Affirmative Defenses

Fairness Defense Partition California Law Attorney Lawyer

“Fairness” is Not a Defense to Partition

Courts have repeatedly concluded that the “fairness” defense to partition found in a 1976 case was impliedly rejected by the 1976 legislation declaring in California that “the right to partition is absolute.” Priddel v. Shankie (1945) 69 Cal.App. 2d 319, 325. The Supposed “Fairness” Defense to Partition Defendants in a partition action may desperately attempt to … Read More

Can a Partition Action Be Stopped in California?

How to Stop a Partition Action Generally, the right to a partition action is absolute, meaning that the right to partition a property is achievable by any co-owner, no matter how small or large their interest in the property may be. Once filed with the courts, a partition action cannot be “stopped” by a party … Read More

Affirmative Defenses Partition Action California Attorney Lawyer

Affirmative Defenses to a Partition Action in California

How Do You Beat a Partition Action? Experienced partition attorneys in California are often asked whether there are affirmative defenses to a partition under California law. Of course, every defendant wants to win a partition action. While some people may refer to these as affirmative defenses, it might be best to look them as ways … Read More

What Is an Answer to a Partition Action

What is an Answer to a Partition Action?

Answer to a Partition Action Complaint in California When an action for partition is filed, the opposing party has an opportunity to respond to this action by filing an answer. An answer to a partition action is a pleading by the defendant in response to the plaintiff’s complaint for partition. In the answer, defendants have … Read More

Boilerplate Affirmative Defense Motion to Strike Demurrer

Boilerplate Affirmative Defenses: Motion to Strike & Demurrer [California Form Template Sample]

Many times, when defendants are sued in California they file an answer alleging numerous boilerplate affirmative defenses with no supporting facts. Technically, this is improper, and these defenses may be subject to a motion to strike or demurrer under California law. The authorities below can be used in a motion to strike or demurrer seeking … Read More

Damages Trees California Law Code Civil Procedure 733 Civil Code 3346

Neighbor Cut Trees on My Property Without Permission

What Happens if a Neighbor Cuts Down a Tree on your Property? How to Measure the Damage to Trees (Nuisance, Encroachment, Neighbors) under California Civil Code 3346 & Code of Civil Procedure 733 One of the heavily litigated issues when a neighbor cuts or chops trees on your property without permission or consent is the … Read More

Mitigation Damages Breach Lease Contract Green v Smith California Attorney Lawyer

Mitigation of Damages in Breach of Lease & Contract [California Definition Green v. Smith]

Mitigation of Damages Affirmative Defense to Breach of Lease & Contract in California Parties to contracts should be aware of the duty to mitigate damages by all parties, including landlords. This includes damages for unpaid rent that becomes due after the breach of a lease. This doctrine of mitigation of damages, often called a duty … Read More

Negligent Misrepresentation Elements in California [Defenses Definition CACI]

Negligent Misrepresentation Elements in California [Defenses Definition CACI]

The Ultimate Guide to Bringing and Defeating Negligent Misrepresentation Claims in California Courts It is often said that a cause of action for fraud is easy to allege, but hard to prove. Perhaps the easiest form of fraud to allege is negligent misrepresentation. This makes it perhaps the most common form of fraud alleges by parties in litigation. However, a close … Read More

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