Barrilleaux v. Mendicino County et al

Filing 89

ORDER by Judge Thelton E. Henderson granting 74 81 Motions to Strike. (tehlc3, COURT STAFF) (Filed on 4/4/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JESSICA BARRILLEAUX,
Plaintiff,

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v.

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MENDOCINO COUNTY, et al.,

Case No. 14-cv-01373-TEH
ORDER GRANTING MOTIONS TO
STRIKE

Defendants.

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This matter comes before the Court on Plaintiff Jessica Barrilleaux’s motions to

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United States District Court
Northern District of California

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strike affirmative defenses from the answers filed by Defendant County of Mendocino

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(“County”) and Defendants Superior Court of California, County of Mendocino and

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Judicial Council of California, Administrative Office of the Courts (“Judicial

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Defendants”). The Court finds these motions suitable for resolution without oral

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argument, see Civ. L.R. 7-1(b), and now GRANTS the motions for the reasons discussed

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below.

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BACKGROUND
Barrilleaux filed her complaint – over two years ago, on March 25, 2014 – alleging

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inadequate access for persons with mobility impairments at the Mendocino County

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Courthouse. The County answered, and Barrilleaux did not move to strike affirmative

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defenses from that answer. Judicial Defendants filed a motion to dismiss, which the Court

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granted in part and denied in part. Judicial Defendants subsequently answered, and

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Barrilleaux moved to strike affirmative defenses. Finding it premature to address that

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motion on the merits while settlement efforts were ongoing under General Order 56, the

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Court denied the motion without prejudice.

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Pursuant to General Order 56, the parties – albeit outside the deadlines in the
General Order – attempted to settle the case following a joint site inspection. They were

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unable to do so, and the Court referred this case to mediation on October 24, 2014. The

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case remained in mediation for over one year, until November 2, 2015, when the mediator

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informed the Court that mediation was complete and the case did not settle. The Court

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thereafter scheduled and held two case management conferences. At both conferences, the

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parties expressed a desire to attempt settlement after additional discovery had been taken.

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By stipulation of the parties, Barrilleaux filed her first amended complaint on

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January 15, 2016. The County and Judicial Defendants filed separate answers, and

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Barrilleaux moved to strike all affirmative defenses from both answers.

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United States District Court
Northern District of California

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LEGAL STANDARD
Federal Rule of Civil Procedure 12(f) allows a court to “strike from a pleading an

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

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Relying on Conley v. Gibson, 355 U.S. 41, 47-48 (1957), the Ninth Circuit has held that,

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“[t]he key to determining the sufficiency of pleading an affirmative defense is whether it

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gives plaintiff fair notice of the defense.” Wyshak v. City Nat’l Bank, 607 F.2d 824, 827

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(9th Cir. 1979) (citing Conley v. Gibson, 355 U.S. 41, 47-48 (1957); 5 Charles Alan

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Wright & Arthur R. Miller, Federal Practice and Procedure, § 1274 at 323). The Ninth

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Circuit has not ruled on whether “fair notice” now requires a defendant to allege “enough

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facts to state a claim to relief that is plausible on its face,” the standard established by the

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Supreme Court for complaints. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see

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also Ashcroft v. Iqbal, 556 U.S. 662 (2009). However, as this Court noted in its

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September 17, 2014 order denying Barrilleaux’s initial motion to strike, “every judge in

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this district to have taken up the issue has concluded that Iqbal and Twombly apply to the

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pleading of affirmative defenses.” Hernandez v. Dutch Goose, Inc., Case No. C13-3537

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LB, 2013 WL 5781476, at *4 n.2 (N.D. Cal. Oct. 25, 2013) (citing cases from nineteen

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different judges, including this Court).

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Since the date of that order, the Ninth Circuit has observed that “the ‘fair notice’
required by the pleading standards only requires describing the defense in ‘general terms.’”
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Kohler v. Flava Enters., Inc., 779 F.3d 1016, 1019 (9th Cir. 2015) (quoting 5 Charles Alan

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Wright & Arthur R. Miller, Federal Practice and Procedure § 1274 (3d ed.1998)). Courts

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in the Eastern District of California have applied Kohler to conclude that the

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Twombly/Iqbal pleading standard does not apply to affirmative defenses. E.g., Sherwin-

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Williams Co. v. Courtesy Oldsmobile-Cadillac, Inc., Case No. 1:15-cv-01137 MJS HC,

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2016 WL 615335, at *3 (E.D. Cal. Feb. 16, 2016). The only court in the Northern District

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to have addressed Kohler found that “Defendants’ citation to the Kohler decision is

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unpersuasive, as the Ninth Circuit did not specifically hold in that case that the

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Twombly/Iqbal standard does not apply to the pleading of affirmative defenses.” Perez v.
Wells Fargo & Co., Case No. 14-cv-0989-PJH, 2015 WL 5567746, at *3 (N.D. Cal.

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United States District Court
Northern District of California

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Sept. 21, 2015).

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This Court need not decide whether the Twombly/Iqbal plausibility standard

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continues to apply after Kohler because, as discussed below, Defendants’ affirmative

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defenses are insufficient even under a more general “fair notice” standard. At a minimum,

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“fair notice” requires some pleading of facts: “Neither mere reference to a legal doctrine,

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nor a bare recitation of statutory provisions, provides fair notice of an affirmative defense

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absent some fact or argument explaining the defense.” Stevens v. Corelogic, Inc., Case

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No. 14-cv-1158-BAS-JLB, 2015 WL 7272222, at *4 (S.D. Cal. Nov. 17, 2015); see also

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Leos v. Rasey, Case No. 1:14-cv-02029 LJO JLT (PC), 2016 WL 1162658, at *1 (E.D.

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Cal. Mar. 24, 2016) (“Though [fair notice is] not a demanding standard, it does still require

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a party to plead some factual basis for its allegations.”). The Ninth Circuit’s decision in

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Wyshak is not to the contrary; in that case, the court found that an affirmative defense that

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“plaintiff’s claims are barred by the applicable statute of limitations” was supported by an

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attached memorandum making specific reference to the statute of limitations on which the

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defendant relied. Wyshak, at 607 F.2d at 827. The Ninth Circuit concluded that “under

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these circumstances the statute of limitations was adequately pleaded,” id., implying that

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without the memorandum, the defense would not have given fair notice.

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DISCUSSION

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I.

Motion to Strike County’s Affirmative Defenses
The Court first considers Barrilleaux’s motion to strike the County’s affirmative

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defenses. In opposition, the County agreed to remove the third, ninth, fifteenth, and

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twentieth affirmative defenses, and these defenses are therefore stricken with prejudice.
The only other affirmative defense specifically mentioned by the County is its first

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affirmative defense for failure to state a claim. The Court acknowledges a split in

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authority as to whether this is a permissible affirmative defense but sides with those courts

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that have found it not to be an affirmative defense. “Failure to state a claim is not a proper
affirmative defense but, rather, asserts a defect in [the plaintiff’s] prima facie case.”

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United States District Court
Northern District of California

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Barnes v. AT&T Pension Benefit Plan-Nonbargained Program, 718 F. Supp. 2d 1167,

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1174 (N.D. Cal. 2010); see also EEOC v. Interstate Hotels, LLC, Case No. C04-04092

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WHA, 2005 WL 885604, at *2 (N.D. Cal. Apr. 14, 2005) (characterizing a defense of

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“failure to plead a claim” as “meaningless” and “surplusage”). This defense is therefore

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stricken with prejudice.

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As to the remaining affirmative defenses, the County argues broadly that defenses

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“found to be misclassified as affirmative defenses” need not be stricken and “may instead

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be deemed denials or objections,” and that leave to amend should be granted “[i]f the

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Court finds that the County’s affirmative defenses to [sic] not give Plaintiff fair notice.”

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Opp’n at 2-3. However, the County does not argue that any of its affirmative defenses are

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pleaded sufficiently to give Barrilleaux fair notice, or that any of them need not be stricken

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because they can be deemed a denial or objection, and the Court will not scour the

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pleadings and make arguments that the County chose not to make. Accordingly, all of the

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defenses not listed above are stricken without prejudice.

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II.

Motion to Strike Judicial Defendants’ Affirmative Defenses
The Court next turns to the motion to strike Judicial Defendants’ affirmative

defenses. Judicial Defendants agreed in their opposition to remove the thirteenth,
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nineteenth, and twentieth affirmative defenses, and these defenses are therefore stricken

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with prejudice.

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Barrilleaux contends that several of Judicial Defendants’ affirmative defenses

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should be stricken because they are not proper affirmative defenses. As discussed above,

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the Court agrees as to the first affirmative defense for failure to state a claim, which is

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stricken with prejudice.

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The Court also strikes the ninth affirmative defense, that Barrilleaux failed to

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request any accommodation. Judicial Defendants do not dispute that this is not an

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affirmative defense, but they assert that it should not be stricken because it is “an
affirmative denial directly related to the failure to mitigate and unclean hands.” Opp’n at

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United States District Court
Northern District of California

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12. However, Judicial Defendants have asserted unclean hands and failure to mitigate

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damages as separate affirmative defenses, and the Court therefore strikes the ninth

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affirmative defense as redundant. This is with prejudice to the extent that Judicial

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Defendants may not assert failure to request accommodation as a separate affirmative

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defense; however, they may incorporate their theory into other affirmative defenses as

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appropriate.

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Barrilleaux also contends that Judicial Defendants’ eighteenth affirmative defense,

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concerning recovery of attorneys’ fees, is “[n]ot an affirmative defense, but an issue only

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after liability [is] established.” Mot. at 10. The two cases cited by Judicial Defendants in

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opposition concern affirmative defenses regarding potential relief, but only as to punitive

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damages; neither addresses recovery of fees. See Passantino v. Johnson & Johnson

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Consumer Prods., Inc., 212 F.3d 493, 516 (9th Cir. 2000); Smith v. Wal-Mart Stores, Case

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No. C06-2069 SBA, 2006 WL 2711468, at *6 (N.D. Cal. Sept. 20, 2006). Because “[t]he

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award of attorney’s fees does not act to preclude a defendant’s liability even if a plaintiff

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proves all of the required elements of the cause of action,” it is not a proper affirmative

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defense. Barnes, 718 F. Supp. 2d at 1174. Accordingly, the Court strikes the eighteenth

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affirmative defense with prejudice. Defendants may raise these arguments if attorneys’

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fees later become an issue, but it is inappropriate to do so as an affirmative defense.
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Barrilleaux’s two remaining arguments about inappropriate affirmative defenses are

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not persuasive. First, Barrilleaux argues that only intentional torts remain against Judicial

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Defendants and that failure to mitigate – Judicial Defendants’ eleventh affirmative defense

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– is not a defense to intentional torts. However, she cites no authority for that proposition,

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and at least one court has recognized failure to mitigate as a proper affirmative defense in a

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disability access case like this one. Rapp v. Lawrence Welk Resort, Case No. 12-CV-

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01247 BEN (WMc), 2013 WL 358268, at *7 (S.D. Cal. Jan. 28, 2013). Likewise,

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Barrilleaux cites no authority for her assertion that mootness – Judicial Defendants’

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fourteenth affirmative defense – is not an affirmative defense, and other courts have
allowed such a defense to proceed. E.g., Fed. Trade Comm’n v. N. Am. Mktg. & Assocs.,

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United States District Court
Northern District of California

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LLC, Case No. CV-12-0914-PHX-DGC, 2012 WL 5034967, at *2 (D. Ariz. Oct. 18, 2012)

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(denying motion to strike an affirmative defense that claims are moot because “the

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challenged practices no longer occur”); Barnes, 718 F. Supp. 2d at 1172-73 (allowing

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leave to amend an affirmative defense of mootness). Accordingly, the Court will not strike

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these defenses as improper affirmative defenses.

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However, as with all other affirmative defenses not mentioned above, the failure to

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mitigate and mootness defenses fail to allege any facts to put Barrilleaux on fair notice of

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the basis for the defenses, even without applying the Twombly/Iqbal plausibility standard.

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As but one example, Judicial Defendants’ tenth affirmative defense reads – in its entirety –

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as follows: “The Complaint, and each purported cause of action alleged in the Complaint,

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is barred in whole or in part by laches, estoppel, res judicata, and/or unclean hands.” Jud.

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Defs.’ Ans. to 1st Am. Compl. ¶ 70. This does nothing more than reference legal

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doctrines, which is insufficient to provide fair notice. Qarbon.com Inc. v. eHelp Corp.,

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315 F. Supp. 2d 1046, 1049 (N.D. Cal. 2004). For example, “simply stating that a claim

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fails due to plaintiff’s ‘unclean hands’ is not sufficient to notify the plaintiff what behavior

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has allegedly given them ‘unclean hands.’” CTF Dev. Inc. v. Penta Hospitality, LLC, Case

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No. C09-2429 WHA, 2009 WL 3517617 (N.D. Cal. Oct. 26, 2009). From the motion

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papers, it appears that Barrilleaux is on notice of the factual basis for some of the asserted
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defenses given the posture of this case, in which the parties have engaged in some

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discovery before resolving the pleadings; however, that does not render the pleadings

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themselves sufficient. These defenses are therefore stricken with leave to amend.

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Barrilleaux’s remaining arguments go to the merits of the defenses and not to

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whether Judicial Defendants have properly pleaded them. For instance, Barrilleaux argues

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that the sixth affirmative defense, concerning undue financial or administrative burden,

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must be stricken because Judicial Defendants cannot meet the requirements for claiming an

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undue burden under 28 C.F.R. § 35.150(a)(3).1 Likewise, she asserts that her claims are

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not moot. These and other arguments go to whether Judicial Defendants can prevail on
their defenses, not whether the defenses have been properly pleaded, and the Court will not

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United States District Court
Northern District of California

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address such arguments on a motion to strike.

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Finally, the Court notes Judicial Defendants’ arguments that some of the affirmative

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defenses cannot be pleaded with more specificity because they are contingent on discovery

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yet to be received from Barrilleaux. Such potential defenses need not be alleged at this

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time. “[I]f [defendants] lack the ability to set forth facts to support an affirmative defense

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now but later obtain such facts during the course of discovery or otherwise, they can seek

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leave to amend their answer under Rule 15.” Hernandez, 2013 WL 5781476, at *6.

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CONCLUSION

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For the above reasons, Barrilleaux’s motion to strike affirmative defenses from the

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County’s answer is GRANTED. The motion is with prejudice as to the first, third, ninth,

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fifteenth, and twentieth affirmative defenses, and without prejudice as to the remaining

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defenses.

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Barrilleaux’s motion to strike affirmative defenses from the Judicial Defendants’
answer is also GRANTED. The motion is with prejudice as to the first, ninth, thirteenth,

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The parties mistakenly refer to this regulation as 35 C.F.R. § 35.150(a)(3).
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eighteenth, nineteenth, and twentieth affirmative defenses, and without prejudice as to the

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remaining defenses.

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The Court encourages the parties to keep costs down by avoiding unnecessary

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litigation on the pleadings, especially given the parties’ expressed desire to attempt further

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settlement discussions. Accordingly, the parties shall meet and confer to discuss an

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appropriate time line for this case, and they shall attempt to reach agreement on a deadline

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for Defendants to file amended answers and for Barrilleaux to file motions to strike if

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appropriate. They shall file a stipulation and proposed order on or before April 18, 2016,

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if they can reach agreement. Absent agreement, Defendants’ amended answers shall be
filed no later than May 9, 2016, and the deadline to file any motions to strike will be

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United States District Court
Northern District of California

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governed by Federal Rule of Civil Procedure 12(f)(2).

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IT IS SO ORDERED.

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Dated: 04/04/16

_____________________________________
THELTON E. HENDERSON
United States District Judge

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