Winns v. Exela Enterprise Solutions Inc, No. 4:2020cv06762 - Document 93 (N.D. Cal. 2021)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS MOTION TO STRIKE DEFENDANTS PURPORTED AFFIRMATIVE DEFENSES; ORDER DENYING PLAINTIFFS MOTION FOR JUDGMENT ON THE PLEADINGS by Judge Yvonne Gonzalez Rogers; granting in part and denying in part 73 Motion to Strike 73 Second MOTION to Strike Defendant Exela Enterprise's Purported Affirmative Defenses, 75 Second MOTION for Judgment on the Pleadings ; denying 75 Motion for Judgment on the Pleadings. Defendant's Amended Answer due by 12/15/2021. (fs, COURT STAFF) (Filed on 12/1/2021)
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Winns v. Exela Enterprise Solutions Inc Doc. 93 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 HARRIS LEE WINNS, Plaintiff, 8 v. 9 10 EXELA ENTERPRISE SOLUTIONS, INC., Defendant. 11 United States District Court Northern District of California Case No. 4:20-cv-06762-YGR ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S PURPORTED AFFIRMATIVE DEFENSES; ORDER DENYING PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS Re: Dkt. Nos. 73, 75 12 The Court has reviewed the briefing on the current pending motions: a motion to strike 13 14 defendant’s purported affirmative defenses and a motion for judgment on the pleadings filed by 15 pro se plaintiff Harris Lee Winns. (See Dkt. Nos. 73, 75.) Having carefully reviewed the record, 16 the papers submitted on each motion, and for the reasons set forth more fully below, the Court 17 HEREBY ORDERS as follows: (1) the motion to strike affirmative defenses raised in defendant 18 Exela Enterprise Solutions, Inc.’s amended answer is GRANTED IN PART AND DENIED IN PART; 19 and (2) the motion for judgment on the pleadings is DENIED.1 20 21 I. Background The Court assumes familiarity with the factual background of the case. However, the 22 procedural posture is worth highlighting to the extent it bares on the motions pending before the 23 Court. Plaintiff filed his first amended complaint on June 30, 2021. (Dkt. No. 56.) The first 24 amended complaint includes at least twelve causes of action raised under federal and state law. 25 Defendant answered the first amended complaint on July 14, 2021. (Dkt. No. 57.) Plaintiff then 26 27 28 1 Plaintiff did not notice the motions consistent with the Civil Local Rules so no hearing has been set on these motions. However, pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the Court finds that the motions are appropriate for decision without oral argument. Dockets.Justia.com 1 moved to strike defendant’s purported affirmative defenses and for a judgment on the pleadings. 2 (Dkt. Nos. 58, 60). Defendant opposed both motions with a cursory analysis. (Dkt. Nos. 63, 64.) 3 In light of the defendant’s failure to adequately oppose the motion to strike, and given plaintiff’s 4 pro se status, the Court granted plaintiff’s motion to strike. (Dkt. No. 70.) The motion for 5 judgment on the pleadings was denied because the defendant was given leave to amend the 6 answer. (Id.) Defendant filed an amended answer on October 18, 2021. (Dkt. No. 72.) Within three United States District Court Northern District of California 7 8 days, plaintiff refiled the motion to strike the purported affirmative defenses and the motion for 9 judgment on the pleadings. (Dkt. Nos. 73, and 75.) These motions are substantially similar to 10 those previously filed by the plaintiff. While defendant’s have opposed both motions, the plaintiff 11 has not filed a reply. Plaintiff’s failure to reply does not change the outcome of the pending 12 motions. 13 II. Motion to Strike Defendant’s Purported Affirmative Defenses 14 A. Legal Standard 15 Federal Rule of Civil Procedure 12(f) allows a court to strike “redundant, immaterial, 16 impertinent, or scandalous matter” from a pleading. A court may grant a motion to strike where 17 “the matter to be stricken clearly could have no possible bearing on the subject of the litigation.” 18 In re Arris Cable Modem Consumer Litig., No. 17-CV-01834-LHK, 2018 U.S. Dist. LEXIS 1817, 19 2018 WL 288085, at *5 (N.D. Cal. Jan. 4, 2018) (citation omitted). The purpose of a Rule 12(f) 20 motion is to “avoid the expenditure of time and money that must arise from litigating spurious 21 issues by dispensing with those issues prior to trial.” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 22 880, 885 (9th Cir. 1983). 23 Further, because Rule 12(f) motions are disfavored, “courts often require a showing of 24 prejudice by the moving party before granting the requested relief.” Sanchez v. City of Fresno, 25 914 F. Supp. 2d 1079, 1122 (E.D. Cal. 2012) (quoting Cal. Dep’t of Toxic Substances Control v. 26 Alco Pac., Inc., 217 F. Supp. 2d 1028, 1033 (C.D. Cal. 2002)). “If there is any doubt whether the 27 portion to be stricken might bear on an issue in the litigation, the court should deny the motion.” 28 Holmes v. Elec. Document Processing, Inc., 966 F. Supp. 2d 925, 930 (N.D. Cal. 2013) (citation 2 1 omitted). It is within the sound discretion of the district court whether to grant a motion to strike. 2 See Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (citation omitted). “An affirmative defense is an assertion raising new facts and arguments that, if true, will United States District Court Northern District of California 3 4 defeat plaintiff’s claim, even if all allegations in [the] complaint are true.” Bay Area Roofers 5 Health & Welfare Tr. v. Sun Life Assurance Co. of Can., No. 13-CV-04192-WHO, 2013 U.S. Dist. 6 LEXIS 178502, at *5 (N.D. Cal. Dec. 19, 2013) (citation omitted). A defense that “demonstrates a 7 plaintiff has not met its burden of proof,” or that “merely negates an element that [a plaintiff] was 8 required to prove” is not an affirmative defense. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 9 1088 (9th Cir. 2002). In pleading affirmative defenses, a defendant must allege sufficient facts to 10 “nudge[] their [legal] claims across the line from conceivable to plausible. See Bell Atl. Corp. v. 11 Twombly, 550 U.S. 544, 570 (2007); Barnes v. AT & T Pension Ben. Plan-Nonbargained 12 Program, 718 F. Supp. 2d 1167, 1172 (N.D. Cal. 2010) (applying the plausibility standard to 13 affirmative defenses). While this standard does not require extensive factual allegations, mere 14 labels and conclusions do not suffice to put a plaintiff, especially pro se, on notice. Ashcroft v. 15 Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). When determining the legal 16 sufficiency of an affirmative defense on a motion to strike, the court “may not resolve disputed 17 and substantial factual or legal issues in deciding” the motion. Whittlestone, Inc., 618 F. 3d at 18 973. 19 Where a court strikes an affirmative defense, leave to amend should be freely given so long 20 as there is no prejudice to the moving party. Wyshak v. City Nat. Bank, 607 F.2d 824, 826 (9th 21 Cir. 1979). 22 B. Discussion 23 Plaintiff moves to strike all of the affirmative defenses raised in the defendant’s amended 24 answer. This is the second motion of its kind and parts of plaintiff’s motion are a copy and paste 25 of inapplicable portions of plaintiff’s previous motion. For example, plaintiff’s motion does not 26 address the text of defendant’s amended answer with respect to the third, fourth, fifth, seventh, 27 eighth, ninth, and tenth affirmative defenses. It also completely fails to address any of the facts 28 alleged in the amended answer. The Court considered sanctioning plaintiff for the filing of a 3 1 frivolous and harassing motion which did not meet the basic standards of such a disfavored 2 motion. However, as noted below, defendant is equally at fault. Plaintiff is hereby warned that 3 the Court will deal with any such similar filings in the future summarily and may sua sponte 4 inquire on the appropriateness of sanctions. Not surprisingly, defendant’s opposition is once again 5 a boilerplate rejection of plaintiff’s arguments with little legal analysis. Defendant is hereby 6 warned that it should not summarily reject plaintiff’s arguments simply because he is pro se. As 7 demonstrated in this Order, plaintiff raises meritorious arguments. Defendant’s approach already 8 resulted in a concession of arguments in plaintiff’s first motion to strike affirmative defense. 9 10 United States District Court Northern District of California 11 12 Both parties’ tactics impose substantial burdens on the Court where motions to strike are disfavored. Nevertheless, the Court addresses each purported affirmative defense in turn. i. Failure to State a Claim As plaintiff argued in its motion, failure to state a claim is not an affirmative defense. See 13 Zivkovic, 302 F.3d at 1088 (“A defense which demonstrates that plaintiff has not met its burden of 14 proof is not an affirmative defense.”); Barnes, 718 F. Supp. 2d at 1174 (“Failure to state a claim is 15 not a proper affirmative defense but, rather, asserts a defect in [plaintiff’s] prima facie case.”). 16 Defendant does not address this argument in its opposition and effectively concedes the point. 17 Accordingly, the Court GRANTS plaintiff’s motion to strike defendant’s failure to state a claim 18 defense without leave to amend, but defendant is not barred from raising an otherwise valid 19 motion pursuant to Rule 12. 20 ii. Failure to Exhaust Administrative Remedies 21 Plaintiff erroneously argues that failure to exhaust administrative remedies is not an 22 affirmative defense. See Kraus v. Presidio Tr. Facilities Div./Residential Mgmt. Branch, 572 F.3d 23 1039, 1046 n.7 (9th Cir. 2009) (“Whether a plaintiff in a Title VII action has timely exhausted her 24 administrative remedies ‘is an affirmative defense, [so] the defendant bears the burden of pleading 25 and proving it.” (citation omitted)). Moreover, plaintiff’s motion to strike effectively concedes 26 that the allegations provide sufficient notice with respect to the EEOC investigation since plaintiff 27 quotes correspondence from that investigation in order to refute defendant’s assertion. Resolving 28 fact disputes is improper on a motion to strike. Whittlestone, Inc., 618 F. 3d at 973. Accordingly, 4 1 the Court DENIES plaintiff’s motion to strike defendant’s failure to exhaust administrative 2 remedies defense. iii. Equitable Doctrines 3 United States District Court Northern District of California 4 Defendant’s third affirmative defense alleges that plaintiff’s causes of action are “barred 5 under doctrine of laches, consent, waiver, estoppel and unclean hands.” (Dkt. No. 72 at 30.) 6 These are typical and well established affirmative defenses. However, the additional facts that 7 defendant has alleged do not provide sufficient notice of the defenses and makes it difficult to 8 decipher what defense the defendant is actually raising. For instance, defendant alleges “Plaintiff 9 acted inequitably . . . including, but not limited to, unreasonable delay in bringing the instant 10 lawsuit and/or refusing Defendant’s efforts to assist Plaintiff in mitigating his alleged damages.” 11 (Id.) It further alleges that “any of Plaintiff’s claims based on wages he received from Defendant 12 lack merit because Plaintiff expressly consented to that wage rate, and therefore his claims are 13 estopped, waived, and/or barred by doctrine of laches.” (Id.) Plaintiff objected to this approach 14 on the basis that it “improperly and confusingly combines several defenses under a single heading 15 rather than pleading them separately and showing which apply, per Fed. R. Civ. P. 8.” (Dkt. 73 at 16 12 (citation omitted)). Defendant did not address this point and effectively concedes the 17 argument. 18 In any event, the Court agrees with plaintiff. For instance, the defendant alleges that the 19 wage rate was consented to and is therefore barred by the doctrine of laches. Based on 20 defendant’s own pleading these are different doctrines. Therefore, sufficient notice has not been 21 provided. Accordingly, the Court GRANTS plaintiff’s motion to strike the equitable doctrines 22 defense with leave to amend. Defendant is cautioned to avoid duplication. 23 24 iv. Exclusive Remedy Defendant alleges that plaintiff’s claims for “emotional damages are barred because the 25 exclusive remedy for Plaintiff’s alleged emotional distress, if any, is before the California 26 Workers’ Compensation Appeals Board pursuant to the exclusive remedy provisions of the 27 California Workers’ Compensation Act. See California Labor Code section 3600 et seq.” (Dkt. 28 No. 72 at 30.) Plaintiff properly cited authority that California’s Workers’ Compensation Act 5 1 does not preclude employees from recovering on discrimination claims. See, e.g., Maynard v. City 2 of San Jose, 37 F.3d 1396, 1405-06 (9th Cir. 1994) (“Personal injury claims that implicate 3 fundamental public policy considerations are not preempted by the Workers’ Compensation 4 Act.”); Buckley v. Gallo Sales Co., 949 F. Supp. 737, 746 (N.D. Cal. 1996) (holding that the 5 exclusive remedy provisions do not preclude employees from pursing discrimination claims under 6 FEHA). Defendant did not state any opposition to these points raised by plaintiff and effectively 7 conceded the argument. Accordingly, the Court GRANTS plaintiff’s motion to strike the exclusive 8 remedy defense without leave to amend. 9 United States District Court Northern District of California 10 v. Internal Remedies Defendant asserts that each of plaintiff’s causes of action are “barred in whole or in part 11 because Defendant had in place internal complaint policies and procedures, including policies and 12 procedures prohibiting unlawful discrimination and retaliation and, upon information and belief, 13 Plaintiff failed to avail himself of available internal remedies before bringing this lawsuit.” (Dkt. 14 No. 72 at 30.) Defendant further alleges based upon information and belief “that it provided 15 plaintiff with express written instructions to immediately report any perceived instances of 16 discrimination . . . and that Plaintiff failed to notify Defendant of all of the alleged acts of 17 discrimination[.]” (Id. at 30-31.) The Court notes that the defense is subtitled “Internal 18 Remedies” though the information within the defense seems to indicate that plaintiff never 19 complained of the conduct at issue. Based on the allegations, it is unclear exactly what internal 20 remedies were available and what they required. Thus, defendant has not provided a sufficient or 21 plausible factual basis for the defense. Accordingly, the Court GRANTS plaintiff’s motion to strike 22 the internal remedies defense with leave to amend. 23 24 vi. After-Acquired Evidence The after-acquired evidence defense enables a defendant to limit damages if discovery 25 reveals the plaintiff committed a terminable offense before the alleged wrongful termination. 26 O’Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 759 (9th Cir. 1996). Plaintiff argues 27 that in McKennon v. Nashville Banner Publishing Company, 513 U.S. 352, 360-361 (1995), the 28 United States Supreme Court held that the after-acquired evidence defense does not bar a plaintiff 6 1 from pursuing all relief when discharged in violation of the ADEA. Defendant fails to address this 2 point in opposition. However, the Ninth Circuit has explained that “McKennon did not explicate 3 how after-acquired evidence should be treated in every situation, leaving this issue to be addressed 4 by the judicial system in the ordinary course of further decisions.” O’Day, 79 F.3d at 759 5 (internal quotation marks and citation omitted). This defense inherently prevents a defendant from 6 answering with specific facts because discovery must reveal a terminable offense. Therefore, the 7 defendant has adequately pled its after-acquired evidence defense. Accordingly, the Court DENIES 8 plaintiff’s motion to strike the after-acquired evidence defense. 9 United States District Court Northern District of California 10 vii. Legitimate Non-Discriminatory Reasons Plaintiff’s motion argues that this defense is not actually an affirmative defense. 11 Defendant’s do not address this argument in opposition and effectively conceded the point. In any 12 event, plaintiff is correct. Any “defense which demonstrates that a plaintiff has not met its burden 13 of proof is not an affirmative defense.” Zivkovic, 302 F.3d at 1087. Defendant’s claim that it had 14 legitimate grounds for terminating plaintiff's employment, as well as plaintiff’s rate of pay, does 15 not act as an independent defense. Instead, the assertion challenges plaintiff’s ability to show that 16 defendant acted because of plaintiff’s protected status. Nevertheless, courts deny motions to strike 17 when there is no prejudice resulting from the defense. See, e.g., Prods. & Ventures Int’l v. Axus 18 Stationary (Shanghai) Ltd., No. 16-cv-00669-YGR, 2017 U.S. Dist. LEXIS 55487, at *6-7 (N.D. 19 Cal. Apr. 11, 2017) (collecting cases). The termination and pay rate are central issues of this case. 20 Leaving in the defense will not prejudice plaintiff since discovery on this issue is inevitable. 21 Accordingly, the Court DENIES plaintiff’s motion to strike defendant’s legitimate non- 22 discriminatory reasons defense. 23 24 viii. Justified Criterion As a threshold issue, plaintiff’s motion is not directed at the factual allegations in the 25 amended answer. However, liberally construing the motion, plaintiff objects that “justified 26 criterion” is not an affirmative defense. Again, defendant does not address this specific point. 27 Nevertheless, plaintiff’s argument does not persuade. The Equal Pay Act identifies four statutory 28 7 1 exceptions to its equal-pay mandate.2 “The EPA’s four exceptions operate as affirmative 2 defenses.” Rizo v. Yovino, 950 F.3d 1217, 1222 (9th Cir. 2020). Thus, the affirmative defense is 3 sufficient at this stage. Accordingly, the Court DENIES plaintiff’s motion to strike defendant’s 4 justified criterion defense. ix. Privileged, Good Faith, and Justified Conduct 5 United States District Court Northern District of California 6 Again, plaintiff’s motion is not directed at the factual allegation in the amended answer. 7 Defendant has again failed to address the specific arguments raised by plaintiff’s motion. The 8 defense invokes California Labor Code section 2922, which states that “[a]n employment, having 9 no specified term, may be terminated at the will of either party on notice to the other.” Cal. Labor 10 Code § 2922. The crux of the defendant’s affirmative defense is that its conduct was justified 11 given the at-will employment contract. (Dkt. No. 72 at 32.) While not affirmatively raised in the 12 papers, the Court notes that “[a]t will employment is not a defense to a termination for 13 discriminatory reasons.” Equal Emp’t Opportunity Comm’n v. Cal. Psychiatric Transitions, Inc., 14 725 F. Supp. 2d 1100, 1118 (E.D. Cal. 2010); see also Freund v. Nycomed Amersham, 347 F.3d 15 752, 758 (9th Cir. 2003) (holding that employers may not terminate at-will employees for reasons 16 that violate public policy). Accordingly, the plaintiff’s motion to strike the privilege, good faith, 17 and justified conduct defense is GRANTED without prejudice to the defendant presenting relevant 18 evidence of plaintiff’s at-will employment status. 19 x. Avoidable Consequences 20 Plaintiff argues that the avoidable consequences defense is not an affirmative defense. 21 This is not so. “The defendant bears the burden of pleading and proving a defense based on the 22 avoidable consequences doctrine.” State Dep.t of Health Servs. v. Superior Court, 31 Cal. 4th 23 1026, 1044 (2003). Thus, inclusion of the affirmative defense is consistent with defendant’s 24 pleading burden. Plaintiff’s other objection relates to the factual basis provided in the initial 25 answer that the Court previously struck. Plaintiff’s objection here is not directed at the facts 26 27 28 2 The four identified exception are: “where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.” 29 U.S.C. § 206(d)(1). 8 1 included in the amended answer and is improper. Accordingly, the Court DENIES plaintiff’s 2 motion to strike the avoidable consequences defense. 3 4 Plaintiff objects to this defense on the basis that “this defense is pure comedy at best.” 5 (Dkt. No. 73 at 18.) While plaintiff may disagree with the facts as alleged, that is not a basis to 6 strike the defense. Courts routinely permit the pleading of a failure to mitigate defense without 7 specific factual allegations prior to the completion of discovery. See Fabian v. LeMahie, No. 8 4:19-cv-00054-YGR, 2020 U.S. Dist. LEXIS 109013, at *13-14 (N.D. Cal. June 19, 2020) 9 (collecting case and denying motion to strike failure to mitigate defense). Accordingly, the Court 10 11 United States District Court Northern District of California xi. Failure to Mitigate 12 DENIES plaintiff’s motion to strike the failure to mitigate defense. xii. Same Decision Defendant’s same decision defense would preclude plaintiff’s monetary damages, even if 13 there is a finding of discrimination or retaliation, if “Defendant would have made the same 14 decision to lay Plaintiff off in any case without regard to Plaintiff’s protected status.” (Dkt. No. 15 72 at 33.) Plaintiff’s motion does not dispute the existence of this defense and cites to case law 16 confirming its existence. Instead, plaintiff’s objection is concerned with the application of the 17 defense to the facts of his case. (Dkt. No. 73 at 18-19.) The Court does not resolve factual 18 disputes on a motion to strike. Plaintiff has not offered a proper basis to strike the same decision 19 defense. Accordingly, the Court DENIES plaintiff’s motion to strike the same decision defense. 20 21 xiii. No Malice, Oppression, or Fraud/Punitive Damages Unconstitutional Defendant’s thirteenth and fourteenth affirmative defenses concern the viability of punitive 22 damages. This is a legal defense. Plaintiff’s motion is concerned with defendant’s conduct as 23 applied to the facts of his case and not the sufficiency of the responsive pleading. Therefore, 24 plaintiff has not met his burden that defendant’s responses should be stricken. Accordingly, the 25 Court DENIES plaintiff’s motion to strike the thirteenth and fourteenth affirmative defenses. 26 27 28 xiv. No Attorney’s Fees The subtitle of this defense is entitled “No Attorney’s Fees.” (Dkt No. 72 at 34.) However, the body of the defense asserts that “[t]o the extent Plaintiff seeks compensatory and/or 9 United States District Court Northern District of California 1 punitive damages and/or attorney’s fees, Plaintiff is not entitled to them because Defendant did not 2 engage in unlawful, reckless, willful, wanton, or malicious conduct towards Plaintiff or with intent 3 to injure him and Plaintiff is representing himself in this matter.” Based on the conclusory 4 allegations, it is unclear exactly what the scope of this defense is, especially for a pro se plaintiff. 5 Thus, defendant has not provided a sufficient or plausible factual basis for the defense. 6 Furthermore, the award of attorney fees is not an affirmative defense because it does not preclude 7 the liability of defendant. Barnes, 718 F. Supp. 2d at 1174 (“The award of attorney’s fees does 8 not act to preclude a defendant’s liability even if a plaintiff proves all of the required elements of 9 the cause of action.”). Accordingly, the Court GRANTS plaintiff’s motion to strike the “No 10 Attorney’s Fees” defense without leave to amend and without any prejudice to the defendant to 11 challenge any future award of fees. 12 xv. No Vicarious Liability 13 Vicarious liability is an affirmative defense in hostile work environment cases. See State 14 Dep’t of Health Servs., 31 Cal. 4th at 1040 (discussing the standard for supervisor liability under 15 FEHA as it applies in harassment cases). At this stage, plaintiff has not met his burden to 16 demonstrate that the defense is immaterial. His citation to relevant legal authority also 17 demonstrates that he has sufficient notice of the defense. Accordingly, the Court DENIES 18 plaintiff’s motion to strike the no vicarious liability defense. 19 xvi. Truth 20 In short, defendant’s truth defense asserts that the “defamation/libel/slander claims are 21 barred because all of Defendant’s communications to or regarding Plaintiff were accurate, true 22 and/or privileged.” (Dkt. No. 72 at 35.) “In defamation actions generally, factual truth is a 23 defense which it is the defendant’s burden to prove.” City of Costa Mesa v. D’Alessio 24 Investments, LLC, 214 Cal. App. 4th 358, 378 (2013) (citation omitted). Plaintiff’s motion 25 prematurely attacks the evidentiary merits of defendant’s defense. See Vora v. Equifax Info. 26 Servs., LLC, No. SACV 19-00302 AG (KESx), 2019 U.S. Dist. LEXIS 125350, at *7 (C.D. Cal. 27 May 29, 2019) (rejecting motion to strike on basis that factual challenge was premature). 28 Accordingly, the Court DENIES plaintiff’s motion to strike the truth defense. 10 xvii. Privileged Communication 1 Defendant asserts that “[t]he alleged statements supporting Plaintiff’s cause of action for United States District Court Northern District of California 2 3 defamation were privileged communications under California Civil Code § 47 or privileged under 4 California’s litigation privilege doctrine because any statements by Defendant, including those to 5 California’s Labor Commission and the EEOC, were made within the confides of an official 6 proceeding authorized by law. As a result, Defendant is informed and believes, and thereon 7 alleges, that the purported defamatory comments, if any, it made regarding plaintiff were 8 privileged as a matter of law.” (Dkt. No. 72 at 35.) Plaintiff has cited relevant legal authority in 9 opposition to defendant’s invocation of the privilege defense demonstrating that sufficient notice 10 was provided. While defendant failed to address plaintiff’s argument that that the Labor 11 Commission is not a “legislative” or “judicial” body, plaintiff’s argument does not change the 12 result. California Civil Code section 47(b) applies to “any other official proceeding authorized by 13 law” and has been interpreted as applying to government agencies. See Cal. Civ. Code § 47(b); 14 Cruey v. Gannett Co., 64 Cal. App. 4th 356, 368 (1998) (holding that the privilege applied to 15 investigative communications with the EEOC). Accordingly, the Court DENIES plaintiff’s motion 16 to strike the privileged communication defense. 17 III. Motion for Judgment on the Pleadings This is plaintiff’s second motion for judgment on the pleadings. It appears to be the same 18 19 motion that this Court already denied. Nothing has changed that requires a different result. 20 “[U]nder Federal Rule of Civil Procedure 12(c), a plaintiff is not entitled to judgment on the 21 pleadings if the defendant’s answer raises issues of fact or affirmative defenses.” Pit River Tribe 22 v. BLM, 793 F.3d 1147, 1159 (9th Cir. 2015). This was done here and the Court is permitting 23 defendant leave to amend its amended answer for a second time. Therefore, the motion for 24 judgment on the pleadings is DENIED. 25 IV. 26 27 28 Conclusion For the foregoing reasons, the Court HEREBY ORDERS as follows: (1) The motion to strike is DENIED as to the following affirmative defenses: Number Two (Failure to Exhaust Administrative Remedies); Number Six (After-acquired 11 1 Evidence); Number Seven (Legitimate, Non-discriminatory Reasons); Number 2 Eight (Justified Criterion); Number Ten (Avoidable Consequences); Number 3 Eleven (Failure to Mitigate); Number Twelve (Same Decision); Number Thirteen 4 (No Malice, Oppression, or Fraud); Number Fourteen (Punitive Damages 5 Unconstitutional); Number Sixteen (No Vicarious Liability); Number Seventeen 6 (Truth); and Number Eighteen (Privileged Communications); 7 (2) 8 affirmative defenses: Number One (Failure to State a Cause of Action); Number 9 Four (Exclusive Remedy); Number Nine (Privileged, Good Faith, Justified Conduct); and Number Fifteen (Attorney’s Fees); 10 11 United States District Court Northern District of California The motion to strike is GRANTED without leave to amend as to the following (3) The motion to strike is GRANTED with leave to amend as to the following 12 affirmative defenses: Number Three (Equitable Doctrines) and Number 5 (Internal 13 Remedies); and 14 15 (4) The motion for judgment on the pleadings is DENIED. Defendant shall file a second amended answer within fourteen (14) days of the date of this 16 Order. Plaintiff is prohibited from filing a motion to strike with respect to defendant’s amendment 17 to those two affirmative defenses without permission from the Court. Plaintiff is also prohibited 18 from filing a motion for judgment on the pleadings without permission from the Court. 19 This Order terminates Docket Numbers 73 and 75. 20 IT IS SO ORDERED. 21 Dated: December 1, 2021 22 23 YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT JUDGE 24 25 26 27 28 12
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