Cota v. Aveda Corporation et al

Filing 16

ORDER Denying 11 Plaintiff's Motion to Strike Defendant's Affirmative Defenses. The Court DENIES Plaintiff's Motion to Strike Affirmative Defenses Nos. 4, 6, 10, 12, 14, 15, and 17. With respect to Affirmative Defense Nos. 1, 5, 7-8, 11, 13, and 16, the Motion is moot as Defendant has agreed to withdraw these defenses. Signed by Judge Roger T. Benitez on 10/14/2020. (tcf)

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FILED

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OCT

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JULISSA COTA, individually and on
behalf of herself and all others similarly
situated,

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Plaintiff,
V.

) Case No.: 3:20-cv-01137-BEN-BGS

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ORDER DENYING PLAINTIFF'S
MOTION TO STRIKE
DEFENDANT'S AFFIRMATIVE
DEFENSES

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A VEDA CORPORATION, a Minnesota 1
corporation; and DOES 1 to 10, inclusive, ) [ECF No. ll]
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Defendant.
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I.

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'

INTRODUCTION

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Plaintiff Julissa Cota ("Plaintiff''), individually and on behalf of all others similarly

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situated, brings this action for violations of (1) the Americans with Disabilities Act of

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1990, 42 U.S.C. § 12181 (the "ADA"), and (2) Umuh Civil Rights Act, Civ. Code,§ 51,

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et seq. (the "UCRA"), against Defendant Aveda Corporation, a Minnesota corporation

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("Defendant"). ECF No. 1.

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Before the Court is Plaintiff's Motion to Strike Affirmative Defenses Nos. 1, 4-8,

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and 10-17 pied in Defendant's Answer (the "Motion"). ECF No. 11. On September 29,

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2020, Defendant filed an opposition. ECF No. 13. Plaintiff did not file a reply brief. The

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motions were submitted on the papers without oral argument pursuant to Civil Local Rule

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7.l(d)(l) and Rule 78(b) of the Federal Rules of Civil Procedure. ECF No. 15.
-13 :20-cv-0 1137-BEN-BGS

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After considering the papers submitted, supporting documentation, and applicable
law, the Court DENIES Plaintiff's Motion to Strike Affirmative Defenses Nos. 4, 6, 10,
12, 14, 15, and 17. As discussed below, with respect to Affirmative Defense Nos. 1, 5,
7-8, 11, 13, and 16, the Motion is moot as Defendant has agreed to withdraw these

5 defenses.
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II.

BACKGROUND

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A.

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Plaintiff is a visually impaired and legally blind person who requires screen reading

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software to read website content using her computer. ECF No. 1 at 1:26-27. Defendant

Factual Background

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is a Minnesota corporation, which operates (1) "stores, which constitute places of public

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accommodation, in California, and the United States as a whole, selling make-up, hair

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and beauty products, and other items," and (2) "a website, https://www.aveda.com, which

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provides consumers with product information, a means to order items for pick-up in store,

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store location information, and other services." ECF No. 11 at 1:21-24 (citing ECF No.

l~•~1~,r,r~5)-.-"l)efendanI's weosne is incompatlole with screen-readmg so ware an ,
16 therefore, cannot be used by Plaintiff." Id. at 1:25-26 (citing ECF No. 1, ,r 24). As a
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result, Plaintiff alleges she has visited Defendant's website numerous times, and during

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each visit, she has encountered various barriers, which prevented her from using the

19 website. Id. at 1:27-28 (citing ECF No. 1, ,r,r 26, 28).
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B.
Procedural History
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On June 23, 2020, Plaintiff filed this lawsuit, individually and on behalf of all others
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similarly situated, alleging claims for relief for violations of the (1) ADA and (2) UCRA

23 · against Defendant. ECF No. 1.
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On July 20, 2020, Defendant was served. ECF No. 4. On August 10, 2020,

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Defendant timely filed its answer to Plaintiff's complaint, asserting eighteen (18)

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affirmative defenses. ECF No. 5; see also FED. R. CIV. PROC. 12(a).

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On August 31, 2020, Plaintiff filed a Motion to Strike Defendant's Answer, seeking

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to strike Affirmative Defense Nos. 1, 4-8, and 10.-17. ECF No. 11. On September 29,
-23:20-cv-01137-BEN-BGS

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2020, Defendant filed an Opposition to the Motion, advising that it withdrew its 1't, 5th,
2 th th
7 , , 11 th' ' and 16th affirmative defenses ' leaving only the 4th, , 10th' '14th
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13 th
6th
12th '
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15th, and 17th affirmative defenses at issue. ECF No. 13 at 5.
· 4 III. LEGAL STANDARD
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Federal Rule of Civil Procedure 12(f) allows a court to "strike from a pleading an
6 insufficient defense or any redundant, immaterial, impertinent, or scandalous matter."
7 "The grounds for a motion to strike must appear on the face of the pleading under attack,
8 or from matters which the Court may take judicial notice." Herd v. Cty. ofSan Bernardino,

9 311 F. Supp. 3d 1157, 1162 (C.D. Cal. 2018). A motion to strike portions of an answer is
10 appropriate when a defense is (1) insufficient as a matter of law or (2) insufficiently pled.
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Harris v. Chipotle Mexican Grill, Inc., 303 F.R.D. 625, 627 (E.D. Cal. 2014); see also

12 Herd, 311 F. Supp. 3d at 1162 ( citing Kaiser Aluminum & Chem. Sales, Inc. v. Avondale
13

Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir. 1982)). "An affirmative defense fails as a

14 matter of law ifit 'lacks merit under any set of facts the defendant might allege."' Harris,
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-S-()3-F;R-;-5~628-.-wtth respect "toaeterminmg the sufficiency of pleading , an

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affirmative defense is [sufficiently pied when] ... it gives plaintiff fair notice of the

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defense." Id.; see also Kohler v. Flava Enterprises, Inc., 779 F.3d 1016, 1019 (9th Cir.

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2015) (providing that "the 'fair notice' required by the pleading standards only requires

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describing the defense in 'general terms"').

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that must arise from litigating spurious issues by dispensing with those issues prior to trial."

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Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970,973 (9th Cir. 2010) (internal quotation

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marks omitted). "Motions to strike are generally disfavored and should not be granted

The purpose of a Rule 12(f) motion "is to avoid the expenditure of time and money

24 unless the matter to be stricken ~learly could have no possible bearing on the subject of the
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litigation." Diamond S.J. Enter., Inc. v. City ofSan Jose, 395 F. Supp. 3d 1202, 1216 (N.D.

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Cal. 2019) (internal quotations omitted). When considering a motion to strike, "courts

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must view the pleadings under attack in the light more favorable to the pleader." Lazar v.

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Trans Union LLC, 195 F.R.D. 665, 669 (C.D. Cal. 2000). The decision to grant a motion
-33:20-cv-01137-BEN-BGS_.

1 to strike ultimately lies within the discretion of the trial court. Rees v. PNC Bank, N.A.,
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308 F.R.D. 266, 271-72 (N.D. Cal. 2015) (citing Whittlestone, 618 F.3d at 973). Some

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courts require a plaintiff to make a showing of prejudice before granting a motion to strike.

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Greenwich Ins. Co. v. Rodgers, 729 F. Supp. 2d 1158, 1162 (C.D. Cal. 2010).

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IV.

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DISCUSSION

Plaintiff's primary arguments are that Defendant's affirmative defenses are (1)

7 "poorly pled," lacking "some connection, even in general terms, between the defense and
8 this case," and (2) "not valid affirmative defenses." ECF No. 11 at 1: 11-18. Defendant
9 responds by arguing that its affirmative defenses (1) "are based on plausible
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interpretations of Plaintiff's allegations" from Plaintiff's own "artfully vague, boilerplate

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complaint" and (2) provide Plaintiff fair notice. ECF No. 13 at 1:7-20. Defendant also
voluntarily withdrew its l't, 5th, 7th, gt\ 11th, 13th, and 16th affirmative defenses, ECF No.

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13 at 5:7-21, and argues that "[h]ad Plaintiff picked up the phone rather than running to

14 the Court, the parties could have addressed the issues informally," id. at 1:12-14. Thus,
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e-fenclant-e0ntencl-s-that-"-P-l-afr1tif-f'-s-Motion----only-sta-nds-to-manu-facture-unnecessa~-~-+--_,,

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attorneys' fees," id. at 1:16-17, noting that "the ADA has been manipulated to generate

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attomeys'.fees," id. at 5: 1. The Court notes that while the Southern District has no formal

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meet and confer requirement prior to filing a motion to strike, meet and confer efforts are

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always encouraged. Here, such efforts could have saved Plaintiff time and effort with

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respect to Defendant's agreement to withdraw several of its affirmative defenses. That

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being said, as outlined the below, with respect to Plaintiff's Motion, this Court grants it

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in part and denies it in part for the below reasons.

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A.

Defenses Plaintiff Alleges Fail as a Matter of Pleading

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"The key to determining the sufficiency of pleading an affirmative defense 1s

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whether it gives plaintiff fair notice of the defense." Harris, 303 F.R.D. at 628. Unlike

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the code pleading standard used in California superior courts, in which pleading of facts in

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support of affirmative defenses is required, federal courts utilize the notice pleading

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standard. See, e.g., Fanucchi & Limi Farms v. United Agri Prod., 414 F.3d 1075, 1082
-4_ 3:20-cv-0IJ3_1-BEN,BDS.

1 (9th Cir. 2005) (reiterating that "federal courts employ notice pleading under Federal Rule
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of Civil Procedure 8(a)" while "California courts employ code pleading, which requires

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more factual detail than notice pleading"). In federal courts, Rule 8 of the Federal Rules

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of Civil Procedure ("Rule 8") governs the level of pleading, and Rule 8(a) requires in a

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complaint to contain "a short and plain statement of the claim showing that the pleader is

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entitled to relief." FED. R. CIV. P. 8(a). Rule 8(b) governs the pleading of defenses

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generally and requires only that the party "state in short and plain terms its defense to each

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claim asserted against it." FED. R. Crv. P. _8(b). Meanwhile, Rule 8(c) governs the pleading

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of affirmative defenses and provides that "[i]n response to a pleading, a party must

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affirmatively state any avoidance or affirmative defense." FED. R. CIV. P. 8(c). The

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Supreme Court has opined on the interpretation of Rule 8 in several opinions relevant to

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the level of pleading required. 1 However, the Ninth Circuit has held that the Supreme

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In 2007 the Supreme CaurtinBelLAtLCol"p.-~l'wombl;J.,,S5~lJ~S,S44,~74l-E20~'B-1-c-,+---'-___.
held that a plaintiff need not plead specifics but must plead "only enough facts to state a
claim to relief that is plausible on its face." A pleading that offers "labels and conclusions,"
"a formulaic recitation of the elements of a cause of action," "or "naked assertion[ s]" with
no "factual enhancement" will not pass muster. Ashcroft v. Iqbal, 556 U.S. 662, 677-78
(2009) (citing Twombly, 550 U.S. at 555). In 2009, the Supreme Court, in Ashcroft v.
Iqbal, 556 U.S. 662 (2009), clarified Twombly, holding that "[t]hough Twombly
determined the sufficiency of a complaint sounding in antitrust, the decision was based on
our interpretation and application of Rule 8," which "governs the pleading in all civil
actions." Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (holding that the "decision
in Twombly expounded the pleading standard for 'all civil actions"'). Both Twombly and
Iqbal, however, examined a complaint under the requirements of Rule 8(a)(2). Those
decisions did not delve into Rule 8(b) or 8(c) and did not go into the level of pleading
required for affirmative defenses. However, "the Ninth Circuit has continued to recognize
the 'fair notice' standard of affirmative defense pleading even after Twombly and Iqbal,"
thereby suggesting that standard continues to apply to affirmative defenses but not claims
for relief in a complaint. See, e.g., Kohler v. Islands Restaurants, LP, 280 F.R.D. 560, 566
(S.D. Cal. 2012); see also Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1023 (9th Cir.
2010) ("The key to determining the sufficiency of pleading an affirmative defense is
whether it gives plaintiff fair notice of the defense") overruled on other grounds by Castro
v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en bane); Schutte & Koerting,
-5. __ _______ 3:20-cv-0l 137-BEN-BG_S__
.

1 Court's Twombly/Iqbal standard does not apply to affirmative defenses. See, e.g., Kohler
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v. Flava Enterprises, Inc., 779 F.3d 1016, 1019 (9th Cir. 2015) (in a case involving an

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appeal from the Southern District, the Ninth Court held that it would not disturb the district

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court's finding that the defendant had adequately pied "equivalent facilitation as an

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affirmative defense") (citing 5 Charles Alan Wright & Arthur R. Miller, Federal Practice

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and Procedure§ 1274 (3d ed.1998)).

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The Southern District follows the Ninth Circuit's decision in Kohler, which requires

8 Defeµdant to plead its affirmative defenses under the fair notice standard. "[T]he 'fair
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notice' required by the pleading standards only requires describing the defense in "general

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terms." 5 Charles Alan Wright& Arthur R. Miller, Federal Practice and Procedure§ 1274

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(3d ed.1998).

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allegations" but "must at least give notice of the grounds upon which it rests." Weintraub

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v. Law Office of Patenaude & Felix, A.P.C., 299 F.R.D. 661, 665-66 (S.D. Cal. 2014)

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(internal quotations omitted). However, "fair notice" in no way requires that a defendant

Each affirmative defense "need not be supported by detailed factual

_ __, S ''rle-ad---all----t-he-e-leme-nt-s-0f---a-13Fima-f-ae-ie-ease;"----We-ng-v;-tlnit-ed---8tates,---3-'7-3-F--5-d-952,969
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(9th Cir. 2004).

"With respect to some defenses, 'merely pleading the name of the

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affirmative defense ... may be sufficient."' Mag Instrument, Inc. v. JS Prod., Inc., 595 F.

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Inc. v. Swett & Crawford, 298 F. App'x 613, 615 (9th Cir. 2008) (providing that
21 "Fed.R.Civ.P. 8(c) does require that the pleading give plaintiff 'fair notice of the
defense"')). Further, within the Southern District of California, the majority of courts have
22
declined to extend the Twombly/Iqbal standard to affirmative defenses. See, e.g., Venson
23 v. Jackson, No. 18-cv-02278-BAS-BLM, 2020 WL 4015708, at *1 (S.D. Cal. July 16,
2020) (stating that "[t]he key to determining the sufficiency of pleading an affirmative
24
defense is whether it gives the plaintiff fair notice of the defense") (Bashant, J.); Weintraub
25 v. Law Office of Patenaude & Felix, A.P.C., 299 F.R.D. 661, 664-65 (S.D. Cal. 2014)
(declining "to extend the Twombly/Iqbal pleading standards to affirmative defenses)
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(Whelan, J.); J & J Sports Prods., Inc. v. Scace, No. 10CV2496-WQH-CAB, 2011 WL
27 2132723, at* 1 (S.D. Cal. May 27, 2011) (Hayes, J.) ("This Court agrees with the reasoning
of those courts which have held that district courts in this Circuit remain bound by the
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holding of Wyshak v. City National Bank, 607 F.2d 824, 827 (9th Cir.1979)").
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Supp. 2d 1102, 1108 (C.D. Cal. 2008) (citing Woodfield v. Bowman, 193 F.3d 354, 361

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(5th Cir.1999)). "Rule 8(b)(l) only requires the responding party to 'state in short and

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plain terms its defenses to each claim asserted against it."' Weintraub, 299 F.R.D. at 665.

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Interestingly enough, Plaintiff does not dispute that the fair notice standard applies

5 to affirmative defenses. See ECF No. 11 at 2:25 (noting that "[c]ourts evaluate motions to
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strike affirmative defenses under the 'fair notice' standard").

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arguments seem to contradict this proposition because the fair notice standard does not

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require factual support for affirmative defenses. Thus, Plaintiff admits that the fair notice

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standard applies to the Court's evaluation of affirmative defenses; yet, Plaintiffs primary

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argument for striking most of Defendant's affirmative defenses is that they lack factual

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support. See, e.g., ECF No. 11 at 4:8-9 (Plaintiff argues that "the affirmative defenses here

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merely make reference to doctrines, and do not include any even general factual allegations

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which tie the defenses to this case").

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However, Plaintiffs

This Court agrees with Defendant's argument as well as other courts that have found

______,_J__,5__, iLwoukl-be__impr-acticahle--to-I"equi-r-e--de-fendant-s-te----a!lege---f-aaual---s-uppert-fer----their~1--c----1
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affirmative defenses and meet the same standards to which courts hold complaints. See,

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e.g., Kohler v. Staples the Office Superstore, LLC, 291 F.R.D. 464, 469 (S.D. Cal. 2013)

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(explaining that "it is reasonable to impose stricter pleading requirements on a. plaintiff

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who has significantly more time to develop factual support for his claims than a defendant

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who is only given [21] days to respond to a complaint and assert its affirmative defenses").

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1.

Defendant's Fourth Affirmative Defense for De Minimis Deviations.

Defendant's Fourth Affirmative Defense for De Minimis Deviations alleges that

23 _ "Plaintiffs Complaint as a whole, and the claims for reliefcontained therein, fail to state a
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claim for relief as the alleged accessibility violations constitute de minimis deviations from

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applicable access laws, codes, regulations or guidelines or are within design tolerances."

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ECF No. 5 at 10:1-6. Plaintiff argues the Fourth Affirmative Defense should be stricken

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because Defendant fails to include factual allegations, which state "the basis for

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Defendant's conclusory statement that the barriers at issue are de minimis." ECF No. 11
-73:20-cv-01137-BEN-BGS

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at 5:4-7. Defendant-although failing to address whether Defendant must or did include
facts showing how the alleged violations are de minimis-responds by arguing that de
minimis deviations are a valid defense in ADA matters and should apply to websites. ECF

4 No. 13 at 6:11-27.
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In support of Plaintiff's argument, Plaintiff relies on the case of Qarbon.com, Inc. v.
6 eHelp Corp., 315 F.Supp.2d 1046, 1049-50 (N.D. Cal. 2004). However, the Court finds
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this case unpersuasive given it has been criticized by later cases and also preceded the

8 Ninth Circuit's holding in Kohler. See, e.g., Kohler v. Big 5 Corp., No. 2:12-CV-005009

JHN, 2012 WL 1511748, at *2 (C.D. Cal. Apr. 30, 2012) (rejecting Plaintiff's reliance on

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Qarbon.com and noting that "other recent cases have held that Twombly's plausibility

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standard is inapplicable to affirmative defenses"). Under the fair notice standard, this Court

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believes Defendant's Fourth Affirmative Defense passes muster. E.g., Mag, 595 F. Supp.

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2d at 1108 (reiterating that"[ w]ith respect to some defenses, 'merely pleading the name of

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the affirmative defense ... may be sufficient"); see also Kohler v. Big 5 Corp., No. 2:12-

--lhJS ··ev~00500;;fflN~()tLWL-1~)tl14~~*'1~~D-.Cal~A:pr. 30, 2012)

enymg t e

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plaintiff's motion to strike the defendant's affirmative defense of"dimensional tolerances,"

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finding it was adequately pied while noting "the Ninth Circuit has not categorically rejected

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'dimensional tolerances' as an affirmative defense urtder certain circumstances and courts

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within this circuit have declined to strike affirmative defenses based on a theory of de

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minimis violation"). Thus, the Court denies Plaintiff's motion to strike Defendant's Fourth

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Affirmative Defense.

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2.

Defendant's Tenth Affirmative Defense Alleging that Remediation is
not Readily Achievable

Defendant's Tenth Affirmative Defense alleges that "[t]o the extent that Plaintiff
requests modifications or accommodations that are not readily or technically achievable,
are impracticable or already exist, Plaintiff's claims are barred, in whole or in part, pursuant
to 42 U.S.C. §§ 12181(9), 12182(b)(2)(A)(iv)." ECF No. 5 at 11:8-14. Plaintiff argues
that Defendant fails to allege any facts in its answer as to how remediation is not readily
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achievable. ECF No. 11 at 6:25-7:5. Defendant-again, failing to address whether it is
required to or did plead facts in support of its affirmative defense, responds by arguing that
"[r]emediations being 'not readily achievable' is a well-recognized, valid affirmative

4 defense." ECF No. 13 at 7:13-24.
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In Kohler v. Islands Restaurants, LP, 280 F.R.D. 560,568 (S.D. Cal. 2012), the court
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struck the defendant's defense, which consisted of pleading that "removal of the alleged
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architectural barriers was not readily achievable." Islands involved a plaintiff, who like
8 Plaintiff here, was disabled and brought a lawsuit alleging ADA and UCRA violations
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against, inter alia, Defendant Islands Restaurants, LP, dba Fine Burgers and Drinks.

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Islands, 280 F.R.D. at 563. After Defendant Islands answered the complaint, the plaintiff

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brought a motion to strike all of the defendant's affirmative defenses. Id. at 563. In ruling

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on the motion to strike, the court noted that first, "[u]nder the ADA, removal of an

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architectural barrier is not readily achievable if it cannot be easily accomplished. or entails

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'much difficulty or expense."' Id. (citing 42 U.S.C. § 12181(9)). The court also pointed

_____,_,15 \JUt7:har"Section l~l~tt9Jf'artner1cientifies several ractors to cons1cter m ctetermmmg
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whether removal is readily achievable, including the cost of removal, the defendant's

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financial resources, and the defendant's operations." Id. Thus, because there were several

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grounds upon which the defendant might be relying in this matter, the Court found the

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defendant's bare assertion of the defense provided inadequate notice to the plaintiff. Id.;

20 see also Kohler v. Big 5 Corp., No. 2:12-CV-00500-JHN, 2012 WL 1511748, at *5 (C.D.
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Cal. Apr. 30, 2012) (striking the defendant's defense of "not readily achievable" without

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prejudice for the same reasons) (citing Islands); Hernandezv. Cty. ofMonterey, 306 F.R.D.

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279,286 (N.D. Cal. 2015) (holding that the defendant's failure to identify "which barriers

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are at issue, what specific costs are involved[,] and how those costs would create an undue

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burden" failed to provide the plaintiff with fair notice); Vogel v. Huntington Oaks

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Delaware Partners, LLC, 291 F.R.D. 438, 439, 442 (C.D. Cal. 2013) (striking the

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defendant's twenty-second affirmative defense of not readily achievable as factually

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deficient).
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Although the affirmative defenses asserted in this case closely resemble the
affirmative defenses asserted in the other ADA cases of Islands, Big 5, Hernandez, and

Vogel, reluctantly, this Court finds that the conclusion of these cases inherently conflicts
with the Ninth Circuit's decision in Kohler that the Twombly/Iqbal standard does not apply
to affirmative defenses. First, Islands and Big 5 both agree that courts should examine
affirmative defenses under the fair notice standard. See Islands, 280 F.R.D. at 564; Big 5,
2012 WL 1511748 at *2-3. However, under Kohler, the '"fair notice' required by the

8 pleading standards only requires describing the defense in 'general terms."' Kohler, 779
9 F .3d at 1019. Yet, both Islands and Big 5 seem to require more than simply stating the

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defense in general terms. See, e.g., Islands, 280 F.R.D. at 568 (holding that "[b]ecause
there are several grounds upon which Islands may be relying in this matter, the Court finds

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that its bare assertion of the defense provides inadequate notice"); Big 5, 2012 WL 1511748

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at *5 (providing that even though Defendant asserted the defense, the defendant did not

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indicate the grounds upon which it relies in asserting the defense, and as such the "bare

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~·1ISsertimruhm,defense provides inadequate notice")~n:·"1s.--r==-===""=~=~--t
16 outcomes in Islands and Big 5 conflict with the Ninth Circuit's conclusion that a defendant
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need only state a defense in general terms as well as the pleading requirements in Rule 8.

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Kohler, 779 F.3d at 1019; see also FED. R. Crv. P. 8(b) (requiring that a defendant need

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only "state in short and plain terms its defense to each claim"); FED; R. Crv. P. 8(c)

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(requiring that a defendant must only state an affirmative defenses).

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Circuit's holding in Kohler that affirmative defenses should be reviewed under the fair

Second, the Vogel decision is from the Central District, and preceded the Ninth

23 · notice standard. Before the Kohler decision, the Central District held affirmative defenses
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to the Twombly standard, but since Kohler, no longer does so. Compare Vogel, 291 F.R.

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D. at 441 (holding that "Twombly 's plausibility standard applies to affirmative defenses")

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with Loi Nguyen v. Durham Sch. Servs., L.P., 358 F. Supp. 3d 1056, 1060 (C.D. Cal. 2019)

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("The Court now concludes that the strict pleading standard of Twiqbal should

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not apply to affirmative defenses and instead applies the less-demanding 'fair notice'
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standard used by the Ninth Circuit in Kohler"). Thus, because Vogel preceded Kohler, and
therefore, applied the Twombly/Iqbal standard when reviewing the defendant's affirmative
defense, Vogel is inapposite to this case. See Craten v. Foster Poultry Farms Inc., No. CV15-02587-PHX-DLR, 2016 WL 3457899, at *2 (D. Ariz. June 24, 2016) (citing to Vogel
while noting that "many courts have detennined that 'Rule S's requirements with respect
to pleading defenses in an answer parallels the Rule's requirements for pleading claims in
a complaint,"' and holding that "the Court concludes that Twombly and Iqbal do not
govern affirmative defenses, and that ... the affirmative defenses are adequately pied").
Third, the Court finds the Hernandez case distinguishable in light of the fact that
only the Northern District has continued to apply the Twombly/Iqbal standard after the
Ninth Circuit's decision in Flava. See, e.g., Neo4j, Inc. v. PureThink, LLC, No. 5:18-CV-

12 07182-EJD, 2020 WL 4901619, at *3 (N.D. Cal. Aug. 20, 2020) ("[C]ourts in this district
13 continue to require affirmative defenses to meet the Twombly/Iqbal standard").
14 Meanwhile, the Central, Eastern, and Southern Districts agree that courts should review
- - -15 0 ~affirmative~defensesLinderthe fair notice standardafter th:e Nmt11Circurt s aec1s10n m
~~
16

Flava. See, e.g., Nguyen, 358 F. Supp. 3d at 1060 (concluding that the Central District will

17 no longer apply the Twombly/Iqbal standard and will apply the fair notice standard instead
18

in light of Kohler); RLI Ins. Co. v. City of Visalia, 297 F. Supp. 3d 1038, 1058 (E.D. Cal.

19

2018), aff'd, 770 F. App'x 377 (9th Cir. 2019) ("District courts in this district have recently

20

read the Ninth Circuit's decision in Kohler v. Flava Enterprises, Inc., 779 F.3d 1016, 1019

21

(9th Cir. 2015), to have resolved the split regarding whether the heightened plausibility

22

requirement set out in [Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),] and [Ashcroft

23

v. Iqbal, 556 U.S. 662 (2009),] modifies the fair notice standard traditionally applied

24

to affirmative defenses and have held that it does not") (internal quotations omitted);

25

Weintraub, 299 F.R.D. at 664-65 (advising that even pre-Kohler, the Southern District

26

utilized the fair notice standard rather than the Twombly/Iqbal standard when reviewing

27

the adequacy of affirmative defenses); Venson, 2020 WL 4015708 at *1 (noting that the

28

Southern District requires affirmative defenses to provide fair notice).
-11-

I
2
3

4
5

The Court finds that requiring a defendant to state factual support for this affirmative
defense inherently conflicts with merely requiring a defendant to merely state a defense in
general terms under Rule 8 and the fair notice standard. Thus, this Court denies Plaintiffs
motion to strikes this affirmative defense.
3.

6
7

8

9
10
11
12
13
14

Defendant's Fourteenth Afflrmative Defense of Fundamental
Alterations

Defendant's Fourteenth Affirmative Defense alleges that "[a]ny modification and/or
barrier removal Plaintiff has demanded is subject to the defense of 'fundamental alteration'
under 42 U.S.C. §§ 12182(b)(2)(A)(ii), (b)(2)(A)(iii)." ECF No. 5 at 12:6-10. Plaintiff,
again, argues that the Fourteenth Affirmative Defense fails to plead facts showing "why
removal of the barriers set forth in Plaintiffs Complaint would constitute a fundamental
alteration." ECF No. II at 8:14-21. Defendant responds by arguing that arguing that the
Ninth Circuit has recognized as an affirmative defense that a public accommodation is not
required to make an accommodation that will fundamentally alter the nature of the
business' goods and services. ECF No. 13 at 9:7-19.

___ _ , 1 c 5 _ 1 ~ - - - - - - - = - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - t - - - - - - t

16
17
18
19
20
21
22
23
24
25
26
27

For the same reasons outlined with respect to the Court's ruling on the Tenth
Affirmative Defense, the Court believes that even though other cases have required
defendants to provide the grounds for the assertion of fundamental alteration, see, e.g.,
Islands, 280 F.R.D. at 571 (granting motion to strike the defense of fundamental alteration
with leave to amend where the defense failed "to provide fair notice of its defense, because
its answer provides no indication of the grounds for its assertion of fundamental
alteration"), those cases conflict with Kohler's decision. A defendant need only state an
affirmative defense in general terms. Kohler, 779 F.3d at 1019. Thus, the Court denies
Plaintiffs motion to strike the Fourteenth Affirmative Defense.

4.

Defendant's Fifteenth Affirmative Defense ofEquivalent Facilitation

Defendant's Fifteenth Affirmative Defense alleges that "Plaintiffs claims are barred
because Defendant provided equivalent facilitation with regard to the alleged barriers set
forth in Plaintiffs Complaint." ECF No. 5 at 12:11-14. Plaintiff again, argues that

28
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1

2
3

4
5

Defendant has failed to plead facts in support of the affirmative defense asserted. ECF No.
11 at 8:23-9: 10. Defendant again, responds by arguing that it is a validly recognized
affirmative defense without addressing whether Defendant pied facts in support of the
defense asserted. ECF No. 13 at 9:20-10:7.
The Court finds Defendant has sufficiently pied this defense. See, e.g., Kohler v.

6 Big 5 Corp., No. 2:12-CV-00500-JHN, 2012 WL 1511748, at *4 (C.D. Cal. Apr. 30, 2012)
7 (denying the plaintiff's motion to strike the defendant'·s Seventh Affirmative Defense of
8 Equivalent Facilitation by finding that it "provides sufficient notice to Plaintiff of the
9 defense to be asserted"); Kohler v. Bed Bath & Beyond of Cal., LLC, No. CV 11-4451
lO
11

the defendant's equivalent facilitation defense as sufficiently pied and finding it "is a

12

proper affirmative defense against Plaintiff's claims under the ADA and ... Unruh Act").

13

Thus, the Court denies Plaintiff's Motion to Strike the Fifteenth Affirmative Defense.

14

RSWL SPX, 2012 WL 424377, at *2 (C.D. Cal. Feb. 8, 2012) (denying motion to strike

5.

Defendant's Seventeenth Affirmative Defense of Undue Burden and

--->!~2i;-J1-_ _ _ _ _ ____.lli=ar:....;d.;;s...
h..,ip"--_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _t-------J

16
17
18
19
20
21

22
23
24
25
26
27
28

Defendant's Seventeenth Affirmative Defense alleges that "Plaintiff's claim for
injunctive relief and other equitable relief is barred because it will cause Defendant
significant harm in the nature of undue burden and hardship that outweighs any purported
benefit of the Court bypassing the Department of Justice',s Congressionally-mandated
rulemaking process by imposing a purely voluntary website accessibility standard." ECF
No. 5 at 12:20-26. Plaintiff again, argues Defendant has failed to plead facts in support of
the affirmative defense asserted. ECF No. 11 at 9:24-10:6. Defendant again, responds by
arguing that its affirmative defense is a validly recognized one while declining to comment
on whether Defendant pied facts in support of the defense. ECF No. 13 at 10:8-16.
"[U]ndue burden only operates . as a defense to a claim under ADA §
302(b)(2)(A)(iii), 42 U.S.C. § 12182(b)(2)(A)(iii)." Big 5 Corp., 2012 WL 1511748 at *34. Here, Plaintiff's complaint pleads claims under section 302(b)(2)(A)(iii). See ECF No.
1 at 17:22-18:6. Thus, while other courts have stricken this defense on the basis that undue

-13-

1

2
3

4

burden only operates as a defense to a claim under section 302(b)(2)(A)(iii) of the ADA,
and no such claim was alleged in the complaints in those cases, see, e.g., Big 5 Corp., 2012
WL 1511748 at *3-4 (noting that "[i]n the event that Plaintiff seeks to amend the
Complaint to assert a claim under ADA§ 302(b)(2)(A)(iii), Defendant may seek leave to

5

reassert this affirmative defense"); see also Islands, 2012 WL 524086 at *9 (accepting

6

Plaintiff's claim that the complaint did not include a claim under ADA § 302(b)(2)(A)(iii)

7

and striking Defendant's undue burden defense without prejudice with leave to restate the

8

defense if such a claim was added), doing so would be improper here. Instead, because

9

Plaintiff's complaint alleges claims under section 302(b)(2) of the ADA, undue burden is

1O an appropriate defense. Further, because Defendant adequately pied this defense, the Court
11 denies Plaintiff's motion to strike Defendant's Seventeenth Affirmative Defense.
12

B.

13

"An affirmative defense fails as a matter of law if it 'lacks merit under any set of

14

facts the defendant might allege."' Harris, 303 F.R.D. at 628. Here, Plaintiff alleges that

'S

some offlefwdanr's affirmative defenses lack basis m the law. Defendant disagrees. As

l6

set forth below, the Court agrees with Defendant that Plaintiff's Motion should be denied

17
18

as to the Sixth and Twelfth Affirmative Defenses.

Defenses Plaintiff Alleges Fail as a Matter of Law

1.

Defendant's Sixth Affirmative Defense of Good Faith.

19

Defendant's Sixth Affirmative Defense of Good Faith alleges that "Defendant has

20

acted reasonably and in good faith at all times material to Plaintiff's Complaint based on

21

all relevant facts, law and circumstances known by Defendant at the time that Defendant

22

acted." ECF No. 5 at 10:13-17. Plaintiff argues that (1) "there is no state of mind

23 · requirement for an ADA or Unruh Act claim and, therefore, the defense of 'good faith' is
24

inapplicable," and (2) Defendant fails to allege any facts showing how it acted in good

25

faith. ECF No. 11 at 6: 1-9. Defendant responds by arguing that the defense of good faith

26

"is a well-recognized affirmative defense in accessibility matters," noting that motions to

27

strike the same defense have been denied by other courts. ECF No. 13 at 7:3-12.

28

"[A] plaintiff need not show intentional discrimination in order to make out a
-14-

1

violation of the ADA." Lentini v. Cal. Ctr. For the Arts, Escondido, 370 F.3d 837, 846

2 (9th Cir. 2004). Further, "in 1992, the California Legislature amended California Civil
3

Code Section 51 and added a provision that a defendant violates the Unruh Act whenever

4

it violates the ADA." Feezor, 524 F.Supp.2d at 1224-25 (citing Civ. Code§ 51(t)). Thus,

5 "[t]he Ninth Circuit has held that violating the ADA is aper se violation of the Unruh
6 Act," Montoya v. City ofSan Diego, 434 F. Supp. 3d 830,852 (S.D. Cal. 2020) (citing Civ.
7

Code§ 51(t)), but a violation of the UCRA does not necessarily violate the ADA. As a

8 result, if a plaintiff establishes an ADA violation, then, the plaintiff has also established a
9

violation of the UCRA without having to show intentional discrimination. "However,

1O when a Plaintiff has not established an ADA violation, they must plead intentional
11

discrimination" in order to establish a violation under the UCRA. Montoya, 434 F. Supp.

12

3d at 852. Thus, the defense of good faith, although potentially irrelevant to a violation of

13

the ADA, is relevant to violations alleged under the UCRA. 2 For instance, in Kohler v.

14 Islands Restaurants, LP, the court rejected the plaintiffs argument that the defendant's
---+cl~~ i-eliance on the good fnit1,defense "is preempted~byf&lerattaw,"~ choosing instead, to agree

16

with the defendant's argument that the defense still applied to the plaintiff's state law

17

causes of action." 280 F.R.D. at 569-70. The court noted that "[t]here may be instances

18
19

where a facility is not compliant with the California Disabled Persons Act but still

20
21
22
23
24
25
26
27
28

That being said, if Plaintiff fails to establish a violation under the ADA, this Court,
like many other courts, would likely decline exercising supplemental jurisdiction over the
UCRA claims. See, e.g., Schutza v. Cuddeback, 262 F. Supp. 3d 1025, 1027-32 (S.D. Cal.
2017) (holding that the plaintiffs state law claim substantially predominated over his ADA
Title III claim, and as such, judicial economy, convenience, fairness, and comity warranted
the court declining supplemental jurisdiction over the Unruh Act claims) (Bashant, J.);
Harris v. Stonecrest Care Auto Center, LLC, 472 F.Supp.2d 1208, 1220 (S.D. Cal. 2007)
(holding that with "[t]he federal claim having been dismissed for want of jurisdiction," the
Court could not "exercise supplemental jurisdiction to hear Mr. Harris' state law claims"
and dismissed the state law claims without prejudice) (Bums, J.). As a result, the answer,
along with its affirmative defenses, would need to be reviewed by the superior court under
California's code pleadings standard.
2

-153:20-cv-01137-BEN-BGS

1

2

compliant with ADA, because the Disabled Persons Act may demand higher standards than
the ADA." Id. Thus, it held that the defense may still apply to the alleged state-law

3 violation, and as such, denied the plaintiff's motion to strike the affirmative defense. Id.;
4
but see Staples, 291 F.R.D. at 471-72 (denying the plaintiff's motion to strike the
5 defendant's affirmative defenses based on good faith because "a plaintiff alleging an Unruh
6 Act violation premised on an ADA violation need not show intentional discrimination").
7 Here, the Court believes that the defense of good faith is a valid defense, and Defendant
8

has pled sufficient facts to provide Plaintiff fair notice. Thus, the Court denies Plaintiff's

9 motion to strike Defendant's Sixth Affirmative Defense.
10
11

Defendant's Twelfth Affirmative Defense regarding standing alleges that "Plaintiff

12

has not incurred any actual damages or injury," and because Plaintiff has "suffered no

13

concrete harm, this Court lacks Article III standing to hear this case." ECF No. 5 at 11 :22-

14

28. Plaintiff argues that Defendant's Twelfth Affirmative Defense should be stricken

_ __,~

2.

Defendant's Twelfth Affirmative Defense ofArticle III Standing

because {l~)It-fatlno incluaefacts to support theaffirmativeclefense and (2) "lack of - -

16

standing is not a valid affirmative defense." ECF No. 11 at 7:13-8:3. Defendant argues

17

that it "is permitted to raise standing, a jurisdictional defense, in its answer." ECF No. 13

18
19

at 7:25-9:6 (citing Fed. R. Civ. P. 12(b)(l)).

20

lack of standing by affirmative defense. See Kohler v. Big 5 Corp., No. 2:12-CV-00500-

21

JHN, 2012 WL 1511748, at *5 (C.D. Cal. Apr. 30, 2012) (denying the plaintiff's motion

22

to strike the defendant's tenth affirmative defense for lack of standing because "courts have

23

recognized it as an affirmative defense); Kohler v. Bed Bath &Beyond of California, LLC,

24

No. CV 11-4451 RSWL SPX, 2012 WL 424377, at *3 (C.D. Cal. Feb. 8, 2012) (same);

25

Solis v. Couturier, No. 208-CV-02732-RRB-GGH, 2009 WL 3055207, at*l (E.D. Cal.

26

Sept. 17, 2009) (noting that "[l]ack of standing is a recognized affirmative defense, and it

27

was therefore proper for Johanson to restate his denial of fiduciary duty as a defense for

28

lack of standing and jurisdiction"); see also San Diego Unified Port Dist. v. Monsanto Co.,

With respect to Plaintiff's first argument, this Court believes Defendant may raise

-16-

1

309 F. Supp. 3d 854, 861 (S.D. Cal. 2018) (denying the plaintiffs motion to strike the

2 defendant's defense of lack of standing based on the plaintiffs argument that it was not a
3
4

true affirmative defense, noting that the defense provided the plaintiff fair notice, and "the
Court cannot conclude at this early stage in proceedings that these defenses will have no

5

possible bearing on the subject matter of the litigation") (Hayes, J.). Article III standing is

6

a powerful defense in ADA cases, particularly where a district court is exercising

7

supplemental jurisdiction over state law claims on the basis that those claims are related to

8

federal claims brought under the ADA. Thus, the Court disagrees with Plaintiffs argument

9

that this defense fails as a matter of law.

10

As to Plaintiffs second argument that Defendant pied insufficient facts for this

11

affirmative defense, the Court finds that Defendant adequately pied this defense.

12

Defendant specified that Plaintiff may not have standing due to a lack of damages, injury,

13

or harm, unlike other cases where courts granted motions to strike because the defendants

14

made conclusory statem.ents that the plaintiffs simply "lacked standing." See, e.g., Staples,

15

L':J 1 F:RJT.afZl.o9Tstnlang tlie

defendant's defense of lack of standing with leave to amend

16

where the defendant, Staples, had alleged the plaintiff lacked "standing to pursue his

17

alleged claims," the court agreed that "these simple identifications" of defenses was

18

insufficient to provide fair notice); lslandsP, 280 F.R.D. at 567 (same). Here, the Court

19

finds Defendant provided fair notice of its defense. Thus, the Court denies Plaintiffs

20

Motion to Strike Defendant's Twelfth Affirmative Defense of Article III Standing.
C.
Plaintiff's Argument of Prejudice

21

22

Plaintiff argues that she "is prejudiced by having to defend against poorly pied

23

affirmative defenses," which will cause irrelevant discovery and potentially complicate

24
25

trial. ECF No. 11 at 10:7-21. Defendant responds by arguing that Plaintiff has not made

26

In Harris v. Chipotle Mexican Grill, Inc., 303 F.R.D. 625, 628-29 (E.D. Cal. 2014),

27

the court agreed that some of the defendant's defenses were not "truly affirmative in

28

nature" but denied the "plaintiffs' motion to strike them because [the] plaintiff have failed

an adequate showing of prejudice. ECF No. 13 at 11 :7-15.

-17-

1

2
3

4
5

to show they will suffer prejudice if the defenses are left in the defendants' Answer." The
court reasoned that it could not "conceive how these defenses will 'cost both parties and
the court unnecessary time and resources," noting, instead, that "it is more likely the parties
and the court have already needlessly expended more resources on this motion." Id.
Although the Court agrees that there are instances in which a motion to strike

6 affirmative defenses will limit discovery, such as where defendants name excessive
7 defenses that lack merit in the law, the Court does not find this case to represent such an
8 instance. Defendant did not plead an excessive number of defenses and agreed to strike
9 many of them voluntarily. As such, the Court finds that the prejudice to Plaintiff, if any,

10

arising from the Court's partial denial of this Motion is minimal at best. In fact, many

11

courts require a showing of prejudice before granting a motion to strike even where

12

circumstances exist to warrant granting the motion. Greenwich, 729 F. Supp. 2d at 1162.

13

Here, the Court finds that Plaintiff has not shown significant prejudice to warrant granting

14

her motion to strike. In fact, the Court agrees with the Harris court that Plaintiff's motion
likely prejuaiceclthe parties more than1heeoun: s ctemal.

16

D.

17

Defendant, along with its opposition, asks the Court to take judicial notice of nine

18

different legal opinions. However, Defendant fails to specify what facts, if any, it would

19

like the Court to take judicial notice of-i.e., the existence of the opinion, that the Court

20

comes to a certain holding, or the facts of the opinion. Due to Defendant's failure to specify

21

of which facts it would like the Court to take judicial notice, the Court denies Defendant's

22

request for judicial notice as vague and ambiguous.

Defendant's Request for Judicial Notice is Denied

23

In denying Defendant's request, the Court notes that all cases cited by Defendant in

24

support of its opposition were already reviewed by the Court and need not be provided to

25

the Court separately via a request for judicial notice in order to make certain the Court

26

reviews them. A request for judicial notice is only appropriate when asking the court take

27

notice of (1) facts not subject to reasonable dispute and "generally known within the trial

28

court's territorial jurisdiction" and (2) adjudicative facts, which "cari be accurately and

.

-18-

...

1

2
3
4

readily determined from sources whose accuracy cannot reasonably be questioned." FED.
R. Evrn. 20l(b)(l)-(2). While the Court may permissibly take judicial notice of facts from
court records, see, e.g., Asdar Group v. Pillsbury, Madison & Sutro, 99 F.3d 289, 290, fn.
1 (9th Cir. 1996) (taking judicial notice of court records), Defendant, again, did not specify

5

of which facts, if any, from the decisions provided to the Court it would like the Court to

6

take judicial notice. Thus, while the courts can and have taken judicial notice of other

7

opinions, they do not take judicial notice of the facts contained in those opinions. See, e.g.,

8 Perez v. Kroger Co., 336 F. Supp. 3d 1137, 1141 (C.D. Cal. 2018), appeal dismissed, No.
9

18-56458, 2020 WL 2029351 (9th Cir. Mar. 27, 2020) (taking judicial notice of a decision

lO
11

in another case "but not the facts contained therein"); Montantes v. lnventure Foods, No.

12

"take judicial notice of proceedings in other courts ... if those proceedings have a direct

14-cv-1128-MWF, 2014 WL 3305578, at *2 C.D. Cal. July 2, 2014 (stating that courts

l 3 relation to matters at issue") (internal quotation marks omitted); Peviani v. Hostess Brands,
14 Inc., 750 F. Supp. 2d 1111, 1117 (C.D. Cal. 2010) (taking judicial notice of two district
15 ~ courtaecisions at tne aefenoant' s request but notmg "tfiat these dec1s1ons have no bindmg

!6

authority on this court); Marsh v. San Diego Cty., 432 F. Supp. 2d 1035, 1043 (S.D. Cal.

l7

2006) (noting that "[a] court may take judicial notice of the existence of matters of public

18

record, such as a prior order or decision, but not the truth of the facts cited therein"). Thus,

19

Defendant's request for judicial notice is denied.

20

V.

CONCLUSION

21

For the above reasons, the Court DENIES Plaintiff's Motion to Strike Affirmative

22

Defenses Nos. 4, 6, 10, 12, 14, 15, and 17. With respect to Affirmative Defense Nos. 1, 5,

23

7-8, 11, 13, andl6,the Motion is moot as Defendanth

24
25

IT IS SO ORD~~D.
DATED:

greed to withdraw these defenses.

·

Octobe1-1--, 2020

26
United States District Judge

27
28
-19-