Renn v. Otay Lakes Brewery, LLC

Filing 29

ORDER Denying Plaintiff's Motion to Strike Affirmative Defenses (Dkt. No. 24 ). The hearing date on 5/17/24 shall be vacated. Signed by Judge Gonzalo P. Curiel on 5/10/24. (jmo)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ALBERT RENN, on behalf of himself, all
others similarly situated, and the general
public,

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Case No.: 23CV1139-GPC(BLM)
ORDER DENYING PLAINTIFF’S
MOTION TO STRIKE
AFFIRMATIVE DEFENSES

Plaintiff,
v.

[DKT. NO. 24.]

OTAY LAKES BREWERY, LLC,
Defendant.

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Before the Court is Plaintiff’s motion to strike affirmative defenses. (Dkt. No. 24.)

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An opposition was filed on April 19, 2024, and a reply was filed on April 26, 2024. (Dkt.

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Nos. 26, 27.) After a review of the briefs, the answer, and the applicable law, the Court

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DENIES Plaintiff’s motion to strike Defendant’s affirmative defenses.

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Background
On September 28, 2023, Plaintiff Albert Renn (“Plaintiff”) filed a purported first

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amended class action complaint (“FAC”) alleging Defendant Otay Lakes Brewery,

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LLC’s (“Defendant”) labeling of Nova Kombucha as “good for you” and promoting

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“health, balance and goodness” are false and misleading because it contains 6-8% alcohol

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by volume and consuming alcohol causes a wide variety of short and long term health

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risks and problems.1 (Dkt. No. 12, FAC.) On January 29, 2014, the Court granted in part

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and denied in part Defendant’s motion to dismiss with leave to amend. (Dkt. No. 20.)

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On February 16, 2024, Plaintiff filed a notice of intent not amend the FAC. (Dkt. No.

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22.) On March 1, 2024, Defendant filed an answer as well as its affirmative defenses.

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(Dkt. No. 23.) On March 22, 2024, Plaintiff filed a motion to strike certain affirmative

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defenses. (Dkt. No. 24.) Defendant opposed and Plaintiff replied. (Dkt. Nos. 26, 27.)

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Discussion
A.

Legal Standard on Federal Rule of Civil Procedure 12(f)
Under Federal Rule of Civil Procedure (“Rule”)12(f), the Court may, by motion or

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on its own initiative, strike “an insufficient defense or any redundant, immaterial,

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impertinent or scandalous” matter from the pleadings. Fed. R. Civ. P. 12(f). The purpose

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of Rule 12(f) is “to avoid the expenditure of time and money that must arise from

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litigating spurious issues by disposing of those issues prior to trial.” Whittlestone, Inc. v.

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Handi–Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (quoting Fantasy, Inc. v. Fogerty,

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984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on other grounds by Fogerty v. Fantasy, Inc.,

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510 U.S. 517 (1994)).

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“Affirmative defenses are allegations unrelated to the plaintiff’s prima facie case

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that deny the plaintiff’s right to relief, even if all allegations in the complaint are true.”

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Kohler v. Staples the Office Superstore, LLC, 291 F.R.D. 464, 471 (S.D. Cal. 2013)

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(citing F.D.I.C. v. Main Hurdman, 655 F. Supp. 259, 262 (E.D. Cal. 1987)). “[D]enials

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of the allegations in the Complaint or allegations that the Plaintiff cannot prove the

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elements of his claims are not affirmative defenses.” G & G Closed Circuit Events, LLC

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v. Nguyen, No. 10–CV–00168, 2010 WL 3749284, at *5 (N.D. Cal. Sept. 23, 2010).

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The Court must view the pleading in the light more favorable to the pleader when
ruling upon a motion to strike. In re 2TheMart.com, Inc. Sec. Litig., 114 F. Supp. 2d 955,

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The original complaint was filed on June 20, 2023. (Dkt. No. 1, Compl.)
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965 (C.D. Cal. 2000) (citing California v. United States, 512 F. Supp. 36, 39 (N.D. Cal.

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1981)). “Courts often regard motions to strike with disfavor, since such motions are

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frequently used as stalling tactics and since pleadings are of limited importance in federal

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practice.” Platte Anchor Bolt, Inc. v. IHI, Inc., 352 F. Supp. 2d 1048, 1057 (N.D. Cal.

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Apr. 19, 2004) (citation omitted). Therefore, a motion to strike “should not be granted

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unless the matter to be stricken clearly could have no possible bearing on the subject of

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the litigation.” Id. “Given their disfavored status, courts often require a showing of

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prejudice by the moving party before granting the requested relief.” Guerrero v.

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Halliburton Energy Servs., Inc., 231 F. Supp. 3d 797, 802 (E.D. Cal. 2017) (citation

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omitted); see also In re Honest Co., Inc. Secs. Litig, 343 F.R.D. 147, 151 (C.D. Cal.

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2022) (quoting 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and

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Procedure § 1381 (3d ed. Apr. 2022) (“[E]ven when technically appropriate and well-

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founded, Rule 12(f) motions often are not granted in the absence of a showing of

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prejudice to the moving party.”); Quintana v. Baca, 233 F.R.D. 562, 564 (C.D. Cal.

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2005) (“courts often require ‘a showing of prejudice by the moving party’ before granting

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the requested relief.”). As such, a motion to strike “should only be granted if the matter

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has no logical connection to the controversy at issue and may prejudice one or more of

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the parties to the suit.” New York City Employees Ret. Sys. v. Berry, 667 F. Supp. 2d

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1121, 1128 (N.D. Cal. 2009) (emphasis in original) (citing Rivers v. Cnty. of Marin, No.

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C 05-4251, 2006 WL 581096, at *2 (N.D. Cal. Mar. 6, 2006) (citing Charles A. Wright &

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Arthur R. Miller, Federal Practice and Procedure § 1382 (1990)).

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If a claim is stricken, leave to amend should be freely given when doing so would

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not cause prejudice to the opposing party. Vogel v. Huntington Oaks Delaware Partners,

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LLC, 291 F.R.D. 438, 440 (C.D. Cal. 2013) (citing Wyshak v. City Nat’l Bank, 607 F.2d

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824, 826 (9th Cir. 1979)).

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In the Ninth Circuit, “[t]he key to determining the sufficiency of pleading an

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affirmative defense is whether it gives plaintiff fair notice of the defense.” Simmons v.

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Navajo Cnty., Ariz., 609 F.3d 1011, 1023 (9th Cir. 2010) (quoting Wyshak, 607 F.2d at
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827)). “Fair notice generally requires that the defendant state the nature and grounds for

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the affirmative defense.” Roe v. City of San Diego, 289 F.R.D. 604, 608 (S.D. Cal.

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2013). “It does not, however, require a detailed statement of facts.” Id. “What

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constitutes fair notice depends on the particular defense in question.” Vistan Corp. v.

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Fadei USA, Inc., No. C–10–4862 JCS, 2011 WL 1544796, at * 7 (N.D. Cal. Apr. 25,

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2011) (citing 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and

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Procedure § 1381, at 410 (3d ed. 2004)).

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Plaintiff moves to strike the First Affirmative Defense for failure to state a claim

First and Second Affirmative Defenses as Negative Defenses

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and Second Affirmative Defense that Defendant’s “practices were not unlawful as it

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complied with all applicable statutes and regulations.” (Dkt. No. 24 at 7-8, 10.) In

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response, Defendant does not challenge Plaintiff’s arguments; instead, it contends that

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both affirmative defenses should not be stricken but construed as denials. (Dkt. No. 26 at

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4.)

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“A defense which demonstrates that plaintiff has not met its burden of proof is not

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an affirmative defense.” Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir.

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2002) (negating an element of a cause of action is not an affirmative defense); Barnes v.

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AT & T Pension Ben. Plan-Nonbargained Program, 718 F. Supp. 2d 1167, 1174 (N.D.

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Cal. 2010) (“Failure to state a claim is not a proper affirmative defense but, rather, asserts

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a defect in [the plaintiff's] prima facie case.”). This Court has previously ruled that where

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a defendant pleads a denial as an affirmative defense, it should treat it as a specific denial

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and not grounds for striking it. Sundby v Marquee Funding Grp., Inc., Case

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No.:19cv390-GPC(AHG), 2019 WL 5963907, at *3 (S.D. Cal. 2019); see also Kohler,

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291 F.R.D. at 469 (mislabeling is not grounds for striking); Arthur v. Constellation

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Brands, Inc., Case No. 16-cv-04680-RS, 2016 WL 6248905, at *4 (N.D. Cal. Oct. 26,

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2016) (“parsing negative from affirmative defenses is unnecessary because [plaintiff] has

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made no showing that he will suffer prejudice if these defenses are not stricken or that

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striking them will avoid litigation of spurious issues”). Here, because denials are
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permitted by Rule 8(b),2 simply mislabeling them as affirmative defenses is not a basis to

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strike them.

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Plaintiff also seeks to strike the reservation of further affirmative defenses asserted

Reservation of Further Affirmative Defenses

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in the Twenty-First, Twenty-Third, and Thirty-Second Affirmative Defenses as

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immaterial. (Dkt. No. 24 at 8-9.) Defendant responds that the Court may simply deny

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the motion because Plaintiff has not shown any prejudice. (Dkt. No. 26 at 3 n.1.)

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A “‘reservation of affirmative defenses’ is not an affirmative defense.” E.E.O.C. v.

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Timeless Investments, Inc., 734 F. Supp. 2d 1035, 1055 (E.D. Cal. 2010). Under Rule 15,

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a defendant may file a motion seeking leave to amend its answer to assert additional

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affirmative defenses. See Fed. R. Civ. P. 15; Polk v. Legal Recovery Law Offices, 291

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F.R.D. 485, 493 (S.D. Cal. 2013) (citing U.S. v. Global Mortg. Funding, Inc., No. SACV

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07–1275 DOC (PJWx), 2008 WL 5264986, at *5 (C.D. Cal. 2008) (“[I]f a Defendant

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seeks to add affirmative defenses, it must comply with the procedure set out in Federal

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Rule of Civil Procedure 15.”)); Timeless Invs., Inc., 734 F. Supp. 2d at 1055 (“Rule 15

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does not require a defendant to "expressly reserve" unnamed affirmative defenses in its

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answer.”)). “Limitations on the time or ability to file affirmative defenses cannot be

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avoided by “reserving one’s rights’ in an answer . . .[and its] attempt to reserve [its]

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rights to do so is a legal nullity.” Global Mortg. Funding, Inc., 2008 WL 5264986, at *5.

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Despite the lack of legal effect of a reservation of further affirmative defenses,

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Plaintiff has not shown the inclusionof these “affirmative defenses” will cause him to

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expend time and money on litigating spurious issues. See Harris v. Chipotle Mexican

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Grill, Inc., 303 F.R.D. 625, 629-30 (E.D. Cal. 2014) (denying motion to strike reservation

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of rights because plaintiffs failed to show prejudice); see also Bagramian v. Legal

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“In responding to a pleading, a party must: (A) state in short and plain terms its defenses to each claim
asserted against it; and (B) admit or deny the allegations asserted against it by an opposing party.” Fed.
R. Civ. P. 8(b)(1).
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Recovery Law Offices, No. CV 12-1512-CAS MRWx, 2013 WL 1688317, at *2 (C.D.

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Cal. Apr. 16, 2013) (“The Court concludes that plaintiff's motion to strike should be

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denied, as plaintiff's motion does nothing to streamline the litigation of this action or

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eliminate spurious issues from consideration.”). Accordingly, the Court DENIES

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Plaintiff’s motion to strike the Twenty-First, Twenty-Third, and Thirty-Second

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affirmatives defenses.
“Fair Notice” of Affirmative Defenses

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3.

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Finally, Plaintiff argues the Fourth (laches and unclean hands); Eighth (failure to

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mitigate his damages, if any); Ninth (failure to provide adequate notice); Twentieth

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(waiver and exhaustion); Twenty-Eighth (statute of limitations); and Twenty-Ninth

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(preemption) affirmative defenses are barebone allegations and fail to provide him with

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“fair notice” of these defenses. (Dkt. No. 24 at 10-13.) Defendant maintains it has

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properly plead these well-established defenses that will be readily understood by the

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parties and certain affirmative defenses must be plead under Rule 8(c)(1). (Dkt. No. 26 at

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4-5.)

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Courts have held that certain well-established defenses, whose application is self-

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explanatory, may be asserted in a general manner. See Storz Mgmt. Co. v. Carey, No.

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2:18-cv-00068-TLN-DB, 2022 WL 2181661, at *3 (E.D. Cal. June 16, 2022) (denying

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motion to strike unclean hands, estoppel, waiver, and/or laches, laches and consent as

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well established and also those explicitly listed in Rule 8(c)(1)); Pocketbook Int'l SA v.

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Domain Admin/Sitetools, Inc., Case No. CV 20-8708-DMG (PDx), 2021 WL 6103078, at

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*5 (C.D. Cal. Oct. 19, 2021) (denying motion to strike affirmative defense of “failure to

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police, laches, waiver, consent/ratification/acquiescence, unclean hands, failure to

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mitigate damages, good faith, and innocent intent” because no prejudice was shown by

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the plaintiff); Springer v. Fair Isaac Corp., No. 14-CV-02238-TLN-AC, 2015 WL

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7188234, at *4 (E.D. Cal. Nov. 16, 2015) (denying a motion to strike affirmative

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defenses of estoppel, waiver, laches, and unclean hands even though they contained no

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factual support and were alleged in general terms); Diaz v. Alternative Recovery Mgmt.,
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No. 12–CV–1742–MMA (BGS), 2013 WL 1942198, * 2 (S.D. Cal. May 8, 2013) (some

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of the defenses asserted preserve the defendant’s ability to invoke them later in the case,

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as failing to assert them in the answer constitutes waiver.”); Pac. Dental Servs., LLC v.

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Homeland Ins. Co. of New York, No. SACV 13–749–JST (JPRx), 2013 WL 3776337, at

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*3 (C.D. Cal. July 17, 2013) (boilerplate language of waiver, estoppel, and unclean hands

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provided fair notice as they were standard affirmative defenses that were appropriate at

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the outset of a case).

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Moreover, Rule 8(c) requires a party to “affirmatively state any . . . affirmative
defense” such as laches, statute of limitations, and waiver in response to a pleading, Fed.

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R. Civ. P. 8(c), and “an affirmative defense that is not asserted in an answer to the

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complaint is waived or forfeited by the defendant.” KST Data, Inc. v. DXC Tech. Co.,

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980 F.3d 709, 714 (9th Cir. 2020) (citing John R. Sand & Gravel Co. v. United States,

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552 U.S. 130, 133 (2008)).

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District courts have also recognized that “[a]ny lack of factual detail in these

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defenses may be remedied through the formal discovery process, as is done in the vast

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majority of cases.” Diaz, 2013 WL 1942198, at *2; J&J Sports Prods., Inc. v. Vargas,

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No. CV 11-2229-PHX-JAT, 2012 WL 2919681, at *2 (D. Ariz. July 17, 2012) (“Rather,

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any further inquiries the Plaintiff wishes to make into the specific nature of any of these

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affirmative defenses can be handled through routine discovery practices with minimal

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effort or expense.”).

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Applying the standard set forth above, the Court concludes the certain affirmative

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defenses are well established, such as laches and clean hands, failure to mitigate, and

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waiver. Further, Defendant’s remaining affirmative defenses are adequately pled to

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provide fair notice, Plaintiff has not shown that any of them have no possible bearing on

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the issues in the case and has not specifically identified any prejudice arising from their

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inclusion in Defendant’s answer such as requiring it to incur additional time or expend

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additional money to defend the case. Ultimately, Plaintiff can seek the factual bases of

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the affirmative defense during discovery. Therefore, the Court DENIES Plaintiff’s
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motion to strike the Fourth, Eighth, Ninth, Twentieth, Twenty-Eighth and Twenty-Ninth

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affirmative defenses.

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Conclusion

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Based on the above, the Court DENIES Plaintiff’s motion to strike affirmative

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defenses. The hearing date on May 17, 2024 shall be vacated.
IT IS SO ORDERED.
Dated: May 10, 2024

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