J & J Sports Productions, Inc. v. Olivo et al, No. 3:2014cv02766 - Document 32 (S.D. Cal. 2015)
Court Description: ORDER granting 14 , 21 Motions to Strike Answers with Leave to Amend and Affirmative Defenses without Leave to Amend. Any Amended Answers or defenses must be filed within fourteen (14) days of this order. Signed by Judge M. James Lorenz on 6/8/2015. (sjt)
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J & J Sports Productions, Inc. v. Olivo et al Doc. 32 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 J & J SPORTS PRODUCTIONS, INC., 12 Plaintiffs, 13 v. 14 JOSE ALBERTO OLIVO and JUAN 15 PABLO MARTINEZ, individually and d/b/a CLUB CARIBE A/K/A CARIBE 16 RESTAURANT AND NIGHTCLUB, INC., an unknown business entity d/b/a 17 CLUB CARIBE A/K/A CARIBE RESTAURANT AND NIGHTCLUB, 18 Defendants. 19 20 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 14-cv-02766-L (BGS) ORDER GRANTING MOTION TO STRIKE ANSWERS AND AFFIRMATIVE DEFENSES ECF Nos. 14, 21 Plaintiff, J & J Sports Productions, Inc., owned the exclusive rights to distribute "The 21 Clash in Cotai", a boxing match between Manny Pacquiao and Brandon Rios (hereinafter the 22 "Program"). On November 23, 2014, the fight was broadcast across the United States. Plaintiff 23 alleges that Defendants knowingly intercepted and showed the fight without permission of 24 Plaintiff, in violation of the Telecommunications Act of 1996, 47 U.S.C. § 605, et seq., the Cable 25 Television Consumer Protection and Competition Act of 1992, 47 U.S.C. § 553, et seq., and 26 California Business and Professional Code § 17200, et seq. Plaintiff also alleges a common law 27 claim of conversion. Defendants appear to deny all allegations and raise fifteen enumerated 28 affirmative defenses. Plaintiff now brings a Motion to Strike Defendants' Answers and 14cv02766 Dockets.Justia.com 1 Affirmative Defenses. Under Civil Local Rule 7.1.d.1., the Court decides the matter on the 2 papers submitted and without oral argument. 3 I. PROCEDURAL BACKGROUND 4 On November 19, 2014, Plaintiff filed the Complaint, which named Jose Alberto Olivo 5 and Juan Pablo Martinez, both individually and d/b/a Club Caribe, as well as Club Caribe 6 (“Caribe”) as an unknown business entity. However, Caribe was not properly served with a 7 summons and therefore not initially a party to this action. Accordingly, when Defendants Olivo, 8 Martinez, and Caribe each filed an Answer to the Complaint, the Court struck the Answer filed 9 by Caribe. Summons for Caribe was reissued and Caribe was properly served. Before Caribe 10 filed an answer, Plaintiff brought a Motion to Strike Defendants' Answers and Affirmative 11 Defenses against Defendants Olivo and Martinez. When Caribe filed its Answer, Plaintiff 12 brought a motion to strike against it as well. As the Answers of Olivo, Martinez, and Caribe are 13 identical except for cosmetic differences and the filing parties, and the motions to strike brought 14 against those answers are substantively the same, this Court will consider them together for 15 purposes of this Order. Further, as Defendants' Opposition to Plaintiff's Motion to Strike was 16 filed before the deadline for Caribe to file an opposition, this Court will consider it to be timely. 17 II. LEGAL STANDARD 18 When responding to pleadings a party must "state in short and plain terms its defenses to 19 each claim asserted against it" and when contesting an allegation "a denial must fairly respond to 20 the substance of the allegation." FED. R. CIV. P. 8(b)(1)-(2). 21 Affirmative defenses must give the plaintiff "fair notice of the defense." Wyshak v. City 22 National Bank, 607 F.2d 824, 827 (9th Cir. 1979). This does not require detailed factual support 23 for the defense but must make clear the basis for the defense. See Conley v. Gibson, 355 U.S. 41, 24 47-48 (1957). An affirmative defense which negates an element of a plaintiff's claim is not an 25 affirmative defense but an answer to that claim. Zivkovic v. Southern Cal. Edison, 302 F.3d 26 1080, 1088 (9th Cir. 2002). The Ninth Circuit has declined to extend the heightened pleading 27 standard promulgated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), to affirmative 28 defenses. Kohler v. Islands Restaurants, LP, 280 F.R.D. 560, 565-66 (S.D. Cal. 2012) (Whelan, 14cv02766 2 1 J.); see Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1023 (9th Cir. 2010). 2 A court may strike "an insufficient defense or any redundant, immaterial, impertinent or 3 scandalous material" from a pleading. FED. R. CIV. P. 12(f). However, motions to strike are not 4 widely favored, see Colaprico v. Sun Microsystems, Inc., 758 F. Supp. 1335, and leave to amend 5 stricken pleadings should be freely granted. FED. R. CIV. P. 15(a)(2); Forman v. Davis, 371 U.S. 6 178 (1962). 7 III. DISCUSSION 8 Plaintiff's Motion to Strike argues both that Defendants' answers (i.e., responses to the 9 allegations enumerated in the complaint) are invalid, and Defendants' affirmative defenses are 10 not legally sufficient. The Court will consider the two separately. 11 A. Answers to Allegations 12 Plaintiff's complaint contains forty-eight allegations and includes four separate counts. 13 The first nineteen allegations address jurisdiction and the parties to the matter, as well as other 14 allegations general to all counts. Beginning with the twentieth allegation, the complaint is 15 broken into four counts, with all preceding allegations reincorporated into each count. In their 16 Answer to the complaint, Defendants list four counts but merely state that "Defendant denies 17 each and every allegation of the complaint" by means of response to each of the counts. (Answer 18 at 2.) Defendants' answers to the allegations of the Complaint are insufficient. 19 Under Rule 8(b), parties may either respond to allegations individually or submit a 20 general denial of the entire pleading. FED. R. CIV. P. 8(b)(3). If a party wishes to submit a 21 general denial, they must seek to deny all facets of the complaint, or deny all allegations except 22 those specifically designated for admission. Id. at (c). Otherwise a party must address the 23 substance of each allegation. Id. at (b). In this case, Defendants' answers satisfy neither 24 requirement. Some allegations cannot be disputed in good faith. For example, Defendants 25 Martinez and Olivo are indeed identified on the liquor license issued to Club Caribe as alleged in 26 the complaint. (Compl. at 8, 10.) Therefore, a general denial is not valid. As the denials do not 27 address the substance of any counts, the answers are also invalid as a response to individual 28 allegations. 14cv02766 3 1 In light of these deficiencies, Defendants' answers are stricken with leave to amend. 2 Defendants should take care to review the substance of the allegations before submitting an 3 amended answer. Defendants should only deny those allegations which they intend to contest. 4 B. 5 Defendants' affirmative defenses are insufficient as a matter of law. The defenses are Affirmative Defenses 6 either denials of the elements of the complaint, are irrelevant to the claims alleged, or do not 7 state sufficient facts to put Plaintiff on notice of the grounds for the defense. 8 The first affirmative defense states that the claim in this case has been settled by accord 9 and satisfaction. Similarly, the ninth affirmative defense claims that "the debt. . . has been paid 10 in full by Defendant according to agreement by the parties." (Answer at 2, 4.) Accord and 11 satisfaction is normally a defense in contract law. As Plaintiff has not alleged a breach of 12 contract, accord and satisfaction is inappropriate. Further, neither of these affirmative defenses 13 contain sufficient factual statements to put Plaintiff on notice of the circumstances under which 14 Defendant allegedly made payment which settled the present dispute. Therefore, the first and 15 ninth affirmative defenses are stricken with leave to amend. 16 Next, Defendants allege that Plaintiff's claim is barred by assumption of risk because 17 Plaintiff "engag[ed] in transactions with Defendant for the distribution of goods[.]" (Answer at 18 2.) While normally a defense in tort law, this application of assumption of risk relies on the 19 existence of a contract between Plaintiff and Defendants. As stated above, Plaintiff has not 20 alleged a contract claim and so this defense is invalid. Even in its most basic form, assumption of 21 risk would be inappropriate as currently alleged because Plaintiff cannot reasonably be expected 22 to assume the risk of illegal interception of their broadcast by third parties. Defendants' second 23 affirmative defense is stricken with leave to amend. 24 The third affirmative defense alleges that Plaintiffs injuries "were the direct result of 25 Plaintiff's own negligence apart from any negligence of the Defendant. Plaintiff's negligence 26 consisted of channel stuffing and other unfair business practices." (Answer at 2-3.) This is 27 invalid for two reasons. First, Plaintiff does not make any claims based on a negligence 28 14cv02766 4 1 standard,1 so stating that Defendants' negligence was not causal of Plaintiff's injury is 2 inapposite. Second, although comparative negligence can bear on strict liability claims, see Daly 3 v. General Motors Corp., 20 Cal.3d 725, 737 (Cal. 1978), the alleged negligence of Plaintiff has 4 no discernible relationship to this case. Defendants' third affirmative defense is stricken with 5 leave to amend. 6 Defendants' fourth, sixth, seventh, and tenth affirmative defenses each state that Plaintiff's 7 claims are barred because the contract under which they are brought is unenforceable. This is 8 immaterial as Plaintiff has not alleged any cause of action based on a contract claim. There is no 9 possibility for Defendant to cure these affirmative defenses, as alleging that there was a contract 10 between Plaintiff and Defendants would be a denial of elements of the complaint. Accordingly, 11 Defendants’ fourth, sixth, seventh, and tenth affirmative defenses are stricken without leave to 12 amend. 13 The fifth defense states that "Plaintiff's claim is barred by estoppel because Plaintiff took 14 action unilaterally in its business dealing with Defendant and assured Defendant that it would 15 not be held responsible for consequent harm. Defendant relied on Plaintiff's representation[.]" 16 (Answer at 3.) Defendant asserts nothing that indicates the nature of the alleged business 17 dealings with Plaintiff or the purported statements on which Defendant relied. Defendants' fifth 18 affirmative defense is stricken with leave to amend. 19 Defendants' eighth affirmative defense states that there was a license agreement between 20 Plaintiff and Defendant. This is not an affirmative defense but a direct refutation of the claims 21 made by Plaintiff. The eighth defense is stricken without leave to amend. 22 Defendants eleventh and twelfth defenses assert that Plaintiff cannot recover because of 23 waiver and unclean hands, respectively. These doctrines are normally grounded in principles of 24 25 1 Plaintiff’s claims are all based on a strict liability. See 47 U.S.C. §§ 553(a), 605(a) (statute contains no willfulness requirement for determining liability); See also Ortega v. Toyota 26 Motor Sales, USA, Inc., 572 F. Supp. 2d 1218, 1220 (S.D. Cal. 2008) (Sabraw, J.) (holding no 27 volitional act requirement necessary for a conversion claim); See also CAL. BUS. & PROF. CODE § 17206 (listing willfulness of a defendant’s misconduct as a factor for determining the amount 28 of penalties but not for determining liability). 14cv02766 5 1 contract law. As there is no contract breach alleged in the complaint, they are superfluous to the 2 instant case. Further, both defenses allege that Plaintiff broadcast the Program to Defendants 3 intentionally. This is a refutation of Plaintiff's assertions in the complaint, rather than an 4 affirmative defense. For these reasons, the eleventh and twelfth affirmative defenses are stricken 5 without leave to amend. 6 In the thirteenth affirmative defense, Defendants contend that Plaintiff's claim is barred 7 by laches. Laches is common law doctrine, usually reserved for matters in equity, barring claims 8 made after long delays that prejudice the party they are brought against. See Black's Law 9 Dictionary 1006 (10th ed. 2014). As this case is not one of equity, laches is inappropriate. Even 10 if an equitable doctrine were proper in this instance, there has not been sufficient time to merit 11 invocation of laches. The underlying purpose of laches is analogous to a statute of limitations in 12 modern law. None of the claims brought by Plaintiff has passed their respective statutes of 13 limitations.2 If the statute of limitations has not passed, invoking laches would hardly be 14 appropriate. As such, Defendants' thirteenth affirmative defense is stricken without leave to 15 amend. 16 Defendants' fourteenth affirmative defense alleges that Defendant acted in "good faith and 17 observed all reasonable standards[.]" (Answer at 5.) The fifteenth affirmative defense alleges 18 that "any unauthorized publication was not caused by a volitional act attributable to the 19 Defendant." Id. Essentially, both of these defenses assert that Defendant had no intent to illegally 20 intercept and broadcast the Program. However, as of Plaintiff's claims are all based on a strict 21 liability standard, see supra note 1, a lack of volitional intent on the part of Defendants is 22 immaterial. Therefore, the fourteenth and fifteenth affirmative defenses are stricken without 23 leave to amend. Insofar as these affirmative defenses claim that Defendants were "assured by 24 Plaintiff" that they would not be harmed, (Answer at 5), those assertions would be more 25 26 2 J & J Sports Productions, Inc. v. Pacis, WL 5245281 at 2 (N.D. Cal. 2008) (holding a one-year statute of limitations for claims under 47 U.S.C. §§ 553 and 605); CAL. CODE CIV. 27 PROC. § 338(c) (giving a three-year limitation on actions for taking, detaining, or injuring goods or chattels); CAL. BUS. & PROF. CODE § 17208 (setting the statute of limitations for causes of 28 action under that chapter at four years). 14cv02766 6 1 appropriate as part of an estoppel defense. 2 All of Defendants' affirmative defenses are defective either because they are denials of 3 Plaintiff's allegations, they are inapposite to the causes of action, or because they contain 4 insufficient facts to put Plaintiff on notice of the nature of the affirmative defense. For these 5 reasons, all of Defendants' affirmative defenses are stricken. The Court envisions situations 6 where some of the affirmative defenses could be cured by Defendants. Accordingly, defenses 7 which can be cured are stricken with leave to amend. Defendants should take care to amend 8 defenses to give Plaintiff fair notice about the substance of the defense. Further, Defendants 9 should only include assertions responsive to claims alleged by Plaintiff. 10 IV. CONCLUSION & ORDER 11 For the foregoing reasons, Plaintiff's Motion to Strike Defendants’ Answers and 12 Affirmative Defenses is GRANTED with respect to both the answers to allegations and 13 affirmative defenses. The answers to Plaintiff's claims may be cured. Therefore, the answers are 14 stricken with LEAVE TO AMEND. Some of Defendants' affirmative defenses may be rectified. 15 As such, affirmative defenses one, two, three, five, and nine are stricken with LEAVE TO 16 AMEND. The rest of Defendants' affirmative defenses cannot be cured. Accordingly, defenses 17 four, six, seven, eight, ten, eleven, twelve, thirteen, fourteen, and fifteen are stricken 18 WITHOUT LEAVE TO AMEND. Any Amended Answers or defenses must be filed within 19 fourteen (14) days of this order. 20 IT IS SO ORDERED. 21 DATED: June 8, 2015 22 23 M. James Lorenz United States District Court Judge 24 COPY TO: 25 HON. BERNARD G. SKOMAL UNITED STATES MAGISTRATE JUDGE 26 27 ALL PARTIES/COUNSEL 28 14cv02766 7
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