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moving party plaintiff to a summary judgment if the only matter in dispute is a defense that has
not been intelligibly asserted in the answer”].)
Given the statement in the August 16 minute order that Foster had not provided proof
that he had earmarked any sum to payment on the balance of the security deposit and, in any
event, Foster’s argument concerning such payment was outside the issues raised by his answer,
it appears the court accepted plaintiff’s argument that Foster was precluded from having his
defenses considered because he did not assert them as affirmative defenses in his answer. But
Foster cites Cruey v. Gannett Co. (1998) 64 Cal.App.4th 356, 367 (Cruey) for the proposition
that a party need only have adequate notice and an opportunity to respond to a defense
introduced at the time of the summary judgment proceeding. We agree.
“Given the long-standing California court policy of exercising liberality in permitting
amendments to pleadings at any stage of the proceedings [citation] and of disregarding errors or
defects in pleadings unless substantial rights are affected [citation], we believe that a party
should be permitted to introduce the defense . . . in a summary judgment procedure so long as
the opposing party has adequate notice and opportunity to respond.” (Cruey, supra, 64
Cal.App.4th at p. 367; see also Wang v. Nibbelink (2016) 4 Cal.App.5th 1, 11 [same].) A court
then may consider unpleaded affirmative defenses, if the complaint alleges facts supporting the
defenses, and the defenses are fairly raised and met in the summary judgment papers.
Thus, where defenses were raised in Foster’s opposition to the motion for summary
judgment, and plaintiff thereby had sufficient notice of, and an opportunity to respond on the
merits to, Foster’s assertion of those defenses, plaintiff has not shown it was prejudiced by the
process. Moreover, we note plaintiff even anticipatorily raised the inapplicability of eviction
moratoria in its motion for summary judgment and did, indeed, respond at oral argument to the
defenses Foster raised in his opposition to the motion. Therefore, for purposes of determining
whether the grant of summary judgment was appropriate in this case, we may consider whether
Foster’s affirmative defenses created a triable issue of material fact.
Plaintiff met its initial burden on summary judgment by providing the notice of change
of terms of tenancy indicating the security deposit was to be increased effective 30 days after