Kaur et al v. City of Lodi et al
Filing
102
ORDER signed by Judge Garland E. Burrell, Jr. on 9/18/2015 GRANTING Plaintiffs' 91 motion to strike; Defendants have 14 days leave from the date on which this order is filed to file an amended answer addressing any affirmative defense. (Reader, L)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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SUKHWINDER KAUR, individually
and as the successor in
interest for the Decedent
PARMINDER SINGH SHERGILL;
KULBINDER KAUR SOHOTA;
SARABJIT SINGH SHERGILL,
No. 2:14-cv-00828-GEB-AC
ORDER GRANTING PLAINTIFFS’
MOTION TO STRIKE
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Plaintiff,
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v.
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CITY OF LODI; CITY OF LODI
POLICE DEPARTMENT; MARK
HELMS, in his individual
capacity as the Chief of
Police for the City of Lodi;
SCOTT BRATTON, in his
individual capacity as a City
of Lodi Police Officer; ADAM
LOCKIE, in his individual
capacity as a City of Lodi
Police Officer,
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Defendants.
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Plaintiffs
seek
an
order
striking
the
fourteen
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affirmative defenses asserted by Defendants City of Lodi, City of
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Lodi Police Department, and Mark Helms. (Pls.’ Mot. to Strike
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Affirmative Defenses (“Mot.”), ECF No. 91.) Plaintiffs’ motion is
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brought under Federal Rule of Civil Procedure (“Rule”) 12(f).
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(Mot. 1:17–19.) Plaintiffs argue their motion should be granted
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because each asserted affirmative defense is either inapplicable
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or insufficiently pled.
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I.
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Rule
8(b)
of
LEGAL STANDARD
the
Federal
Rules
of
Civil
Procedure
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requires a party to state “in short and plain terms its defenses
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to each claim asserted against it.” Fed. R. Civ. P. 8(b)(1)(A).
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Furthermore,
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pleading an insufficient defense or any redundant, immaterial,
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impertinent, or scandalous matter.”
Rule
12(f)
permits
a
court
to
“strike
from
a
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An affirmative defense may constitute “an insufficient
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defense” under Rule 12(f) either as a matter of law or as a
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matter of pleading. Kohler v. Islands Rests., LP, 280 F.R.D. 560,
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563–64 (S.D. Cal. 2012). An affirmative defense is insufficient
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as a matter of law if it “lacks merit under any set of facts the
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defendant might allege.” Dodson v. Strategic Rests. Acquisition
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Co. II, LLC, 289 F.R.D. 595, 603 (E.D. Cal. 2013) (citation and
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internal
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insufficient as a matter of pleading if it fails to satisfy the
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applicable pleading standard.
quotation
marks
omitted).
An
affirmative
defense
is
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The parties dispute which pleading standard applies to
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Plaintiffs’ motion. Plaintiffs argue that the heightened pleading
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standard explained in Bell Atlantic Corp. v. Twombly, 550 U.S.
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544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), applies.
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(Mot. 2:27–28; 3:1–2.) This standard requires a party alleging a
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claim to include enough facts in the claim to evince that the
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claim “is plausible on its face.” Twombly, 550 U.S at 570.
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Defendants
counter
that
the
Ninth
Circuit
has
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“announced that the fair notice standard continues to govern the
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sufficiency of pleading affirmative defenses in wake of the Iqbal
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and Twombly decisions.” (Defs.’ Opp’n to Mot. (“Opp’n”) 4:20–22,
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ECF No. 94.) Under the fair notice pleading standard, “[t]he key
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to determining the sufficiency of pleading an affirmative defense
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is whether it gives plaintiff fair notice of the defense.” Wyshak
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v. City Nat. Bank, 607 F.2d 824, 827 (9th Cir. 1979).
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However, the parties’ dispute concerning the applicable
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pleading standard need not be resolved here since even under the
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lesser Wyshak fair notice pleading standard, Plaintiffs’ motion
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will be granted.
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II.
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A.
DISCUSSION
First Affirmative Defense: Good Faith
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Defendants assert in their first affirmative defense
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“[t]hat at all times mentioned in the complaint on file herein,
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and immediately prior thereto, Defendants acted in good faith[.]”
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(Defs.’ Answer to Third Am. Compl. (“Answer”) 14:20–21, ECF No.
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90.)
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viable
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affirmative defense is stricken.
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This
B.
conclusory
affirmative
assertion
defense.
does
not
adequately
Therefore,
notice
Defendants’
a
first
Second, Third, Sixth, Tenth, and Fourteenth Affirmative
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Defenses:
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Constitute a Cause of Action, Fails to State a Claim,
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Punitive Damages, and Due Process Available
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Defendants concur that the second, third, sixth, tenth,
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and fourteenth affirmative defenses are not proper since these
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defenses state a defect in Plaintiffs’ prima facie case. (Opp’n
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6:21–26, 7:22–28); see Zivkovic v. S. Cal. Edison Co., 302 F.3d
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1080, 1088 (9th Cir. 2002) (“A defense which demonstrates that
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plaintiff has not met its burden of proof is not an affirmative
Failure
to
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3
Allege
Facts
Sufficient
to
1
defense.”). Therefore, Defendants’ second, third, sixth, tenth,
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and fourteenth affirmative defenses are stricken.
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C.
Fourth,
Fifth,
and
Seventh
Affirmative
Defenses:
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Immunities
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Defendants also concur with Plaintiffs that the fourth,
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fifth,
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Plaintiffs with “fair notice of any specific defense.” (Opp’n
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7:11–15
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fifth, and seventh affirmative defenses are stricken.
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and
D.
seventh
(citation
affirmative
omitted).)
defenses
Therefore,
fail
to
Defendants’
provide
fourth,
Eighth Affirmative Defense: Reservation of Affirmative
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Defenses
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Defendants’ eighth affirmative defense states in part:
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“Defendants
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additional affirmative defenses if and to the extent that such
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affirmative defenses become applicable[.]” (Answer 15:17–18.)
expressly
reserves
[sic]
the
right
to
assert
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Plaintiffs argue this is not an affirmative defense.
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(Mot. 9:11.) Defendants seem to agree and acknowledge they “need
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not reserve the right to amend . . . .” (Opp’n 8:3–4.)
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The “‘reservation of affirmative defenses’ is not an
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affirmative defense.” E.E.O.C. v. Timeless Invs., Inc., 734 F.
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Supp.
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eighth affirmative defense is stricken.
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2d
E.
1035,
1055
(E.D.
Cal.
2010).
Therefore,
Defendants’
Ninth Affirmative Defense: Comparative Negligence
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Defendants’ ninth affirmative defense states:
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Defendants assert that if Defendants are
adjudged, decreed, or otherwise determined to
be liable to Plaintiff, then in that event,
Defendants will be entitled to apportion the
degree of their fault or responsibility for
said incident attributable to the Plaintiff
or to any other Defendants named herein or
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yet to be named. The amount of damages
attributable to these answering Defendants is
to be abated, reduced, or eliminated to the
extent that the Plaintiffs’ own negligence,
or the negligence of any other Defendants,
contributed
to
the
Plaintiffs’
claimed
damages,
if
any
there
were.
This
apportionment
of
damages
is
to
be
administered
in
accordance
with
the
principles of equity and pursuant to the
doctrine
of
comparative
negligence
and
pursuant to Civil Code Section 1431.2.
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(Answer 15:19–27.)
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Plaintiffs
argue
“Defendants’
assertion
of
this
9
affirmative
defense
is
completely
devoid
of
the
requisite
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facts . . . . provid[ing] ‘fair notice’ of this defense.” (Mot.
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10:18–21.) Defendants counter that this affirmative defense is
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sufficient because it is similar to an affirmative defense upheld
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in Edwards v. County of Modoc, No. 2:14–cv–02646–MCE–KJN, 2015 WL
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4456180 (E.D. Cal. July 20, 2015), where “Defendants allege[d]
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that Plaintiff’s contributory negligence caused and contributed
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to his damages.” Id. at *3.
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“A bare assertion of negligence or contributory fault
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without ‘any indication of the conduct supporting the defense’
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does
not
pass
muster,
even
under
the
fair
notice
standard.”
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Devermont v. City of San Diego, No. 12-CV-01823 BEN (KSC), 2013
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WL 2898342, at *6 (S.D. Cal. June 14, 2013) (quoting Roe v. City
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of San Diego, 289 F.R.D. 604, 611–12 (S.D. Cal. 2013)). Here,
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Defendants
do
not
affirmative
defense.
indicate
any
conduct
supporting
this
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Therefore,
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defense is stricken.
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Defendants’
ninth
affirmative
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F.
Eleventh
Affirmative
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Defendants’
Failure
to
Mitigate
Damages
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Defense:
eleventh
affirmative
defense
states
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“Plaintiffs have failed to mitigate their damages, if any there
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are[.]” (Answer 16:3–4.)
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Plaintiffs argue this affirmative defense is irrelevant
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and
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damages are ‘continuing.’” (Mot. 11:17–18.) Defendants counter
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that Plaintiffs’ Third Amended Complaint (“TAC”) both does, and
immaterial
since
“Plaintiffs
have
not
alleged
that
their
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does
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deprivation of association claim . . . does not clearly indicate
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whether they suffer from continuing or enhanced damages,” (Opp’n
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9:15–17), and “Plaintiff has admitted in its TAC to continuing
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damages.”
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association claims (Third and Fourth Claims) are not asserted
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against Defendants City of Lodi, City of Lodi Police Department,
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and Mark Helms. (TAC ¶¶ 80, 85; Answer 9:10–19.) Plaintiffs state
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in
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properly state a claim for continuing damages” and therefore, “a
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failure to mitigate claim is appropriate.” (Pls.’ Reply to Opp’n
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to Mot. (“Reply”) 6:18–19, ECF No. 97.)
not,
their
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allege
(Opp’n
Reply
such
9:22.)
brief:
damages,
However,
“Plaintiffs
contending:
Plaintiffs’
agree
that
“Plaintiffs’
deprivation
the
of
allegations
Plaintiffs further argue “Defendants have not properly
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stated
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counter that this affirmative defense provides fair notice. (See
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Opp’n 9:23–25.)
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[this
affirmative
However,
defense].”
Defendants’
(Mot.
failure
to
11:21.)
mitigate
Defendants
affirmative
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defense “gives no notice to [Plaintiffs] of the basis of [their]
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alleged
failure
to
mitigate.”
Kohler
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v.
Staples
the
Office
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Superstore, LLC, 291 F.R.D. 464, 469 (S.D. Cal. 2013). Contra
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Eurow & O’Reilly Corp. v. Superior Mfg. Group, Inc., No. CV 14-
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6595-RSWL VBKX, 2015 WL 1020116, at *3 (C.D. Cal. Mar. 6, 2015)
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(“Though [p]laintiff does not allege specific facts to support
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its allegation, [c]ourts have typically held that a generalized
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statement . . . meets [a party’s] pleading burden with respect to
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the affirmative defense of damage mitigation.” (alterations in
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original) (citation and internal quotation marks omitted)).
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Therefore, Defendants’ eleventh affirmative defense is
stricken.
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G.
Twelfth Affirmative Defense: Immunity
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Defendants assert in their twelfth affirmative defense
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they are immune from liability as a result of
executive and/or legislative and/or judicial
immunity under the common law, United States
statutes, and the opinions of the State and
Federal Courts interpreting these laws. Chief
Mark Helms contends that he is entitled to
the defense of qualified immunity. City of
Lodi contends that Officer Bratton and Lockie
[the “Officer Defendants”] are entitled to
the defense of qualified immunity[.]
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(Answer 16:5–9.)
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Plaintiffs
argue
“the
[first]
sentence
should
be
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stricken because it is ‘redundant’ under Rule 12(f)[,]” and fails
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to provide fair notice of the asserted immunities. (Mot. 12:16–21
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(referring
to
arguments
made
for
the
fourth
affirmative
23
defense).) Defendants counter that the first sentence should not
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be
stricken
because
“the
first
sentence
lists
the
applicable
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background authority Defendants will rely upon in asserted [sic]
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the qualified immunity defense.” (Opp’n 10:26–27.)
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The first sentence is stricken since it is evident that
it fails to provide fair notice of what is asserted.
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Plaintiffs also challenge the second sentence for the
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first time in their Reply brief. (Reply 7:18–28.) However, “[t]he
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district court need not consider arguments raised for the first
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time in a reply brief.” Zamani v. Carnes, 491 F.3d 990, 997 (9th
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Cir. 2007). Therefore, this argument is disregarded.
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Plaintiffs also challenge the third sentence, arguing
that
the
Officer
Defendants
“are
separately
represented
and
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Defendant City of Lodi cannot raise this [qualified immunity]
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defense on behalf of another party.” (Mot. 12:23–27 (citations
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and internal quotation marks omitted).) Defendants counter that
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Defendant City of Lodi has properly asserted qualified immunity
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on
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Lodi’s liability is contingent on whether the Officer Defendants’
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conduct was unlawful. (Opp’n 11:14–17, 12:20–22.)
behalf
17
of
the
Officer
Defendants
since
Defendant
City
of
The affirmative defense as stated, however, does not
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put
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immunity relates to Defendant City of Lodi’s liability or the
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basis
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affirmative defense which can be asserted by certain individuals.
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Therefore, the third sentence is stricken.
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Plaintiffs
for
H.
on
notice
Defendant
Thirteenth
City
as
to
of
how
Lodi’s
Affirmative
the
Officer
standing
Defense:
to
Defendants’
assert
Self-Defense
an
and
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Defense of Others
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Defendants assert “[t]hat at all times mentioned in the
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[TAC] . . . and immediately prior thereto, Defendants acted in
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self-defense and in the defense of others[.]” (Answer 16:10–11.)
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Plaintiffs argue “[t]his affirmative defense makes no sense in
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the context of the answering City Defendants, because none of
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those answering City Defendants was at the scene of the incident
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when Parminder Singh Shergill was shot to death.” (Mot. 13:7–9.)
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Defendants
5
defense. (Opp’n 13:3–18.)
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counter
Defendants
that
Defendant
have
not
City
provided
of
Lodi
asserts
Plaintiffs
with
this
fair
7
notice of the factual basis supporting this affirmative defense.
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See Qarbon.com Inc. v. eHelp Corp., 315 F. Supp. 2d 1046, 1049
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(N.D.
Cal.
2004)
(striking
affirmative
defenses
of
waiver,
10
estoppel, and unclean hands in part because defendant “fail[ed]
11
to
12
affirmative defense is stricken.
allege
the
factual
13
basis”).
III.
Therefore,
the
thirteenth
CONCLUSION
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For the reasons stated, Plaintiffs’ motion to strike is
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granted. Defendants have fourteen (14) days leave from the date
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on which this order is filed to file an amended answer addressing
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any affirmative defense.
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Dated:
September 18, 2015
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