John Doe v. Regents of The University of California

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 JOHN DOE, Case No.: 22-CV-1506 JLS (AHG)

12 Plaintiff,

ORDER GRANTING IN PART AND

13 v. DENYING IN PART PLAINTIFF’S

MOTION TO STRIKE

14 REGENTS OF THE UNIVERSITY OF

DEFENDANT’S AFFIRMATIVE

CALIFORNIA and DOES 1 through 10,

15 DEFENSES

inclusive,

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Defendants. (ECF No. 30)

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20 Presently before the Court is Plaintiff John Doe’s (“Plaintiff”) Motion to Strike

21 Defendant’s Affirmative Defenses (“Mot.,” ECF No. 30). Defendant Regents of the

22 University of California (“Defendant”) filed an Opposition to the Motion (“Opp’n,” ECF

23 No. 32), and Plaintiff filed a Reply (“Reply,” ECF No. 33) thereto. The Court took the

24 matter under submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). See

25 ECF No. 34. Having carefully reviewed the Parties’ briefing and the applicable law, the

26 Court GRANTS IN PART AND DENIES IN PART Plaintiff’s Motion.

27 / / /

28 / / /

1 BACKGROUND

2 As the Parties are familiar with this action’s history, the Court incorporates by

3 reference the factual and procedural background set forth in the Court’s April 10, 2023

4 Order (“Order,” ECF No. 27) and states here only additional information relevant to the

5 instant Motion.

6 On April 10, 2023, the Court granted in part and denied in part Defendant’s Motion

7 to Dismiss Plaintiff’s Complaint (“MTD,” ECF No. 19). See Order at 20. The Court

8 dismissed without prejudice Plaintiff’s state-law causes of action, including claims for

9 violation of California’s Unruh Civil Rights Act and California Government Code § 11135.

10 Id. at 8–9. The Court, however, retained both of Plaintiff’s federal causes of action, having

11 found that (1) based on the allegations in his Complaint, Plaintiff was not required to

12 exhaust administrative or judicial remedies prior to bringing his causes of action under

13 Title II of the Americans with Disabilities Act (“ADA”) or § 504 of the Rehabilitation Act;

14 and (2) Title II of the ADA constitutes a valid, congressional abrogation of Defendant’s

15 sovereign immunity pursuant to § 5 of the Fourteenth Amendment. Id. at 9–19.

16 Defendant answered Plaintiff’s Complaint (“Compl.,” ECF No. 1) on April 24, 2023.

17 See Answer, ECF No. 28. In its Answer, Defendant asserted twelve affirmative defenses:

18 (1) Failure to State a Claim; (2) Failure to Exhaust Administrative or Judicial Remedies;

19 (3) Failure to Mitigate Damages; (4) Unclean Hands; (5) Laches; (6) Estoppel; (7) Waiver;

20 (8) Statute of Limitations; (9) Substantial Modification; (10) Governmental Immunities;

21 (11) Eleventh Amendment Immunity; and (12) Reservation of Rights. Id. at 16–18.

22 Plaintiff then filed the instant Motion, which seeks to strike affirmative defenses two, four

23 through eight, and ten through twelve. Mot. at 1–2.

24 LEGAL STANDARD

25 The Parties dispute much of the applicable legal standard. Therefore, the Court will

26 first describe the uncontested elements of said standard and then resolve the Parties’

27 arguments regarding the standard’s remaining elements.

28 / / /

1 I. Uncontested Elements

2 Federal Rule of Civil Procedure 12(f) provides that courts “may strike from a

3 pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous

4 matter.” Fed. R. Civ. P. 12(f). As with other challenges to a party’s pleading, “[w]hen

5 ruling on a motion to strike, th[e] Court ‘must view the pleading under attack in the light

6 most favorable to the pleader.’” Novick v. UNUM Life Ins. Co. of Am., 570 F. Supp. 2d

7 1207, 1208 (C.D. Cal. 2008) (quoting RDF Media Ltd. v. Fox Broad. Co., 372 F. Supp. 2d

8 556, 561 (C.D. Cal. 2005)). Moreover, when a Court strikes matter from a pleading, “[i]n

9 the absence of prejudice to the opposing party, leave to amend should be freely given.”

10 Wyshak v. City Nat. Bank, 607 F.2d 824, 826 (9th Cir. 1979).

11 “Motions to strike are ‘generally disfavored because they are often used as delaying

12 tactics and because of the limited importance of pleadings in federal practice.’” Cortina v.

13 Goya Foods, Inc., 94 F. Supp. 3d 1174, 1182 (S.D. Cal. 2015) (quoting Rosales v. Citibank,

14 133 F. Supp. 2d 1177, 1180 (N.D. Cal. 2001)). Thus, courts will not strike defenses as

15 insufficient unless “the insufficiency of the defense is . . . clearly apparent.” Devermont v.

16 City of San Diego, No. 12-CV-01823 BEN KSC, 2013 WL 2898342, at *2 (S.D. Cal.

17 June 14, 2013) (internal quotation marks omitted) (quoting 5C Charles Alan Wright et al.,

18 Federal Practice & Procedure § 1381 (3d ed. 2004)). Nor will courts resolve factual or

19 legal disputes that are better addressed through summary judgment or at trial. See, e.g.,

20 Cobra Sys., Inc. v. Accuform Mfg., Inc., No. 2:13-CV-5932-ODW, 2014 WL 218209, at *3

21 (C.D. Cal. Jan. 14, 2014) (“All of [the plaintiff’s] remaining arguments regarding the

22 second affirmative defense require a factual inquiry that is entirely inappropriate at this

23 stage of the litigation.”); SEC v. Sands, 902 F. Supp. 1149, 1166 (C.D. Cal. 1995) (“Even

24 when the defense under attack presents a purely legal question, courts are reluctant to

25 determine disputed or substantial questions of law on a motion to strike.”), aff’d sub

26 nom. SEC v. First Pac. Bancorp, 142 F.3d 1186 (9th Cir. 1998). Ultimately, “[d]eciding

27 whether to ‘grant a motion to strike lies within the sound discretion of the district court.’”

28 Citizens Ins. Co. of Am. v. Chief Digit. Advisors, 578 F. Supp. 3d 1113, 1118 (S.D. Cal.

1 2020) (quoting Holmes v. Elec. Document Processing, Inc., 966 F. Supp. 2d 925, 930 (N.D.

2 Cal. 2013)).

3 “An affirmative defense may be insufficient as a matter of pleading or as a matter of

4 law.” Roe v. City of San Diego, 289 F.R.D. 604, 608 (S.D. Cal. 2013). A defense is legally

5 insufficient if “it clearly lacks merit ‘under any set of facts the defendant might allege.’”

6 Kohler v. Islands Rests., LP, 280 F.R.D. 560, 564 (S.D. Cal. 2012) (quoting McArdle v. AT

7 & T Mobility LLC, 657 F. Supp. 2d 1140, 1149–50 (N.D. Cal. 2009), rev’d on other

8 grounds, 474 F. App’x 515 (9th Cir. 2012)); see also Sands, 902 F. Supp. at 1165 (noting

9 that a defense is insufficient as a matter of law if “there are no questions of fact, . . . any

10 questions of law are clear and not in dispute, and . . . under no set of circumstances could

11 the defense succeed.” (internal quotation marks omitted) (quoting William W. Schwarzer

12 et al., Federal Civil Procedure Before Trial § 9:381 (1995))).

13 The standard for pleading insufficiency is less settled. Where a plaintiff argues that

14 a defendant has not pleaded enough facts to support its affirmative defenses, district courts

15 in the Ninth Circuit have split over whether to subject the defendant’s pleadings to the fair

16 notice standard applied by the Ninth Circuit in Wyshak or the plausibility standard

17 articulated in Twombly and Iqbal. Compare Polk v. Legal Recovery L. Offs., 291 F.R.D.

18 485, 489–90 (S.D. Cal. 2013), with Barnes v. AT & T Pension Benefit Plan-Nonbargained

19 Program, 718 F. Supp. 2d 1167, 1171–72 (N.D. Cal. 2010). The Ninth Circuit has yet to

20 explicitly resolve this split. See Philpot v. Balt. Post-Exam’r, No. 3:20-CV-00872-H-

21 MSB, 2020 WL 6449199, at *3 (S.D. Cal. Nov. 3, 2020).

22 In the case G&G Closed Circuit Events, LLC v. California Center for the Arts, this

23 Court sided with the “clear majority of courts within this District” and applied the fair

24 notice standard. No. 20-CV-2137-JLS (NLS), 2021 WL 1263952, at *2 (S.D. Cal.

25 Apr. 6, 2021). This Court found persuasive cases where, post-Iqbal, the Ninth Circuit

26 continued to recognize Wyshak’s fair-notice standard. Id.; e.g., Kohler v. Flava Enters.,

27 Inc., 779 F.3d 1016, 1019 (9th Cir. 2015) (“[T]he ‘fair notice’ required by the pleading

28 standards only requires describing the defense in ‘general terms.’” (quoting 5 Charles Alan

1 Wright et al., Federal Practice & Procedure § 1274 (3d ed. 1998))); Simmons v. Navajo

2 Cnty., 609 F.3d 1011, 1023 (9th Cir. 2010) (citing Wyshak, 607 F.2d at 827), abrogated on

3 other grounds by Castro v. Cnty. of L.A., 833 F.3d 1060, 1071 (9th Cir. 2016). As the

4 Parties agree that the Court should apply Wyshak’s fair notice standard to Defendant’s

5 affirmative defenses, the Court does not revisit its decision in California Center for the

6 Arts. See Pl.’s Mem. Supp. Mot. Strike (“Mem.”), ECF No. 30-1 at 4; Opp’n at 3–4.

7 II. Disputed Elements

8 A. Appropriateness of Boilerplate Pleading

9 The Parties first disagree about what amount of information a defendant must plead

10 to satisfy Wyshak’s fair notice standard. Per Plaintiff, “[n]either mere reference to a legal

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

12 defense absent some fact or argument explaining the defense.” Arthur v. Constellation

13 Brands, Inc., No. 16-CV-04680-RS, 2016 WL 6248905, at *2 (N.D. Cal. Oct. 26, 2016)

14 (internal quotation marks omitted) (quoting Barrilleaux v. Mendocino Cnty., No. 14-CV-

15 01373-TEH, 2016 WL 1298860, at *2 (N.D. Cal. Apr. 4, 2016)). Defendant counters that

16 it need only “state the nature and grounds for [each] affirmative defense.” Islands Rests.,

17 280 F.R.D. at 564. Per Defendant, “[b]arebone” and “[c]onclusory” defenses are

18 appropriate in an answer. Opp’n at 7.

19 Though the correct approach falls between the Parties’ positions, the ultimate

20 standard is closer to the one advanced by Plaintiff. Contrary to Defendant’s assertion,

21 barebone recitations of legal doctrines do not necessarily satisfy the fair notice standard.

22 In Wyshak, the Ninth Circuit implied that the statement “plaintiff’s claims are barred by

23 the applicable statute of limitations” does not provide fair notice; instead, a defendant must

24 identify the specific statute of limitations which they contend bars the suit. See 607 F.2d

25 at 827 (citing Conley v. Gibson, 355 U.S. 41, 47–48 (1957)). So, though a defendant need

26 not provide a “detailed statement of facts,” Islands Rests., 280 F.R.D. at 564, Wyshak

27 requires the defendant to do more than plead the name of a possibly relevant defense or

28 category of defenses, 607 F.2d at 827; see also Woodfield v. Bowman, 193 F.3d 354, 362

1 (5th Cir. 1999) (rejecting the defendant’s argument that pleading “accord and satisfaction”

2 and “waiver and/or release” gave the plaintiff fair notice absent more “specificity or factual

3 particularity”).

4 A defendant need not, however, always plead facts or provide argument

5 accompanying an asserted defense. In some instances, “merely pleading the name of the

6 affirmative defense . . . may be sufficient.” Id.; see also Ganley v. Cnty. of San Mateo, No.

7 C06-3923 TEH, 2007 WL 902551, at *2 (N.D. Cal. Mar. 22, 2007) (“While in some cases,

8 merely naming a particular defense will be sufficient to satisfy the notice pleading standard,

9 other affirmative defenses require greater specificity, including additional factual

10 allegations, in order to be properly pleaded.”); DC Labs Inc. v. Celebrity Signatures Int’l,

11 Inc., No. 12-CV-01454 BEN DHB, 2013 WL 4026366, at *4 (S.D. Cal. Aug. 6, 2013)

12 (“What constitutes fair notice . . . depends on the nature of the defense being asserted.”);

13 Rosen v. Masterpiece Mktg. Grp., LLC, 222 F. Supp. 3d 793, 804 (C.D. Cal. 2016)

14 (similar). So, boilerplate pleading is appropriate in at least some circumstances.

15 Courts split, however, regarding how often such boilerplate pleading is appropriate.

16 Some courts have concluded that so long as it is clear to which specific defense the

17 defendant’s answer refers, the defendant need not provide any additional facts or argument

18 demonstrating why the defense is relevant to the plaintiff’s claims. See, e.g., Helstern v.

19 City of San Diego, No. 13-CV-0321-LAB RBB, 2014 WL 294496, at *1 (S.D. Cal.

20 Jan. 24, 2014); Springer v. Fair Isaac Corp., No. 14-CV-02238-TLN-AC,

21 2015 WL 7188234, at *4 (E.D. Cal. Nov. 16, 2015); DC Labs, 2013 WL 4026366, at *8.

22 Per these courts, merely identifying a broad category of defenses (e.g., pleading “statute of

23 limitations” without identifying the relevant statute) does not provide fair notice, but

24 pleading only the name of a well-established, specific defense (e.g., unclean hands) is

25 sufficient. See, e.g., id. at *5, *8. Put differently, a defendant need only provide fair notice

26 of the defense.

27 Another group of courts has held that a defendant must not only identify its asserted

28 defense with specificity, but also provide at least “some fact or argument” demonstrating

1 the connection between the defense and the plaintiff’s claims. Stevens v. Corelogic, Inc.,

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

3 e.g., Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1295 (7th Cir. 1989)

4 (affirming the district court’s decision to strike defenses that were “nothing but bare bones

5 conclusory allegations” lacking “any short and plain statement of facts”); United States v.

6 Gibson Wine Co., No. 1:15-CV-1900-AWI-SKO, 2016 WL 1626988, at *5 (E.D. Cal. Apr.

7 25, 2016); G & G Closed Cir. Events, LLC v. Nguyen, No. 10-CV-00168-LHK, 2010 WL

8 3749284, at *2–3 (N.D. Cal. Sept. 23, 2010). These courts reason that Conley v. Gibson—

9 the case from which Wyshak derived its standard—requires a pleader to not only provide

10 fair notice of their legal claim, but also of the “grounds upon which [that claim] rests.”

11 E.g., Islands Rests., 280 F.R.D. at 567 (quoting Conley, 355 U.S. at 47).

12 For this latter group, merely pleading the name of a defense is sufficient only where

13 a defense’s application to the plaintiff’s causes of action is readily apparent from the

14 allegations in the complaint or answer. See Woodfield, 193 F.3d at 362 & n.30 (explaining

15 that in a simple negligence action arising from a car collision, pleading “contributory

16 negligence” without extensive factual allegations may provide sufficient notice (quoting

17 Am. Motorists Ins. Co. v. Napoli, 166 F.2d 24, 26 (5th Cir. 1948))); Obesity Rsch. Inst.,

18 LLC v. Fiber Rsch. Int’l, LLC, No. 15-CV-00595-BAS(MDD), 2016 WL 739795, at *3

19 (S.D. Cal. Feb. 25, 2016). Outside of these limited circumstances, a defendant must

20 demonstrate the connection between each of its asserted defenses and the plaintiff’s claims.

21 This Court previously sided with the latter group of courts, Cal. Ctr. for the Arts,

22 2021 WL 1263952, at *4 (“[The defendant] must at least provide notice of how each of the

23 doctrines apply to this case.”), and Defendant does not persuade the Court to alter its

24 approach. Requiring Defendant to provide at least some indication of how its asserted

25 defenses apply to Plaintiff’s claims is consistent with precedent and provides a check

26 against the scattershot, overcautious assertion of irrelevant defenses. Moreover, this

27 approach does not unduly burden Defendant. Defendant need not provide a detailed

28 statement of facts or make a plausible case for relief, but instead need only (1) identify

1 each defense it asserts with specificity and (2) demonstrate, through fact or argument, the

2 connection between its asserted defense and Plaintiff’s claims.

3 B. Prejudice Requirement

4 The Parties also dispute whether Plaintiff must show actual prejudice to prevail on

5 a Rule 12(f) motion. Defendant points out that “courts have . . . held that motions to strike

6 should be denied unless the moving party demonstrates that the matter sought to be stricken

7 will result in prejudicial harm if not stricken.” Opp’n at 9. Plaintiff responds that

8 “prohibiting [Defendant] from asserting insufficient affirmative defenses saves time,

9 money, and judicial resources.” Mem. at 3 (citing Barnes, 718 F. Supp. 2d at 1173).

10 The Court declines to require Plaintiff to make an affirmative showing of prejudice

11 with respect to each challenged affirmative defense. First, Rule 12(f) and Ninth Circuit

12 precedent together suggest that Defendant’s purported prejudice requirement rests on a

13 scant doctrinal foundation. “The plain language of Rule 12(f) does not require a moving

14 party to show prejudice,” and “no published Ninth Circuit authority requires a showing of

15 prejudice to strike affirmative defenses.” G & G Closed Cir. Events, LLC v. Alfaro,

16 No. 1:22-CV-0543 JLT SKO, 2023 WL 1803399, at *3 (E.D. Cal. Feb. 7, 2023).

17 Moreover, in the related context of Federal Rule of Civil Procedure 9(b), the Ninth Circuit

18 has rejected courts’ attempts to “add new requirements”—mentioned nowhere in the text

19 of the Rule—“simply because [they] like the effects of doing so.” In re GlenFed, Inc. Sec.

20 Litig., 42 F.3d 1541, 1546 (9th Cir. 1994), superseded by statute on other grounds, 15

21 U.S.C. § 78u–4(b). Though a court may consider prejudice to the moving party when

22 exercising its discretion to grant or deny a Rule 12(f) motion, requiring a moving party to

23 show prejudice in all instances is unsupported by the text of Rule 12(f).

24 Second, even courts that require an affirmative showing of prejudice often do so

25 only where a party seeks to strike redundant, scandalous, or impertinent material. Indeed,

26 multiple district courts have noted that where a party challenges the sufficiency of another

27 party’s defenses, the challenging party need not show specific prejudice. Stevens, 2015

28 WL 7272222, at *2; Barnes, 718 F. Supp. 2d at 1173. These courts reason that allowing

1 insufficient defenses to remain in a defendant’s answer is inherently prejudicial, as so doing

2 would require plaintiffs to “conduct expensive and potentially unnecessary and irrelevant

3 discovery.” Id.

4 Defendant’s argument to the contrary is not persuasive. Defendant cites to this

5 Court’s opinion in Weddle v. Bayer AG Corp., No. 11CV817 JLS NLS, 2012 WL 1019824,

6 at *4 (S.D. Cal. Mar. 26, 2012) for the proposition that Plaintiff must show prejudice.

7 Opp’n at 9. Defendant, however, extrapolates this Court’s reasoning too far. In Weddle,

8 the Court concluded that a denial should not be struck just because it was mistakenly

9 designated as a defense, reasoning (in part) that such a mistake causes no prejudice. Id. It

10 does not follow, however, that a court should never strike a properly labeled defense,

11 regardless of its insufficiency, unless a plaintiff can affirmatively demonstrate prejudice.

12 Rather, prejudice to the moving party is simply a factor a court may consider when

13 exercising its sound discretion to grant or deny a motion to strike.

14 Having now resolved the Parties’ disputes relating to the applicable legal standard,

15 the Court turns to Plaintiff’s arguments regarding the sufficiency of Defendant’s

16 affirmative defenses.

17 ANALYSIS

18 Plaintiff asserts that Defendant has failed to provide sufficient facts or argument to

19 provide fair notice as to how any of the challenged defenses apply to Plaintiff’s claims.

20 Mem. at 4–5. Plaintiff also contends that certain defenses are legally insufficient. Reply

21 at 1–4. The Court addresses each defense in turn.1

22 / / /

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25 1 Though Plaintiff also asserts that Defendant’s challenged affirmative defenses are “redundant,

immaterial, or impertinent,” Plaintiff’s arguments in this regard largely restate his claims that Defendant’s

26 affirmative defenses either (1) are legally insufficient or (2) fail to provide fair notice. Mem. at 5–7.

Indeed, Plaintiff does not revisit his redundancy, immateriality, and impertinence arguments in his Reply,

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save his challenge to Defendant’s twelfth affirmative defense. See generally Reply. The Court only

28 addresses Plaintiff’s redundancy, immateriality, and impertinence arguments to the extent that they differ

1 I. Voluntarily Withdrawn Defenses

2 Defendant indicates that it does not oppose dismissal without prejudice of its tenth

3 affirmative defense (governmental immunities) and its eleventh affirmative defense

4 (Eleventh Amendment immunity). Opp’n at 14. Accordingly, the Court STRIKES

5 WITHOUT PREJUDICE Defendant’s tenth and eleventh affirmative defenses.

6 II. Second Affirmative Defense (Failure to Exhaust)

7 Defendant’s second affirmative defense states that “Plaintiff’s claims are barred by

8 reason of the fact that he has failed to exhaust all administrative or judicial remedies.”

9 Answer at 16. Plaintiff argues that this statement does not provide fair notice, see Mem.

10 at 4–5, and if the Court were to review Defendant’s second affirmative defense in isolation,

11 the Court would be inclined to agree. To adequately plead the affirmative defense of

12 exhaustion, a defendant must at least identify the statutory or common law source of the

13 exhaustion requirement they allege that the plaintiff has failed to satisfy. See Smith v.

14 Cobb, No. 15-CV-00176-GPC, 2017 WL 3887420, at *5 (S.D. Cal. Sept. 5, 2017). Here,

15 Defendant’s second affirmative defense—read in isolation—gives no indication of the

16 specific legal doctrine supporting its conclusion that Plaintiff must exhaust administrative

17 or judicial remedies. See Answer at 16.

18 The fact that a defendant’s answer does not provide fair notice, however, does not

19 justify striking a defense of which the plaintiff received fair notice through other means.

20 See Wyshak, 607 F.2d at 827 (concluding that a defendant could provide fair notice of its

21 statute of limitations defense through a memorandum of points and authorities

22 accompanying its motion for leave to amend its answer). Here, the Court agrees with

23 Defendant’s contention that it “thoroughly laid out its position regarding [its exhaustion]

24 defense” in its MTD and related briefing. Opp’n at 10; see also Mem. Supp. Def’s MTD

25 at 9–13, ECF No. 19-1; Reply Supp. Def’s MTD at 2–9, ECF No. 26. Defendant’s

26 submissions in this regard are sufficient to provide fair notice of both (1) what Defendant

27 means by “fail[ure] to exhaust all judicial and administrative remedies” and (2) the

28 connection between Defendant’s specific exhaustion defense and Plaintiff’s claims.

1 Plaintiff alternatively argues that Defendant’s second affirmative defense is legally

2 insufficient, relying on this Court’s determination in its prior Order that “Plaintiff was not

3 required to exhaust administrative or judicial remedies prior to bringing suit.” Order at 14.

4 The Court made this determination, however, based on the allegations in Plaintiff’s

5 Complaint and information derived from materials subject to judicial notice. See id. at 6–

6 8 (granting the Parties’ requests for judicial notice and describing the standards of review

7 associated with motions brought under Rules 12(b)(1) and 12(b)(6)). Indeed, the Court did

8 not expressly hold that a plaintiff bringing claims under Title II of the ADA or § 504 of the

9 Rehabilitation Act is never required to exhaust administrative or judicial remedies. Id.

10 at 9–14. Instead, the Court reached its decision in part based on its finding that Plaintiff

11 was neither challenging a final administrative decision nor a quasi-legislative decision. Id.

12 at 11–12. In addition, the Court distinguished Ninth Circuit precedent that applied a

13 judicial exhaustion requirement where the plaintiff had participated in an adjudicatory,

14 administrative hearing prior to bringing suit. Id. at 12–13.

15 Because the Court’s prior Order rested in part on distinctions the Court drew while

16 assuming the truth of Plaintiff’s allegations, the Court is unwilling to conclude that—with

17 respect to Defendant’s second affirmative defense—“there are no questions of fact, that

18 any questions of law are clear and not in dispute, and that under no set of circumstances

19 could the defense succeed.” Sands, 902 F. Supp. at 1165 (internal quotation marks omitted)

20 (quoting Schwarzer et al., supra, § 9:381). True, the Court’s Order expressed considerable

21 skepticism regarding the merits of Defendant’s exhaustion arguments. See Order at 12.

22 But “[t]he decision to strike is [not] a question of . . . likelihood of success on the merits.”

23 Smith, 2017 WL 3887420, at *5. Here, discovery could possibly undermine the

24 distinctions upon which this Court relied when it denied Defendant’s MTD.2 The Court

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2 If indeed discovery undermines these distinctions—for instance, if discovery reveals that an

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administrative proceeding with sufficient “judicial characteristics” occurred such that California courts

28 would accord it “collateral estoppel effect,” see McDonald v. Antelope Valley Cmty. Coll. Dist., 194 P.3d

1 therefore DENIES Plaintiff’s Motion with respect to Defendant’s second affirmative

2 defense.

3 III. Fourth Affirmative Defense (Unclean Hands)

4 Defendant’s fourth affirmative defense states “Plaintiff’s claims are barred, in whole

5 or in part, by the doctrine of unclean hands.” Answer at 16. Plaintiff challenges this

6 defense on fair notice grounds only, see Mem. at 5–6, and the Court agrees that Defendant

7 has failed to adequately plead this defense. Defendant has indicated the specific defense

8 that it asserts, but Defendant’s pleading is devoid of any facts or argument demonstrating

9 a connection between its unclean hands defense and Plaintiff’s claims.

10 Though such boilerplate pleading might be appropriate where the defense’s

11 relevance is self-evident, see supra p. 7, here, the connection between the Defendant’s

12 “unclean hands” defense and Plaintiff’s claims is not readily apparent from the allegations

13 in the Complaint and Answer. Unclean hands is an equitable defense that may bar a

14 plaintiff from receiving relief if that plaintiff has failed to act “fairly and without fraud or

15 deceit as to the controversy in issue.” Northbay Wellness Grp., Inc. v. Beyries,

16 789 F.3d 956, 959 (9th Cir. 2015) (internal quotation marks omitted) (quoting Ellenburg

17 v. Brockway, Inc., 763 F.2d 1091, 1097 (9th Cir. 1985), abrogated on other grounds by

18 Watkins v. Westinghouse Hanford Co., 12 F.3d 1517, 1527 (9th Cir. 1993)). Defendant

19 does not explain why it believes Plaintiff may have acted unfairly, fraudulently, or

20 otherwise wrongfully while seeking disability-related accommodations, and the Court sees

21 no clear indication of wrongful conduct in Plaintiff’s Complaint. See generally Answer;

22 Compl. Though Defendant need not provide a “detailed statement of facts” regarding its

23 unclean hands defense, Island Rests., 280 F.R.D. at 564, 572, absent an evident connection

24 Defendant must plead “some fact or argument” explaining the relationship between its

25 defense and Plaintiff’s claims, Stevens, 2015 WL 7272222, at *4. As Defendant has not

26 done so here, the Court STRIKES WITHOUT PREJUDICE Defendant’s fourth

27 affirmative defense for failure to provide fair notice of the defense’s connection to

28 Plaintiff’s claims.

1 IV. Fifth Affirmative Defense (Laches)

2 Defendant’s fifth affirmative defense states “Plaintiff’s claims are barred, in whole

3 or in part, by the doctrine of laches.” Answer at 17. Plaintiff primarily challenges this

4 defense on fair notice grounds, Mem. at 5, and Defendant responds that because Plaintiff’s

5 Complaint alleges when Plaintiff suffered his first injury, Plaintiff has received fair notice

6 of Defendant’s laches defense, Opp’n at 11.

7 Though it presents a closer question, Defendant has not provided fair notice of the

8 connection between its laches defense and Plaintiff’s claims. Laches is an equitable

9 defense that may preclude a plaintiff from receiving relief when that plaintiff has

10 “unreasonably delay[ed]” asserting their legal rights in a way that causes “prejudice to [the

11 defendant].” Danjaq LLC v. Sony Corp., 263 F.3d 942, 950–51 (9th Cir. 2001) (quoting

12 Couveau v. Am. Airlines, Inc., 218 F.3d 1078, 1083 (9th Cir. 2000)). Here, though the

13 Complaint sets forth the dates on which Plaintiff sought and was denied accommodations,

14 it is not evident why laches might apply to bar his claims. See generally Compl. Nor does

15 Defendant provide facts or argument explaining the defense’s connection to this case. See

16 generally Answer. Absent at least some indication of the defense’s relevance, multiple

17 courts in this district—including this Court—have struck laches defenses from defendants’

18 answers for failure to provide fair notice. See Cal. Ctr. for the Arts, 2021 WL 1263952, at

19 *4; Stevens, 2015 WL 7272222, at *4; Polk, 291 F.R.D. at 491. Accordingly, the Court

20 STRIKES Defendant’s fifth affirmative defense WITHOUT PREJUDICE for failure to

21 provide fair notice of the defense’s connection to Plaintiff’s claims.

22 IV. Sixth Affirmative Defense (Estoppel)

23 Defendant’s sixth affirmative defense reads as follows: “Plaintiff’s claims are

24 barred, in whole or in part, by the doctrine of estoppel.” Answer at 17. Plaintiff asserts

25 that this statement alone does not provide fair notice, Mem. at 4–6, and the Court agrees.

26 Defendant has neither provided fair notice of its asserted defense nor the defense’s

27 connection to Plaintiff’s claims. In Qarbon.com Inc. v. eHelp Corp., a court rejected a

28 similarly worded defense as vague, noting that it was unclear whether the defendant was

1 “asserting a single type of estoppel or several types of estoppel.” 315 F. Supp. 2d 1046,

2 1049 (N.D. Cal. 2004); see also Ganley, 2007 WL 902551, at *2 (“[T]he mere assertion of

3 a broad category of legal theories, such as estoppel, with numerous possible applications

4 requires additional specificity to satisfy the notice pleading standard.” (emphasis added)).

5 It is similarly unclear here what Defendant means by estoppel. Thus, the Court STRIKES

6 Defendant’s sixth affirmative defense WITHOUT PREJUDICE for failure to provide fair

7 notice of either the defense or the defense’s connection to Plaintiff’s claims.3

8 V. Seventh Affirmative Defense (Waiver)

9 Defendant’s seventh affirmative defense reads as follows: “Plaintiff’s claims are

10 barred, in whole or in part, by the doctrine of waiver.” Answer at 17. Plaintiff again

11 challenges this statement for failure to provide fair notice. Mem. at 4–6.

12 Here, as with estoppel, Defendant has failed to specify what it means by “the

13 doctrine of waiver.” Answer at 17. In Woodfield, the Fifth Circuit held that “baldly

14 ‘naming’ the broad affirmative defenses of ‘accord and satisfaction’ and ‘waiver and/or

15 release’ [fell] well short of the minimum particulars needed” to provide the plaintiff with

16 fair notice of the specific, contractual defense asserted by the defendant. 193 F.3d at 362.

17 Woodfield demonstrates the danger associated with allowing broadly phrased defenses to

18 stand—so doing renders plaintiffs vulnerable to “unfair surprise.” Id. (internal quotation

19 marks omitted) (quoting Home Ins. Co. v. Matthews, 998 F.2d 305, 309 (5th Cir. 1993)).

20 Indeed, courts applying the fair notice standard have struck generic allegations of waiver.

21 See, e.g., Puccio v. Love, No. 16-CV-2890 W (BGS), 2018 WL 1449399, at *9 (S.D. Cal.

22 Feb. 26, 2018).

23 At a minimum, Defendant must provide some indication of the specific legal

24 doctrine supporting its contention that Defendant has waived his causes of action. In

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3 However, to the extent that Plaintiff argues that Defendant’s estoppel defense should be stricken because

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“Plaintiff has not intentionally or deliberately induced reliance,” Mem. at 6, Plaintiff misunderstands the

28 applicable standard. Resolution of factual disputes is inappropriate on a motion to strike. See Cobra Sys.,

1 addition, Defendant must explain, if not readily apparent from the Complaint or the

2 allegations in Defendant’s Answer, the connection between that specific legal doctrine and

3 Plaintiff’s claims. As Defendant has accomplished neither task here, the Court STRIKES

4 Defendant’s seventh affirmative defense WITHOUT PREJUDICE.

5 VI. Eighth Affirmative Defense (Statute of Limitations)

6 Defendant’s eighth affirmative defense states “Plaintiff’s claims are barred by the

7 applicable statutes of limitations, including but not limited to California Code of Civil

8 Procedure sections 335.1, 338(a), and 340(a); and United States Code, title 29, section

9 794a.” Answer at 17. Plaintiff primarily challenges this defense on fair notice grounds,

10 arguing that “[a]ll of Defendant’s citations fails [sic] to provide Plaintiff fair notice of how

11 they relate to the statute of limitations applicable to Plaintiff’s [claims for relief].” Reply

12 at 3.4

13 The Court concludes that Defendant has provided fair notice of its eighth affirmative

14 defense. In Wyshak, the Ninth Circuit determined that a defendant provided fair notice of

15 its statute of limitations defense where a memorandum attached to a copy of the

16 defendant’s pleadings “made specific mention of Cal. Code Civ. Proc. § 338.1 as the statute

17 of limitations upon which [the defendant] relied.” 607 F.2d at 827. Here too, Defendant

18 has identified the specific statutory provisions that it contends provide the statutes of

19 limitations for Plaintiff’s claims. Answer at 17. As the dates of the conduct challenged by

20 Plaintiff are readily apparent from Plaintiff’s Complaint, see, e.g., Compl. ¶ 69, fair notice

21 requires nothing more from Defendant.

22 / / /

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4 Plaintiff’s other arguments are patently frivolous. Plaintiff asserts that Defendant is required to plead its

25 statute of limitations defense “with particularity.” Mem. at 5. Plaintiff also urges the Court to strike

Defendant’s statute of limitations and laches defenses because “Defendant has failed to challenge via a

26 Motion to Dismiss that Plaintiff failed to timely file his lawsuit.” Mem. at 6. Plaintiff cites no precedent

supporting either argument, and the Court is unaware of any. To the contrary, Wyshak demonstrates that

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a statute of limitations defense is subject to the same fair notice standard as are other defenses, 607 F.2d

28 at 827, and timeliness defenses are not included in the list of defenses that a defendant waives if it does

1 It may well turn out—as Plaintiff implies, Reply at 2–3—that the statutes of

2 limitations cited by Defendant are inapposite. But Plaintiff has not argued that Defendant’s

3 statute of limitations defense is legally insufficient, see Mot.; Reply, and absent full

4 briefing from the Parties, the Court declines to decide at this juncture what specific statutes

5 of limitations apply to Plaintiff’s claims, see Sands, 902 F. Supp. at 1166. The Court

6 therefore DENIES Plaintiff’s Motion as to Defendant’s eighth affirmative defense.

7 VII. Twelfth Affirmative Defense (Reservation of Rights)

8 Defendant’s twelfth affirmative defense states as follows:

9 Defendant is informed and believes, and thereon alleges,

that it may have additional, as yet unasserted defenses to

10

Plaintiff’s Complaint or the purported causes of action contained

11 therein. Defendant specifically reserves the right to assert

additional defenses as deemed appropriate at a later time.

12

13 Answer at 18. Plaintiff argues that this defense is not an affirmative defense at all, Mem.

14 at 7, and Defendant responds that this Court has previously declined to strike denials that

15 were improperly pleaded as defenses, Opp’n at 13.

16 Defendant’s twelfth “affirmative defense” is not a denial of one of Plaintiff’s

17 allegations, but instead an unnecessary restatement of Defendant’s qualified right to amend

18 its Answer pursuant to Federal Rule of Civil Procedure 15. Because a defendant can move

19 the court to amend its answer to incorporate a new affirmative defense regardless of

20 whether it explicitly reserves its right to do so, see Fed. R. Civ. P. 15, multiple courts in

21 this Circuit, including this Court, have struck nearly identical “reservations of rights” from

22 defendants’ answers. See Cal. Ctr. for the Arts, 2021 WL 1263952, at *4; Hartford

23 Underwriters Ins. Co. v. Kraus USA, Inc., 313 F.R.D. 572, 578 (N.D. Cal. 2016); Nguyen,

24 2010 WL 3749284, at *5. As Defendant’s twelfth affirmative defense, unlike a denial, can

25 have no possible effect on this litigation, see Albrecht v. Nat’l Bancorp Holdings, Inc.,

26 No. SACV190810DOCJDEX, 2019 WL 8138433, at *3 (C.D. Cal. Sept. 13, 2019), the

27 Court STRIKES it as immaterial WITH PREJUDICE.

28 / / /

1 CONCLUSION

2 For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART

3 || Plaintiff's Motion to Strike Defendant’s Affirmative Defenses (ECF No. 30). Specifically,

4 ||the Court DENIES Plaintiff's Motion to strike Defendant’s second and eighth affirmative

5 ||defenses and GRANTS Plaintiff's Motion to strike Defendant’s fourth, fifth, sixth,

6 seventh, tenth, eleventh, and twelfth affirmative defenses.

7 The Court STRIKES Defendant’s twelfth affirmative defense WITHOUT LEAVE

8 ||TO AMEND. With respect to all other stricken affirmative defenses, the Court GRANTS

9 || Defendant LEAVE TO AMEND its Answer in a manner not inconsistent with this Order.

10 || Any amended answer must be filed within twenty-one (21) days of the date on which this

11 || order is electronically docketed.

12 IT IS SO ORDERED.

13 Dated: January 16, 2024 tt

14 ja Janis L. Sammartino

15 United States District Judge

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