Gomez v. J. Jacobo Farm Labor Contractor, Inc. et al
Filing
38
ORDER granting 11 , 30 Motions to Strike Affirmatives Defenses signed by District Judge Anthony W. Ishii on 5/19/2016. (Lundstrom, T)
1
2
3
4
IN THE UNITED STATES DISTRICT COURT FOR THE
5
EASTERN DISTRICT OF CALIFORNIA
6
7
MARISOL GOMEZ, on behalf of
herself and others similarly situated,
8
9
ORDER GRANTING MOTIONS TO
STRIKE AFFIRMATIVE DEFENSES
Plaintiffs,
v.
10
(Docs. 11, 30)
J. JACOBO FARM LABOR
CONTRACTOR, INC., and
BEDROSIAN FARMS, LLC; and Does
1 through 20, inclusive,
11
12
13
14
1:15-cv-1489-AWI-MJS
Defendants.
__________________________________/
15
I. Introduction
16
Plaintiff Marisol Gomez (“Plaintiff”) has filed separate motions, under Federal Rule of
17
18
19
20
21
22
23
Civil Procedure 12(f),1 to strike select affirmative defenses alleged by Defendant Bedrosian
Farms, LLC (“Bedrosian”) (Doc. 11), and Defendant J. Jacobo Farm Labor Contractor, Inc.
(“Jacobo”) (Doc. 30). The thrust of Plaintiff’s argument in both instances is that many of the
affirmative defenses alleged are (1) insufficiently detailed such that they are not in compliance
with Rule 8 or (2) inapplicable to this case, as a matter of law. The matter is now fully briefed
and ripe for decision.
II. Background
24
Plaintiff Marisol Gomez alleges that she is (or was) employed by Defendants, as joint
25
26
27
28
employers, to perform agricultural work “at various times during the Class Period[—reaching
back four years prior to the filing of this action—]through approximately 2015.” Compl. at ¶¶
1
Unless otherwise specified, all references to a “Rule” or “Rules” refer to the Federal Rules of Civil Procedure.
1
1 13, 23. On September 15, 2015, she filed a putative wage and hour class action on behalf of
2 herself and other past and present non-exempt, agricultural and packing shed employees
3 employed by Defendants. Plaintiff alleges that Defendants engaged in “a pattern of employer
4 misconduct,” centering on their “piece rate system of compensation, their meal and rest break
5 practices, and their record-keeping procedures.” Compl. at ¶¶ 22-23.
6
Plaintiff’s complaint alleged nine causes of action: (1) violation of the Agricultural
7 Workers Protection Act, 29 U.S.C. § 1801 et seq.; (2) failure to pay minimum wages in violation
8 of California Labor Code §§ 510, 1194, 1194.2, and 1197; (3) failure to pay overtime wages in
9 violation of California Labor Code §§ 510, 1194, and 1194.2; (4) failure to provide timely and
10 complete meal periods in violation of California Labor Code §§ 226.7 and 512; (5) failure to
11 provide timely and complete rest periods in violation of California Labor Code §§ 226.7 and
12 512; (6) failure to pay wages of terminated or resigned employees in violation of California
13 Labor Code §§ 201, 202, and 203; (7) failure to provide correct wage statements in violation of
14 California Labor Code §§ 226(b), 1174, and 1175; (8) violation of Unfair Competition Law
15 (“UCL”), California Business and Professions Code §§ 17200 et seq., premised on violation of
16 the statutes underlying the first seven causes of action; and (9) an claim pursuant to the Private
17 Attorney General Act (“PAGA”), California Labor Code §§ 2689 et seq., seeking civil penalties
18 and unpaid wages, also premised on violation of the statutes underlying the first seven causes of
19 action.
20
On January 12, 2016, Bedrosian filed a timely answer, responding to each numbered
21 paragraph of Plaintiff’s complaint and asserting twenty-five affirmative defenses. Doc. 7. On
22 January 26, 2016, Jacobo filed a timely answer, also responding to each numbered paragraph of
23 Plaintiff’s complaint and asserting twelve affirmative defenses. Doc. 9. Jacobo then filed an
24 amended answer on March 4, 2016, without first having sought leave to amend from the Court.
25 That answer contains ten affirmative defenses and is more detailed than the first. Doc. 29. Each
26 of the affirmative defenses alleged by Defendant Bedrosian (and in Jacobo’s first answer) is one
27 sentence in length, conclusory, and largely devoid of detail. Jacobo’s first amended answer
28 provides some additional detail. Doc. 29 at 17-20.
2
1
III. Legal Standard
2
This Court recently set forth the legal standard applicable to a motion to strike affirmative
3 defenses:
4
5
6
7
8
9
10
Pursuant to Rule 12(f), the court may strike an “insufficient defense.” The
purpose of Rule 12(f) is to “avoid the expenditure of time and money that …
arise[s] from litigating spurious issues by dispensing with those issues prior to
trial.” Sidney –Vinstein v. A.H.Robins Co., 697 F.2d 880, 885 (9th Cir. 1983).
However, because of the limited importance of pleading affirmative defenses in
federal practice and because they often needlessly extend litigation, broad
motions to strike rarely avoid the expenditure of time and money and are
generally disfavored. See Kratz Aerial Ag Service, Inc. v. Slykerman, 2016 WL
1090361, at *2 (E.D. Cal. Mar. 21, 2016) (citing Spring v. Fair Isaac Corp., 2015
WL 7188234, at *2 (E.D. Cal. Nov. 16, 2015)); Atcherley v. Hanna, 2016 WL
70028, at *1 (E.D. Cal. Jan. 6, 2016) (citation omitted).
11 United States v. Gibson Wine Co., 2016 WL 1626988, *4 (E.D. Cal. Apr. 25, 2016).
12
An affirmative defense is one that precludes liability even if all of the elements of
13 the plaintiff’s claim are proven. Sherwin-Williams Co. v. Courtesy Oldsmobile-Cadillac,
14 Inc., 2016 WL 615335, at *2 (E.D. Cal. Feb. 16, 2016) (citation omitted). If a purported
15 affirmative defense only addresses the elements of the cause of action, it is not an
16 affirmative defense and it will be stricken as redundant. Sherwin-Williams, 2016 WL
17 6125335 at *2 (citing Barnes v. AT&T Pension Ben. Plan, 718 F.Supp 2d 1167, 1173
18 (N.D. Cal. 2010); see Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973-974 (9th
19 Cir. 2010) (noting that allegations are properly stricken as redundant if they appear
20 elsewhere in a pleading). The Gibson court continued:
21
22
23
24
25
26
27
28
A[n] [affirmative] defense may be insufficient either as a matter of law or
as a matter of pleading. Kaur v. City of Lodi, 2016 WL 627308, at *1 (E.D. Cal.
Feb. 17, 2016) (citation omitted). An affirmative defense is legally insufficient if
it “lacks merit under any set of facts the defendant might allege.” Dodson v.
Strategic Restaurants Acquisition Co., 289 F.R.D. 595, 603 (E.D. Cal. 2013)
(citation and internal quotation marks omitted).
An affirmative defense must give fair notice of the defense pled. Wyshak
v. City Nat’l Bank, 607 F.2d 824, 826 (9th Cir. 1979) (per curiam). A split
developed in this Circuit after the United States Supreme Court issued Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S.
662 (2009), applying a “plausible on its face” standard to allegations of a
complaint. Some courts—including this Court—suggested that the plausibility
3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
standard applies to affirmative defenses. E.g. Coppola v. Smith, 2015 WL
2127965, at *6 n.4 (E.D. Cal. May 6, 2015) (citing inter alia, Dodson v. Strategic
Rests. Acquisition Co. II, LLC, 289 F.R.D. 595, 602-03 (E.D. Cal. 2013)). Other
courts found that the “fair notice” standard of Wyshak was unaffected by
Twombly and Iqbal. See Pacific Dental Services, LLC v. Homeland Ins. Co. of
New York, 2013 WL 3776337, at *2 (C.D. Cal. July 17, 2013); Kohler v. Staples
the Office Superstore, LLC, 291 F.R.D. 464, 468 (S.D. Cal. 2013).
The Ninth Circuit has spoken to the standard by which affirmative
defenses must be pled. See Kohler v. Flava Enters., Inc., 779 F.3d 1016, 1019 (9th
Cir. 2015). It decided that “the ‘fair notice’ required by the pleading standards
only requires describing [an affirmative] defense in ‘general terms.’ ” Kohler, 779
F.3d at 1019 (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure, § 1274 (3d ed. 1998)). In this district, courts have recently read
Kohler to have resolved the split regarding whether the heightened “plausibility”
requirement set out in Twombly and Iqbal modifies the “fair notice” standard
traditionally applied to affirmative defenses; they found that it does not. E.g.
Staggs v. Doctor’s Hospital of Manteca, Inc., 2016 WL 880960, at *3 (E.D. Cal.
Mar. 8, 2016); Deleon v. Elite Self Storage Management, LLC, 2016 WL 881144,
at *1-2 (E.D. Cal. Mar. 8, 2016). Courts in the Northern District continue to apply
the plausibility standard. Hartford Underwriters Ins. Co. v. Kraus USA, Inc., --F.R.D.---, 2016 WL 127390, at *1 (N.D. Cal. Jan. 12, 2016) (applying the
plausibility standard to affirmative defenses); Martinez v. County of Sonoma,
2016 WL 1275402, at *1 (N.D. Cal. Apr. 1, 2016) (same); Perez v. Wells Fargo &
Company, 2015 WL 5567746, at *3 (N.D. Cal. Sept. 21, 2015) (In Kohler “the
Ninth Circuit did not specifically hold in that case that the Twombly [and ] Iqbal
standard does not apply to the pleading of affirmative defenses.”); see also
Hernandez v. Dutch Goose, Inc., 2013 WL 5781476, at *4, n.2 (N.D. Cal. Oct. 25,
2013) (“[E]very judge in th[e] [Northern District] to have taken up the issue has
concluded that Iqbal and Twombly apply to the pleading of affirmative
defenses.”)
Kohler was not explicit that Twombly and Iqbal do not apply to
determining the sufficiency of affirmative defenses. In fact, Kohler quoted from
the 1998 version of a practice guide, the most recent version of which identifies
the dispute but does not purport to resolve whether Twombly and Iqbal apply. See
Kohler, 779 F.3d at 1019 (quoting 5 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure, § 1274 (3d ed. 1998)); 5 Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure, § 1274 (3d ed. Apr. 2016)
(“[C]ourts are in disagreement as to whether the pleading standard articulated in
… Twombly and Iqbal … extends to the pleading of affirmative defenses.”). That
aside, this Court finds that requiring that an affirmative defense to be described in
“ ‘general terms’ does not … invoke”—and in fact appears inconsistent with—
“the heightened standard of substantive plausibility identified by Twombly and
Iqbal.” Aubin Industries, Inc. v. Caster Concepts, Inc., 2015 WL 39140000, at *6
(E.D. Cal. June 25, 2015); see Deleon, 2016 WL 881144 at *2. This Court will
not apply Twombly and Iqbal to determining the sufficiency of affirmative
defenses.
4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
“Fair notice … requires that the defendant state the nature and grounds for
the affirmative defense.”Varrasso v. Barksdale, 2016 WL 1375594, at *1 (S.D.
Cal. Apr. 5, 2016); Leos v. Rasey, 2016 WL 1162658, at *1 (E.D. Cal. Mar. 24,
2016); Uriarte v. Schwarzenegger, 2012 WL 1622237, at *3 (S.D. Cal. May 4,
2012). Although “fair notice” is a low bar that does not require great detail, it
does require a defendant to provide “some factual basis” for its affirmative
defenses. Sherwin-Williams[], 2016 WL 615335, at *2 [] (citation omitted); Beco
Dairy Automation, Inc. v. Global Tech Systems, Inc., 2015 WL 958012, at *2
(E.D. Cal. Dec. 31, 2015) (citation omitted). Simply referring to a doctrine or
statute is insufficient to afford fair notice. Wild v. Benchmark Pest Control, Inc.,
2016 WL 1046925, at *4 (E.D. Cal. Mar. 16, 2016); Stevens v. Corelogic, Inc.,
2015 WL 7272222, at *4 (S.D. Cal. Nov. 17, 2015); Beco Dairy Automation Inc.
v. Global Tech Systems, Inc., 2015 WL 5732595 (E.D. Cal. Sept. 28, 2015);
Kohler v. Staples, 291 F.R.D. 464, 469 (S.D. Cal. 2013). That said, some courts
have held that “[f]or well-established [affirmative] defenses, merely naming them
may be sufficient.” Springer v. Fair Isaac Corp., 2015 WL 7188234, at *4 (E.D.
Cal. Nov. 16, 2015) (citing Ganley v. Cnty. of San Mateo, 2007 WL 902551, at
*2 (N.D. Cal. Mar. 22, 2007)); Devermont v. City of San Diego, 2013 WL
2898342, at *2 (S.D. Cal. June 14, 2012); accord Deleon, 2016 WL 881144 at *2;
Sherwin-Williams, 2016 WL 615335 at *7 (finding that an affirmative defense
alleging that plaintiff’s recovery was barred by unclean hands, describing only the
elements and no facts in support of that defense, provided fair notice). This Court
will not accept fact-barren affirmative defenses or bare references to doctrines or
statutes because such pleadings do not afford fair notice of the nature of the
defense pleaded. [Saunders v. Fast Auto Loans, Inc., 2016 WL27035, *4 (E.D.
Cal. Apr. 25, 2016);] Board of Trustees of IBEW Local Union No. 100 Pension
Trust Fund v. Fresno’s Best Indus. Elec., Inc., 2014 WL 1245800, at *4 (E.D. Cal.
Mar. 24, 2014) (“Simply identifying an affirmative defense by name does not
provide fair notice of the nature of the defense or how it applies in this
action….”); see Wyshak, 607 F.2d at 827 (holding that fair notice of the nature of
the defense requires more than allegation of the doctrine at issue).
Even if a motion to strike is granted, leave to amend an affirmative
defense to cure a pleading deficiency—or add a new affirmative defense—should
be liberally granted in absence of prejudice to the opposing party. Hall v. City of
Los Angeles, 697 F.3d 1059, 1073 (9th Cir. 2012); Wyshak, 607 F.2d at 827.
22 United States v. Gibson Wine Co., 2016 WL 1626988, *4-6 (E.D. Cal. Apr. 25, 2016). That
23 standard is applicable here.
24
25
IV. Discussion
Plaintiff alleges that the bulk of each of the Defendant’s affirmative defenses provide
26 inadequate notice. Doc. 12 at 2; Doc. 31 at 4. Plaintiff also alleges that Bedrosian’s second, third,
27 sixth, eighth, thirteenth, fifteenth, seventeenth , eighteenths, and twentieth through twenty-fifth
28 affirmative defenses and Jacobo’s first, fifth, ninth, and tenth affirmative defenses should be all
5
1 stricken based on substantive failings, namely that each is inapplicable in a wage and hour
2 context. Doc. 31 at 4-7. Bedrosian opposes Plaintiff’s motion in whole. Jacobo opposes the
3 striking of its first and fifth affirmative defenses.
As a preliminary matter Jacobo’s amended answer appears to not be properly before the
4
5 Court. Fed. R. Civ. P. 15(a)(1)(A) & (a)(2) (“A party may amend its pleading once as a matter of
6 course within … 21 days after serving it.” Otherwise, “a party may amend its pleading only with
7 the other party’s written consent or the court’s leave.”) That said, Plaintiff’s motion is based on
8 the amended answer and the Court will consider Jacobo’s amended answer in determining
9 whether to grant leave to amend.
10 A. Sufficiency of Pleading of Affirmative Defenses
Plaintiff complains that most of Bedrosian’s Affirmative Defenses, when stripped of pro
11
12 forma recitations, allege only a doctrine.2 Bedrosian’s second, third, fourth, fifth, sixth, ninth,
13 thirteenth, fifteenth, eighteenth, twentieth, and twenty-first affirmative defenses all begin “[t]he
14 complaint and each cause of action set forth therein are barred, in whole or in part,” then state the
15 name of a doctrine, legal theory, or statute, e.g., “the doctrine of avoidable consequences,” “the
16 doctrine of unclean hands,” “the doctrine of waiver,” “the doctrine of estoppel,” or based on
17 violation of “California Labor Code §§ 2854, 2856, 2857, 2858, and/or 2859.” Doc. 7 at 18-21.
18 All of the affirmative defenses contained in Jacobo’s January 26, 2016 answer are largely
19 identical in form and even less detailed in substance. See Doc. 9 at 17-19. What is absent from
20 all of the above-listed affirmative defenses is any factual allegation that would support any of
21
22
2
Bedrosian appears to acknowledge this failure but suggests that Plaintiff could simply seek the factual basis for
23 Bedrosian’s affirmative defenses through discovery. Doc. 25 at 3 n.1. It suggests that affirmatives defenses should
not be “limit[ed] to … those which have factual support at the time the answer is filed….” Doc. 25 at 4. Effectively,
24 Bedrosian suggests that it should be permitted to plead affirmative defenses without any factual basis and then
provide the factual basis, if any, during discovery. Bedrosian’s suggestion would make an end-run around Rule 8
25 and Rule 15(a)(2) of the Federal Rules of Civil Procedure. If a defendant can allege no facts in support of a defense,
26
27
28
that defendant must not plead it. If a defendant later discovers facts that might indicate that an affirmative defense
might apply, it may seek leave to amend to add that affirmative defense.
Moreover, this Court agrees with Plaintiff’s assessment that allowing affirmative defenses pled without any
investigation into the underlying factual basis implicates Rule 11 concerns. Ganley v. County of San Mateo, 2007
WL 902551, *3 (N.D. Cal. Mar. 22, 2007) (“By including affirmative defenses which are neither warranted by
existing law nor supported by evidence, counsel may find himself subject to sanctions under Rule 11.”); see Fed R.
Civ. P. 11(b), (c).
6
1 those defenses. For example, with respect to Bedrosian’s fourth and Jacobo’s fifth3 amended
2 affirmative defense (unclean hands), the action Plaintiff took to render her hands unclean is not
3 alleged. Jacobo’s defense alleges that Plaintiff “engaged in fraudulent and unethical practices”; it
4 seeks an offset for any “gross negligence [or] willful misconduct” that Plaintiff or putative class
5 members engaged in to harm Jacobo. Doc. 29 at 18. In response to the motion to strike, Jacobo’s
6 argument regarding the factual basis for its defense is as scant as the defense itself: “Jacobo’s
7 [f]ifth [a]ffirmative [d]efense for unclean hands clearly provides a factual basis and is therefore
8 sufficiently pled….” Doc. 35 at 4. It is not so clear to the Court. Unclean hands can operate as a
9 defense where a plaintiff has “acted unconscionably, in bad faith or inequitably in the matter in
10 which the plaintiff seeks relief.” Canupp v. Children’s Receiving Home of Sacramento, --11 F.Supp.3d ----, 2016 WL 1587195, *22 (E.D. Cal. Apr. 20, 2016) (quoting Salas v. Sierra
12 Chemical Co., 59 Cal.4th 407, 432 (2014). Simply alleging that Plaintiff’s hands are unclean or
13 identifying a category of misconduct, without explaining what the specific misconduct alleged
14 was, does not give fair notice of the grounds for the defense or explain how the defense might
15 apply in this case.
Next, although longer in form, the remainder of Bedrosian’s affirmative defenses suffer
16
17 from the same absence of any alleged factual support. For instance, Bedrosian’s twenty-second
18 affirmative defense alleges that “[t]he Complaint and each cause of action set forth therein [is]
19 barred… because Plaintiffs’ alleged damages… were proximately caused and/or contributed to
20 by Plaintiffs’ own conduct and/or the conduct of others.” Doc. 7 at 22. Jacobo’s eighth (sixth in
21 Jacobo’s first amended answer) affirmative defense is the same in substance. See Doc. 9 at 18.4
22 That defense is conclusory and provides no indication of the factual basis upon which it rests.
23
3
Jacobo’s Amended Answer contains more detailed affirmative defenses. Its amended unclean hands defense reads,
24 in relevant part: “the complaint and each purported cause of action contained therein is barred under the doctrine of
unclean hands. Plaintiff has engaged in fraudulent and unethical practices which foreclose her ability to obtain
25 damages for the claims alleged in the instant complaint. The California Labor Code and Wage Orders authorize
26
27
28
employers to withhold wages for work not properly performed and to deduct from wages for losses caused by gross
negligence or willful misconduct of the employee. Defendant is informed and believes that it is entitled to an offset
…for work not properly performed and losses due to gross negligence and willful misconduct.” Doc. 29 at 18.
4
Jacobo’s Amended Answer provides additional legal basis for this affirmative defense and suggests that fault lies
with the employer rather than the labor contractor. Doc. 29 at 18. That allegation is sufficient to afford fair notice
because it alleges that Jacobo is not responsible, provides a legal basis for the defense, and directs to the party that
Jacobo believes is responsible. Doc. 29 at 18-19.
7
Despite the fact that all of Bedrosian’s affirmative defenses are without alleged factual
1
2 support, Plaintiff takes aim only at Bedrosian’s second, third, fourth, sixth, eighth, eleventh,
3 twelfth, thirteenth, fifteenth, seventeenth, eighteenth, twentieth, and twenty-first through twenty4 fifth affirmative defenses. Doc. 11 at 2.5 With the exception of Bedrosian’s fourteenth
5 affirmative defense—a facial challenge to the constitutionality of PAGA, not dependent on the
6 underlying facts—Bedrosian’s affirmative defenses fail to give fair notice. Additionally, as the
7 Court will explain in the following section, several of the defenses that Bedrosian characterizes
8 as affirmative defenses actually confront elements of offenses rather than operating to preclude
9 liability separate from the elements.6 Those defenses will be stricken as redundant of Bedrosian’s
10 denials rather than because they fail to afford fair notice.
Although all of the affirmative defenses contained in Jacobo’s January 26, 2016 answer
11
12 failed to provide any factual support, its first amended answer now contains the detail necessary
13 to place Plaintiff on fair notice of the contested affirmative defenses, with the exception of its
14 fifth affirmative defense.7 Accordingly, of Jacobo’s affirmative defense at which plaintiff takes
15 aim, only Jacobo’s fifth affirmative defense is insufficient as a matter of pleading. Doc. 30 at 2.
Plaintiff’s motion to strike will be granted as to Jacobo’s fifth amended affirmative
16
17 defense and all of Bedrosian’s affirmative defenses except its fourteenth because each is devoid
18 of factual allegations. Despite the inadequacy of the pleading, the Court will grant leave to
19 amend the stricken affirmative defenses as provided in Section IV(B), infra.
20 B. Substantive Sufficiency of Affirmative Defenses
21
1. Failure to State a Claim
22
Bedrosian’s first affirmative defense and Jacobo’s third affirmative defense—that
23 Plaintiff fails to state a claim—are not appropriately alleged as an affirmative defenses. “Failure
24
5
Somewhat confusingly, Plaintiff asks the Court to “order [Bedrosian] to cure only the most egregious defenses that
25 clearly fail to provide Plaintiffs fair notice of the nature of the defense being asserted.” Doc. 12 at 4. The Court
26
27
28
assumes that Plaintiff seeks an order striking as inadequately pled all of the affirmative defenses listed in Plaintiff’s
notice (which is most of the defenses alleged).
6
“Under Rule 8(c), an affirmative defense ‘is a defense that does not negate the elements of the plaintiff's claim, but
instead precludes liability even if all of the elements of the plaintiff's claim are proven.’” Saunders, 2016 WL
1627035, *4 (“‘A defense which demonstrates that plaintiff has not met its burden of proof is not an affirmative
defense.’”) (quoting Zivkovic v. S.Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002)).
7
Because Jacobo stipulates to dismissal of its ninth and tenth affirmative defenses the Court does not address them.
8
1 to state a claim is an assertion of a defect in Plaintiffs’ prima facie case.” Bd. of Trustees of
2 IBEW Local Union No. 100 Pension Trust Fund v. Fresno's Best Indus. Elec., Inc., 2014 WL
3 1245800, at *4 (E.D. Cal. Mar. 24, 2014) (citations omitted). Although not substantively
4 significant, Bedrosian’s first affirmative defense and Jacobo’s third affirmative defense will be
5 stricken with prejudice.
6
2. Waiver
7
Bedrosian’s second affirmative defense reads: “The Complaint and each cause of action
8 set forth therein are barred, in whole or in part, by the doctrine of waiver.” Doc. 7 at 18.8 Plaintiff
9 contends that “waiver is an improper defense in a wage and hour case” because “Labor Code §
10 219 expressly prohibits” waiver of any rights granted under the Labor Code through any private
11 agreement. Doc. 12 at 4-5 (citing Cal. Labor Code § 219); see also Cal. Labor Code § 1194
12 (“Notwithstanding any agreement to work for a lesser wage…” an employee paid less than
13 minimum wage may seek the unpaid balance.) Defendant Bedrosian counters that equitable
14 defenses such as waiver are facially applicable because Plaintiff pursues a UCL claim and
15 because each of Plaintiff’s claims seeks injunctive relief, a form of equitable relief.9 To the
16 extent that Plaintiff seeks otherwise unspecified “injunctive relief” based on violation of the
17 Labor Code,10 as a matter of law that waiver is not a meritorious affirmative defense. See,
18 Melgar v. CSk Auto, Inc., 2015 WL 9303977, *6 (N.D. Cal. Dec. 22, 2015) (rejecting equitable
19 defenses alleged in an action seeking indemnification for costs incurred during performance of
20 duties pursuant to Labor Code section 2802) An injunction to require an employer to pay
21 overtime, to afford meal breaks, or any other conduct mandated by the Labor Code is not subject
22
23
24
25
26
27
28
8
Insofar as paragraph 129 of Jacobo’s First affirmative defense is actually a waiver defense, this section is
applicable. See Doc. 29 at 17 (“[M]embers of the putative voluntarily and without coercion worked through such
meal and rest periods, and are estopped from asserting claims as to meal and rest periods that they voluntarily
waived.”)
9
Specifically, the final line of each of Plaintiff’s causes of action reads, “…Plaintiff and the Class requires relief as
described herein and below.” See generally Compl.. Plaintiff’s prayer for relief lists twenty-two different items,
including one simply for “injunctive relief.” Compl. at p. 30.
10
The Labor Code authorizes injunctive relief against violation of its provisions. Cal. Labor Code § 1194.5; Brewer
v. Premier Golf Properties, 168 Cal.App.4th 1243, 1254 (Cal. Ct. App. 2008) (listing injunctive relief among the
relief available for meal and rest break violations). Courts in this Circuit have granted injunctive relief based on
violation of the Labor Code. See, e.g., 823 F.Supp.2d 1040 (C.D. Cal. 2011) (granting preliminary injunction
requiring an employer to comply with Labor Code section 226, regarding wage statements).
9
1 to waiver by any private agreement. See Aguilar v. Zep Inc., 2014 WL 4245988, *19 (N.D. Cal.
2 Aug. 27, 2014) (“[A]n employee cannot consent to an illegal act or waive [(prospectively or
3 otherwise)] their right to wages owed or to reimbursement of expenses.”) (citing Cal. Labor
4 Code §§ 2804, 206.5, 219. Similarly, to the extent that Bedrosian suggests that Plaintiff or the
5 putative class members have waived their right to pursue private actions for damages pursuant to
6 the Labor Code, its affirmative defense is equally without merit. See Section IV(B)(3), infra; see
7 also, Stuart v. Radioshack Corp., 259 F.R.D. 200, 204 (N.D. Cal. Aug. 28, 2009) (rejecting a
8 waiver defense in an action for reimbursement under the Labor Code).
9
To the extent that this affirmative defense is alleged in relation to Plaintiff’s UCL claim,
10 equitable defenses are not complete defenses. Cortez v. Purolator Air Filtration Products Co., 23
11 Cal.4th 163, 179-180 (2000) (holding that unclean hands and other equitable defenses do not
12 preclude liability when the plaintiff seeks to vindicate a UCL claim predicated on Labor Code
13 violations); Salas v. Sierra Chemical Co., 59 Cal.4th 407, 432 (2014) (Although unclean hands is
14 not a complete defense in a UCL action, “equitable considerations may guide the court in
15 fashioning relief involving legislative expressed public policy.”) However, equitable defenses
16 like waiver certainly guide the court in shaping relief. A showing of waiver or unclean hands
17 could limit liability without negating any element of the UCL cause of action. As such in the
18 UCL context, the Court cannot determine that waiver and other equitable defenses might not be
19 appropriate partial affirmative defenses. See also, Dominguez-Curry v. Nevada Transp. Dept.,
20 424 F.3d 1027, 1042 (9th Cir. 2005) (recognizing that a “partial affirmative defense” is one that
21 limits or influences the remedies that the court may impose but does not preclude liability).
22
This affirmative defense will be stricken because it is inadequately pled, see Section
23 IV(A), supra. Insofar as it alleges that Plaintiff or the putative class members have waived the
24 right to seek damages or injunctive relief based on violations of the Labor Code, it will be
25 stricken with prejudice. However, leave to amend will be granted with regard to Plaintiff’s
26 Unfair Competition Law claim. See Aguilar v. Zep Inc., 2014 WL 4245988, *19 (N.D. Cal. Aug.
27
28
10
1 27, 2014). Any amended affirmative defense must not be inconsistent with this order and must
2 clearly set out the factual basis for the defense.11
3
3. Estoppel
4
Bedrosian’s third affirmative defense reads: “The Complaint and each cause of action set
5 forth therein are barred, in whole or in part, by the doctrine of estoppel.” Doc. 7 at 18. Jacobo’s
6 estoppel (first) affirmative defense offers more detail.12 It contends that Plaintiff is estopped from
7 raising each of its causes of action because Jacobo “has relied on the interpretations and
8 guidance of the Division of Labor Standards and Enforcement,” Doc. 29 at ¶ 128, (“DLSE”)—
9 “the agency empowered to enforce California’s labor laws”—in creating its wage policies.
10 Corbin v. Time Warner, --- F.3d ----, 2016 WL 17030403, *3 n. 4 (9th Cir. May 2, 2016)
11 (quoting See’s Candy Shops, Inc. v. Superior Court, 210 Cal.App.4th 889, 902 (Cal. Ct. App.
12 2012)).13 Thus, Jacobo contends, it cannot be found liable “for methods of computing wages
13 essentially ratified by DLSE.” Doc. 29 at ¶ 128. Alternatively, Jacobo alleges that Plaintiffs
14 voluntarily worked through meal periods and should be estopped from “asserting claims as to
15 meal and rest periods that they voluntarily waived.” Doc. 29 at ¶ 129.
16
First, Plaintiff suggests that the DLSE ratification basis is legally insufficient to establish
17 an estoppel defense because there was no reliance by any defendant on a statement by Plaintiff or
18 any putative class member. Doc 31 at 5 (citing Munoz v. State of California, 33 Cal.App.4th
19 1767, 1785 (Cal. Ct. App. 1995). Instead, Jacobo (and possibly Bedrosian) relied upon DLSE
20 opinion letter(s) that are “consider[ed]… with respect” and properly referred to for guidance, but
21 are not authoritative or entitled to deference because they are not adopted in compliance with the
22 Administrative Procedures Act. Kilby v. CVS Pharmacy, Inc., 63 Cal.4th 1, 9-10 (2016); see
23 Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004, 1029 n. 11 (2012) (“The DLSE's
24 opinion letters, while not controlling upon the courts by reason of their authority, do constitute a
25
26
27
28
11
If Bedrosian cannot articulate a factual basis for an affirmative defense because it cannot understand the
allegations of the complaint it should seek clarification from Plaintiff or file a motion to dismiss or for more definite
statement rather than employing the same shotgun style pleading.
12
It is unclear if Jacobo’s estoppel affirmative defense is a more fleshed out version of Bedrosian’s affirmative
defense and the two share the same basis, or if the two defenses share only the same name.
13
The DLSE is a division of the Department of Industrial Relations (“DIR”), which is a department of California’s
Labor and Workforce Development Agency (“LWDA”).
11
1 body of experience and informed judgment to which courts and litigants may properly resort for
2 guidance.”) (citation and internal quotation marks omitted); Morillion v. Royal Packing Co., 22
3 Cal.4th 575, 584 (2000). The parties have not cited and the Courts own research has not yielded
4 any case where any type of estoppel was sought or imposed because the DLSE advised an
5 employer on development of employment practices or, more generally, where a party was
6 estopped from bringing a claim based on the representations made by an unrelated third party or
7 governmental agency. That said, the Court can conceive of one situation implicated by the facts
8 in this matter, where a statement by the DLSE would not be considered a third-party statement:
9 Plaintiff’s PAGA claim. A PAGA claim allows a Plaintiff to step into the shoes the State’s labor
10 law enforcement agencies. See Bauman v. Chase Inv. Services Corp., 747 F.3d 1117, 1123 (9th
11 Cir. 2014) (citing Arias v. Superior Court, 46 Cal.4th 969, 986 (2009)). In that representative
12 role, it is possible that Plaintiff could be estopped from seeking penalties based on a policy that
13 was developed in conformity with DLSE guidelines. As such, the Court cannot now find that,
14 insofar as Jacobo’s estoppel defense is asserted with regard to Plaintiff’s PAGA claim, that it
15 “lacks merit under any set of facts the defendant might allege.” See Dodson, 289 F.R.D. at 603.14
16 Otherwise, Plaintiff is correct that reliance on DLSE advice does not appear to have any estoppel
17 effect on Plaintiff’s first eight causes of action. Therefore, as to Plaintiff’s PAGA claim,
18 Jacobo’s DLSE ratification based estoppel defense will be stricken with leave to amend. As to
19 the first eight causes of action, Jacobo’s DLSE ratification based estoppel defense will be
20 stricken without prejudice and without leave to amend. If Jacobo seeks to amend its DLSE
21 ratification basis for its estoppel affirmative defense as to Plaintiff’s first eight causes of action, it
22 must file a motion to amend with the Magistrate Judge and put forth some legal basis for such a
23 defense.
24
Next, Plaintiff relies on Waters v. San Dimas Ready Mix Concrete, 222 Cal.App.2d 380,
25 382 (Cal Ct. App. 1963), for her contention that the alternative basis for Jacobo’s affirmative
26 defense of estoppel is inapplicable to all of her causes of action as a matter of law. Doc. 31 at 5.
27
28
14
The Court does not now purport to conclusively answer whether this defense is necessarily viable. The
circumscribed inquiry at this phase requires the Court only to determine whether the defense is wholly without legal
basis.
12
1 In Waters, the defendant was an employer of truck drivers that had entered into two collective
2 bargaining agreements (“CBAs”), setting the time and rate of straight and overtime pay for
3 employees, including the plaintiff. Waters, 222 Cal.App.2d at 381. At the employees’ request,
4 the defendant kept its operation small and refrained from hiring additional drivers so that its
5 employees could work extra hours. All of the employees—including the plaintiff—agreed that
6 the overtime hours that they worked would be paid as straight time. Waters, 222 Cal.App.2d at
7 381. After termination of his employment, the plaintiff filed a complaint seeking to enforce the
8 overtime rate agreed to in the CBAs. Waters, 222 Cal.App.2d at 382. The defendant contended
9 that the plaintiff was barred by equitable estoppel. Waters, 222 Cal.App.2d at 382. Not so. The
10 Waters court explained that “employer and employee are not permitted to subvert a [CBA] by
11 way of private agreement,” therefore equitable estoppel based on the employee’s acceptance of
12 the lesser wage could not apply because the agreement to violate the CBA was illegal. Waters,
13 222 Cal.App.2d at 382-383 (citations omitted). More generally, equitable defenses appear to
14 simply not be enforceable against Labor Code claims. Cortez, 23 Cal.4th at 180 (The “defenses
15 set forth in the Labor Code do not induce equitable defenses.”); Ghory v. Al-Lahham, 209
16 Cal.App.3d 1487, 1492 (Cal. Ct. App. 1989) (“The principles of equity cannot be used … to
17 preclude … recovery of overtime compensation…. An employee receiving less than the
18 minimum wage … is entitled to recover in a civil action the unpaid balance … notwithstanding
19 any agreement to work for a lesser wage.”) (emphasis original); see also Barrentine v. Arkansas20 Best Freight System, Inc., 450 U.S. 728, 740 (1981) (holding that equitable defenses cannot be
21 asserted against Federal Labor Standards Act wage claims because they would nullify the
22 legislative purposes and policies that the FLSA was enacted to effectuate); Waters, 222
23 Cal.App.2d at 382-383 (Labor Code provisions cannot be abridged by private agreement).
24
Jacobo suggests that because no CBA exists here that “there is no law or public policy
25 that is being subverted.” Doc. 35 at 3 (citing Waters, 222, Cal.App.3d at 382). Although Jacobo
26 is certainly correct that no CBA has been alleged to exist in this case, it is incorrect that there is
27 no law or public policy that would be subverted, for instance, by knowingly allowing employees
28 to work through (or partially work through) meal or rest breaks without compensation. Brinker
13
1 Restaurant Corp. v. Superior Court, 53 Cal.4th at 1040 n. 19; see Cal. Labor Code § 219 (“[N]o
2 provision of this article can in any way be contravened or set aside by a private agreement,
3 whether written, oral, or implied.”); Booher v. Jet Blue Airways Corp., 2016 WL 1642929 (N.D.
4 Cal. Apr. 26, 2016) (quoting Armenta v. Osmose, Inc., 135 Cal.App.4th 314, 323-324 (Cal. Ct.
5 App. 2005) (“[A]ll hours worked must be compensated at the statutory or agreed rate….)
6
The alternative basis for Jacobo’s estoppel affirmative defense— “that … members of the
7 putative class voluntarily … worked through … meal and rest periods”—fails as a matter of law
8 as follows: Insofar as Jacobo’s affirmative defense suggests that Plaintiff or members of the
9 putative class could be estopped from seeking wages for meal or rest periods voluntarily skipped
10 with the knowledge of an employer, it is insufficient as a matter of law. Insofar as Jacobo’s
11 affirmative defense asserts that Plaintiff or the members of the putative class should be estopped
12 from seeking wages for meal periods voluntarily worked without the knowledge of an employer,
13 it addresses the elements of Plaintiff’s second (failure to pay minimum wage) and possibly third
14 (failure to pay overtime) causes of action and is not an independent affirmative defense. Insofar
15 as Jacobo’s affirmative defense asserts that meal and rest break penalties should not be assessed
16 against it because it had a policy of “reliev[ing] its employees of all duty, relinquish[ing] control
17 over their activities and permit[ing] them a reasonable opportunity to take an uninterrupted”
18 meal or rest breaks it addresses elements of the fourth (meal period violation) and fifth (rest
19 period violation) causes of action and is not an independent affirmative defense. However, in the
20 same way that the Court could not find that the waiver equitable defense is wholly without merit
21 as to Plaintiff’s UCL claim, so here Jacobo’s estoppel equitable defense might provide some
22 partial affirmative defense.
23
Although the allegations of paragraph 129 of Jacobo’s amended answer could have some
24 legal significance in tending to disprove an element of one or more of the causes of action,
25 Jacobo’s voluntary work estoppel contention is not valid as an independent affirmative defense
26 as to any of Plaintiff’s claims except the UCL claim. It will be stricken with prejudice as to all
27 claims except the UCL claim. With regard to the UCL claim, leave to amend will be granted..
28
14
1
Bedrosian’s estoppel affirmative defense will be stricken as inadequately pled. See
2 Section IV(A), supra. Assuming that the factual basis underlying its defense is similar the basis
3 for Jacobo’s defense, it will be granted leave to amend its affirmative defense with the same
4 limitations, clearly setting out the underlying factual basis.
5
4. Unclean Hands
6
As described in Section VI(A), supra, Bedrosian and Jacobo insufficiently pled unclean
7 hands defenses. Plaintiff alleges that unclean hands is also insufficient as a matter of law, largely
8 for the same reasons that Defendants’ estoppel affirmative defense is insufficient—because the
9 Labor Code does not permit an employer to refuse to pay wages owed because an employee
10 engaged in misconduct. The Court agrees that unclean hands is inapplicable to the Labor Code
11 violations. See Section IV(B)(3), supra. However, this Court cannot determine that unclean
12 hands might not be an appropriate partial affirmative defense as to Plaintiff’s UCL claim as
13 explained in Section IV(B)(2), supra.
14
With regard to Plaintiff’s UCL claim, Bedrosian’s fourth and Jacobo’s fifth affirmative
15 defenses will be stricken with leave to amend. Otherwise, Bedrosian’s fourth and Jacobo’s fifth
16 affirmative defenses will be stricken with prejudice.
17
5. Laches
18
Bedrosian’s sixth affirmative defense reads: “The Complaint and each cause of action set
19 forth therein are barred, in whole or in part, by the doctrine of laches.” Doc. 7 at 19. Again, this
20 defense will be stricken as inadequately pled. See Section IV(A), supra. It is also an equitable
21 defense that is legally insufficient as to Labor Code violations. See Section IV(B)(3), supra.
22 However, leave to amend will be granted. Bedrosian must clearly set out the underlying factual
23 basis for this affirmative defense as to Plaintiff’s UCL claim. Specifically, Bedrosian should set
24 out facts indicating the prejudice it has suffered because of Plaintiff’s delay. See Directors of
25 Motion Picture Industry Pension Plan v. Nu Image Inc., 2014 WL 6066105, *8 (C.D. Cal. 2014)
26 (“‘If a plaintiff files suit within the applicable period of limitations for his claim, there is a strong
27 presumption that laches does not bar the claims.’”) (quoting Jarrow Formulas, Inc. v. Nutriotion
28
15
1 Now., Inc., 304 F.3d 829, 838 (9th Cir. 2002)); accord Shouse v. Pierce County, 559 F.2d 1142,
2 1147 (9th Cir. 1977).
3
6. Good Faith
4
Bedrosian’s eighth affirmative defense reads: “Defendant is informed and believe that
5 further investigation and discovery will reveal, and on that basis alleges, that any violation of the
6 Fair Labor Standards Act,[15] Labor Code or an Order of the Industrial Welfare Commission was
7 an act or omission made in good faith and Defendant had reasonable grounds for believing that
8 its practices complied with applicable laws and that any such act or omission was not a violation
9 of the Fair Labor Standards Act, Labor Code or any Order of the Industrial Welfare Commission
10 such that Plaintiffs and/or the putative class members are not entitled to any damages.” Doc. 7 at
11 19.
12
Plaintiff contends that whether Bedrosian acted in good faith is immaterial to this action
13 because, it asserts, no provision of the California Labor Code allows a “‘good faith mistake’ [to]
14 excuse” an employer from paying wages. Doc. 12 at 7. Plaintiff is mostly correct. There is no
15 good faith mistake of law defense under the California Labor Code. In other words, an
16 employer’s mistaken belief it that complies with the Labor Code does not excuse failures to do
17 so. However, in limited circumstances, such as a good faith dispute as to whether money is owed
18 or a typographical error in a wage statement, can operate as defenses (not affirmative defenses)
19 to elements of some labor code violations. See Sako v. Wells Fargo Bank, N.A., 2016 WL
20 110513 *13 (S.D. Cal. Jan 16, 2016) (“A ‘good faith dispute’ as to whether any wages are due
21 will preclude waiting time penalties.”) (quoting Cal. Code Reg. tit. 8, § 13520); Novoa v. Charter
22 Communications, LLC, 100 F.Supp.3d 1013, 1027-1028 (E.D. Cal. 2015) (holding that a mistake
23 of law, even when made in good faith, does not render an employer’s failure not knowing and
24 intentional for purposes of Labor Code Section 226(a) and (e) liability).
Bedrosian’s good faith affirmative defense appears to be an allegation that it had a policy
25
26 that it believed to be in compliance with the California Labor Code (and the Fair Labor
27 Standards Act). Bedrosian’s opposition mentions that affirmative defense only once, where it
28
15
The Complaint does not allege or seek damages for any FLSA violations.
16
1 notes that its eighth defense is in response to the prayer for relief seeking “actual, incidental and
2 consequential damages for breach of contract.” Doc. 26 at 6 (quoting Compl. at p. 30). It
3 characterizes its eighth affirmative defense as a “contract related affirmative defense.” Doc. 25 at
4 6. It doesn’t appear to be. Rather, it appears to advance a good faith / mistake of fact defense
5 regarding statutory Labor Code violations. As noted, there is no legal basis for such a defense.
6 Moreover, because Plaintiff acknowledges that no contract existed between the parties, Doc. 12
7 at 7-8, all of the “breach of contract related” affirmative defenses will be stricken and Plaintiff
8 will not be permitted to recover under any breach of contract theory. If there is some alternative
9 theory under which this affirmative defense is appropriate, it is not apparent to the Court or
10 explained by Bedrosian. This affirmative defense will be stricken without prejudice and without
11 leave to amend. If Bedrosian seeks to include this affirmative defense in any amended answer it
12 must seek leave from the Magistrate Judge, explaining the factual and legal basis for it.
13
7. Lack of Standing
14
Bedrosian’s twelfth affirmative defense reads: “The Complaint and each cause of action
15 set forth therein are barred, in whole or in part, because Plaintiffs lack standing as representatives
16 of the proposed class and as representatives of the group of allegedly similarly situated
17 individuals they seek to represent and will not adequately represent the putative class members
18 or other employees of Defendant.” Doc 7 at 20. A denial of class allegations or PAGA
19 representative standing is a cognizable affirmative defense. Martinez v. County of Sonoma, 2016
20 WL 1275402, *3 (N.D. Cal. Apr. 1, 2016). Instead it is appropriately raised in opposition to a
21 motion for class certification. Martinez, 2016 WL 11275402, *3 (citing, inter alia, Miller v. Fuhu
22 Inc., 2014 WL 4748299, *2 (C.D. Cal. Sept. 22, 2014)). As such, Bedrosian’s twelfth affirmative
23 defense will be stricken because it is an inappropriate affirmative defense and because it is
24 redundant of Bedrosian’s denial of class allegations.
25
8. Mutual Breach of Duties
26
Bedrosian’s thirteenth affirmative defense reads: “The Complaint and each cause of
27 action set forth therein are barred, in whole or in part, because of Plaintiffs’ own breach of the
28 duties owed to Defendant under California Labor Code §§ 2854, 2856, 2857, 2858, and/or
17
1 2859.” Doc. 7 at 20. Essentially, Bedrosian appears to contend that Plaintiff and the putative
2 class members cannot recover under any cause of action because they failed to provide adequate
3 services. Bedrosian explains that this defense is also in response to the complaint’s reference to
4 damages for breach of contract. Doc. 25 at 6. As noted, all of the “breach of contract related”
5 affirmative defenses will be stricken. This affirmative defense will be stricken without prejudice
6 and without leave to amend. If Bedrosian seeks to include this affirmative defense in any
7 amended answer it must seek leave from the Magistrate Judge, explaining the factual and legal
8 basis for it.
9
9. Avoidable Consequences
10 Bedrosian’s fifteenth affirmative defense reads: “The Complaint and each cause of action set
11 forth therein are barred, in whole or in part, by the doctrine of avoidable consequences.” This
12 affirmative defense is another in the series that Bedrosian describes as “breach of contract
13 related” affirmative defenses. It will be stricken without prejudice and without leave to amend. .
14 If Bedrosian seeks to include this affirmative defense in any amended answer it must seek leave
15 from the Magistrate Judge, explaining the factual and legal basis for it.
16
10. Unsatisfied Condition Precedent and Unexhausted Claims
17
Bedrosian’s seventeenth affirmative defense reads: “The Complaint and each cause of
18 action set forth therein are barred, in whole or in part, because Plaintiffs failed to satisfy a
19 condition precedent to commencement of a civil claim under Labor Code section 2698, et seq.”
20 Doc. 7 at 21. Bedrosian’s eighteenth affirmative defense reads: “The Complaint and each cause
21 of action set forth therein are barred, in whole or in part, because Plaintiffs failed to properly
22 exhaust their administrative remedies. Doc. 7 at 21. Bedrosian explains that the “factual
23 predicate both these defenses is self-evident: [PAGA] includes administrative exhaustion
24 requirements … [including] providing written notice of the claims to [the LWDA].” Doc 25 at 5
25 (citing Cal. Labor Code § 2699.3). As explained in Section IV(A), supra, mere reference to a
26 statute (or in this case, a series of statutes), without more, does not afford fair notice. Indeed, it
27 is unclear to the Court how it could have been inferred from Bedrosian’s reference to “each
28 cause of action” being barred by Plaintiffs’ failure to exhaust administrative remedies that
18
1 Bedrosian referred only to complying with PAGA exhaustion requirements. Despite the pleading
2 deficiency, the court cannot determine that Bedrosian’s seventeenth and eighteenth affirmative
3 defenses “lack[] merit under any set of facts the defendant might allege.” Dodson, 289 F.R.D. at
4 603. Those affirmative defenses will be dismissed with leave to amend. Bedrosian must clearly
5 set out the factual basis for each affirmative defense.
6
11. Consent
7
Bedrosian’s twentieth affirmative defense alleges: “The Complaint and each cause of
8 action set forth therein are barred, in whole or in part, by the doctrine of consent.” Doc. 7 at 21.
9 This affirmative defense is another in the series that Bedrosian describes as “breach of contract
10 related” affirmative defenses. Doc. 25 at 6. As explained in Section IV(B)(3), supra, an
11 employee’s consent to violation of the Labor Code will not preclude suit for its violation.
12 Similarly, there is no breach of contract is at issue in this action so the Court can see no
13 application for this defense to this case. Bedrosian offers no other possible application. This
14 affirmative defense will be stricken without prejudice and without leave to amend. If Bedrosian
15 seeks to include this affirmative defense in any amended answer it must seek leave from the
16 Magistrate Judge, explaining the factual and legal basis for it.
17
12. Failure to Mitigate Damages
18
Bedrosian’s twenty-first affirmative defense reads: “The Complaint and each cause of
19 action set forth therein are barred, in whole or in part, because Plaintiffs’ failed to exercise
20 reasonable diligence to mitigate their damages, if any damages in fact were suffered.” Doc. 7 at
21 21-22. This affirmative defense is the final in the series of “breach of contract related”
22 affirmative defenses that Bedrosian advances. Doc. 25 at 6. As with the others, Bedrosian fails to
23 explain any other application for this defense. As previously explained, because Plaintiff
24 acknowledges that there was no employment contract between the parties that it seeks relief
25 under, this affirmative defense will be stricken without prejudice and without leave to amend. If
26 Bedrosian seeks to include this affirmative defense in any amended answer it must seek leave
27 from the Magistrate Judge, explaining the factual and legal basis for it.
28 / / /
19
1
Third Party Responsibility
2
Bedrosian’s twenty-second affirmative defense reads: “The Complaint and each cause of
3 action set forth therein are barred, in whole or in part, because Plaintiffs’ alleged damages, if any
4 in fact were suffered, were proximately caused and/or contributed to by Plaintiffs’ own conduct
5 and/or the conduct of others.” Doc 7. at 22. Similarly, Bedrosian’s twenty-fifth affirmative
6 defense alleges: “As a separate and distinct affirmative defense, Defendant alleges that any loss
7 or damage sustained by Plaintiff and the putative class members, if any, were caused by the acts
8 or omissions of Plaintiff and the putative class, or persons other than Defendant.” Doc. 7 at 22.
9 In its opposition, Bedrosian explains that this defense is “aimed at negating the ‘joint employer’
10 theory of liability…” and showing that “[t]o the extent that Plaintiffs’ rights were violated …
11 such violations were caused by Plaintiffs’ direct employer….” Doc. 25 at 6. Such a defense
12 would, if proven, negate an element of the offense—that Bedrosian was an employer. See, e.g.,
13 Cal. Labor Code § 226 (“Every employer shall….”); Cal. Labor Code § 226.7 (“An employer
14 shall not require… work during a meal or rest or recovery period….”); Cal.Code Regs., tit. 8 §
15 11140, subd. 4(A) & (B) (“Every employer shall pay….”), subd. 12 (“Every employer shall
16 authorize and permit … rest periods….”); cf, 29 U.S.C. § 1832(a) (requiring farm labor
17 contractors to pay wages owed). Contending that a defendant is not an employer is not a stand18 alone affirmative defense and need not be alleged as such. See J&J Sports Productions, Inc. v.
19 Anguelo, 2015 WL 5020725, *3 (E.D. Cal. Aug. 21, 2015) (holding that a claim of third party
20 responsibility is an attack on the prima facie elements and is not an affirmative defense).
21
Based on Bedrosian’s representation regarding the purpose of the twenty-second and
22 twenty-fifth affirmative defenses (that they only suggest that Jacobo is responsible for any
23 damages), the Court will strike the portion of those defenses that suggest that “Plaintiff and the
24 putative class members” are somehow responsible for any damages incurred. Because it is clear
25 from Bedrosian’s argument that those defenses are redundant of Bedrosian’s other denials and
26 not properly raised as affirmative defenses, the remainder of Bedrosian’s twenty-second and
27 twenty-fifth affirmative defenses will be stricken with prejudice.
28 / / /
20
1
13. Claim Preclusion and Issue Preclusion
2
Bedrosian’s twenty-third affirmative defense reads: “Some or all of Plaintiff’s claims are
3 barred by the doctrine of res judicata/claim preclusion, collateral estoppel/issue preclusion,
4 and/or judicial estoppel.” Doc. 7 at 22. Bedrosian contends that this defense rests “upon the
5 probability that some of the members of the putative class have already asserted claims against
6 Bedrosian that reached final judgment….” Doc. 25 at 5. Although Bedrosian should have at least
7 reference the suits where employees alleging similar claims against it obtained a judgment, there
8 is no indication that this affirmative defense would lack merit if such facts were alleged.
9 Although inadequately pled, this affirmative defense is not legally insufficient. It will be stricken
10 with leave to amend.
11
14. Absence of an Unlawful Employment Policy
12
Bedrosian’s twenty-fourth affirmative defense reads: “The alleged injuries to Plaintiff
13 and the putative class members were not proximately caused by any unlawful policy, custom,
14 practice, and/or procedure promulgated and/or tolerated by Defendant.” Doc. 7 at 22. Bedrosian
15 contends that this defense was also designed to show that Jacobo, rather than Bedrosian, is
16 responsible for any damages. Doc. 25 at 6. Again, this defense addresses an element of the
17 underlying offense (or a requirement for class certification), not an affirmative defense. See
18 Martinez, 2016 WL1275402, *3 (citing Miller, 2014 WL 4748299, *2 (Defenses addressing
19 absence of an unlawful policy are “more appropriately addressed on a motion for class
20 certification.”)). It will be stricken with prejudice because it is redundant of Bedrosian’s class
21 treatment denials and not an appropriate affirmative defense.
22
15. Insufficiency of Facts to Support a Claim for Punitive Damages
23
Jacobo’s ninth and tenth affirmative defense read: “Defendant alleges that the Complaint
24 and each purported cause of action contained therein fails to state facts sufficient to state any
25 claim upon which an award of punitive damages can be made.” Doc. 29 at 19. Plaintiff has not
26 pled a demand for punitive damages. “Jacobo does not oppose Plaintiff’s motion to strike” those
27 defenses. Jacobo’s ninth and tenth affirmative defenses are stricken with prejudice.
28 / / /
21
1
V. Order
2
Based on the foregoing, IT IS HEREBY ORDERED that:
3
1. Plaintiff’s motion to strike Bedrosian’s affirmative defenses is GRANTED as
4
5
follows:
a. Bedrosian’s first, twelfth, and twenty-third through twenty-fifth affirmative
6
7
defenses are stricken with prejudice;
b. Bedrosian’s second, fourth, sixth affirmative defenses are stricken with
8
prejudice as to all claims except Plaintiff’s UCL claim; as to the UCL claim,
9
Bedrosian is granted leave to amend its second and fourth affirmative
10
11
defenses;
c.
Bedrosian’s third affirmative defense is stricken with prejudice as to all
12
claims except Plaintiff’s PAGA and UCL claims; as to Plaintiff’s PAGA and
13
UCL claims, Bedrosian is granted leave to amend its first affirmative defense
14
d. Bedrosian’s seventeenth, eighteenth, and twenty-third affirmative defenses are
15
stricken with leave to amend in a manner not inconsistent with this order;
16
e. Bedrosian’s eighth, thirteenth, fifteenth, eighteenth, and twentieth through
17
twenty-second are stricken without prejudice and without leave to amend;
18
2. Plaintiff’s motion to strike Jacobo’s affirmative defenses is GRANTED as follows:
19
a. Jacobo’s third affirmative defense is stricken with prejudice;
20
b. Jacobo’s first affirmative defense is stricken with prejudice as to all claims
21
except Plaintiff’s PAGA and UCL claims; as to Plaintiff’s PAGA and UCL
22
claims, Jacobo is granted leave to amend its first affirmative defense;
23
c. Jacobo’s fifth affirmative defense is stricken with prejudice as to all claim
24
except Plaintiff’s UCL claim; as to Plaintiff’s UCL claim, Jacobo is granted
25
leave to amend its fifth affirmative defense;
26
d. Jacobo’s ninth and tenth affirmative defenses are stricken with prejudice.
27 / / /
28 / / /
22
1
2
IT IS SO ORDERED.
3 Dated: May 19, 2016
SENIOR DISTRICT JUDGE
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
23
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?