Roe v. San Diego, City of et al, No. 3:2012cv00243 - Document 61 (S.D. Cal. 2013)
Court Description: ORDER Granting In Part and Denying In Part 30 Plaintiff's Motion to Strike Affirmative Defenses. (1) The Court Strikes Without Leave to Amend affirmative defenses two, six, and twenty-two with respect to Defendant City. (2) The Court Denies Plaintiff's motion to strike affirmative defenses two, six, and twenty-two with respect to the Individual Defendants. (3) The Court Strikes Without Leave to Amend affirmative defenses five and twenty-six. (4) The Court Strikes With Leave to Ame nd affirmative defenses eleven, twelve, and thirteen. (5) The Court Denies Plaintiff's motion to strike affirmative defenses three, four, seven, nine, ten, fourteen, seventeen, eighteen, and nineteen. (6) The Court Strikes Without Prejudice affirmative defenses fifteen and twenty-one. Defendants' first amended answer, if any, is due on or before March 26, 2013. Signed by Judge Thomas J. Whelan on 3/5/2013. (srm)
Download PDF
<![CDATA[
Roe v. San Diego, City of et al Doc. 61 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JANE ROE, 12 Plaintiff, 13 ORDER GRANTING-IN-PART AND DENYING-IN-PART PLAINTIFF’S MOTION TO STRIKE AFFIRMATIVE DEFENSES [DOC. 30] v. 14 15 CASE NO. 12-CV-0243-W-(WVG) CITY OF SAN DIEGO, et al., 16 Defendants. 17 18 Pending before the Court is Plaintiff’s motion to strike affirmative defenses from 19 the answer filed on behalf of Defendants Police Chief William Lansdowne, former 20 police officer Kevin Friedman (collectively, the “Individual Defendants”), and the City 21 of San Diego. Defendants oppose. 22 The Court decides the matter on the papers submitted and without oral 23 argument. See CIV. L. R. 7.1(d.1). For the reasons discussed below, the Court 24 GRANTS-IN-PART and DENIES-IN-PART Plaintiff’s motion to strike [Doc. 30]. 25 26 I. BACKGROUND 27 On January 19, 2012, Plaintiff Jane Roe initiated this action against Police Chief 28 William Lansdowne, former Police Officers Anthony Arevalos and Kevin Friedman, -1- 12cv0243w Dockets.Justia.com 1 and the City of San Diego. Plaintiff asserts three causes of action under Title 42 U.S.C. 2 § 1983: (1) violation of civil rights; (2) unlawful custom and practice; and (3) violation 3 of civil rights due to city-wide policy. (See First Amended Compl. (“FAC”) [Doc. 8].) 4 According to the FAC, Officer Arevelos sexually assaulted Plaintiff while he was 5 on duty. (FAC, ¶ 8.) Plaintiff also alleges that Officer Arevalos had a history of acting 6 inappropriately towards women while on duty, and that Chief Lansdowne and Arevelos’ 7 supervisor, Officer Friedman, were aware of the misconduct but did nothing to stop it. 8 (Id., ¶¶ 14, 16.) Plaintiff further alleges that the San Diego Police Department, under 9 the City’s authority, routinely fails to discipline abusive and dishonest police officers. 10 (Id., ¶ 29–30.) 11 On July 27, 2012, the City, Chief Lansdowne and Officer Friedman answered the 12 FAC and asserted twenty-six affirmative defenses. (See Answer, [Doc. 27].) Plaintiff 13 now seeks to strike all of the affirmative defenses or, in the alternative, to require these 14 Defendants to re-plead any insufficiently pled affirmative defenses under the standard 15 set forth in Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007) and Ashcroft 16 v. Iqbal, 556 U.S. 1937 (2009). In opposition, Defendants agree to strike seven of their 17 affirmative defenses, but argue that the Twombly / Iqbal standard should not be applied 18 to affirmative defenses.1 (Opp. [Doc. 36], pp. 2, 4.) 19 20 II. LEGAL STANDARD 21 Federal Rule of Civil Procedure 12(f) provides that a court “may strike from a 22 pleading an insufficient defense or any redundant, immaterial, impertinent, or 23 scandalous matter.” Id. “[T]he function of a 12(f) motion to strike is to avoid the 24 expenditure of time and money that must arise from litigating spurious issues by 25 dispensing with those issues prior to trial.” Sidney-Vinstein v. A.H. Robins Co., 697 26 F.2d 880, 885 (9th Cir. 1983). However, 12(f) motions are “generally regarded with 27 28 1 Defendants agreed to strike affirmative defenses one, eight, sixteen, twenty, twentythree, twenty-four, and twenty-five. (Opp’n, p. 4:23 – 24.) -2- 12cv0243w 1 disfavor because of the limited importance of pleading in federal practice, and because 2 they are often used as a delaying tactic.” Neilson v. Union Bank of Cal., N.A., 290 F. 3 Supp. 2d 1101, 1152 (C.D. Cal. 2003). Unless it would prejudice the opposing party, 4 courts freely grant leave to amend stricken pleadings. Wyshak v. City Nat’l Bank, 607 5 F.2d 824, 826 (9th Cir. 1979); see also Fed. R. Civ. P. 15(a)(2). 6 An affirmative defense may be insufficient as a matter of pleading or as a matter 7 of law. Sec. People, Inc. v. Classic Woodworking, LLC, 2005 WL 645592, at *2 (N.D. 8 Cal. 2005). “The key to determining the sufficiency of pleading an affirmative defense 9 is whether it gives the plaintiff fair notice of the defense.” Wyshack, 607 F.2d at 827 10 (citing Conley v. Gibson, 355 U.S. 41, 47–48 (1957)) (emphasis added); Simmons v. 11 Navajo, 609 F.3d 1011, 1023 (9th Cir. 2010); Schutte & Koerting, Inc. v. Swett & 12 Crawford, 298 Fed. Appx. 613, 615 (9th Cir. 2008). Fair notice generally requires that 13 the defendant state the nature and grounds for the affirmative defense. See Conley, 14 355 U.S. at 47. The defendant must articulate the affirmative defense clearly enough 15 that the plaintiff is “not a victim of unfair surprise.” Bd. of Trustees of San Diego Elec. 16 Pension Trust v. Bigley Elec., Inc., 2007 WL 2070355, at *2 (S.D. Cal. July 23, 2007) 17 (citing Woodfield v. Bowman, 193 F.3d 354, 362 (5th Cir.1999). It does not, however, 18 require a detailed statement of facts. Conley, 355 U.S. at 47– 48. Furthermore, an 19 affirmative defense is legally insufficient only if it clearly lacks merit “under any set of 20 facts the defendant might allege.” McArdle v. AT&T Mobility, LLC, 657 F. Supp. 21 1140, 1149–50 (N.D. Cal. 2009). 22 In addition to these rules, Plaintiff urges the Court to evaluate Defendants’ 23 affirmative defenses under the Twombly / Iqbal standard. Defendants oppose this 24 argument. District courts are split over this issue.2 25 26 2 District courts applying the Twombly / Iqbal standard to affirmative defenses include: Dion v. Fulton Friedman & Gullace LLP, 2012 WL 160221, at *2–3 (N.D. Cal. Jan. 17, 2012); 27 Barnes v. AT&T Pension Ben. Plan-Nonbargained Program, 718 F. Supp. 2d 1167, 1171–73 28 (N.D. Cal. 2010); Wine Group, L.L.C. v. L And R Wine Co., 2011 WL 130236 (E.D. Cal. Jan. 14, 2011); Vargas v. HWC Gen. Maint., LLC, 2012 WL 948892 (S.D. Tex. Mar. 20, 2012). -3- 12cv0243w 1 As an initial matter, this Court has twice evaluated this issue and refused to 2 extend the more stringent standard to affirmative defenses for several reasons.3 Most 3 significantly, the Ninth Circuit has continued to recognize the “fair notice” standard of 4 affirmative defense pleading even after Twombly and Iqbal. See Simmons, 609 F.3d at 5 1023; Schutte & Koerting, 298 Fed. Appx. at 615. This strongly suggests that the 6 Ninth Circuit does not believe the more stringent Twombly / Iqbal standard should be 7 applied to affirmative defenses. 8 Additionally, the Supreme Court’s analysis in Twombly and Iqbal is limited to 9 pleadings under Federal Rule of Civil Procedure 8(a)(2). See 129 U.S. at 1950; 550 10 U.S. at 555. Rule 8(a)(2) requires that the party stating a claim for relief provide “a 11 short and plain statement of the claim showing that the pleader is entitled to relief.” 12 Fed. R. Civ. P. 8(a)(2) (emphasis added). In contrast, Rule 8(c) – applicable to 13 affirmative defenses – only requires a responding party to “affirmatively state” its 14 defenses. Fed. R. Civ. P. 8(c) (emphasis added). 15 Furthermore, the Supreme Court’s discussion in Iqbal suggests that the 16 distinction in language between Rule 8(a)(2) and 8(c) is important. See 129 S. Ct. at 17 1950. Factual plausibility—which is the key difference between Twombly / 18 Iqbal pleading and “fair notice” pleading—is particularly suited to claim pleading 19 because Rule 8(a)(2) requires that the party “show[ ]” that it is entitled to relief. Id. 20 (“But where the well-pleaded facts do not permit the court to infer more than mere 21 22 District Courts refusing to apply Twombly / Iqbal, and instead applying the “fair notice” 23 standard, include: J&J Sports Prods., Inc. v. Scace, 2011 WL 2132723, at *1 (S.D. Cal. 2011); 24 Bayer CropScience AG v. Dow AgroSciences LLC, 2011 WL 6934557, at *1–2 (D. Del. Dec. 30, 2011); Joe Hand Promotions, Inc. v. Estradda, 2011 WL 2413257, at *5 (E.D. Cal. 2011); 25 Holdbrook v. SAIA Motor Freight Line, LLC, 2010 WL 865380, at *2 (D. Colo. 2010); 26 Bartronics, Inc. v. Power-One, Inc., 245 F.R.D. 532, 537 n.5 (S.D. Ala. 2007). 3 This Court has already declined to extend the Twombly/Iqbal standard on two previous occasions. See Kohler v. Islands Rests., LP, 280 F.R.D. 560 (S.D. Cal. 2012); Kohler 28 v. Staples the Office Superstore, LLC, 2013 WL 544058 (S.D. Cal. Feb. 12, 2013). 27 -4- 12cv0243w 1 possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that 2 the pleader is entitled to relief.’”) (quoting Fed. R. Civ. P. 8(a)(2)). Stating an 3 affirmative defense under Rule 8(c), however, does not require the pleader to “show” 4 entitlement to its defense.4 See Fed. R. Civ. P. 8(c). Applying the same pleading 5 standard to claims and affirmative defenses, despite this clear distinction in the rules’ 6 language, would run counter to the Supreme Court’s warning in Twombly that 7 legislative action, not “judicial interpretation,” is necessary to “broaden the scope” of 8 specific federal pleading standards. See 550 U.S. at 569 n. 14. 9 Finally, the Court is also persuaded by the District of Colorado’s recognized 10 distinction between the time plaintiff has to compose a complaint versus the time a 11 defendant has to answer it. See Holdbrook, 2010 WL 865380, at *2. As the court 12 explained, “it is reasonable to impose stricter pleading requirements on a plaintiff who 13 has significantly more time to develop factual support for his claims than a defendant 14 who is only given [21] days to respond to a complaint and assert its affirmative 15 defenses.” Id.; see Fed. R. Civ. P. 12(a). 16 For these reasons, the Court will review the sufficiency of Defendants’ affirmative 17 defenses under the “fair notice” pleading standard. 18 19 III. DISCUSSION 20 A. 21 22 Second, Sixth , and Twenty-Second Affirm ative Defenses - Good Faith , Exercise of Discretion, & Qualified Im m unity Defendants’ second, sixth, and twenty-second affirmative defenses all relate to 23 qualified immunity and the relationship between a public entity and its employees. The 24 second affirmative defense alleges that the City and its agents, officers, and employees 25 acted “in good faith and with a reasonable belief that their conduct was lawful and 26 4 Nor does pleading non-affirmative defenses under Rule 8(b)(1) require any type of “showing.” See Fed. R. Civ. P. 8(b)(1). Rule 8(b)(1) only requires the responding party to 28 “state in short and plain terms its defenses to each claim asserted against it.” Id. 27 -5- 12cv0243w 1 necessary[;]” the sixth affirmative defense states that the City and its agents, employees, 2 and police officers “are not liable for injuries resulting from acts or omissions which were 3 an exercise of discretion in the absence of a statute declaring such liability[;]” and the 4 twenty-second affirmative defense asserts qualified immunity. (See Answer, pp. 4–5, 8.) 5 Plaintiff argues that none of these affirmative defenses provide fair notice. The Court 6 disagrees with respect to the Individual Defendants. 7 Plaintiff alleges that Defendants’ conduct violated her civil rights. These 8 affirmative defenses put her on notice that the Individual Defendants will argue that 9 their alleged wrongful conduct – as outlined in the FAC – constituted an exercise of 10 discretion, was carried out in good faith, and/or under the protection of qualified 11 immunity. Indeed, ample case law describes the scope of these defenses, and at this 12 point in the litigation, the Individual Defendants need not elaborate further. 13 Furthermore, the Court looks with disfavor on 12(f) motions to strike and will not grant 14 such motions “if the insufficiency of the defense is not readily apparent.” J & J Sports 15 Productions, Inc. v. Romero, 2012 WL 2317566, at *1 (E.D. Cal. June 18, 2012). For 16 these reasons, the Court DENIES the motion to strike affirmative defenses two, six, 17 and twenty-two with respect to the Individual Defendants. 18 As for the City, though many government officials hold qualified immunity, 19 municipalities are not immune from liability for “good faith constitutional violations.” 20 Owen v. City of Independence, Mo., 445 U.S. 622, 650 (1980). Similarly, a 21 “municipality may not assert the good faith of its officers or agents as a defense to 22 liability under § 1983,” because “municipalities have no immunity from damages 23 liability flowing from their constitutional violations.” Owen, 445 U.S. at 638, 657. 24 Thus, although the Individual Defendants may assert qualified immunity, the City 25 cannot. Id.; Monell, 436 U.S. at 691; Arnold v. Cnty. of El Dorado, 2011 WL 902204 26 at *6 (E.D. Cal. Mar. 15, 2011) report and recommendation adopted, 2011 WL 27 4344178 (E.D. Cal. Sept. 14, 2011) (“[G]iven the case law that municipal entities 28 qualify for neither absolute or qualified immunity, plaintiff is free to pursue the entity -6- 12cv0243w 1 despite a finding of immunity for individuals, if she has otherwise pled a municipal 2 liability § 1983 claim.”) (citing Bateson v. Geisse, 857 F.2d 1300, 1304 (9th Cir.1988)). 3 Accordingly, the Court STRIKES WITHOUT LEAVE TO AMEND the second, 4 sixth, and twenty-second affirmative defenses with respect to the City. 5 6 B. 7 8 Th ird and Fourth Affirm ative Defenses - City Not Liable for Em ployee’s Actions if No Statute or if Em ployee is Im m une Defendants’ third affirmative defense asserts that the City is immune from 9 liability stemming from the acts or omissions of a public employee when there is no 10 statute declaring such liability. (Answer, p. 4.) Similarly, the fourth affirmative defense 11 asserts that the City is not liable for its employee’s actions or omissions if the employee 12 is immune from liability. (Id.) Plaintiff argues that neither of these defenses provide fair 13 notice. The Court disagrees. 14 Similar to the previously discussed affirmative defenses, the third and fourth 15 affirmative defenses put Plaintiff on notice that the City will argue that its liability is 16 essentially contingent on Plaintiff’s ability to prove the other defendants’ conduct was 17 unlawful. In short, these affirmative defenses are self explanatory, with the rules for 18 municipal liability under § 1983 well-developed in case law. See, e.g., Monell, 436 U.S. 19 658; Owen, 445 U.S. 622. Plaintiff will not be “the victim of unfair surprise” when the 20 City asserts these affirmative defenses. See Bd. of Trustees of San Diego Elec. Pension 21 Trust v. Bigley Elec., Inc., 2007 WL 2070355, at *2. Accordingly, the Court DENIES 22 Plaintiff’s motion to strike the third and fourth affirmative defenses. 23 24 C. Fifth Affirm ative Defense - Not Liable for Punitive Dam ages 25 In the fifth affirmative defense, Defendants argue that the City and its agents and 26 employees are not liable for punitive damages. (Answer, p. 5.) Defendants’ denial of 27 punitive damages is not an affirmative defense, but rather is an assertion that Plaintiff 28 has not proved essential elements of her claim. Zivkovic v. S. Cal. Edison Co., 302 F.3d -7- 12cv0243w 1 1080, 1088 (9th Cir. 2002) (“A defense which demonstrates that plaintiff has not met 2 its burden of proof is not an affirmative defense.”); Weddle v. Bayer AG Corp., 2012 3 WL 1019824, at *5 (S.D. Cal. Mar. 26, 2012). Defendants already denied Plaintiff’s 4 allegations. (See Answer, ¶13.) This defense is redundant and unnecessary. See Fed. 5 R. Civ. P. 12(f). Accordingly, the Court STRIKES WITHOUT LEAVE TO 6 AMEND Defendants’ fifth affirmative defense. 7 8 D. 9 10 Seventh Affirm ative Defense - Not Liable for Injuries from Judicial or Adm inistrative Proceedings The seventh affirmative defense asserts that the City and its agents, employees, 11 and police officers “are not liable while acting within the scope of their duties for 12 injuries resulting from judicial or administrative proceedings.” (Answer, p. 5.) Plaintiff 13 argues that this defense is irrelevant because none of her alleged injuries stem from such 14 proceedings. Defendants respond that Plaintiff was prosecuted for driving under the 15 influence of alcohol and that Defendants are not liable for any attorney’s fees Plaintiff 16 incurred as a result of her arrest. (Opp., p. 9:15 – 21.) In other words, Defendants 17 interpret paragraphs twenty and twenty-four of Plaintiff’s FAC as seeking attorney’s fees 18 from defending her DUI prosecution. (Id., pp. 9:21, 26 – 28.) 19 Upon reviewing the FAC, the Court finds that the FAC’s language does not 20 exclude the possibility that Plaintiff is seeking to recover damages from a DUI 21 conviction. Therefore, Defendants are entitled to assert this defense. The Court 22 DENIES Plaintiff’s motion to strike the seventh affirmative defense. 23 24 E. Ninth Affirm ative Defense - W rongful Acts Not Under Color of Law 25 The ninth affirmative defense asserts that the City and its agents, employees, and 26 police officers are not liable for violating Plaintiff’s civil rights because “the alleged 27 wrongful acts were not under color of any statute, ordinance, regulation, custom or 28 usage of the City of San Diego.” (Answer, p. 5.) Plaintiff contends that this statement -8- 12cv0243w 1 is not fair notice because Defendants did not supply any supporting facts. Defendants 2 respond that Plaintiff has not yet supplied “an inclusive list of all of the alleged acts that 3 constitute the alleged violation(s) of Plaintiff’s rights,” so Defendants assert this defense 4 against any possible allegation that Officer Arevelos acted under color of law during the 5 alleged sexual assault. Defendant argues that this affirmative defense goes to the first 6 element of Plaintiff’s § 1983 claim–that defendants acted under color of law. (Id.) The 7 Court agrees with Defendants. 8 This defense directly relates to Plaintiff’s § 1983 claims and the unanswered legal 9 and factual questions surrounding those claims. Defendants have given Plaintiff fair 10 notice that they plan to challenge any allegations suggesting that any of the defendants 11 acted wrongfully under color of law. Therefore, the Court DENIES the motion to 12 strike Defendants’ ninth affirmative defense. 13 14 F. Tenth Affirm ative Defense - Necessary Force 15 The tenth affirmative defense states that “[a]t the time of the contact the 16 Defendant police officer attempted to persuade the Plaintiff to follow directions and in 17 doing so, only used force necessary for the occasion.” (Answer, p. 5.) Plaintiff contends 18 that she did not receive fair notice because Defendants failed to plead facts about the 19 alleged use of persuasion. 20 The fair notice standard does not require defendants to provide a detailed 21 statement of facts. See Conley, 355 U.S. at 47–48. Plaintiff argues in her motion that 22 defendants did not state facts to support this defense, but this affirmative defense relates 23 to allegations in Plaintiff’s FAC. Specifically, Plaintiff alleges that former Officers 24 Arevalos and Friedman used “excessive and unreasonable force” against her during the 25 arrest. (FAC, ¶19.) Plaintiff’s complaint also states facts encompassing more than the 26 alleged sexual assault, including a “forced blood draw” at the police station. (Id., ¶10.) 27 For these reasons, Plaintiff is on notice that Defendants will argue that they used only 28 -9- 12cv0243w 1 necessary force when arresting her and taking the blood draw. Consequently, the 2 Court DENIES Plaintiff’s motion to strike Defendants’ tenth affirmative defense. 3 4 G. Eleventh Affirm ative Defense - Plaintiff’s Negligence 5 The eleventh affirmative defense states that Plaintiff’s negligence and 6 carelessness “proximately contributed to the happening of the alleged incident, injuries 7 and damages complained of, if any such exist.” (Answer, p. 5.) Plaintiff argues that this 8 affirmative defense does not provide fair notice as to which of her acts demonstrate 9 contributory negligence. 10 Defendants respond that this defense goes to any failures on Plaintiff’s part to 11 mitigate her damages. However, negligence and failure to mitigate are two separate 12 legal doctrines. See, e.g., Restatement (Second) of Contracts cmt. a (1965) § 918 13 (“[C]ontributory negligence either precludes recovery or is no defense at all to a claim 14 for compensatory damages. On the other hand, [the doctrine of avoidable 15 consequences] applies only to the diminution of damages and not to the existence of 16 a cause of action.”) Defendants’ affirmative defense does not give Plaintiff fair notice 17 because it fails to advise her whether Defendants will argue that she was negligent 18 before or after the alleged incident with Arevelos. Additionally, this affirmative defense 19 fails to give Plaintiff any indication regarding the conduct supporting the defense. 20 Consequently, the Court STRIKES Defendants’ eleventh affirmative defense WITH 21 LEAVE TO AMEND. 22 23 24 25 H. Twelfth and Th irteenth Affirm ative Defenses - Perform ing Duties Required By Law & Reasonable Cause for Actions Defendants argue in their twelfth and thirteenth affirmative defenses that the 26 City and its agents, employees, and police officers were “performing duties required by 27 law under conditions required by law” and “had reasonable cause” for their actions at 28 all relevant times. (Answer, p. 6.) Plaintiff argues that neither defense gives her fair - 10 - 12cv0243w 1 notice. The Court agrees with Plaintiff that these simple identifications of Defendants’ 2 defenses are insufficient to provide fair notice. 3 Although Defendants’ pleading need not be supported by detailed factual 4 allegations, it must at least give notice of “the grounds upon which it rests.” Conley, 5 355 U.S. at 47. Therefore, the Court STRIKES Defendants’ twelfth and thirteenth 6 affirmative defenses WITH LEAVE TO AMEND. 7 8 I. Fourteenth Affirm ative Defense - Probable Cause 9 In the fourteenth affirmative defense, Defendants argue that “[a]t the time of the 10 initial contact ... [and] [d]uring the contact, Defendant Police officers were acting 11 within the scope of their employment and had probable cause to believe that said 12 Plaintiff had committed a crime.” (Answer, p. 6.) Plaintiff argues this defense fails to 13 give her fair notice. Defendants respond that they will suffer prejudice without this 14 defense, because Plaintiff alleges that Defendants deprived her of her rights against 15 unreasonable searches and seizures. 16 The Court finds Plaintiff has fair notice. This defense specifically refers to the 17 Defendant officers’ contact with Plaintiff, which according to her complaint is one 18 discrete instance with two officers. (FAC, ¶¶ 8–12.) At this stage of the pleadings, 19 Defendants need not allege further facts. Accordingly, the Court DENIES Plaintiff’s 20 motion to strike Defendants’ fourteenth affirmative defense. 21 22 J. Fifteenth Affirm ative Defense - Lack of Jurisdiction 23 Defendants argue in their fifteenth affirmative defense that this Court lacks 24 jurisdiction over “certain claims.” (Answer, p. 6.) Plaintiff contends this defense does 25 not provide her with fair notice. In their opposition, Defendants admit that they are 26 proffering this affirmative defense in case “Plaintiff is claiming damages for battery or 27 any other state law claim.” (Reply, p. 14:18–20.) However, Plaintiff clearly brings her 28 three Federal law claims under Title 42 U.S.C. § 1983. (See FAC , ¶¶18, 28, and 33.) - 11 - 12cv0243w 1 Defendants’ attempt to preemptively assert this affirmative defense is 2 inappropriate. If Plaintiff later brings state law claims, Defendants may assert additional 3 affirmative defenses by amending their pleadings in compliance with Rule 15. See Fed. 4 R. Civ. P. 15; U.S. v. Global Mortg. Funding, Inc., 2008 WL 5264986 at *5 (C.D. Cal. 5 May 15, 2008) (“[I]f a Defendant seeks to add affirmative defenses, it must comply with 6 the procedure set out in Federal Rule of Civil Procedure 15.”). Consequently, the 7 Court STRIKES Defendants’ fifteenth affirmative defense WITHOUT PREJUDICE. 8 9 K. Seventeenth , Eigh teenth , and Nineteenth Affirm ative Defenses - No 10 Liability as a Result of Exercising Discretion, W h ile Exercising Due 11 Care, or for Acts or Om issions of Anoth er Person 12 In the seventeenth affirmative defense, Defendants contend that any of Plaintiff’s 13 damages were the result of “the exercise of the discretion vested in the public 14 entity/defendants” and the California Government Code precludes liability for all of 15 these individuals. (Answer, p. 6.) Defendants cite two California statutes to support 16 their defense. (See Id.) Similarly, in their eighteenth affirmative defense, Defendants 17 cite two California statutes, arguing that public employees are not liable for actions they 18 take while enforcing the law and using due care. (Id., p. 7.) And for the nineteenth 19 affirmative defense, Defendants cite to one California statute and argue that public 20 employees are not liable for third-party actions. (Id.) 21 Plaintiff argues that these defense are too ambiguous and do not give her fair 22 notice. However, Defendants cited the specific statutes upon which they will rely to 23 establish these defenses. Defendants need not provide more specificity at this stage of 24 the pleadings. See Conley, 355 U.S. at 47–48. Consequently, the Court DENIES 25 Plaintiff’s motion to strike Defendants’ seventeenth, eighteenth, and nineteenth 26 affirmative defenses. 27 28 - 12 - 12cv0243w 1 L. Twenty-First Affirm ative Defense - Statute of Lim itations 2 Defendants’ twenty-first affirmative defense asserts that Plaintiff’s claims are 3 barred by the applicable statute of limitations. (Answer, p. 7.) Under this same defense, 4 Defendants seem to argue that the applicable statute of limitations is California 5 Government Code § 901. (Id.) Plaintiff argues that this defense does not provide her 6 with fair notice because she complied with California’s two-year statute of limitations 7 for personal injury claims, even though she never pled such claims. Defendants respond 8 that Plaintiff could bring up new claims during discovery and “this affirmative defense 9 goes to any and all claims not yet identified.” (Opp., p. 19:2–5.) 10 As previously discussed with respect to the fifteenth affirmative defense, 11 Defendants’ preemptive assertion of affirmative defenses is inappropriate. If Plaintiff 12 adds state law claims to this case, Defendants will have an opportunity to assert 13 additional affirmative defenses. Accordingly, the Court STRIKES Defendants’ twenty14 first affirmative defense WITHOUT PREJUDICE. 15 16 M. 17 18 Twenty-sixth Affirm ative Defense - Joinder of Co-Defendants’ Affirm ative Defenses In their twenty-sixth affirmative defense, Defendants seem to desire to 19 incorporate their co-defendants’ affirmative defenses into Defendants’ answer. 20 Defendants cite no authority for this practice. Plaintiff argues that this affirmative 21 defense is unintelligible. The Court agrees. 22 Defendants’ preemptive assertion of affirmative defenses is inappropriate. If any 23 co-defendants should raise useful affirmative defenses to issues that arise later, 24 Defendants may seek to assert additional affirmative defenses by moving to amend their 25 pleadings in compliance with Rule 15. See Fed. R. Civ. P. 15. Accordingly, the Court 26 STRIKES Defendants’ twenty-sixth affirmative defense WITHOUT LEAVE TO 27 AMEND. 28 - 13 - 12cv0243w 1 IV. CONCLUSION 2 For the previously stated reasons, the Court GRANTS-IN-PART and DENIES- 3 IN-PART Plaintiff’s motion to strike [Doc. 30] and ORDERS as follows: 4 1. 5 6 defenses two, six, and twenty-two with respect to Defendant City. 2. 7 8 3. 4. 15 16 The Court STRIKES WITH LEAVE TO AMEND affirmative defenses eleven, twelve, and thirteen. 5. 13 14 The Court STRIKES WITHOUT LEAVE TO AMEND affirmative defenses five and twenty-six. 11 12 The Court DENIES Plaintiff’s motion to strike affirmative defenses two, six, and twenty-two with respect to the Individual Defendants. 9 10 The Court STRIKES WITHOUT LEAVE TO AMEND affirmative The Court DENIES Plaintiff’s motion to strike affirmative defenses three, four, seven, nine, ten, fourteen, seventeen, eighteen, and nineteen. 6. The Court STRIKES WITHOUT PREJUDICE affirmative defenses fifteen and twenty-one. Defendants’ first amended answer, if any, is due on or before March 26, 2013. 17 18 IT IS SO ORDERED. 19 20 DATED: March 5, 2013 21 22 23 Hon. Thomas J. Whelan United States District Judge 24 25 26 27 28 - 14 - 12cv0243w
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
