Yao v. City of Folsom, et al.

Filing 17

MEMORANDUM AND ORDER signed by District Judge Morrison C. England, Jr. on 4/18/2017 ORDERING 10 that Plaintiff's Motion to Strike is GRANTED in PART and DENIED in PART; Defendants' first and third affirmative defenses are STRICKEN from Defendants' Answer without prejudice. (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JING JING YAO,

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Plaintiff,

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No. 2:16-cv-02609-MCE-AC

v.

MEMORANDUM AND ORDER

CITY OF FOLSOM, et al.,

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Defendants.

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Plaintiff Jing Jing Yao brings this suit against Defendants the City of Folsom, the

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Folsom Police Department, and several Folsom police officers, stating claims based on

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an allegedly false arrest and use of excessive force. In response to Plaintiff’s Complaint,

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ECF No. 1, Defendants filed an Answer, ECF No. 9, which includes ten affirmative

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defenses. Plaintiff now moves to strike all ten affirmative defenses. ECF No. 10. For

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the reasons given below, the Motion is GRANTED IN PART and DENIED IN PART—

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Defendants’ first and third affirmative defenses are stricken.

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BACKGROUND1

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On the night of July 24, 2016, Plaintiff was the driver of a vehicle containing two

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other passengers when she was pulled over by Defendant Scott Geist, an officer with

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the Folsom Police Department. Geist accused Plaintiff of swerving and asked if she had

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been drinking. Plaintiff denied swerving and stated that she had not been drinking. At

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some point, Defendants Paul Rice and Nezik then arrived at the scene. Geist eventually

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demanded that Plaintiff sign a citation, which she refused as she maintained she had

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done nothing wrong. Geist, Rice, and Nezik then forcefully pulled Plaintiff out of her car,

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pinned her to the ground, and handcuffed her.

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Plaintiff alleges that she was arrested without probable cause, that excessive

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force was used against her, and that she suffered injuries as a result of the allegedly

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unlawful arrest. In this action, she brings several constitutional claims as well as state

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tort claims against the officers, the City of Folsom, and the Folsom Police Department.

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STANDARD

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An affirmative defense is an “assertion of facts and arguments that, if true, will

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defeat the plaintiff’s [ ] claim, even if all the allegations in the complaint are true.” Black’s

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Law Dictionary (10th ed. 2014). Plaintiff makes her motion under Federal Rule of Civil

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Procedure 12(f),2 which allows a party to “strike from a pleading an insufficient defense

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or any redundant, immaterial, impertinent, or scandalous matter.”

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The primary basis of Plaintiff’s motion is her contention that the heightened

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pleading standard of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and

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Ashcroft v. Iqbal, 556 U.S. 662 (2009), applies to affirmative defenses. Plaintiff argues

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Unless otherwise noted, the facts in this section are taken, sometimes verbatim, from Plaintiff’s
Complaint.
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All subsequent references to “Rule” are to the Federal Rules of Civil Procedure.

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that “[n]either the Ninth Circuit nor any other Circuit Court of Appeals has ruled on”

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whether Twombly and Iqbal apply to affirmative defenses. Pl.’s Mot. to Strike, at 2

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(quoting Vargas v. County of Yolo, No. 2:15-CV-02537-TLN-CKD, 2016 WL 3916329, at

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*3 (E.D. Cal. July 20, 2016)). However, Plaintiff provides no substantive argument for

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why Twombly and Iqbal should apply to affirmative defenses, and only points to cases

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applying that standard to affirmative defenses before the Ninth Circuit’s opinion in

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Kohler v. Flava Enters., 779 F.3d 1016 (9th Cir. 2015), which Plaintiff describes as not

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specifically addressing the issue. See Pl.’s Mot. to Strike, at 2–3.

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However, this Court has already held that Kohler resolves the issue of which

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pleading standard applies to affirmative defenses: “[T]his Court now applies the ‘fair

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notice’ standard, and not the heightened pleading standard announced in Twombly and

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Iqbal, when evaluating motions to strike affirmative defenses.” Edwards v. County of

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Modoc, No. 2:14-cv-02646-MCE-KJN, 2015 WL 4456180, at *1 (E.D. Cal. July 20, 2015)

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(England, C.J.). This is because the Ninth Circuit explained in Kohler that “the ‘fair

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notice’ required by the pleading standards only requires describing the defense in

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‘general terms.’” Kohler, 779 F.3d at 1019 (quoting 5 Charles Alan Wright & Arthur R.

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Miller, Federal Practice and Procedure § 1274 (3d ed. 1998)). Plaintiff provides no

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reasons for why this Court’s prior interpretation of Kohler is incorrect, and therefore the

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Court analyzes Plaintiff’s motion under the “fair notice” standard.

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ANALYSIS

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Plaintiff first generally attacks Defendants’ affirmative defenses for failing to

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identify which party and claim each affirmative defense applies to. See Pl.’s Mot. to

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Strike, at 4–5. Plaintiff, however, does not show that the specificity she advocates is

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necessary as a matter of law. Instead, she only provides an Eleventh Circuit case,

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Byrne v. Nezhat, 261 F.3d 1075 (11th Cir. 2001), and other out-of-circuit cases that cite

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Byrne. Byrne, however, is inapposite. In that case, the Eleventh Circuit stated that
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“because [the defendant’s twenty-six affirmative defenses] addressed the amended

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complaint as a whole, they were, as a practical matter as vague and ambiguous as the

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amended complaint.” Id. at 1129. That is, the defect of the answer in that case was it

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compounded the errors of the complaint. In the instant case, there is no reciprocal

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“shotgun pleading” as there was in Byrne. Id.

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Aside from this general attack on the specificity of Defendants’ affirmative

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defenses, Plaintiff makes specific arguments that each of Defendants’ ten affirmative

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defenses is insufficiently pled. Accordingly, the Court addresses each affirmative

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defense in turn.

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In their first affirmative defense, Defendants claim immunity under California

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Government Code § 821.6. That section provides: “A public employee is not liable for

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injury caused by his instituting or prosecuting any judicial or administrative proceeding

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within the scope of his employment, even if he acts maliciously and without probable

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cause.” Cal. Gov’t Code § 821.6. Plaintiff claims this defense should be stricken

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because the statute’s “immunity is limited to initiation of judicial or administrative

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proceedings.” Pl.’s Mot. to Strike, at 5. Here, Plaintiff’s claims arise from actions taken

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during an arrest, not the initiation of any judicial or administrative proceeding, and

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therefore § 821.6 is inapplicable. See Blankenhorn v. City of Orange, 485 F.3d 463, 488

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(9th Cir. 2007) “Because [plaintiff]’s assault and battery, negligence, and intentional

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infliction of emotional distress claims are based on acts that allegedly happened during

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his arrest, not pursuant to an investigation into his guilt, section 821.6 does not confer

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immunity from those claims upon Defendants.”). Therefore, Plaintiff’s Motion is

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GRANTED with respect to Defendants’ first affirmative defense, and that defense is

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STRICKEN from Defendants’ Answer.

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Defendants’ second affirmative defense is based on contributory fault and

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negligence. Plaintiff claims contributory fault and negligence does not constitute an

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affirmative defense, but merely a denial of Plaintiff’s allegations. Pl.’s Mot. to Strike, at

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6–7. However, Rule 8(c)(1) specifically lists contributory negligence as an affirmative
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defense and Defendants’ Answer provides fair notice of that defense. See Edwards,

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2015 WL 4456180, at *1 (reaching the same conclusion). Accordingly, Plaintiff’s Motion

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is DENIED as to Defendants’ second affirmative defense.

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Defendants’ third affirmative defense claims apportioned liability. Plaintiff argues

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that “a defense targeting the amount of the recovery is a limitation rather than an

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affirmative defense.” Pl.’s Mot. to Strike, at 8 (quoting Hernandez v. County of Monterey,

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306 F.R.D. 279, 285 (N.D. Cal. 2015)). Plaintiff is correct and her Motion is GRANTED

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as to Defendants’ third affirmative defense, and that defense is STRICKEN from

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Defendants’ Answer.

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In their fourth affirmative defense, Defendants assert that they are entitled to

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qualified immunity. Plaintiff moves to strike Defendants’ claim of qualified immunity as

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“fact-barren.” Pl.’s Mot. to Strike, at 9. Defendants, though, state in their Fourth

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Affirmative Defense that their actions in arresting Plaintiff were taken in good faith,

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adequately putting Plaintiff on notice of the defense. See Edwards, 2015 WL 4456180,

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at *2 (finding an assertion of entitlement to qualified immunity sufficient to give “fair

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notice of that defense”). Accordingly, Plaintiff’s Motion is DENIED with respect to

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Defendants’ fourth affirmative defense.

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Defendants’ fifth affirmative defense claims “[a]ll defenses and rights granted to

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Defendants by virtue of the provisions of the California Government Code sections 810–

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996.6.” Ans., Affirmative Defense ¶ 5. Plaintiff argues that this affirmative defense is

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similarly “fact-barren” as well as insufficiently specific as to which statutory provision

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Defendants invoke and how it applies to the instant case. Pl.’s Mot. to Strike, at 9–10.

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Defendants, however, specify that this defense is based on “Plaintiff’s failure to comply

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with the Government Claims Act for any claims not included in her tort claim.” Ans.,

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Affirmative Defense ¶ 5. This provides sufficient specificity to put Defendant on notice of

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the defense. See Vargas, 2016 WL 3916329, at *6 (“The Court construes this

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affirmative defense as an assertion of immunity and the failure to comply with the

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Government Claims Act is the factual basis on which the assertion lies. The Court finds
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that this factual basis is more than sufficient to provide fair notice.”). Thus, the Motion is

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DENIED with respect to Defendants’ fifth affirmative defense.

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Defendants’ sixth affirmative defense alleges that Plaintiff assumed all risks of

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injury, and once more, Plaintiff argues that Defendants’ affirmative defense is “fact-

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barren.” Pl.’s Mot. to Strike, at 11. She also argues that it is redundant of Defendants’

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comparative fault and negligence defenses. However, assumption of risk and

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contributory negligence are separate, if somewhat overlapping, concepts under

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California law. See generally Knight v. Jewett, 3 Cal. 4th 296, 308–09 (1992) (explaining

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the relationship between assumption of the risk and contributory negligence). Plaintiff

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has been adequately put on notice of the defense, and her Motion is DENIED as to

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Defendants’ sixth affirmative defense.

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Defendants’ seventh affirmative defense claims self-defense and defense of

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others. Plaintiff argues that these concepts are redundant of qualified immunity because

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it is “no different than alleging that Defendants’ conduct was ‘reasonable’ under the

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circumstances.” Pl.’s Mot. to Strike, at 13 (emphasis removed). However, this defense

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applies to Plaintiff’s state law claims, to which qualified immunity is inapplicable. For this

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reason, Plaintiff’s Motion is DENIED regarding Defendants’ seventh affirmative defense.

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Plaintiff contends that Defendants’ eighth affirmative defense—that they used

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reasonable and necessary force—is merely a denial of the factual allegations

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undergirding her claims. Pl.’s Mot. to Strike, at 14–15. Though a claim of reasonable

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and necessary force is an essential element of Plaintiff’s Fourth Amendment claim, she

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has not shown that the affirmative defense does not apply to her other claims. See

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Kaur v. City of Lodi, No. 2:14-cv-00828-TLN-AC, 2016 WL 627307, at *3 (E.D. Cal. Feb.

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17, 2016) (“Plaintiffs fail to show that ‘reasonable force’ is not an affirmative defense to

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Plaintiffs' other claims against Officer Defendants.”). Accordingly, Plaintiff’s Motion is

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DENIED as to Defendants’ eighth affirmative defense.

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Plaintiff similarly argues that Defendants’ ninth affirmative defense, which claims
they had probable cause, is merely a denial of her factual allegations. Pl.’s Mot. to
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Strike, at 16. However, probable cause is an affirmative defense to a false arrest claim

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under California law. See Sanders v. City of Fresno, No. Civ. F-05-0469 AWISMS,

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2005 WL 2435893, at *5 (E.D. Cal. Sept. 30, 2005) (“For a claim of false arrest without a

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warrant and a claim of simple false imprisonment by a police officer, there are affirmative

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defenses of probable cause to arrest and an officer’s lawful authority to detain that are

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available . . . .”). Thus, Plaintiff’s Motion is DENIED with regard to Defendants’ ninth

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affirmative defense.

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Moving to Defendants’ tenth affirmative defense, Plaintiff one last time argues
redundancy counsels striking. Pl.’s Mot. to Strike, at 17–18. She states that

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Defendants’ good faith defense is duplicative of their qualified immunity defense. Id.

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However, Defendants specifically cabin the defense to Plaintiff’s intentional infliction of

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emotional distress (“IIED”) claim, to which qualified immunity has no applicability. Ans.,

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Affirmative Defense ¶ 10. Plaintiff argues that the affirmative defense should

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nonetheless be stricken because it merely negates the factual basis of the

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“outrageousness” element of her IIED claim. Pl.’s Mot. to Strike, at 18. This argument is

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unavailing because Defendants’ good faith defense is part of a specific affirmative

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defense to IIED under California law: “privileged conduct.” To wit, their tenth affirmative

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defense includes all three elements of the defense, including that “their conduct was

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lawful and consistent with community and other relevant standards.” Ans., Affirmative

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Defense ¶ 10. See Judicial Council of Cal., Civil Jury Instructions No. 1605, Westlaw

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CACI 1605 (updated Aug. 2016). Thus Plaintiff’s Motion is DENIED with respect to

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Defendants’ tenth affirmative defense.

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CONCLUSION

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For the reasons provided, Plaintiff’s Motion to Strike, ECF No. 10, is GRANTED

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IN PART and DENIED IN PART. It is granted as to Defendants’ first and third affirmative

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defenses, but denied as to Defendants’ second and fourth through tenth affirmative
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defenses. Accordingly, Defendants’ first and third affirmative defenses are STRICKEN

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from Defendants’ Answer without prejudice.

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IT IS SO ORDERED.
Dated: April 18, 2017

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