Cabrera et al v. Alvarez et al

Filing 46

ORDER GRANTING PLAINTIFFS' MOTION TO STRIKE AFFIRMATIVE DEFENSES 41 (Illston, Susan) (Filed on 6/18/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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v.

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HENRY ALVAREZ, et al.,

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United States District Court
For the Northern District of California

ORDER GRANTING PLAINTIFFS’
MOTION TO STRIKE AFFIRMATIVE
DEFENSES

Plaintiffs,

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No. C 12-04890 SI

LORENA CABRERA, et al.,

Defendants.

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Currently before this Court is plaintiffs’ motion to strike 47 out of 49 of defendants’ affirmative

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defenses. Pursuant to Civil Local Rule 7-1(b), the Court determines that this matter is appropriate for

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resolution without oral argument and VACATES the hearing scheduled for June 21, 2013. For the

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reasons set forth below, the Court GRANTS the motion to strike.

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BACKGROUND

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Plaintiffs in this action are Lorena Cabrera, a native Spanish speaker with limited English

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proficiency, and her two sons, six-year-old Uriel Cabrera and two-year-old Dionisio Cabrera. Plaintiffs

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were tenants of the Robert Pitts Development (“Pitts Development”), a low-income housing project

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located at 1151 Scott Street, San Francisco, California, from August 2010 to September 2012. Compl.

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¶¶ 6-8, 28, 28-29, 33-35. Pitts Development is owned and operated by the San Francisco Housing

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Authority (the “SFHA”), a public corporation funded in part by the federal government and created

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pursuant to the California Health & Safety Code §§ 34240 et seq. Id. at ¶¶ 10, 28. Defendant Philip

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Tam is an employee of the SFHA and the property manager of Pitts Development. Id. at ¶¶ 10, 11.

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Plaintiffs allege the SFHA never provided language translation services despite numerous

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requests. Id. at ¶ 30. Due to the unaddressed language barrier, plaintiffs allege they could not

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effectively convey the habitability problems to the Pitts Development management or the SFHA, and
therefore have been unable to resolve most of the problems. Id. at ¶¶ 40-41. Plaintiffs assert that while

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living in the rental unit they were the victims of “rodent, bedbug and cockroach infestation, mold, leaky

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faucets, a leaking toilet, raw sewage backup in the sinks, toilets and outside the unit, broken plaster, tiles

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and nails protruding from the stairs, and a defective shower.” Id. at ¶ 36. Plaintiffs allege that when

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they successfully conveyed a problem to Pitts Development management, including directly to

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Defendant Tam, the problem was never addressed. Id. at ¶¶ 40, 42. Plaintiffs assert that Uriel and

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Dionisio Cabrera suffer from asthma, and the failure to provide language translation services as well

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as the unremedied living conditions exacerbated their asthma symptoms, causing Dionisio Cabrera at

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one point to be hospitalized. Id. at ¶¶ 31-32, 43.
On September 19, 2012, plaintiffs filed this action, asserting claims against defendants for

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United States District Court
For the Northern District of California

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providing substandard and uninhabitable housing, and for failing to provide translation services so

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plaintiffs could communicate on equal footing with Pitts Development management and the SFHA.

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Defendants filed their Answer to the Amended Complaint on May 1, 2013. On May 17, 2013, plaintiffs

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filed a motion to strike 47 out of the 49 affirmative defenses in defendants’ Answer.

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LEGAL STANDARD
An answer must “state in short and plain terms” the defenses to each claim asserted against

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the defendant in order to provide plaintiffs with fair notice of the defense(s). Fed. R. Civ. P. 8(b)(1)(A).

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Under Federal Rule of Civil Procedure 8(c), an “‘affirmative defense is a defense that does not negate

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the elements of the plaintiff’s claim, but instead precludes liability even if all of the elements of the

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plaintiff’s claim are proven.’” Barnes v. AT&T Pension Benefit Plan - Nonbargained Program, 718 F.

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Supp. 2d 1167, 1171-72 (N.D. Cal. 2010) (quoting Roberge v. Hannah Marine Corp., 1997 WL 468330,

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at *3 (6th Cir. 1997)). Defendants bear the burden of proof for affirmative defenses. Kanne v.

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Connecticut General Life Ins. Co., 867 F.2d 489, 492 (9th Cir. 1988).

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

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“strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous

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matter.” Fed. R. Civ. P. 12(f). A defense may be insufficient “as a matter of pleading or as a matter of

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substance.” Security People, Inc. v. Classic Woodworking, LLC, No. C-04-3133 MMC, at 2 (N.D. Cal.

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Mar. 4, 2005). An insufficiently pled defense fails to comply with Rule 8 pleading requirements by not
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providing “plaintiff [with] fair notice of the nature of the defense” and the grounds upon which it rests.

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Wyshak v. City Nat’l Bank, 607 F.2d 824, 827 (9th Cir. 1979) (citing Conley v. Gibson, 355 U.S. 41,

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47-48 (1957)). See generally Fed. R. Civ. P. 8. However, motions to strike are generally disfavored.

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Rosales v. Citibank, 133 F. Supp. 2d 1177, 1180 (N.D. Cal. 2001). When a claim is stricken, “leave to

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amend should be freely given” so long as no prejudice results against the opposing party. Wyshak, 607

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F.2d at 826.

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DISCUSSION
Plaintiffs make two overarching arguments: (1) the Court should strike roughly half of the

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United States District Court
For the Northern District of California

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affirmative defenses at issue since they are actually negative defenses and therefore improper and (2)

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the Court should strike the other half of the affirmative defenses at issue since they lack specificity, are

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conclusory, are generally insufficient under the Twombly/Iqbal standard and therefore fail to provide

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plaintiffs with fair notice.

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In response defendants proffer two general arguments: (1) motions to strike are disfavored; and

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(2) the heightened pleading standard articulated in Twombly and Iqbal does not apply to affirmative

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defenses, therefore, the Court should not strike any of the defenses.

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I.

Negative Defenses Pled as Affirmative Defenses

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Plaintiffs argue the 6th, 14th-16th, 18th, 20th, 23rd, 24th, 26th, 29th, 33rd, 35th, 44th, and 45th

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Affirmative Defenses, are actually negative defenses, and therefore should be struck. Docket No. 39.

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Any “defense which demonstrates that plaintiff has not met its burden of proof is not an affirmative

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defense.” Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002). The Court finds that

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these defenses are actually negative defenses improperly pled as affirmative defenses. For example, the

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14th Affirmative Defense alleges “that reasonable cause does not exist to believe that a discriminatory

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housing practice [] occurred.” Answer 12:1-4. This is not an affirmative defense, but merely a negation

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of plaintiffs’ claims.

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Accordingly, the motion to strike the 6th, 14th-16th, 18th, 20th, 23rd, 24th, 26th, 29th, 33rd,
35th, 44th, 45th Affirmative Defenses is GRANTED without leave to amend.
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II.

Legally Insufficient Affirmative Defenses

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The 22nd and 27th Affirmative Defenses assert that unidentified state law immunities apply and

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that adequate state remedies bar plaintiffs claims, respectively. Plaintiffs’ second and third claims arise

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under federal law. Since federal causes of action cannot be barred by state procedures or immunities

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(without a federal provision), the 22nd and 27th Affirmative Defenses are legally insufficient. Felder

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v. Casey, 487 U.S. 131 (1988) (failure to comply with state statute does not bar suit under 42 U.S.C. §

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1983); Patsy v. Board of Regents, 457 U.S. 496 (1982) (holding state procedure for employment

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discrimination need not be exhausted prior to filing under 42 U.S.C. § 1983); McNeese v. Bd. of Educ.,

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373 U.S. 668 (1963) (holding plaintiff need not exhaust parallel state remedies).

United States District Court
For the Northern District of California

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Additionally, the 40th Affirmative Defense pertains to plaintiffs’ disparate impact claims, which
this Court dismissed in its March 27, 2013 order. See Docket No. 34.

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Accordingly, the motion to strike the 22nd, 27th, and 40th Affirmative Defenses is GRANTED
without leave to amend.

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III.

Affirmative Defenses Lacking Specificity Pursuant to Twombly/Iqbal

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Although the Ninth Circuit has yet to rule on the issue, the majority of district courts require

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affirmative defenses to meet the heightened pleading standard dictated by the Supreme Court in Bell

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Atlantic Corp v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 5662 (2009). CTF Dev.

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Inc. v. Penta Hospitality, LLC, No. C 09-02429, 2009 WL 3517617, at *7-8 (N.D. Cal. Oct. 26, 2009)

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(requiring defendants “to proffer sufficient facts and law to support an affirmative defense”); see also

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Barnes v. AT&T Pension Benefit Plan - Nonbargained Program, 718 F. Supp. 2d 1167, 1171-72 (N.D.

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Cal. 2010) (finding there is “no reason why the same principles applied to pleading claims should not

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apply to the pleading of affirmative defenses”); Hayne v. Green Ford Sales, Inc., 263 F.R.D. 647,

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649-50 (D. Kan. 2009) (noting extensive list of cases in which district courts applied Twombly and Iqbal

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to affirmative defenses). Applying a heightened standard to affirmative defenses also “weed[s] out the

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boilerplate listing of affirmative defenses which is commonplace in most defendants’ pleadings where

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many of the defenses alleged are irrelevant to the claims asserted.” Barnes, 718 F. Supp. 2d at 1172.

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This Court agrees with the majority of district courts, and applies the heightened Twombly/Iqbal

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pleading standard to affirmative defenses.

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Applying this standard, the 2nd-5th, 7th-13th, 17th, 19th, 21st, 25th, 28th, 31st, 32nd, 34th,

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36th-39th, 42nd, and 46th-49th Affirmative Defenses fail on their face. Not only are the defenses stated

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as conclusions and devoid of supporting facts indicating plausibility, but many are redundant or

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apparently irrelevant to this litigation. None of these affirmative defenses, as stated, is targeted to this

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specific case or tethered to any facts providing the defenses with credibility, let alone plausibility. The

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defenses do not provide plaintiffs with fair notice, and therefore are fatally deficient. Accordingly, the

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motion to strike the 2nd-5th, 7th-13th, 17th, 19th, 21st, 22nd, 25th, 27th, 28th, 31st, 32nd, 34th,

United States District Court
For the Northern District of California

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36th-39th, 42nd, and 46th-49th Affirmative Defenses is GRANTED with leave to amend.

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CONCLUSION

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For the foregoing reasons and for good cause shown, the Court hereby GRANTS plaintiffs’

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motion to strike the 1st,1 6th, 14th-16th, 18th, 20th, 22nd-24th, 26th, 27th 29th, 30th, 33rd, 35th, 40th,

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44th, and 45th Affirmative Defenses without leave to amend; and GRANTS plaintiffs’ motion to strike

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the 2nd-5th, 7th-13th, 17th, 19th, 21st, 22nd, 25th, 28th, 31st, 32nd, 34th, 36th-39th, 42nd, and 46th-

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49th Affirmative Defenses with leave to amend. Any amended answer must be filed no later than June

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26, 2013.

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IT IS SO ORDERED.

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Dated: June 18, 2013
SUSAN ILLSTON
United States District Judge

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Defendants have withdrawn the 1st Affirmative Defense.
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