How To Prove A California Waiver Defense

In California, a defense of Waiver is defined as:
Waiver is the act of intentionally relinquishing or abandoning a known right, claim, or privilege.
It simply means:
When a party gives up a right.
There are 4 elements of the defense:
- Element 1. The plaintiff and the defendant had a contract. In a legal case, the plaintiff and the defendant had an agreement that outlined their rights and responsibilities, which is important for understanding any claims or defenses related to a waiver of those rights.
Facts that might support this element look like:
* The plaintiff and the defendant entered into a written agreement on January 15, 2023, outlining the terms of their business relationship.
* Both parties exchanged consideration, with the plaintiff providing services and the defendant agreeing to pay a specified amount.
* The defendant acknowledged the contract by signing it and communicating acceptance via email.
* The plaintiff fulfilled their obligations under the contract by delivering the agreed-upon services on time.
* The defendant made partial payments as stipulated in the contract, demonstrating acceptance of its terms. - Element 2. The defendant had an obligation to perform in some way on the contract. The defendant was required to fulfill a specific duty or action as outlined in the contract, which is a key part of arguing that they should be excused from their obligations due to a waiver.
Facts that might support this element look like:
* The defendant signed the contract, which explicitly outlined their responsibilities and obligations.
* The contract included a timeline for performance, indicating specific deadlines that the defendant was required to meet.
* The defendant received payment in advance, creating an expectation for them to fulfill their contractual duties.
* The defendant communicated their acceptance of the terms, acknowledging their obligation to perform as agreed.
* The contract specified penalties for non-performance, reinforcing the defendant’s duty to adhere to its terms. - Element 3. The defendant did not perform on the contract. The defendant failed to fulfill their obligations under the contract, meaning they did not do what they promised, which is a key point in arguing that they should be excused from any penalties or claims related to that contract.
Facts that might support this element look like:
* The defendant failed to deliver the goods specified in the contract by the agreed-upon deadline.
* The defendant did not provide the required services outlined in the contract, despite multiple requests for completion.
* The defendant acknowledged their inability to fulfill the contract obligations in written correspondence.
* The defendant’s actions demonstrated a clear refusal to perform as stipulated in the contract terms.
* The defendant did not respond to the plaintiff’s attempts to resolve the performance issues, indicating a lack of intent to perform. - Element 4. The plaintiff, by conduct or in words, freely and knowingly gave up his or her right to have the defendant perform said obligation. The plaintiff willingly and knowingly chose to give up their right to have the defendant fulfill their obligation, either through their actions or by what they said.
Facts that might support this element look like:
* The plaintiff explicitly stated in an email that they were willing to accept a delay in the defendant’s performance without any objections.
* During a meeting, the plaintiff acknowledged the defendant’s inability to meet the deadline and agreed to extend the timeline without any conditions.
* The plaintiff repeatedly accepted late deliveries from the defendant without raising any concerns or objections.
* The plaintiff signed a document indicating their understanding and acceptance of the modified terms, which included a waiver of the original deadline.
* The plaintiff verbally confirmed their satisfaction with the defendant’s performance despite the missed obligations, indicating no intent to enforce the original terms.
(See California Civil Jury Instructions (CACI), No. 336. Roesch v. De Mota (1944) 24 Cal.2d 563, 572. Wind Dancer Production Groupv. Walt Disney Pictures (2017).)
If you’re in court without a lawyer and plan to assert a Defense of Waiver, it’s essential to engage in a Personal Practice of Law at Courtroom5. You’ll need to determine what to file at each phase of your case and prepare legal documents that are supported by thorough legal research and a strong analysis of the facts. This proactive approach will help you effectively navigate the complexities of your case.
U.S. Civil Cases Only