Pertz v. Heartland Realty Investors, Inc. ( 2020 )

1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 SARAH PERTZ, Case No. 19-cv-06330-CRB 9 Plaintiff, ORDER STRIKING AFFIRMATIVE 10 v. DEFENSES 11 HEARTLAND REALTY INVESTORS, INC., et al., 12 Defendants. 13 Heartland Realty Investors’ and Heartland Santa Rosa Limited Partnership’s (collectively, 14 “Heartland”) Answer (dkt. 11) to Sarah Pertz’s Complaint (dkt. 1) asserts thirty-two affirmative 15 defenses. All thirty-two are devoid of factual support, and many are not affirmative defenses at 16 all. Pertz’s motion to strike Heartland’s affirmative defenses is therefore granted. Heartland may 17 amend its Answer to attempt to salvage any defenses struck without prejudice. The Court finds 18 this matter suitable for resolution without oral argument, pursuant to Civil Local Rule 7- 19 1(b), and therefore vacates the hearing currently set for Friday, January 17, 2020. 20 I. LEGAL STANDARD 21 A party must “affirmatively state any avoidance or affirmative defense.” Fed. R. 22 Civ. P. 8(c). “Affirmative defenses plead matters extraneous to the plaintiff’s prima facie 23 case, which deny the plaintiff’s right to recover, even if the allegations of the complaint are 24 true.” FDIC v. Main Hurdman, 655 F. Supp. 259, 262 (E.D. Cal. 1987) (citing Gomez v. 25 Toledo, 446 U.S. 635, 640–41 (1980)). In contrast, allegations that plaintiff has not met its 26 burden of proof or which deny liability are not affirmative defenses. Zivkovic v. S. Cal. 27 Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002). 1 Federal Rule of Civil Procedure 12(f) permits a court to “strike from a pleading an 2 insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” A 3 ruling on a motion to strike affirmative defenses must be based on matters contained in the 4 pleadings. See Kelly v. Kosuga, 358 U.S. 516, 516 (1959). 5 The Ninth Circuit has long held that an affirmative defense is adequately plead if it 6 “gives plaintiff fair notice of the defense.” Wyshak v. City Nat’l Bank, 607 F.2d 824, 827 7 (9th Cir. 1979). While the Ninth Circuit has not directly addressed the issue, this Court 8 and the majority of courts in this district have held that the heightened pleading standard of 9 Twombly and Iqbal, which followed Wyshak, is now the correct standard to apply to 10 affirmative defenses.1 See, e.g., Fishman v. Tiger Natural Gas Inc., No. C 17-05351 11 WHA, 2018 WL 4468680, at *3 (N.D. Cal. Sept. 18, 2018); Ramirez v. Ghilotti Bros. Inc., 12 941 F. Supp. 2d 1197, 1204 (N.D. Cal. 2013). Accordingly, Heartland’s affirmative 13 defenses must contain sufficient factual matter to state a defense “that is plausible on its 14 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 15 U.S. 544, 570 (2007)). 16 When a court strikes an affirmative defense, leave to amend should be freely given 17 so long as there is no prejudice to the moving party. Wyshak, 607 F.2d at 826. 18 II. DISCUSSION 19 Heartland’s affirmative defenses do not meet this standard. Not one of the thirty- 20 two affirmative defenses pled in the Answer is supported by factual allegations. See 21 Answer at 9–13. All thirty-two affirmative defenses are stricken as insufficiently pled. 22 Additionally, Heartland’s first, twelfth, twentieth, and thirty-first affirmative 23 defenses are not affirmative defenses at all. As Pertz correctly notes, they “merely contest 24 the sufficiency of the pleading of the complaint.” Mot. (dkt. 17) at 9–10; see also Main 25 26 1 Kohler v. Flava Enters., Inc., 779 F.3d 1016 (9th Cir. 2015), is not to the contrary. That case confirmed the “fair notice” standard for affirmative defenses, without addressing the applicability 27 of Twombly and Iqbal’s heightened pleading standard. See id. at 1019. The Court will therefore 1 Hurdman, 655 F. Supp. at 262. Heartland’s second, eighth, fourteenth, fifteenth, sixteenth, 2 || seventeenth, nineteenth, and twenty-seventh affirmative defenses are also not actually 3 || affirmative defenses, because they simply deny liability. See Zivkovic, 302 F.3d at 1088. 4 || And Heartland’s thirty-second affirmative defense is not a defense but a reservation of the 5 || right to assert additional affirmative defenses. See Fishman, 2018 WL 4468680, at *7 6 || (“An attempt to reserve affirmative defenses for a future date is not a proper affirmative 7 || defense in itself.” (internal quotation marks and citations omitted)). Because they are not 8 || actually affirmative defenses, these defenses are stricken with prejudice.” See J & J Sports 9 || Prods. v. Coyne, No. C 10-04206 CRB, 2011 WL 227670, at *2 (N.D. Cal. Jan. 24, 2011). 10 Because the Court is striking Heartland’s affirmative defenses as insufficiently pled 11 || or because they are not actually affirmative defenses, it need not address Pertz’s alternative || argument that some of Heartland’s affirmative defenses are inapplicable to the causes of 13 || action in this case. Mot. at 12-13. Nonetheless, if Heartland chooses to amend, it should 14 |} be careful to avoid asserting affirmative defenses which are inapplicable to the Complaint, 3 15 |} or otherwise run afoul of Rule 12(f). a 16 || I. CONCLUSION = 17 For the foregoing reasons, the motion to strike Heartland’s affirmative defenses is 18 || GRANTED. Heartland is granted leave to amend its Answer to attempt to salvage any 19 || affirmative defense stricken without prejudice. 20 IT ISSO ORDERED. 21 Dated: January 8, 2020 CE CHARLES R. BREYER 22 United States District Judge 23 24 25 26 27 78 || 2 All other affirmative defenses are stricken without prejudice.