)

Appellant obviously had notice of the defense upon which respondent was relying and, by so litigating the merits of the summary judgment motion, waived any right to claim on appeal that the answer was defective.

(Jones v. Dutra Construction Co. (1997) 57 Cal.App.4th 871, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 385.)

(I’m not saying that Brown got it wrong; the court reversed in part because there were triable issues of fact so the affirmative defense was not really the deciding factor.)

So it appears that even though all of these cases cited the rule that summary judgment are limited to the pleadings, they didn’t actually stick to the rule.

Personally, I’m a fan of avoiding avoidable procedural arguments that distract from the real issues. I don’t want to have to explain why a critical affirmative defense wasn’t included in the answer and try to convince the court that the rule doesn’t really apply. So my own humble recommendation would be to include all affirmative defenses that may be used. If one gets overlooked, however, it’s good to know that the courts may be pretty forgiving.

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