James Gencarelli v. Chernin Entertainment, LLC et al

Filing 108

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS MOTION TO STRIKE DEFENDANTS AFFIRMATIVE DEFENSES 45 ; DENYING PLAINTIFFS MOTION TO AMEND PLEADING 87 ; DENYING PLAINTIFFS MOTION TO BIFURCATE TRIAL 92 ; AND DENYING PLAINTIFFS MOTION TO ADD PARTIES TO COMPLAINT 106 by Judge Otis D. Wright, II . (lc). Modified on 1/11/2018 (lc).

O

1
2
3
4
5
6
7

United States District Court
Central District of California

8
9
10
11

Plaintiff,

12

v.

13
14
15
16

Case № 2:17-CV-02818-ODW (AJW)

JAMES GENCARELLI

TWENTIETH CENTURY FOX FILM
CORPORATION; JIM GIANOPULOS,
CEO; CHERNIN ENTERNTAINMENT,
LLC; PETER CHERNIN, CEO; and
JENNO TOPPING,
Defendants.

17
18
19

I.

ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTION TO STRIKE
DEFENDANTS’ AFFIRMATIVE
DEFENSES [45]; DENYING
PLAINTIFF’S MOTION TO AMEND
PLEADING [87]; DENYING
PLAINTIFF’S MOTION TO
BIFURCATE TRIAL [92]; AND
DENYING PLAINTIFF’S MOTION
TO ADD PARTIES TO COMPLAINT
[106]

INTRODUCTION

20

Plaintiff James Gencarelli brings this case alleging that he suffered damages

21

relating to hearing loss when he worked as a background performer on Defendants’

22

film set. Before the Court are Plaintiff’s Motion to Strike Defendant’s Affirmative

23

Defenses1 (ECF No. 45), Motion to Amend Pleading and Add Negligence Per Se

24

(ECF No. 87), and Motion to Bifurcate Trial (ECF No. 92). For the reasons discussed

25

below, the Court GRANTS in PART and DENIES in PART Plaintiff’s Motion to

26

Strike, (ECF No. 45) and DENIES Plaintiff’s Motions for Leave to Amend Pleading,

27
28

1

Plaintiff filed this Motion as “Opposition to Defendant’s Affirmative Defenses,” which the
Court construes as a Motion to Strike Defendant’s Affirmative Defenses. (ECF No. 45.)

1

to Bifurcate Trial, and to Add Parties.2 (ECF Nos. 87, 92, 106.)

2

II.

BACKGROUND

3

Plaintiff worked as a background performer in Defendant Twentieth Century

4

Fox Film Corporation’s (“Fox”) movie production of “The Greatest Showman”

5

between January and March 2017. (Third Am. Compl. (“TAC”) ¶¶ 1, 8, ECF No. 38.)

6

Plaintiff alleges that, during his time working on the production, he was subjected to

7

excessively loud music from speakers on the production set. (Id. ¶¶ 7–8.) Plaintiff

8

alleges that this music exceeded the limits recommended by the Occupational Safety

9

and Health Administration (“OSHA”).

(Id. ¶¶ 12, 15.)

He alleges that, during

10

exposure to the loud music, he did not receive auditory protection that would have

11

prevented his injuries. (See id. ¶¶ 16–17.) Now, Plaintiff allegedly suffers from

12

painful auditory injuries that require extensive medical treatment. (Id. ¶ 18.)
Plaintiff is appearing in this case pro se.

13

He filed his Third Amended

14

Complaint on August 1, 2017.3 (ECF No. 38.) Fox answered, and Plaintiff now

15

moves to strike Fox’s affirmative defenses.4

16

Plaintiff’s Motion to Strike on September 1, 2017, and Plaintiff replied.5 (ECF Nos.

17

63, 64.)

(ECF Nos. 42, 45.)

Fox opposed

On October 30, 2017, Plaintiff moved for leave to file an amended complaint to

18
19
20
21
22
23
24
25
26
27
28

2

After carefully considering the papers filed in connection with the instant Motions, the Court
deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78(b); C.D. Cal.
L.R. 7-15.
3
Plaintiff filed his first Complaint on April 13, 2017 (ECF No. 1), and then filed a First
Amended Complaint on May 8, 2017. (ECF No. 9.) Then on May 12, 2017, Plaintiff filed a
document titled “Complaint.” (ECF No. 13.) On July 31, 2017, the Court dismissed Plaintiff’s
operative complaint with leave to amend. (ECF No. 37.) Plaintiff then filed an “Amended
Complaint” on August 1, 2017. (ECF No. 38.) The Court construes this pleading as Plaintiff’s
Third Amended Complaint.
4
Plaintiff filed a document titled “Opposition to Defendant’s Affirmative Defenses” which the
Court construes as a Motion to Strike Fox’s Affirmative Defenses. (ECF Nos. 45, 46.)
5
Plaintiff submitted an “Objection to Defendants’ Allegation” on September 5, 2017, which the
Court construes as a Reply. (ECF No. 64.)

2

1

add a claim of negligence per se.6 (Mot. to Amend, ECF No. 87.) Fox opposed the

2

Motion on November 20, 2017, and Plaintiff replied on November 22, 2017. (ECF

3

Nos. 96, 97.)
Further, Plaintiff moved (1) to bifurcate trial on November 8, 2017, and (2) to

4
5

add parties to the case on January 2, 2018. (ECF Nos. 92, 106.)

6
7

III.
A.

DISCUSSION

Motion to Strike Affirmative Defenses

8

1.

9

Federal Rule of Civil Procedure 12(f) allows a court, on its own or on motion

10

made by a party, to “strike from a pleading an insufficient defense or any redundant,

11

immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “[T]he function

12

of a 12(f) motion is to avoid the expenditure of time and money that must arise from

13

litigating spurious issues by dispensing with those issues prior to trial.” Sidney-

14

Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). Nevertheless, 12(f)

15

motions are “generally regarded with disfavor because of the limited importance of

16

pleading in federal practice, and because they are often used as a delaying tactic.”

17

Neilson v. Union Bank of Cal., N.A., 290 F. Supp. 2d 1101, 1152 (C.D. Cal. 2003).

18

Unless it would prejudice the opposing party, courts freely grant leave to amend

19

stricken pleadings when justice requires. Wyshak v. City Nat’l Bank, 607 F.2d 824,

20

827 (9th Cir. 1979); see also Fed. R. Civ. P. 15(a)(2).

Legal Standard

21

An allegation is redundant if it is “needlessly repetitive or wholly foreign to the

22

issues involved in the action.” Cal. Dep’t of Toxic Substances Control v. Alco Pac.,

23

Inc., 217 F. Supp. 2d 1028, 1033 (C.D. Cal. 2002). “Immaterial” matters are those

24

with no essential or important relationship to the pleaded claims or defenses. Fantasy,

25

Inc. v. Fogerty, 984 F.2d 1524, 1528 (9th Cir. 1993) (rev’d on other grounds by

26

Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994)). “‘Impertinent’ matter consists of

27
28

6

Although Plaintiff claims his proposed amendment would be his second amended complaint, it
would actually be his fourth.

3

1

statements that do not pertain, and are not necessary, to the issues in question.” Id.

2

“‘Scandalous’ allegations include those that cast a cruelly derogatory light on a party

3

or other person.” In re 2TheMart.com, Inc. Sec. Litig., 114 F. Supp. 2d 955, 965

4

(C.D. Cal. 2000).

5

Motions to strike are appropriate when a defense is insufficient as a matter of

6

law or as a matter of pleading. See Kaiser Aluminum & Chemical Sales, Inc. v.

7

Avondale Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir. 1982); Ross v. Morgan

8

Stanley Smith Barney, LLC, No. 2:12-CV-09687-ODW, 2013 WL 1344831, at *1

9

(C.D. Cal. Apr. 2, 2013). An affirmative defense is insufficient as a matter of law

10

when the court is convinced “that there are no questions of fact, that any questions of

11

law are clear and not in dispute, and that under no set of circumstances could the

12

defense succeed.” Ganley v. Cty. of San Mateo, No. 06–3923, 2007 WL 902551, at *1

13

(N.D. Cal. Mar. 22, 2007) (quoting Colaprico v. Sun Microsystems, Inc., 758 F. Supp.

14

1335, 1339 (N.D. Cal. 1999)). “The key to determining the sufficiency of pleading an

15

affirmative defense is whether it gives plaintiff fair notice of the defense.” Wyshak,

16

607 F.2d at 827. Fair notice generally requires that the defendant state the nature and

17

grounds for the affirmative defense. Kohler v. Staples the Office Superstore, LLC,

18

291 F.R.D. 464, 468 (S.D. Cal. 2013). A detailed statement of facts is not required.

19

Id.

20

In the Ninth Circuit, it is not entirely clear whether the heightened pleading

21

standard of Twombly/Iqbal applies to affirmative defenses. See, e.g., Kohler, 291

22

F.R.D. at 468 (discussing that “the Ninth Circuit has not yet adopted the

23

Twombly/Iqbal pleading standard for affirmative defenses,” and that “it is clear this

24

point of law is unresolved.”). While district courts have split on this issue, most have

25

found that the heightened pleading standard does apply to affirmative defenses.

26

Powertech Tech., Inc. v. Tessera, Inc., No. C 10-945 CW, 2012 WL 1746848, at *4

27

(N.D. Cal. 2012) (collecting cases). Absent further direction from the Supreme Court

28

or the Ninth Circuit, and consistent with this Court’s prior orders, the Court will apply

4

1

the Twombly/Iqbal standard to affirmative defenses. See, e.g., Ross v. Morgan Stanley

2

Smith Barney, LLC, No. 2:12-CV-09687-ODW, 2013 WL 1344831, at *1–3 (C.D.

3

Cal. Apr. 2, 2013) (interpreting Iqbal and Twombly to apply to affirmative defenses).

4

Applying the Twombly/Iqbal standard to affirmative defenses serves an important

5

purpose: requiring at least some valid factual basis for pleading an affirmative

6

defense, and preventing defendants from adding defenses in an answer based on pure

7

conjecture. Id. at *2.

8

2.

9

With these standards in mind, the Court now turns to the arguments raised by

10
11

Analysis

Plaintiff in his Motion to Strike. (Mot. to Strike, ECF No. 45.)
In its Answer to Plaintiff’s TAC, Fox asserts eighteen affirmative defenses.

12

(See Answer ¶¶ 21–38.)

13

affirmative defenses are insufficiently pled under the Twombly/Iqbal plausibility

14

standard and asks the Court to strike all eighteen defenses. (Mot. to Strike 3.) Fox

15

contends that the Court should deny Plaintiff’s Motion because (1) Plaintiff failed to

16

comply with Local Rule 7-3 and (2) its affirmative defenses having been adequately

17

pled. (Opp’n 2–4, ECF No. 63.)

18
19
20
21
22
23
24
25
26

In his Motion to Strike, Plaintiff argues that Fox’s

According to Local Rule 7-3:
In all cases . . . counsel contemplating the filing of any
motion shall first contact opposing counsel to discuss
thoroughly, preferably in person, the substance of the
contemplated motion and any potential resolution. The
conference shall take place at least seven (7) days prior to
the filing of the motion. If the parties are unable to reach a
resolution which eliminates the necessity for a hearing, the
counsel for the moving party shall include in the notice of
motion a statement to the following effect: “This motion is
made following the conference of counsel pursuant to L.R.
7-3 which took place on (date).”

27

It is within the Court’s discretion to refuse to consider a motion based on a party’s

28

noncompliance with Local Rule 7-3.

CarMax Auto Superstores Cal. LLC v.

5

1

Hernandez, 94 F. Supp. 3d 1078, 1088 (C.D. Cal. 2015) (citation omitted). However,

2

failure to comply with Local Rule 7-3 “does not automatically require the denial of a

3

party’s motion.” Id. This is particularly true where the non-moving party has suffered

4

no apparent prejudice as a result of the failure to comply. Id.

5

In his Reply, Plaintiff concedes that he did not meet and confer with Fox prior

6

to the filing of his Motion to Strike. (Reply 3, ECF No. 64.) Plaintiff contends that he

7

was unsure of the practical application of Local Rule 7-3 at the time he filed his

8

Motion to Strike. (Id.) While the Court could deny Plaintiff’s motion solely based on

9

Plaintiff’s noncompliance, the Court declines to issue such a drastic sanction at this

10

time. The Court therefore proceeds to consider the merits of Plaintiff’s Motion.

11

In his Motion, Plaintiff contends that all of Fox’s affirmative defenses fail to

12

meet the Twombly/Iqbal pleading standard. (Mot. to Strike 3–4.)7 Plaintiff addresses

13

Fox’s affirmative defenses numbered 1, 2, 3, 4, 5, 10, 17, 18 individually and the

14

remainder of Fox’s affirmative defenses collectively. (Id. at 4–7.) Fox stipulated to

15

withdraw its fourth, tenth, and seventeenth affirmative defenses; thus, the Court need

16

not address those defenses. (See Mot. to Strike 5, 6; Opp’n 6–7.)

17

First Affirmative Defense: Failure to State a Claim.

18

The Court GRANTS Plaintiff’s Motion to Strike Defendant’s First Affirmative

19

Defense for Failure to State a Claim. Fox’s first affirmative defense is a bare assertion

20

that Plaintiff has failed to state a claim upon which relief can be granted. (Answer 5.)

21

Plaintiff contends that Fox’s first affirmative defense is “better understood as a denial

22

of Plaintiff’s allegations rather than as an affirmative defense.” (Mot. 4.) The Court

23
24
25
26
27
28

7

Plaintiff also asserts that some of Fox’s affirmative defenses should be stricken in accordance
“to law and the merits of the action.” (Mot. to Strike 7.) On the basis that Plaintiff is attacking the
legal sufficiency of these defenses, the inquiry for the Court is whether “there are no questions of
fact, that any questions of law are clear and not in dispute, and that under no set of circumstances
could the defense succeed.” S.E.C v. Sands, 902 F. Supp. 1149, 1165 (C.D. Cal. 1995) (citation
omitted). Here, Plaintiff has not offered any facts or arguments which suggest that these defenses
are no longer in dispute or are meritless. (See generally Mot. to Strike) Therefore, the Court finds
addressing the legal sufficiency of each defense is not warranted at this time.

6

1

agrees. “A defense which demonstrates that plaintiff has not met its burden of proof

2

[as to an element plaintiff is required to prove] is not an affirmative defense.”

3

Zivkovic v. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002) (citation omitted).

4

Further, failure to state a claim under Rule 12(b)(6) is more properly brought as a

5

motion and not an affirmative defense. For these reasons, the Court STRIKES Fox’s

6

First Affirmative Defense.

7

Second Affirmative Defense: Failure to Pursue Workers Compensation.

8

The Court DENIES Plaintiff’s Motion to Strike Fox’s Second Affirmative

9

Defense. Fox alleges that Plaintiff is barred from recovery due to his failure to pursue

10

his “exclusive remedy” of workers compensation. (Answer 5.) Plaintiff contends that

11

Fox has not provided any factual allegations to support this defense and that he was

12

employed by the “‘theatrical casting agency’ or the companies that furnished

13

payroll.’” (Mot. 4.) However, Plaintiff’s TAC alleges that he was “on the set of the

14

movie during the months of January, February, and March 2017, as a background

15

performer” for “8 + hours per day.” (TAC ¶ 8.) Fox argues that these allegations

16

plausibly support the contention that Plaintiff was an employee of Fox at the time of

17

the subject incident. (Opp’n 5.) In its Answer in response to these allegations,

18

however, Fox states that it “lacks information regarding the time during which

19

Plaintiff was on set,” which the Court construes as a denial of Plaintiff’s allegation.

20

(Answer 7–8); Fed. R. Civ. P. 8(b)(5) (“A party that lacks knowledge or information

21

sufficient to form a belief about the truth of an allegation must so state, and the

22

statement has the effect of a denial.”) Based on Fox’s denials, its affirmative defense

23

asserting failure to pursue workers compensation must be in the alternative. See Fed

24

R. Civ. P. 8(d)(2) (“A party may set out 2 or more statements of a claim or defense

25

alternatively or hypothetically. . . .”) While Fox did not expressly state the affirmative

26

defense in the alternative, the Court will construe the defense as such. See Fed. R.

27

Civ. P.8(e). Therefore, Plaintiff is on notice of the facts underlying Fox’s Second

28

Affirmative Defense and the grounds upon which this defense rests.

7

1

Third Affirmative Defense: Lack of Proximate Causation

2

The Court GRANTS Plaintiff’s Motion to Strike Fox’s Third Affirmative

3

Defense for Lack of Proximate Causation. A “proximate cause defense pleads matters

4

extraneous to the plaintiff’s prima facie case by showing that someone other than the

5

named defendant proximately caused the sustained injuries.” G & G Closed Circuit

6

Events, LLC v. Mitropoulus, No. CV12-0163-PHX DGC, 2012 WL 3028368, at *1–2

7

(D. Ariz. July 24, 2012) (citing Fed. Deposit Ins. Corp. v. Main Hurdman, 655 F.

8

Supp. 259, 262 (E.D. Cal. 1987). Here, however, Fox has not pled its proximate cause

9

defense in a fashion that would qualify it as an affirmative defense. Rather than

10

asserting that any other individual caused Plaintiff’s injuries, Fox contends that

11

Plaintiff is unable to “prove any facts showing that [Fox’s] conduct was the proximate

12

cause of the injury sustained.” (Answer 5.) As a result, the Court STRIKES Fox’s

13

Third Affirmative Defense.

14

Fifth Affirmative Defense: Failure to Mitigate

15

The Court GRANTS Plaintiff’s Motion to Strike Fox’s Fifth Affirmative

16

Defense of Failure to Mitigate.

Fox alleges that Plaintiff failed to mitigate his

17

damages. (Answer 5.) Plaintiff argues that Fox gives no notice “of the basis of his

18

alleged failure to mitigate.” (Mot. to Strike 5.) In its response, Fox cites Hunter v.

19

Croysdill, 169 Cal. App. 2d 307, 318 (1959), and argues that “the duty to mitigate

20

one’s damages is part of every personal injury action.” Additionally, Fox contends

21

that discovery will yield additional information in support of its mitigation defense.

22

While this may be true, under Twombly/Iqbal, Fox is required to provide some factual

23

basis in the pleading in order to support the plausible inference that Plaintiff did not,

24

in fact, mitigate his damages. See Ins. Co. of the State of Penn. v. Citizens of

25

Humanity LLC, No. SACV 13-01564 JVS, 2014 WL 12689271, at *5 (C.D. Cal. Feb.

26

24, 2014); see also Ross v. Morgan Stanley Smith Barney, LLC, Case No. 2:12-CV-

27

09687-ODW, 2013 WL 1344831, at *2 (C.D. Cal. Apr. 2, 2013). Consequently,

28

Fox’s one-sentence defense stating “Plaintiff has failed to mitigate his damages, if

8

1

any, which are denied,” is insufficient under Twombly/Iqbal. (Answer 5.) Therefore,

2

the Court STRIKES Fox’s Fifth Affirmative Defense.

3

Sixth Affirmative Defense: Apportionment

4

The Court GRANTS Plaintiff’s Motion to Strike Fox’s Sixth Affirmative

5

Defense of Apportionment. Fox’s Sixth Affirmative Defense alleges that Plaintiff’s

6

injuries and damages were “proximately caused by the negligence, conduct and

7

liability of Plaintiff, other persons or entities . . . .” and requests that an allocation of

8

negligence be apportioned “among such other persons and entities . . . .” (Answer 6.)

9

Fox fails to allege any actual “persons” or “entities” upon which they base their

10

affirmative defense. Without this basic factual allegation, Plaintiff cannot ascertain

11

the grounds for Fox’s affirmative defense of apportionment and is thus deprived of

12

fair notice. Accordingly, the Court STRIKES Fox’s Sixth Affirmative Defense.

13

Seventh Affirmative Defense: Superseding Cause

14

The Court GRANTS Plaintiff’s Motion to Strike Fox’s Seventh Affirmative

15

Defense for Superseding Cause. As with the Sixth Affirmative Defense, Fox does not

16

point to any actual superseding events on which they base this affirmative defense.

17

Thus, the Court STRIKES Fox’s Seventh Affirmative Defense.

18

Eighth Affirmative Defense: Comparative Fault

19

The Court DENIES Plaintiff’s Motion to Strike Fox’s Eighth Affirmative

20

Defense for Comparative Fault.

21

The Court finds that Fox’s Eighth Affirmative

Defense is sufficiently pled.

22

Ninth Affirmative Defense: Proposition 51

23

The Court GRANTS Plaintiff’s Motion to Strike Fox’s Ninth Affirmative

24

Defense. Fox’s contends that liability is limited to provisions of Proposition 51, as set

25

forth in California Civil Code sections 1431, 1431.1, 1431.2, 1431.4, and 1431.5,

26

which relate to joint and several liability. (Answer 6.) Fox does not assert, however,

27

how these provisions may operate as an affirmative defense, nor does it provide any

28

facts as to who may be jointly or severally liable. As a result, the Court finds this

9

1

affirmative defense to be insufficiently pled. The Court therefore STRIKES Fox’s

2

Ninth Affirmative Defense.

3

Eleventh Affirmative Defense: Contribution

4

The Court GRANTS Plaintiff’s Motion to Strike Fox’s Eleventh Affirmative

5

Defense. Fox asserts that it may be entitled to indemnification or contribution via

6

another person or party. (Answer 7.) Fox fails to state any facts to support that it may

7

be indemnified by another person or third party. Because Fox does not provide any

8

factual basis to support this defense, the Court STRIKES Fox’s Eleventh Affirmative

9

Defense.

10

Twelfth Affirmative Defense: Unavoidable Accident

11

The Court GRANTS Plaintiff’s Motion to Strike Fox’s Twelfth Affirmative

12

Defense. As an alternative to its contention that it is not liable for any wrongdoing,

13

Fox asserts that Plaintiff’s injury was caused by an unavoidable accident. (Answer 7.)

14

According to California law, an assertion of an unavoidable accident is not an

15

affirmative defense which needs to be pled in an answer. See Butigan v. Yellow Cab

16

Co., 49 Cal.2d 652, 658–59 (1958) (finding that “unavoidable accident is simply

17

another way of saying the defendant is not negligent”).

18

STRIKES Fox’s Twelfth Affirmative Defense.

Accordingly, the Court

19

Thirteenth Affirmative Defense: Defendant Exercised Reasonable Care

20

The Court GRANTS Plaintiff’s Motion to Strike Fox’s Thirteenth Affirmative

21

Defense.

Fox asserts that it exercised reasonable care under the circumstances.

22

(Answer 7.) As noted above, defenses which simply attack or deny Plaintiff’s prima

23

facie case are not affirmative defenses and, thus, should be stricken. See Zivkovic, 302

24

F.3d at 1088.

25

Defense.

Accordingly, the Court STRIKES Fox’s Thirteenth Affirmative

26

Fourteenth Affirmative Defense: Willful Misconduct

27

The Court GRANTS Plaintiff’s Motion to Strike Fox’s Fourteenth Affirmative

28

Defense for Willful Misconduct. Fox contends that Plaintiff’s action is barred due to

10

1

his “willful misconduct.” (Answer 7.) The Court finds this affirmative defense to be

2

duplicative of Fox’s “unclean hands” defense, which Fox has stipulated to withdraw,

3

and its “comparative fault” defense. Given that this defense is duplicative, the Court

4

STRIKES Fox’s Fourteenth Affirmative Defense.

5

Fifteenth Affirmative Defense: Denial of Plaintiff’s Injury

6

The Court GRANTS Plaintiff’s Motion to Strike Fox’s Fifteenth Affirmative

7

Defense.

8

established, denials of Plaintiff’s allegations or attacking an element of a claim is not

9

an affirmative defense. See Zivkovic, 302 F.3d at 1088. The Court STRIKES Fox’s

10

Fox simply denies Plaintiff was injured.

(Answer 7.)

As already

Fifteenth Affirmative Defense.

11

Sixteenth Affirmative Defense: Vexatious Litigation

12

The Court GRANTS Plaintiff’s Motion to Strike Fox’s Sixteenth Affirmative

13

Defense. Fox claims that Plaintiff’s action “may be barred” pursuant to vexatious

14

litigant statutes. (Answer 7.) Fox does not provide any factual basis for why this

15

defense may be valid. The Court, therefore, STRIKES Fox’s Sixteenth Affirmative

16

Defense.

17

Eighteenth Affirmative Defense: Reservation to Assert Additional Defenses

18

The Court GRANTS Plaintiff’s Motion to Strike Fox’s Eighteenth Affirmative

19

Defense. Fox attempts to reserve its “right” to assert additional affirmative defenses

20

during the course of discovery. (Answer 8.) “[R]eservation of rights is not an

21

affirmative defense . . . [I]f discovery were to reveal the possibility of an additional

22

affirmative defense, the [defendant] would either have to obtain a stipulation for leave

23

to amend or file a motion seeking such leave.” Willson v. Bank of Am., N.A., No.

24

C04-1465 TEH, 2004 WL 1811148, at *5 (N.D. Cal. Aug. 12, 2004). Accordingly,

25

the Court STRIKES Fox’s Eighteenth Affirmative Defense.

26

B.

Motion to Amend Pleading

27

Plaintiff asks the Court for leave to file an Amended Complaint to add a claim

28

of negligence per se. (Mot. to Amend, ECF No. 87.) Plaintiff claims that Fox

11

1

violated three different statutes by subjecting him to “dangerous high decibel sounds

2

from speakers” on the set: (1) 29 C.F.R. § 1910.95;8 (2) Cal. Labor Code § 6304.5;

3

and (3) Cal. Code of Regulations § 5096. (Mot. to Amend, Ex. 1 ¶¶ 8, 20–24.) In its

4

Opposition, Fox argues that the Court should deny Plaintiff’s Motion to Amend

5

because (1) Plaintiff fails to allege sufficient facts establishing an employee/employer

6

relationship to subject Fox to any of these statutes, and (2) even if Plaintiff has

7

sufficiently alleged such a relationship with Fox, he fails to allege a violation of any

8

statute. (Opp’n 1, ECF No. 96.)
1.

9

Legal Standard

10

A district court’s discretion to grant or deny leave to amend a complaint is

11

subject to its sound discretion. Foman v. Davis, 371 U.S. 178, 182 (1962). Generally,

12

courts may grant leave to amend whenever “justice so requires.” Fed. R. Civ. P.

13

15(a)(2). This Court analyzes the following factors to assess whether to grant leave to

14

amend: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility

15

of amendment, and (5) whether plaintiff has previously amended his complaint. Allen

16

v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990). Leave to amend need not

17

be given under Rule 15 if it would be futile to do so, such as “if a complaint, as

18

amended, is subject to dismissal.” Moore v. Kayport Package Express, Inc., 885 F.2d

19

531, 537 (9th Cir. 1989).

20

2.

21

In determining whether Plaintiff should be permitted leave to plead a claim for

22

negligence per se, the Court first looks to whether his claim, as proposed, would be

23

subject to dismissal. To succeed on a claim for negligence per se, Plaintiff would

24

need to show that (1) Fox violated the statute, ordinance, or regulation of a public

25

entity; (2) the violation proximately caused Plaintiff’s injury; (3) the injury resulted

26

from an occurrence of the nature of which the statute, ordinance, or regulation was

27
28

Analysis

8

In his Motion to Amend, Plaintiff cites “(OSHA) 1904.10(a)” but includes a link for 29 C.F.R.
§ 1910.95, the actual regulation he quotes.

12

1

designed to prevent; and (4) Plaintiff is of the class of persons for whose protection

2

the statute, ordinance, or regulation was adopted. Galvez v. Frields, 88 Cal. App. 4th

3

1410, 1420 (2001).

4

Here, all three of the statutes upon which Plaintiff bases his negligence-per-se

5

claim are only applicable to employers. See 29 C.F.R. § 1910.95; Cal. Labor Code §

6

6304.5; Cal. Code of Regulations § 5096. Plaintiff fails to allege any facts to establish

7

whether he was an employee of Fox and/or Chernin Entertainment. Although Plaintiff

8

alleges that he worked on Fox’s movie set, he does not allege whether he was an

9

actual Fox employee. (See generally TAC; Mot. to Amend.) Plaintiff merely alleges

10

that “Defendants Chernin and 20th Century had complete control and authority in

11

‘overseeing’ the production of the movie as the distributor and production company.”

12

(Mot. to Amend, Ex. 1 ¶ 9.) Because Plaintiff fails to allege sufficient facts to

13

establish that he is covered by the statutes he cites, his negligence-per-se claim is

14

deficient.

15

Complaint. (ECF No. 87.)

16

C.

Accordingly, the Court DENIES Plaintiff’s Motion to Amend his

Motion to Bifurcate Trial

17

Plaintiff also seeks to bifurcate the liability and damages phases of the trial.

18

(Mot. to Bifurcate, ECF No. 92.) Plaintiff argues that the issue of liability and

19

damages are “legally distinct” and that “intermingling” these issues might prejudice

20

Plaintiff. (Id. at 4.)

21

1.

22

Under Federal Rule of Civil Procedure 42(b), a court may order a separate trial

23

of one or more separate issues, claims, cross-claims, or third-party claims “[f]or

24

convenience, to avoid prejudice, or to expedite and economize.” Fed. R. Civ. P.

25

42(b). “Rule 42(b) merely allows, but does not require, a trial court to bifurcate cases

26

‘in furtherance of convenience or to avoid prejudice.’” Hangarter v. Provident Life &

27

Accident Ins. Co., 373 F.3d 998, 1021 (9th Cir. 2004) (quoting Fed. R. Civ. P. 42(b)).

28

“Interests of efficient judicial administration are controlling, rather than the wishes of

Legal Standard

13

1

the parties.” Baldwin Hardware Corp. v. Franksu Enters. Corp., No. CV 90–4919

2

WDK (BX), 1990 WL 357312, at *2 (C.D. Cal. Dec. 28, 1990). Thus, “the district

3

court ha[s] broad discretion to order separate trials” and the exercise of that discretion

4

will be set aside only if clearly abused. United States v. 1,071.08 Acres of Land,

5

Yuma & Mohave Counties., Ariz., 564 F.2d 1350, 1352 (9th Cir. 1977). If two issues

6

are so interwoven that they “cannot be submitted to the jury independently … without

7

confusion and uncertainty which would amount to a denial of a fair trial,” then

8

bifurcation is not appropriate. Equal Employment Opportunity Comm’n v. Creative

9

Networks, LLC, No. CV 05-3032-PHX-SMM, 2010 WL 11519280, at *1 (D. Ariz.

10

Apr. 14, 2010) (quoting United Air Lines, Inc. v. Wiener, 286 F.2d 302, 306 (9th Cir.

11

1961)). The burden is on the moving party to establish that bifurcation is warranted.

12

See Spectra–Physics Lasers, Inc. v. Uniphase Corp., 144 F.R.D. 99, 101 (N.D. Cal.

13

1992).

14

2.

15

The Court finds that bifurcation is not warranted in this case. Plaintiff devotes

16

the bulk of his briefing to arguing that judicial economy will be best served by

17

bifurcation. (See Mot. to Bifurcate 4–7.) The Court is not persuaded by Plaintiff’s

18

argument.

19

bifurcation would advance judicial economy. See United Air Lines, Inc. v. Wiener,

20

286 F.2d at 306 (holding bifurcation inappropriate when the plaintiffs were asking for

21

exemplary damages that depended upon the degree of culpability of the defendant).

22

Furthermore, the Court finds that whatever efficiencies may be gained by bifurcation

23

are offset by potential confusion of the issues, repetition of testimony, and increased

24

expense and efficiency from conducting separate trials.

25

Analysis

The issues of liability and damages are not so easily separable that

Accordingly, the Court DENIES Plaintiff’s Motion to Bifurcate. (ECF No. 92.)

26
27
28

14

1

D.

Motion to Add Parties

2

The Court DENIES Plaintiff’s Motion to Add Parties as untimely. Pursuant to

3

the Court’s Scheduling and Case Management Order, the deadline to hear Motions to

4

Amend Pleadings or Add Parties is January 15, 2018. (ECF No. 76.) Under the Local

5

Rules, Plaintiff would have had to file a noticed motion no later than December 18,

6

2017, to have had it heard by the deadline. See C.D. Cal. L.R. 6-1. Plaintiff did not

7

meet this deadline. Therefore, the Court DENIES Plaintiff’s Motion to Add Parties.

8

(ECF No. 106.)

9

IV.

CONCLUSION

For the foregoing reasons, Plaintiff’s Motion to Strike (ECF No. 45) is

10
11

GRANTED in PART and DENIED in PART.

Fox’s Affirmative Defenses

12

numbered 1, 3, 5, 6, 7, 9, 11, 12, 13, 14, 15, 16, 18 are hereby STRICKEN with leave

13

to amend. Defendant shall file its amended answer on or before February 5, 2018.

14

The Court DENIES Plaintiff’s Motions (1) for leave to file an amended complaint

15

(ECF No. 87), (2) to bifurcate trial (ECF No. 92), and (3) to add parties (ECF No.

16

106).

17

Finally, the Court strongly advises Plaintiff to seek the assistance of the Federal

18

Pro Se Clinic, located in the United States Courthouse at 312 N. Spring Street, Room

19

525, Fifth Floor, Los Angeles, California, 90012. The clinic is open for appointments

20

on Mondays, Wednesdays, and Fridays from 9:30 a.m. to 12:00 p.m. and 2:00 p.m. to

21

4:00 p.m. The Federal Pro Se Clinic offers free, on-site information and guidance to

22

individuals who are representing themselves in federal civil actions.

23

information, Plaintiff may visit http://www.cacd.uscourts.gov and follow the link for

24

“Pro Se Clinic–Los Angeles” or contact Public Counsel at [phone], extension

25

270.

26

///

27

///

28

///

15

For more

1

While the Court has been lenient in accepting Plaintiff’s filings that do not

2

conform to this District’s filing requirements, the Court will likely decline any further

3

non-conforming filings. Plaintiff is encouraged to closely review this District’s Local

4

Rules, the Federal Rules of Civil Procedure, and this Court’s Standing Order. Failure

5

to comply with any of these could result in sanctions, including the Court striking

6

filings and/or pleadings, or dismissing the case for lack of prosecution.

7
8

IT IS SO ORDERED.

9
10

January 11, 2018

11
12
13
14

____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

15
16
17
18
19
20
21
22
23
24
25
26
27
28

16