Plane Exchange, Inc. v. Francois

Filing 36

MEMORANDUM AND ORDER signed by Senior Judge William B. Shubb on 12/16/2015 re 28 Defendant's Motion for Summary Adjudication: IT IS ORDERED that defendant 28 Francois' Motion for Partial Summary Judgment be, and the same hereby is, GRANTED on TPX's first and second defenses, and DENIED in all other respects. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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THE PLANE EXCHANGE, INC.,

CIV. NO. 2:14-00784 WBS KJN

Plaintiff,

MEMORANDUM AND ORDER RE: MOTION
FOR SUMMARY JUDGMENT

v.
PAUL FRANCOIS, a natural
person,
Defendant.

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Plaintiff The Plane Exchange, Inc. (“TPX”) filed a

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Complaint for declaratory relief against defendant Paul Francois

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related to a controversy arising out of the sale of a 1968

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Beechcraft V35A aircraft.

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filed six counterclaims and TPX asserted several affirmative

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defenses.

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Civil Procedure 56, defendant now moves for partial summary

(Docket No. 2.)

(Docket Nos. 6, 15.)

In response, Francois

Pursuant to Federal Rule of

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judgment.

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I.

Factual and Procedural History

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TPX is an aircraft broker and dealer.

(Francois Decl.

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¶ 1 (Docket No. 31).)

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a former U.S. Navy carrier pilot.

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Francois purchased from TPX a 1968 Beechcraft Bonanza aircraft

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for $93,000.00 for personal use.

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Francois is an Airline Transport Pilot and
(Id.)

On November 23, 2015,

(Id. ¶¶ 3, 5.)

Francois inquired about purchasing the aircraft after
seeing an advertisement for the aircraft on TPX’s website.

(Id.

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¶ 6.)

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of-a-kind Turbo Bonanza”--the only one to have a 380hp Turbo

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engine installed.

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2,410 total airframe hours and a useful load of 1,600 pounds.

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(Id.)

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the aircraft had an Experimental Exhibition Airworthiness

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Certificate.

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original logbooks were lost when the bank repossessed the

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aircraft, but prior owners have verified times and new logbooks

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have been created.”

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disclaimer stating: “All specifications and representations are

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believed to be accurate to the best knowledge of the seller;

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however, it is the buyer’s responsibility to verify all

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information prior to purchasing this Beechcraft Bonanza V35A

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Turbo 380hp.”

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The advertisement described the aircraft as a “truly one-

(Id. Ex. B.)

It noted that the aircraft had

Due to its larger engine, the advertisement disclosed that

(Id.)

The advertisement also disclosed that “[t]he

(Id.)

Lastly, the advertisement contained a

(Id.)

In response to the advertisement, Francois contacted

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TPX to negotiate a purchase price and to arrange for an

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inspection and flight-check of the aircraft.

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(Docket No. 33-5).)

(Vincent Decl. ¶ 3

Prior to the flight-check, TPX provided
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Francois with online access to the aircraft’s complete

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documentation, including its maintenance and repair records,

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airworthiness information, operating limitations, current weight

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and balance, and registration and ownership history.

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The operating limitations made clear that the aircraft was

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limited to exhibition use.

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of TPX, Mitch Adams, informed Francois that he had purchased the

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aircraft from a Bank that had repossessed the aircraft and that

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the aircraft’s logs were missing.

(Id. ¶ 5.)

(Id. ¶ 4.)

The Senior Vice President

(Adams Decl. ¶ 4 (Docket No.

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33-4).)

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flying the aircraft and repairs that needed to be done.

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¶¶ 5-6.)

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He also informed Francois of some problems he had while
(Id.

During the flight-check, the President of TPX, Craig

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Vincent, and Francois flew the aircraft for two hours.

(Id. ¶

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6.)

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aircraft, a detailed physical inspection, and described how he

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had estimated the total airframe hours since the log books had

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been destroyed.

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“acted at all times as if he was in a rush.”

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Francois declined to hire a mechanic to conduct a pre-purchase

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inspection of the aircraft despite Vincent’s alleged verbal

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recommendation that he do so.

Vincent walked Francois through the narrative history of the

(Id. ¶¶ 6-7.)

Vincent states that Francois
(Id. ¶ 6.)

(Id. ¶ 10.)

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In January 2014, Francois wrote to TPX requesting that

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it accept the return of the aircraft and re-pay Francois $89,000

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in cash.

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Notice of Violation of Consumer Legal Remedies Act and Demand for

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Remedy.

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represented the aircraft as having 2,410 total airframe hours

(Id. Ex. E.)

In April 2014, Francois served TPX with a

(Francois Decl. ¶ 18, Ex. G.)

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Francois claimed that TPX

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when it really had somewhere between 2,977 and 5,000 total

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airframe hours.

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that the aircraft had a useful load of 1,600 pounds but Francois’

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supplementary weight report, conducted by Arapahoe Aero on

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December 23, 2013, revealed it had a useful load of only 879

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pounds.

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(Id.)

Further, TPX claimed in its advertisement

(Id.)
In its Complaint for declaratory relief, TPX seeks

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relief under the Declaratory Judgment Act, 28 U.S.C. § 2201(a),

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and Federal Rule of Civil Procedure 57.

TPX seeks a judicial

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declaration that (1) Francois’ continuing claims that he is

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entitled to rescission of the aircraft’s purchase are without

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merit; (2) TPX has not breached any contract or warranty

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obligation owed to Francois (3) TPX put Francois in possession of

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all appropriate information about the aircraft prior to his

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decision to purchase it and/or disclosed all material facts

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concerning the aircraft’s airworthiness; (4) TPX did not

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advertise the aircraft in any way that was false or misleading to

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a reasonably prudent purchaser of private aircraft; and (5) TPX

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took reasonable and timely action to correct the useful load

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reported in earlier online listings.

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now moves for summary judgment as to the second and fourth

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issues.

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(Compl. ¶ 23.)

Francois

Francois filed six counterclaims for (1) breach of

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contract; (2) fraud and deceit; (3) intentional

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misrepresentation; (4) negligent misrepresentation; (5) violation

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of the California Consumer Legal Remedies Act (“CLRA”), Cal. Civ.

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Code § 1770; and (6) rescission.

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(Docket No. 6).)

(Francois Counter-Compl. at 6

Francois now moves for summary judgment on the
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first and fifth counterclaims.

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In its answer to Francois’ counterclaims, TPX asserted

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several affirmative defenses.

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15).)

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second, and sixth affirmative defenses for failure to state a

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cause of action, lack of standing, and no reasonable reliance.

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II.

Francois now moves for summary judgment on TPX’s first,

Evidentiary Objections

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(TPX Answer at 2-3 (Docket No.

On a motion for summary judgment, “[a] party may object
that the material cited to support or dispute a fact cannot be

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presented in a form that would be admissible in evidence.”

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R. Civ. P. 56(c)(2).

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portions of Francois’ expert witness report on grounds of

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speculation, relevance, prejudice, and lack of personal

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knowledge.

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Fed.

TPX raises eight evidentiary objections to

(Docket No. 33-3.)

Objections to evidence on the ground that the evidence

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is irrelevant, speculative, or constitutes an improper legal

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conclusion are all duplicative of the summary judgment standard

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itself.

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2d 1110, 1119–20 (E.D. Cal. 2006).

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judgment only when there is no genuine dispute of material fact.

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It cannot rely on irrelevant facts, and thus relevance objections

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are redundant.

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certain facts are not material.

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speculation, improper legal conclusions, or personal knowledge

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are not facts and can only be considered as arguments on a motion

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for summary judgment.

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of this evidence, lawyers should challenge its sufficiency.

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TPX’s objections to Francois’ expert witness report on these

See Burch v. Regents of the Univ. of Cal., 433 F. Supp.
A court can grant summary

Instead of objecting, parties should argue that
Similarly, statements based on

Instead of challenging the admissibility

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grounds are superfluous and the court therefore overrules them.

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TPX also raises six evidentiary objections to portions

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of Francois’ declaration.

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through five are overruled for the same reasons articulated

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above.

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statement that “the FAA informed me that the Aircraft was not

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airworthy at the time TPX sold it to me” is hearsay to the extent

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that it is offered to prove the aircraft was not airworthy at the

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time of sale or thereafter.

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(Docket No. 33-2.)

Objections one

In its sixth objection TPX argues that Francois’

(Id. ¶ 6 (citing Francois Decl.

¶ 14).)

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“Hearsay ‘is a statement, other than one made by the

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declarant while testifying at the trial or hearing, offered in

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evidence to prove the truth of the matter asserted.’”

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County of Maricopa, 747 F.3d 1048, 1056 (9th Cir. 2013) (quoting

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Fed. R. Evid. 801(c)).

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of hearsay because “[v]erdicts cannot rest on inadmissible

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evidence and a grant of summary judgment is a determination on

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the merits of the case.”

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Wagner v.

A moving party’s affidavits must be free

Burch, 433 F. Supp. 2d at 1121.

Francois argues that his statement does not constitute

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hearsay because the “FAA’s statement is a verbal act that carries

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an independent legal significance or effect, namely it was part

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of the FAA’s determination to ground the Aircraft because it was

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not in compliant airworthy condition.”

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(Docket No. 34).)

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FAA documents finding the aircraft to be not airworthy or

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rejecting the Form 337.

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declaration in which he states that the FAA found the aircraft

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not airworthy, grounded the aircraft, and refused to approve the

(Francois Reply at 4

However, Francois has not attempted to admit

Instead, Francois offers only his own

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Form 337 submitted by TPX.

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thus offers an out-of-court statement made by the FAA for the

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truth of the matter asserted--to prove that the aircraft was not

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airworthy.

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and find that this is improper hearsay evidence.

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III. Discussion

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(Francois Decl. ¶¶ 14-15.)

Francois

Accordingly, the court must sustain TPX’s objection

Summary judgment is proper “if the movant shows that

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there is no genuine dispute as to any material fact and the

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movant is entitled to judgment as a matter of law.”

Fed. R. Civ.

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P. 56(a).

A material fact is one that could affect the outcome

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of the suit, and a genuine issue is one that could permit a

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reasonable jury to enter a verdict in the non-moving party’s

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favor.

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(1986).

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burden of establishing the absence of a genuine issue of material

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fact and can satisfy this burden by presenting evidence that

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negates an essential element of the non-moving party’s case.

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Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

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Alternatively, the moving party can demonstrate that the non-

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moving party cannot produce evidence to support an essential

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element upon which it will bear the burden of proof at trial.

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Id.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
The party moving for summary judgment bears the initial

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Once the moving party meets its initial burden, the

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burden shifts to the non-moving party to “designate ‘specific

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facts showing that there is a genuine issue for trial.’”

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324 (quoting then-Fed. R. Civ. P. 56(e)).

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the non-moving party must “do more than simply show that there is

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some metaphysical doubt as to the material facts.”
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Id. at

To carry this burden,

Matsushita

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Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

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“The mere existence of a scintilla of evidence . . . will be

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insufficient; there must be evidence on which the jury could

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reasonably find for the [non-moving party].”

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at 252.

Anderson, 477 U.S.

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In deciding a summary judgment motion, the court must

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view the evidence in the light most favorable to the non-moving

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party and draw all justifiable inferences in its favor.

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255.

Id. at

“Credibility determinations, the weighing of the evidence,

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and the drawing of legitimate inferences from the facts are jury

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functions, not those of a judge . . . ruling on a motion for

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summary judgment . . . .”

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Id.

A. Breach of Contract & Warranty
Francois seeks summary judgment on TPX’s declaratory

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relief claim that it did not breach any contract or warranty

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obligation and on his counterclaim for breach of contract.

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1. Breach of Contract
A cause of action for “breach of contract requires a

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pleading of (1) the contract, (2) plaintiff’s performance or

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excuse for non-performance, (3) defendant’s breach, and (4)

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damage to plaintiff.”

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Cal. App. 3d 887, 913 (2d Dist. 1971).

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entered into a contract for the purchase of an airworthy aircraft

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with 2,410 total hours and a useful load of 1,600 pounds, that he

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performed under the agreement by paying the agreed amount of

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$93,000.00, and that TPX breached by delivering an aircraft with

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more than 5,000 total hours and a useful load of only 879 pounds.

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(Francois Mem. at 6 (Docket No. 30); Francois Counter-Compl. ¶¶

Acoustics, Inc. v. Trepte Constr. Co., 14

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Francois alleges that he

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11-12.)

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The contract in this case was primarily oral and the

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only writing evidencing the agreement is the bill of sale

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transferring title of the aircraft.

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Opp’n to Mot. for Summ. J. (“Opp’n”) at 5 (Docket No. 33).)

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There is a genuine dispute of fact as to whether the contract was

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for an aircraft with 2,410 total hours and useful load of 1,600

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pounds, as was advertised.

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(Compl. Ex. A, Ex. C; TPX’s

“Trade circulars, catalogs and advertisements are

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uniformly regarded as mere preliminary invitations which create

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no power of acceptance in the recipient.”

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Inc. v. Eastman Kodak Co., 703 F.2d 534, 539 (9th Cir. 1983).

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Thus, even though the advertisement represented the aircraft as

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having 2,410 total hours and a useful load of 1,600 pounds, TPX

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argues that it made clear that these were not the terms of the

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contract.

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“original logbooks were lost when the bank repossessed the

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aircraft” and that “it is the buyer’s responsibility to verify

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all information prior to purchasing this Beechcraft Bonanza V35A

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Turbo 380hp.”

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conversations and the in-person flight check, Vincent allegedly

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informed Francois that the Hobbs meter was replaced in 1997, when

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the aircraft had 1300 hours on it, and that TPX had estimated the

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total hours of 2,410 based on a conversation with a prior owner.

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(Vincent Decl. ¶ 7.)

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Foremost Pro Color,

First, the advertisement itself disclosed that the

(Francois Decl. Ex. B.)

Second, during phone

With respect to the useful load of the aircraft,

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Vincent alleges that he informed Francois prior to the purchase

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that there was a typographical error in the advertisement and the
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aircraft had a useful load of only 1,400 pounds.

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¶ 8.)

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Powerplant/Inspection Authorization mechanic, had weighed the

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aircraft for TPX and certified the useful load as 1,400 pounds.

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(Id. ¶ 8, Ex. B “Aircraft Weight Report.”)

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was placed inside the aircraft and given to Francois prior to the

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purchase of the aircraft.

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No. 32).)

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(Vincent Decl.

Rick Eckert, a certified Airframe and

The original report

(Id.; McCardell Decl. Ex. G (Docket

Even if TPX made clear prior to purchase that the

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useful load was 1,400 pounds, Francois argues that TPX still

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breached this contractual term.

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weight and balance report that he commissioned after purchasing

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the aircraft, Francois alleges that the useful load was only 879

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pounds.

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that the gross weight used by Arapahoe Aero was incorrect because

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it “was based on the original manufacturer weight (3400) and did

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not take into account the modifications done to the Plane in the

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80’s.”

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TPX that modifications to the aircraft had increased the weight

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to 3,800 pounds and the Arapahoe Aero report did not take this

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into account.

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Relying on the Arapahoe Aero

(McCardell Decl. Ex. A at 25.)

(Vincent Decl. ¶ 11.)

However, TPX contends

Prior owners allegedly informed

(Id.)

The fact that the FAA grounded the aircraft several

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months after the purchase does not clarify this issue.

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January 17, 2014, TPX submitted a Form 337 for major repairs and

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alterations to the FAA in an effort to clarify the useful load

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discrepancies.

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the FAA grounded the aircraft.

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states in his declaration that “[d]uring the process of making

(Id.; Francois Decl. ¶ 13, Ex. F.)

In response,

(Francois Decl. ¶ 14.)

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On

Francois

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the Aircraft Airworthy again, the FAA refused to approve the Form

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337 submitted by TPX, and as a result the Aircraft must be

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operated at the lower useful load of 879 pounds.”

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He states that he “did not receive a written response from the

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FAA approving a higher useful load other than the Arapahoe Aero

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weight and balance calculation.”

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documentary evidence that the FAA rejected the Form 337.

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Moreover, a failure to respond to a request for approval of a

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higher useful load is not equivalent to adopting the Arapahoe

(Id.)

(Id. ¶ 15.)

Francois provided no

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Aero weight of 879 pounds and rejecting the TPX weight of 1,400

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pounds.1

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Viewing all evidence in the light most favorable to the

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non-moving party, the court must find that there is a genuine

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dispute of fact as to the terms of the oral contract and whether

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TPX breached this contract.

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ambiguous”--as is the case here--“determining the contract’s

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terms is a question of fact for the trier of fact, based on ‘all

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credible evidence concerning the parties’ intentions.’”

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Alexander v. Codemasters Grp. Ltd., 104 Cal. App. 4th 129, 146

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“If the terms of a contract are

In his reply, Francois also makes the alternative
argument that according to TPX’s Complaint, the parties agreed
that the useful load was 1,540 pounds. (Francois Reply at 7; see
Compl. ¶ 11 (“Defendant was also informed by Plaintiff before he
flew the Plane that its useful load was 1540 lbs. and not 1600
lbs. as had been erroneously reported in one of the earlier on
line listings.”).) Francois argues that Vincent’s declaration,
which states that the useful load was 1,400, constitutes an
admission that TPX delivered to Francois an aircraft with a much
lower useful load than what the parties allegedly agreed on, as
the issue is framed by the allegations in TPX’s Complaint.
(Francois Reply at 7.) It appears to the court that there was a
typographical error in the Complaint. Moreover, even if this was
not a typographical error, there is still a factual dispute as to
whether TPX breached and whether the breach was material.
11

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(5th Dist. 2002) (citation omitted); see also Treadwell v.

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Nickel, 194 Cal. 243, 261 (1924) (“When the contract relied on is

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oral, its interpretation in the first instance is a question of

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fact to be determined by the jury.”).

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contract claim is a question for the jury and the court must deny

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Francois’ motion for summary judgment.

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Accordingly, the breach of

2. Breach of Warranty
“Unless excluded or modified, a warranty that the goods
shall be merchantable is implied in a contract for their sale if

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the seller is a merchant with respect to goods of that kind.”

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Cal. Com. Code § 2314(1).

12

for the ordinary purposes for which such goods are used.”

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§ 2314(2)(c).

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depend upon any specific conduct or promise on [the seller’s]

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part, but instead turns upon whether [the] product is

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merchantable under the code.”

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117 (1975).

To be merchantable, goods must be “fit
Id. at

“[L]iability for an implied warranty does not

Hauter v. Zogarts, 14 Cal.3d 104,

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Francois argues that TPX breached the implied warranty

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of liability because the aircraft was allegedly not airworthy at

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the time of sale.

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on the expert witness report produced by Gerald McCardell, the

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director of maintenance at Woodland Aviation, Inc.

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states that “it is my expert opinion that at the time the

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Aircraft was sold to Mr. Francois, it was not in airworthy

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condition.”

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on research he conducted that allegedly revealed that

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approximately fifty-four “Airworthiness Directives issued by the

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FAA applicable to the Aircraft existed and required verification,

(Francois Mem. at 7.)

(McCardell Decl. ¶ 8.)

12

Francois relies first

McCardell

McCardell based his finding

1

inspection, and disclosure at the time the Aircraft was sold to

2

Mr. Francois.”

3

(Id.)

McCardell, however, did not physically inspect the

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aircraft.

(Id. Ex. A at 8.)

Moreover, McCardell acknowledged

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that the aircraft was found to be airworthy by Procraft Aviation,

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a Federal Aviation Administration (“FAA”) certified repair

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station on December 18, 2012, and the aircraft was not required

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to be inspected again until approximately one month after

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Francois purchased the aircraft.

(Id. ¶ 8.c, Ex. A at 12; see

10

also Vincent Decl. ¶ 14.A.)

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Procraft Aviation certification “was not done completely” as it

12

looked at only eleven Airworthiness Directives rather than the

13

full list of fifty-four, TPX argues that this does not

14

demonstrate that the aircraft was not airworthy or the

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certification improper.

16

While McCardell argues that the

(McCardell Decl. ¶ 8.)

In addition to expert testimony, Francois states that

17

the FAA itself determined that the aircraft was not airworthy at

18

the time of purchase.

19

discussed above, this is improper hearsay evidence on which the

20

court may not rely, see supra Part II.

21

(Francois Decl. ¶¶ 13-15.)

However, as

The court must therefore deny Francois’ motion for

22

summary judgment on TPX’s claim for declaratory relief for no

23

breach of contract or warranty and Francois’ breach of contract

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counterclaim.

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26

B. False or Misleading Advertisement
Francois next moves for summary judgment on TPX’s claim

27

that it did not advertise the aircraft in any way that was false

28

or misleading.

Francois contends that the advertising was false
13

1

and misleading because, according to his expert and supplemental

2

aircraft weight report, the aircraft had more than 2,410 total

3

hours and could carry less than a 1,600 pound load.

4

Mem. at 7.)

5

also disclosed that the original logbooks were lost and though

6

all representations were believed to be accurate, it was the

7

buyer’s responsibility to verify all information.

8

sufficiently raises a dispute as to whether the advertisement was

9

false or misleading.

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(Francois

However, as is discussed above, the advertisement

This evidence

Accordingly, the court denies Francois’

motion for summary judgment.
C. Violation of California Consumer Legal Remedies Act
Francois moves for summary judgment on his fifth

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counterclaim that TPX violated the CLRA.

14

enacted the CLRA in 1970 to provide individual consumers with a

15

remedy against merchants employing certain deceptive practices in

16

connection with the sale of goods or services, noting the

17

difficultly consumers faced proving a fraud claim.”

18

Pearson Ford Co., 186 Cal. App. 4th 983, 1021 (4th Dist. 2010).

19

The statutory scheme is to be “liberally construed” to “protect

20

consumers against unfair and deceptive business practices and to

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provide efficient and economical procedures to secure such

22

protection.”

23

“The Legislature

Nelson v.

Cal. Civ. Code § 1760.

The CLRA prescribes twenty-three “unfair methods of

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competition and unfair or deceptive acts or practices undertaken

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by any person in a transaction intended to result or which

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results in the sale or lease of goods or services to any

27

consumer.”

28

misrepresenting the source or certification of goods,

Id. § 1770.

The prescribed acts include

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1

representing that goods have characteristics, uses or benefits

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that they do not have, advertising goods with intent not to sell

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them as advertised, and misrepresenting that a good has been

4

supplied in accordance with a previous representation.

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Goods are defined as “tangible chattels bought or leased for use

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primarily for personal, family, or household purposes.”

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1761.

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purchase or lease, any goods or services for personal, family, or

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household purposes.”

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Id.

Id. §

A consumer is “an individual who seeks or acquires, by

Id.

Unlike the federal Magnuson-Moss Warranty Act, “which

11

defines consumer products based on how they are ‘normally used,’”

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the CLRA defines consumer products based on “the purposes for

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which they are actually bought.”

14

Civ. No. 06-1947 LKK GGH, 2007 WL 1106098, at *8 (E.D. Cal. Apr.

15

10, 2007).

16

argument that an aircraft engine cannot, as a matter of law, be

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for personal use.

18

sufficiently alleged that he purchased and used his aircraft

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primarily for personal, family, or household purposes); see also

20

Waypoint Aviation Servs. Inc. v. Sandel Avionics, Inc., 469 F.3d

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1071, 1072 (7th Cir. 2006) (disagreeing with the district court’s

22

conclusion that an airplane cannot be a consumer product, even if

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its principal use is personal transportation or recreation, under

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the Magnuson-Moss Warranty Act).

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Bristow v. Lycoming Engines,

In Bristow, the court explicitly rejected the

Id. (finding that the plaintiff had

In his declaration, Francois states that he purchased

26

the aircraft “for personal use.”

27

argues that an exhibition aircraft, which can only be flown in

28

airshows or for TV and movie productions, cannot qualify as a
15

(Francois Decl. ¶ 5.)

TPX

1

consumer product purchased primarily for personal purposes.

2

(Opp’n at 13.)

3

experimental exhibition certification, Francois purchased the

4

aircraft with the intent to use it for personal purposes.

5

Moreover, TPX has presented no evidence demonstrating Francois

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used the aircraft for commercial purposes or to generate revenue.

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Even more so than the aircraft engine purchased in Bristow, it is

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plausible that an exhibition aircraft would be purchased for

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personal use.

10

However, regardless of the aircraft’s

The court therefore finds that Francois can, as a

matter of law, assert a CLRA claim.

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While a plaintiff need not plead reasonable or actual

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reliance under the CLRA, the courts apply a “reasonable consumer”

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standard.

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798, 810 (2d Dist. 2007), abrogated on other grounds by Kwikset

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Corp. v. Superior Court, 51 Cal. 4th 310, 337 (2011).

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plaintiff must show that members of the public are likely to be

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deceived by the advertising.

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would be deceived by a product label is generally a question of

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fact.”

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1193 (N.D. Cal. 2014).

Buckland v. Threshold Enters., Ltd., 155 Cal. App. 4th

Id.

A

“Whether a reasonable consumer

Ham v. Hain Celestial Grp., Inc., 70 F. Supp. 3d 1188,

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As discussed above, it is disputed whether a reasonable

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consumer would be misled by TPX’s advertisement, which

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represented the aircraft as having a certain number of airframe

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hours and a certain useful load yet also disclosed that the logs

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of the aircraft had been destroyed and it was the buyer’s

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responsibility to verify all information, see supra Part III.B.

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The court therefore must deny Francois’ motion for summary

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judgment.
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1

D. TPX’s Affirmative Defenses

2

Francois moves for summary judgment of TPX’s first,

3

second, and sixth affirmative defenses.

Under Federal Rule of

4

Civil Procedure 8(c), an affirmative defense “is a defense that

5

does not negate the elements of the plaintiff’s claim, but

6

instead precludes liability even if all of the elements of the

7

plaintiff’s claim are proven.”

8

Plan-Non-bargained Program, 718 F. Supp. 2d 1167, 1173 (N.D. Cal.

9

2010) (citation omitted).

Barnes v. AT&T Pension Benefit

“A defense which demonstrates that

10

plaintiff has not met its burden of proof is not an affirmative

11

defense.”

12

(9th Cir. 2002); see also G&G Closed Circuit Events, LLC v.

13

Nguyen, Civ. No. 10-00168 LHK, 2010 WL 3749284, at *5 (N.D. Cal.

14

Sept. 23, 2010) (“[A]llegations that the Plaintiff cannot prove

15

the elements of his claims are not affirmative defenses.”).

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In its first and second affirmative defenses, TPX

Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088

17

claims that Francois’ CLRA claim is legally insufficient and

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Francois lacks standing because the transaction complained of was

19

not a consumer transaction.

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true affirmative defenses but rather allegations that Francois

21

cannot prove the elements of his CLRA counterclaim.

22

court is entitled to grant summary judgment on a defense or part

23

of a defense.

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Francois has established that this was a consumer transaction

25

covered by the CLRA.

26

motion for summary judgment on TPX’s first and second defenses.

27
28

(TPX Answer at 2.)

Fed. R. Civ. P. 56(a).

These are not

However, the

As discussed above,

The court must therefore grant Francois’

In its sixth affirmative defense TPX alleges that
Francois’ counterclaims for fraud, rescission, and violation of
17

1

the CLRA are barred by virtue of the fact that his alleged

2

reliance on the alleged misrepresentations was unreasonable under

3

the circumstances or was otherwise below the standard of a

4

reasonable consumer.

Again, this is a defense, not an

5

affirmative defense.

The court must deny Francois’ motion for

6

summary judgment on this defense as there are genuine disputes of

7

fact as to whether a reasonable consumer would rely on TPX’s

8

advertisement.

9

IT IS THEREFORE ORDERED that defendant Francois’ motion

10

for partial summary judgment (Docket No. 28) be, and the same

11

hereby is, GRANTED on TPX’s first and second defenses, and DENIED

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in all other respects.

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Dated:

December 16, 2015

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