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finding affirmative defenses to ADA claims insufficient and noting that "[t]he key to determining the sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of the defense"
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Case No. CV 13-00295 GAF (SHx)
04-30-2013
Martin Vogel v. Linden Optometry APC et al
CIVIL MINUTES - GENERAL
Present: The Honorable GARY ALLEN FEESS Renee Fisher
Deputy Clerk None
Court Reporter / Recorder N/A
Tape No. Attorneys Present for Plaintiffs: None Attorneys Present for Defendants: None
Proceedings: (In Chambers)
ORDER RE: MOTION TO STRIKE
I.
INTRODUCTION & BACKGROUND
Plaintiff Martin Vogel brings this civil rights disability discrimination action against Linden Optometry, APC and Linden Pasadena Properties, LLC (collectively "Defendants") for failure to maintain accessible facilities. (Docket No. 1, [Compl.].) Plaintiff is paraplegic and alleges that, on a date unknown, he encountered numerous barriers in the parking of his vehicle, use of his wheelchair, entrance to the building, and use of facilities in the building. (Id. ¶¶ 8-10.) Plaintiff brings suit under the Americans with Disabilities Act and related California statutes, seeking damages, injunctive and declaratory relief, and attorneys' fees. (Id. ¶ 2.)
On March 1, 2013, Defendants answered Plaintiff's Complaint. (Docket No. 4, [Answer].) Defendants asserted twenty-nine affirmative defenses. (Id. at 6-10.) Defendants asserted the following affirmative defenses:
(1) failure to state a claim; (2) failure to join an indispensable party; (3) comparative negligence; (4) third party responsibility; (5) failure to mitigate; (6) unclean hands; (7) waiver; (8) laches; (9) estoppel; (10) statute of limitations; (11) [withdrawn]; (12) intent/good faith; (13) Plaintiff was never denied access; (14) lack of damages; (15) [withdrawn]; (16) undue burden; (17) not readily achievable; (18) structural impracticality; (19) [withdrawn]; (20) alternative means; (21) construction date of the facility; (22) no predicate violation for an Unruh Act claim; (23) [withdrawn]; (24) failure
to mitigate; (25) legitimate business activities; (26) fundamental alteration; (27) [withdrawn]; (28) lacks standing; (29) unknown defenses.(Id.)
Defendants withdrew affirmative defenses numbered 11, 15, 19, 23, and 27 in their opposition brief. (Docket No. 8, [Opp. to Mot. to Strike ("Opp.")] at 4.)
Before the Court now is Plaintiff's motion to strike Defendants' affirmative defenses. (Docket No. 7, [Mot. to Strike ("Mem.")].) Plaintiff believes that Defendants' affirmative defenses are "insufficient as a matter of law, or as a matter of pleading, to the claims advanced in this lawsuit." (Id. at 1.) Under the controlling Ninth Circuit standard, the Court concludes that some of the defenses should be stricken either because they are not proper affirmative defenses or because they do not give adequate notice of the basis for the defense. Others meet the Ninth Circuit notice standard. Accordingly, for the reasons that follow the Court GRANTS in part and DENIES in part Plaintiff's motion.
II.
DISCUSSION
A. LEGAL STANDARD FOR 12(F) MOTION TO STRIKE
Rule 12(f) of the Federal Rules of Civil Procedure provides that "[t]he court may strike from any pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). The Ninth Circuit has held that "'[i]mmaterial' matter is that which has no essential or important relationship to the claim for relief" and that "[i]mpertinent matter consists of statements that do not pertain, and are not necessary, to the issues in question." Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) (internal citations omitted), rev'd on other grounds, 510 U.S. 517 (1994). "[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial." Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983).
"Motions to strike are generally regarded with disfavor because of the limited importance of pleading in federal practice, and because they are often used as a delaying tactic." Neilson v. Union Bank of Cal., N.A., 290 F. Supp. 2d 1101, 1152 (C.D. Cal. 2003). Accordingly, "courts often require a showing of prejudice by the moving party before granting the requested relief." Quintana v. Baca, 233 F.R.D. 562, 564 (C.D. Cal. 2005) (internal quotations omitted). In considering a Rule 12(f) motion, "the Court views the pleadings in the light most favorable to the non-moving party, and resolves any doubt as to the relevance of the challenged allegations in favor of [the pleading party]. This is particularly true if the moving party fails to demonstrate prejudice." Id. (internal citation omitted). Many courts find that a motion to strike "should be denied unless the matter has no logical connection to the controversy at issue and may prejudice one or more of the parties to the suit." Rivers v. County of Marin, 2006 U.S. Dist. LEXIS 12496 at *6 (N.D. Cal. Mar. 6, 2006) (emphasis in original); New York City Emples. Ret. Sys. v. Berry, 667 F. Supp. 2d 1121, 1128 (N.D. Cal. 2009). A motion may also be granted where it will "have the effect of making the trial of the action less complicated, or have the effect of otherwise streamlining the ultimate resolution of the action." State of Cal. ex rel. State Lands Comm'n v. United States, 512 F. Supp. 36, 38 (N.D. Cal. 1981). In the end, the decision to grant or deny the motion is vested within the sound discretion of the trial court. Neilson, 290 F. Supp. 2d at 1152. B. A PPLICATION
1. PLEADING STANDARD
The Parties first dispute whether the lower pleading standard set forth in Wyshak v. City Nat'l Bank, 607 F.2d 824 (9th Cir. 1979) survives Iqbal-Twombly as the pleading standard for affirmative defenses. (See Mem. at 2; Docket No. 8, [Opp. to Mot. to Strike ("Opp.")] at 7.)
As one judge in this District noted recently regarding the affirmative defense pleading standard, "[n]either the Supreme Court nor any of the circuit courts has addressed this issue, and there is a division among federal district courts in this circuit." Gonzalez v. Heritage Pac. Fin., LLC, 2012 U.S. Dist. LEXIS 112195, at *4 (C.D. Cal. Aug. 8, 2012); compare Roe v. City of San Diego, 2013 U.S. Dist. LEXIS 30986, at *8-9 (S.D. Cal. Mar. 5, 2013) (refusing to apply Iqbal-Twombly); J & J Sports Prods. v. Bear, 2013 U.S. Dist. LEXIS 27084, at *10-11 (E.D. Cal. Feb. 26, 2013) (same); Kohler v. Staples the Office Superstore, LLC ("Kohler I"), 2013 U.S. Dist. LEXIS 18995, at *7 (S.D. Cal. Feb. 12, 2013) (same); with Ansari v. Elec. Document Processing, Inc., 2013 U.S. Dist. LEXIS 24776 (N.D. Cal. Feb. 22, 2013) (applying Iqbal-Twombly); JPMorgan Chase Bank, N.A. v. Parkside Lending, LLC, 2013 U.S. Dist. LEXIS 16981, at *2 (N.D. Cal. Feb. 7, 2013) (same); Gonzalez, 2012 U.S. Dist. LEXIS 112195 at *5-6 (same). Within the Northern District, "there is widespread agreement" that Iqbal-Twombly applies. Pagemelding, Inc. v. ESPN, Inc., 2012 U.S. Dist. LEXIS 127041, at *4 (N.D. Cal. Sept. 6, 2012). However, numerous courts within this District have found otherwise. See Figueroa v. Baja Fresh Westlake Vill., Inc. ("Figueroa I"), 2012 U.S. Dist. LEXIS 90210, at *5-6 (C.D. Cal. May 24, 2012); Kohler v. Big 5 Corp. ("Kohler II"), 2012 U.S. Dist. LEXIS 62264, at *6-7 (C.D. Cal. Apr. 30, 2012).
There are, notably, important linguistic differences between Federal Rule of Civil Procedure 8(a)(2), which governs complaints, and Rule 8(c), which governs affirmative defenses. Rule 8(a)(2) states that "a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. Proc. 8(a)(2). Rule 8(c) states that "a party must affirmatively state any avoidance or affirmative defense . . . ." Id. at 8(c). Judges King and Nguyen found such distinctions relevant, see Figueroa I, 2012 U.S. Dist. LEXIS 90210 at *5-6; Kohler II, 2012 U.S. Dist. LEXIS 62264 at *6-7, and this Court joins them. Additionally, there is an important distinction to be made in the time a plaintiff has to compose a complaint and the time a defendant has to respond.
Accordingly, the Court finds that the well established standard descrobed in Wyshak continues to apply. Wyshak held that "[t]he key to determining the sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of the defense." 607 F.2d at 827. The Ninth Circuit has continued to apply this standard post-Iqbal-Twombly. See Simmons v. Navajo County, 609 F.3d 1011, 1023 (9th Cir. 2010). Under Wyshak, "[f]air notice generally requires that the defendant state the nature and grounds for the affirmative defense." Dunmore v. Dunmore, 2013 U.S. Dist. LEXIS 32654, at *5 (E.D. Cal. Mar. 7, 2013). A detailed statement of facts is not required. Id.; see also Kohler II, 2012 U.S. Dist. LEXIS 62264 at *4-5. If an affirmative defense is stricken, in the absence of prejudice, "leave to amend should be freely given." Wyshak, 607 F.2d at 826.
2. DEFENDANTS' AFFIRMATIVE DEFENSES
In the affirmative defense context, courts strike affirmative defenses that are insufficient as either a matter of pleading or a matter of law. Courts have found that "[a]n affirmative defense is insufficient as a matter of law where there are no questions of fact, that any questions of law are clear and not in dispute, and that under no set of circumstances the defense could succeed." Ross v. Morgan Stanley Smith Barney, LLC, 2013 U.S. Dist. LEXIS 47841, at *3 (C.D. Cal. Apr. 2, 2013) (internal quotations and citation omitted). Courts have similarly stricken affirmative defenses that aren't. "A defense that rebuts plaintiff's prima facie case is a negative defense, not an affirmative defense." Figueroa v. Islands Rests. L.P. ("Figueroa II"), 2012 U.S. Dist. LEXIS 89422, at *6 (C.D. Cal. June 22, 2012); see also Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002) ("A defense which demonstrates that plaintiff has not met its burden of proof is not an affirmative defense.")
When looking at the factual sufficiency of Defendants' affirmative defenses, the Court takes as an example the affirmative defense at issue in Wyshak. In evaluating a statute of limitations affirmative defense, the defense at issue stated: "plaintiff's claims are barred by the applicable statute of limitations." 607 F.2d at 827. In another document entirely, the defendant cited Cal. Code Civ. Proc. § 338.1 as the applicable statute of limitations. Id. The Court found that provided adequate notice. This certainly implies that the fair notice threshold is low, but also that merely stating "statute of limitations" would not have been sufficient.
Plaintiff argues that Defendants' affirmative defenses are insufficient as a matter of law and/or as a matter of pleading. (Mem. at 2.) The Court will evaluate Defendants' affirmative defenses accordingly.
a. First and Twenty-Eighth Affirmative Defenses - Failure to State a Claim and Lack of Standing
Plaintiff avers that these defenses fail as a matter of law because they are not truly affirmative defenses. (Mem. at 9.) Failure to state a claim, which is the basis for a motion to dismiss, and lack of standing are not technically affirmative defenses. See Ross v. Morgan Stanley Smith Barney, LLC, 2013 U.S. Dist. LEXIS 47841, at *8 (C.D. Cal. Apr. 2, 2013) (addressing failure to state a claim); Kohler II, 2012 U.S. Dist. LEXIS 62264 at *8 (C.D. Cal. Apr. 30, 2012) (same); Figueroa v. Marshalls of CA, LLC ("Figueroa III"), 2012 U.S. Dist. LEXIS 67990, at *7 (C.D. Cal. Apr. 23, 2012) (same); Figueroa II, 2012 U.S. Dist. LEXIS 89422 at *5-6 (addressing both failure to state a claim and standing). Moreover, neither of the defense is pled in a way that provides fair notice of the basis for the purported defense. These "defenses" are ordered STRICKEN.
b. Second Affirmative Defense - Failure to Join Indispensable Parties
Plaintiff believes that this defense fails both as a matter of law and as a matter of pleading. (Mem. at 3.) This defense states: "Plaintiff's Complaint fails to join an indispensable party under FRCP, Rule 12(b)(7)." (Answer at 6 (emphasis in original).) The Court finds that this defense is not inadequate as a matter of law. See Rapp v. Lawrence Welk Resort, 2013 U.S. Dist. LEXIS 11966, at *9 (S.D. Cal. Jan. 28, 2013); Kohler III, 2012 U.S. Dist LEXIS 24224, at * 29. The Court does, however, find that this defense fails to allege any factual content whatsoever to provide Plaintiff fair notice. See Joe Hand Promotions v. Davis, 2012 U.S. Dist. LEXIS 145402, at *9-10 (N.D. Cal. Oct. 9, 2012); Sec. People, Inc. v. Classic Woodworking, LLC, 2005 U.S. Dist. LEXIS 44641, at *15 (N.D. Cal. Mar. 4, 2005). Accordingly, the defense is ordered STRICKEN.
c. Third and Fourth Affirmative Defenses - Comparative Negligence and Third
Party Responsibility
Comparative negligence and third party responsibility, as Plaintiff argues, are not affirmative defenses to ADA and related claims. (Mem. at 4.) This is correct. "[T]he ADA is clear that a public accommodation is responsible for its own violations of the ADA, and that such violations cannot be contracted away." United States v. AMC Entm't, Inc., 232 F. Supp. 2d 1092, 1118 (C.D. Cal. 2002) (rev'd on other grounds); see also Kohler III, 2013 U.S. Dist. LEXIS 18995 at *12-13; Kohler II, 2012 U.S. Dist. LEXIS 62264 at *10. The motion to strike these defenses is GRANTED.
d. Fifth and Twenty-Fourth Affirmative Defenses - Failure to Mitigate
Plaintiff argues that his "alleged failure to mitigate damages is legally irrelevant because he is seeking statutory minimum damages." (Mem. at 4.) Courts have declined to accept that argument in this context. For example, in Kohler I, the court noted that because the complaint sought both "actual damages and statutory minimum damages", the "complaint can be read to seek more than just minimum statutory damages." 2013 U.S. Dist. LEXIS 18995 at *11 (emphasis in original). The identical scenario arises in this case, using the exact same claim language, which likely occurred because the two cases were filed by the same attorney. Plaintiff states in his Complaint: "For each offense of the Disabled Persons Act, [Plaintiff] seeks actual damages (both general and special damages), statutory minimum damages of one thousand dollars ($1,000), declaratory relief, and any other remedy available under California Civil Code § 54.3." (Compl. ¶ 37 (emphasis in original).) Accordingly, Plaintiff's Complaint can be read to seek damages in excess of the statutory minimum. See Cal. Civ. Code ¶ 54.3(a). Accordingly, the motion to strike this defense is DENIED. If Plaintiff wants more information about the defense, he can seek discovery regarding the factual basis for the allegations.
e. Sixth , Seventh , Eighth and Ninth Affirmative Defenses - Unclean Hands , Waiver , Laches , and Estoppel
Plaintiff seeks to strike these affirmative defenses because they fail to provide fair notice. (Mem. at 4-5.) Defendants assert these defenses in a conclusory manner, providing no factual support in any way. (Answer at 7.) While that is true, these are potentially viable affirmative defenses, the nature of the defenses is well known, and Plaintiff can seek discovery regarding the purported factual basis for these defenses. If there is no basis for them, they will not be included in the Court's final pre-trial conference order. The motion to strike these defenses is DENIED.
f. Tenth Affirmative Defense - Statute of Limitations
Plaintiff fails to address this affirmative defense and accordingly the Court declines to evaluate Plaintiff's motion as to it. To the extent Plaintiff sought to strike this affirmative defense, Plaintiff's motion is DENIED.
g. Twelfth Affirmative Defense - Intent/Good Faith
Plaintiff argues that affirmative defenses relating to intent are irrelevant regarding claims for injunctive relief under the ADA and damages under parallel state law. (Mem. at 7.) Defendants allege that "Plaintiff cannot establish intentional and arbitrary discrimination, and therefore fails to state a cause of action for violation of the Americans with Disabilities Act or the Unruh Act. "It is undisputed that a plaintiff need not show intentional discrimination in order to make out a violation of the ADA." Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837, 846 (9th Cir. 2004). Furthermore, it is clear that "no showing of intentional discrimination is required where the Unruh Act violation is premised on an ADA violation." Id. at 847; see also Munson v. Del Taco, Inc., 208 P.3d 623, 625 (Cal. 2009). It thus appears that intent is irrelevant to Plaintiff's ADA and Unruh Act claims. See Kohler I, 2013 U.S. Dist. LEXIS 18995 at * 18; Yates v. Jumbo Seafood Rest., Inc., 2012 U.S. Dist. LEXIS 15185, at *16-17 (N.D. Cal. Feb. 1, 2012). Accordingly, the motion to strike the affirmative defenses is GRANTED.
h. Thirteenth and Twentieth Affirmative Defenses - Denial of Access and Alternative Means
According to Plaintiff, Defendants allege "that [they] provided [Plaintiff] with alternative means of access," but Plaintiff argues that "[a] literal denial of access . . . is not necessary to prove denial of equal access under disabled access laws." (Mem. at 8.) Defendants' twentieth affirmative defense alleges "[t]hat the goods, services, facilities, privileges, advantages, and/or accommodations provided at Defendants' facility are available at accessible locations in the facility and/or through alterative means." (Id. at 9.) Defendants assert that these defenses are taking advantage of the Americans with Disabilities Act Accessibility Guidelines and the provision in the Code of Federal Regulations that access must be provided "to the maximum extent feasible," 28 C.F.R. § 36.402(a)(1). (Opp. at 11.) Courts have routinely allowed such an affirmative defense to withstand a motion to strike. See Rapp v. Lawrence Welk Resort, 2013 U.S. Dist. LEXIS 11966, at *10-11 (S.D. Cal. Jan. 28, 2013); Kohler II, 2012 U.S. Dist. LEXIS 62264 at *12-13; Kohler v. Bed Bath & Beyond of California, LLC ("Kohler IV"), 2012 U.S. Dist. LEXIS 16048, at *5 (C.D. Cal. Feb. 8, 2012). The motion to strike the affirmative defenses is DENIED.
i. Fourteenth Affirmative Defense - Lack of Damages
Plaintiff fails to address this affirmative defense and accordingly the Court declines to evaluate Plaintiff's motion as to it. To the extent Plaintiff sought to strike this affirmative defense, Plaintiff's motion is DENIED.
j. Sixteenth , Seventeenth , Eighteenth , and Twenty-Sixth Affirmative Defenses - Undue Burden , Barrier Removal Not Readily Achievable , Structural Impracticality , and Fundamental Alteration
Plaintiff argues that all four of these affirmative defenses suffer from the same malady - they fail to provide fair notice. (Mem. at 3.) In his Complaint, Plaintiff alleges issues with parking signage, parking spaces, the counters in the facility, the bathroom, and the bathroom door. (Compl. ¶¶ 3-5.) These four defenses all portray different defenses as to why the purported barriers could not be removed or altered. It is quite clear that the discovery in this case will center on the factual issues of the existence and nature of barriers, the ability to readily achieve the removal of those barriers and the like. Clearly the parties understand that these are critical issues and that the facts relating to those issues will be developed in discovery. Accordingly, the motion to strike the affirmative defenses is DENIED.
k. Twenty-First and Twenty-Second Affirmative Defenses - Construction Date
Defendants allege through their twenty-first affirmative defense that "the premises owned and leased by the Defendants was designed and constructed for first occupancy prior to January 26, 1992," and cite to various sections of the Code of Federal Regulations. (Answer at 9.) Plaintiff asserts that this defense is legally insufficient because "[e]ven if this is true, the ADA still applies to facilities constructed prior to its effective date." (Mem. at 9.) This defense is also tied to the twenty-second affirmative defense, Cal. Civ. Code 51(d), which states in relevant part: "Nothing in this section shall be construed to require any construction, alteration, repair, structural or otherwise, or modification of any sort whatsoever, beyond that construction, alteration, repair, or modification that is otherwise required by other provisions of law . . . ." Cal. Civ. Code 51(d). Plaintiff cites no law or reason why these affirmative defenses fail as a matter of law. Different requirements apply under the ADA to buildings that existed as of January 26, 1992. See Moeller v. Taco Bell Corp., 816 F. Supp. 2d 831, 847 (N.D. Cal. 2011); see also 28 C.F.R. § 36.401(a). The Court finds additionally that these affirmative defenses are adequately stated. Accordingly, the motion to strike is DENIED.
l. Twenty-Fifth Affirmative Defense - Legitimate Business Activities
Plaintiff fails to address this affirmative defense and accordingly the Court declines to evaluate Plaintiff's motion as to it. To the extent Plaintiff sought to strike this affirmative defense, Plaintiff's motion is DENIED.
m. Twenty-Ninth Affirmative Defense - Reservation of Defenses
In addition to the originally asserted twenty-eight affirmative defenses, Defendants also asserted as an affirmative defense the following: "Defendants allege that they may have other separate and/or additional defenses of which they are not aware and hereby reserve their right to assert them by amendment to this Answer as discovery continues." (Answer at 10.) This quite simply is not an affirmative defense, and Defendants fail to address this in their opposition, apparently conceding as much. See Kohler I, 2013 U.S. Dist. LEXIS 18995 at *23-24; Gonzalez, 2012 U.S. Dist. LEXIS 112195 at *7. Accordingly, the motion to strike this "defense" is GRANTED.
IV.
CONCLUSION
For the reasons stated above, Plaintiff's motion to strike is GRANTED in part and DENIED in part.
IT IS SO ORDERED.