Cota v. Aveda Corporation ( 2020 )

riteD SOUTHERN Bisthice gy ooo □□ 3 bY DEPUTY 7 . □ UNITED STATES DISTRICT COURT 9 _ SOUTHERN DISTRICT OF CALIFORNIA 11 || JULISSA COTA, individually and on ) Case No.: 3:20-cv-01137-BEN-BGS □ behalf of herself and all others similarly _) . □ || situated, ) ORDER DENYING PLAINTIFF’S 13 Plaintiff, ) MOTION TO STRIKE 14 | oe ) DEFENDANT’S AFFIRMATIVE v. ) DEFENSES AVEDA CORPORATION, a Minnesota ) 16 || corporation; and DOES 1 to 10, inclusive, [ECE No. 11] 17 Defendant. ) . 18 INTRODUCTION 19 | Plaintiff Julissa Cota (“Plaintiff”), individually and on behalf of all others similarly 20 situated, brings this action for violations of (1) the Americans with Disabilities Act of 21 }|1990, 42 U.S.C. § 12181 (the “ADA”), and (2) Unruh Civil Rights Act, Civ. Code, § □□□ 22 |let seq. (the “UCRA”), against Defendant Aveda Corporation, a Minnesota corporation 23 ||(“Defendant”). ECFNo.1. 24 Before the Court is Plaintiff?s Motion to Strike Affirmative Defenses Nos. 1, 4-8, 25 jjand 10-17 pled in Defendant’s Answer (the “Motion”). ECF No. 11. On September 29, 26 || 2020, Defendant filed an opposition. ECF No. 13. Plaintiff did not file a reply brief. The 27 motions were submitted on the papers without oral argument pursuant to Civil Local Rule | 7.1(d)(1) and Rule 78(b) of the Federal Rules of Civil Procedure. ECF No. 15, -|- d After considering the papers submitted, supporting documentation, and applicable 2 law, the Court DENIES Plaintiff's Motion to Strike Affirmative Defenses Nos. 4, 6, 10, 3 12, 14, 15, and 17. As discussed below, with respect to Affirmative Defense Nos, 1, 5, 4 7-8, 11, 13, and 16, the Motion is moot as Defendant has agreed to withdraw these > || defenses, □ BACKGROUND 7 A. Factual Background : 8 Plaintiff is a visually impaired and legally blind person who requires screen reading 9 || software to read website content using her computer. ECF No. 1 at 1:26-27. Defendant 10 |lis a Minnesota corporation, which operates (1) “stores, which constitute places of public 1 accommodation, in California, and the United States as a whole, selling make-up, hair 12 Vand beauty products, and other items,” and (2) “a website, https://www.aveda.com, which 13 provides consumers with product information, a means to order items:for pick-up in □□□□□□ 14 store location information, and other services.” ECF No. 11 at 1:21-24 (citing ECF No. I13, 5). “Defendant’s website is incompatible with screen-reading software □□□□ 16 therefore, cannot be used by Plaintiff” Jd. at 1:25-26 (citing ECF No. 1, 7 24). Asa V7 result, Plaintiff alleges she has visited Defendant’s website numerous times, and during 18 |l each visit, she has encountered various barriers, which prevented her from using the 19 website. Jd. at 1:27-28 (citing ECF No. 1, 79 26, 28). 20 B. Procedural History : 21 || On June 23, 2020, Plaintiff filed this lawsuit, individually and on behalf of all others 22 || similarly situated, alleging claims for relief for violations of the (1) ADA and (2) UCRA 23 | against Defendant. ECF No. 1. oe □ 24 On July 20, 2020, Defendant was served. ECF No. 4. On August 10, 2020, 25 |/Defendant timely filed its answer to Plaintiff's complaint, asserting eighteen (18) 26 affirmative defenses. ECF No. 5; see also FED. R. Civ. Proc. 12(a). 27 On August 31, 2020, Plaintiff filed a Motion to Strike Defendant’s Answer, seeking 28 |/to strike Affirmative Defense Nos. 1, 4-8, and 10-17. ECF No, 11. On September 29, -2- 2020, Defendant filed an Opposition to the Motion, advising that it withdrew its 1°, 5%, 2 7, 8 11%, 13", and 16" affirmative defenses, leaving only the 4", 6", 12", 14", 3 15", and 17" affirmative defenses at issue. ECF No. 13 at 5. 4 LEGAL STANDARD □ 5 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 grounds for a motion to strike must appear on the face of the pleading under attack, 8 from matters which the Court may take judicial notice.” Herd v. Cty. of San Bernardino, 911311 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. 11 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 if it ‘lacks merit under any set of facts the defendant might allege.” Harris, F.R.D. at 628. With respect “to determining the sufficiency of pleading[,] an 16 |l affirmative defense is [sufficiently pled when] . . . it gives plaintiff fair notice of the 17 defense.” Id; see also Kohler v. Flava Enterprises, Inc., 779 F.3d 1016, 1019 (9th Cir. 18 2015) (providing that “the ‘fair notice’ required by the pleading standards only requires 19 describing the defense in ‘general terms”), ‘The purpose of a Rule 12(f) motion “is to avoid the expenditure of time and money 21 || that must arise from litigating spurious issues by dispensing with those issues prior to trial.” 22 Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (internal quotation 23-|| marks omitted). “Motions to strike are generally disfavored and should not be granted 24 || unless the matter to be stricken Clearly could have no possible bearing on the subject of the 25 || litigation.” Diamond S.J. Enter., Inc. v. City of San Jose, 395 F. Supp. 3d 1202, 1216 (N.D. 26 2019) (internal quotations omitted), When considering a motion to strike, “courts 27 |i must view the pleadings under attack in the light more favorable to the pleader.” Lazar v. 28 || Trans Union LLC, 195 F.R.D. 665, 669 (C.D. Cal. 2000). The decision to grant a motion -3- I |/to strike ultimately lies within the discretion of the trial court. Rees v. PNC Bank, NA, 2 F.R.D. 266, 271-72 (N.D. Cal. 2015) (citing Whittlestone, 618 F.3d at 973). Some 3 courts require a plaintiff to make a showing of prejudice before granting a motion to strike. 4 || Greenwich Ins. Co. v. Rodgers, 729 F. Supp. 2d 1158, 1162 (C.D. Cal. 2010). □ > DISCUSSION 6 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 case,” and (2) “not valid affirmative defenses.” ECF No, 11] at 1:11-18. Defendant 9 |lresponds by arguing that its affirmative defenses (1) “are based on plausible 10 || interpretations of Plaintiff's allegations” from Plaintiff's own “artfully vague, boilerplate 11 |/complaint” and (2) provide Plaintiff fair notice. ECF No. 13 at 1:7-20. Defendant also 12 || voluntarily withdrew its 18, 5%, 7%, 8", 11%, 13", and 16" affirmative defenses, ECF No. 13 |) 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, □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ 16 || attorneys’ fees,” id. at 1:16-17, noting that “the ADA has been manipulated to generate 17 attorneys’ fees,” id. at 5:1. The Court notes that while the Southern District has no formal 18 || meet and confer requirement prior to filing a motion to strike, meet and confer efforts are 19 always encouraged. Here, such efforts could have saved Plaintiff time and effort with 20 ||respect to Defendant’s agreement to withdraw several of its affirmative defenses. That 21 || being said, as outlined the below, with respect to Plaintiff's Motion, this Court grants it 22 part and denies it in part for the below reasons. 23 || □□ Defenses Plaintiff Alleges Fail as a Matter of Pleading oa 24 “The key to determining the sufficiency of pleading an affirmative defense is 25 || whether it gives plaintiff fair notice of the defense.” Harris, 303 F.R.D. at 628. Unlike 26 code pleading standard used in California superior courts, in which pleading of facts in 27 ||support of affirmative defenses is required, federal courts utilize the notice pleading 28 standard. See, e.g, Fanucchi & Limi Farms v. United Agri Prod,, 414 F.3d 1075, 1082 □ 4. 1 Cir. 2005) (reiterating that “federal courts employ notice pleading under Federal Rule |lof Civil Procedure 8(a)” while “California courts employ code pleading, which requires 3 ||more factual detail than notice pleading”). In federal courts, Rule 8 of the Federal Rules 4 || of Civil Procedure (“Rule 8”) governs the level of pleading, and Rule 8(a) requires in a 5 ||complaint to contain “a short and plain statement of the claim showing that the pleader is |/entitled to relief.” FED. R. Cw. P. 8(a). Rule 8(b) governs the pleading of defenses 7 || generally and requires only that the party “state in short and plain terms its defense to each 8 || claim asserted against it.” FED. R. CIv. P. 8(b).. Meanwhile, Rule 8(c) governs the pleading 9 affirmative defenses and provides that “[i]n response to a pleading, a party must 10 affirmatively state any avoidance or affirmative defense.” FED. R. Civ. P. 8(c). The 11 Supreme Court has opined on the interpretation of Rule 8 in several opinions relevant-to 12 |ithe level of pleading required.! However, the Ninth Circuit has held that the Supreme 13 □□□□□□□□□□□□□□□□□□□□□□□ . |} In 2007, the Supreme Court in Bell Atl. Corp. v_ Twombly, 550 U.S. 544, 570 □□□□□□□ held that a plaintiff need not plead specifics but must plead “only enough facts to state a 6 claim to relief that is plausible on its face.” A pleading that offers “labels and conclusions,” 17 formulaic recitation of the elements of a cause of action,” “or “naked assertion[s]” with 1g “factual enhancement” will not pass muster. Ashcroft v. Igbal, 556 U.S. 662, 677-78 8 (2009) (citing Twombly, 550 U.S. at 555). In 2009, the Supreme Court, in Ashcroft v. 19 556 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 21 ||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 23 ||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 24 llthe ‘fair notice’ standard of affirmative defense pleading even after Twombly and □□□□□□□ 25 thereby suggesting that standard continues to apply to affirmative defenses but not claims 26 for relief in a complaint. See, e.g., Kohler v. Islands Restaurants, LP, 280 F.R.D. 560, 566 Cal. 2012); see also Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1023 (9th Cir. 27 (“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 28 County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc); Schutte & Koerting, Se 1 Court’s Twombly/Igbal standard does not apply to affirmative defenses. See, e.g., Kohler 2 Flava Enterprises, Inc., 779-F.3d 1016, 1019 (9th Cir. 2015) (in a case involving an 3 || appeal from the Southern District, the Ninth Court held that it would not disturb the district 4 ||court’s finding that the defendant had adequately pled “equivalent facilitation as an 5 |/affirmative defense”) (citing 5 Charles Alan Wright & Arthur R. Miller, Federal Practice. 6 ||and Procedure § 1274 (3d ed.1998)). 7 ~The Southern District follows the Ninth Circuit’s decision in Kohler, which requires 8 || Defendant to plead its affirmative defenses under the fair notice standard. “[T]he ‘fair 9 ||notice’ required by the pleading standards only requires describing the defense in “general 10 || terms.” 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1274 11 ||Gd ed.1998). Each affirmative defense “need not be supported by detailed factual 12 |Jallegations” but “must at least give notice of the grounds upon which it rests.” Weintraub 13 ||v. Law Office of Patenaude & Felix, A.P.C., 299 F.R.D. 661, 665-66 (S.D. Cal. 2014) 14 (internal quotations omitted). However, “fair notice” in no way requires that a defendant the elements-of a_prima facie-case.” Wong -v-United States, 373 F.3d □□□□ □□□ 16 Cir. 2004). “With respect to some defenses, ‘merely pleading the name of the 17 || affirmative defense ... may be sufficient.”” Mag Instrument, Ine. v. JS Prod., Inc., 595 F. 18 |] 19 || ——--—____ 20 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 Il declined to extend the Twombly/Iqbal standard to affirmative defenses. See, e.g., Venson 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 defense is whether it gives the plaintiff fair notice of the defense”) (Bashant, J.); Weintraub 25 Law Office of Patenaude & Felix, A.P.C., 299 F.R.D. 661, 664-65 (S.D. Cal. 2014) 6 (declining “to extend the Twombly/Iqbal pleading standards to affirmative defenses) 2 (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 7 of those courts which have held that district courts in this Circuit remain bound by the 8 holding of Wyshak v. City National Bank, 607 F.2d 824, 827 (9th Cir.1979)”). -6- . 1 ||Supp. 2d 1102, 1108 (C.D. Cal. 2008) (citing Woodfield v. Bowman, 193 F.3d 354, 361 2 Cir.1999)), “Rule 8(b)(1) only requires the responding party to ‘state in short and 3 ||plain terms its defenses to each claim asserted against it.’” Weintraub, 299 F.R.D. at 665. _ Interestingly enough, Plaintiff does not dispute that the fair notice standard applies 5 affirmative defenses. See ECF No. 11 at 2:25 (noting that “[c]ourts evaluate motions to 6 || strike affirmative defenses under the ‘fair notice’ standard”). However, □□□□□□□□□□□ 7 || arguments seem to contradict this proposition because the fair notice standard does not 8 ||require factual support for affirmative defenses. Thus, Plaintiff admits that the fair notice 9 standard applies to the Court’s evaluation of affirmative defenses; yet, Plaintiff 5 primary 10 |/argument for striking most of Defendant’s affirmative defenses is that they lack factual 11 |}support. See, e.g., ECF No. 11 at 4:8-9 (Plaintiff argues that “the affirmative defenses here 12 ||merely make reference to doctrines, and do not include any even general factual allegations 13 || which tie the defenses to this case”), 14 This Court agrees with Defendant’s argument as well as other courts that have found would -be_impracticable_to_require—defendants—to—allegefactual—support—for—their- 16 || affirmative defenses and meet the same standards to which courts hold complaints. See, 17 |\¢.g., Kohler v. Staples the Office Superstore, LLC, 291 F.R.D. 464, 469 (S.D. Cal. 2013) 18 || (explaining that “it is reasonable to imapose stricter pleading requirements on a plaintiff 19 || who has significantly more time to develop factual support for his claims than a defendant 20 || who is only given [21] days to respond to a complaint and assert its affirmative defenses”). 21 1. Defendant’s Fourth Affirmative Defense for De Minimis Deviations. 22 Defendant’s Fourth Affirmative Defense for De Minimis Deviations alleges that ||“Plaintiff’s Complaint a whole, and the claims for relief contained therein; fail to state a 24 || claim for relief as the alleged accessibility violations constitute de minimis deviations from applicable access laws, codes, regulations or guidelines or are within design tolerances.” ||ECF No. 5 at 10:1-6. Plaintiff argues the Fourth Affirmative Defense should be stricken ||because Defendant fails to include factual allegations, which state “the basis for ||Defendant’s conclusory statement that the barriers at issue are de minimis.” ECF No. 11 -7- I 5:4-7, Defendant—although failing to address whether Defendant must or did include 2 facts showing how the alleged violations are de minimis—responds by arguing that de 3 || minimis deviations are a valid defense in ADA matters and should apply to websites. ECF 4 13 at 6:11-27. 5 support of Plaintiffs 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 7 \I 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-00500- 9 2012 WL 1511748, at *2 (C.D. Cal. Apr. 30, 2012) (rejecting Plaintiff's reliance on 10. Qarbon.com and noting that “other recent cases have held that 7 wombly’s plausibility 11 standard is inapplicable to affirmative defenses”). Under the fair notice standard, this Court 12 believes Defendant’s Fourth Affirmative Defense passes muster. E. g., Mag, 595 F. Supp. 13 at 1108 (reiterating that “Twith respect to some defenses, ‘merely pleading the name of 14 || the affirmative defense . . . may be sufficient”); see also Kohler v. Big 5 Corp., No. 2:12- 2012 WL 1511748, at *4 (C.D. Cal. Apr. 30, 2012) (denying the | 16 || plaintiff's motion to strike the defendant’s affirmative defense of “dimensional tolerances,” 17 finding it was adequately pled while noting “the Ninth Circuit has not categorically rejected 18 ‘dimensional tolerances’ as an affirmative defense urider certain circumstances and courts 19 within this circuit have declined to strike affirmative defenses based on’a theory of de 20 |} minimis violation”), Thus, the Court denies Plaintiff's motion to strike Defendant’s Fourth 21 |! Affirmative Defense. 22 2. Defendant's Tenth Affirmative Defense Alleging that Remediation is 23 _ Readily Achievable 34 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 ULS.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 | achievable. ECF No, 11 at 6:25-7:5. Defendant—again, failing to address whether it is 2 required to or did plead facts in support of its affirmative defense, responds by arguing that 3 “(rjemediations being ‘not readily achievable’ is a well-recognized, valid affirmative WWdefense.” ECF No. 13 at 7:13-24. 5 In Kohler v. Islands Restaurants, LP, 280 F.R.D, 560, 568 (S.D. Cal. 2012), the court © Il struck the defendant’s defense, which consisted of pleading that “removal of the alleged 7 |l 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 9 against, inter alia, Defendant Islands Restaurants, LP, dba Fine Burgers and Drinks. 10 Islands, 280 F.R.D. at 563. After Defendant Islands answered the complaint, the plaintiff iH brought a motion to strike all of the defendant’s affirmative defenses. Jd. at 563. In ruling 12 on the motion to strike, the court noted that first, “[u]nder the ADA, removal of an 13 || architectural barrier is not readily achievable if it cannot be easily accomplished. □□ entails 14 much difficulty or expense.” Jd. (citing 42 U.S.C. § 12181(9)). The court also pointed that “Section 12181(9) further identifies several factors to consider in determining | 16 || whether removal is readily achievable, including the cost of removal, the defendant’ 17 | financial resources, and the defendant’s operations.” Jd. Thus, because there were several 18 |! rounds upon which the defendant might be relying in this matter, the Court found the 19 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. 21 Apr. 30, 2012) (striking the defendant’s defense of “not readily achievable” without 22 || prejudice for the same reasons) (citing Islands); Hernandez v. Cty. of Monterey, 306 F.R.D. 286 (N.D. Cal. 2015) (holding that the defendant’s failure to identify “which barriers 24 |! are at issue, what specific costs are involved[,] and how those costs would create an undue 25 ||burden” failed to provide the plaintiff with fair notice); Vogel y. Huntington Oaks 26 || Delaware Partners, LLC, 291 F.R.D. 438, 439, 442 (C.D. Cal. 2013) (striking the || defendant’s twenty-second affirmative defense of not readily achievable as factually |i deficient), - 6. . Although the affirmative defenses asserted in this case closely resemble the 2 affirmative defenses asserted in the other ADA cases of Islands, Big 5, Hernandez, and 3 Vogel, reluctantly, this Court finds that the conclusion of these cases inherently conflicts 4 with the Ninth Circuit’s decision in Kohler that the Twombly/Igbal standard does not apply 5 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 5 64; Big 5, 7 112012 WL 151 1748 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 Jslands and Big 5 seem to require more than simply stating the 10 defense in general terms. See, e.g., Islands, 280 F.R.D. at 568 (holding that “[b]ecause 11 there are several grounds upon which Islands may be relying in this matter, the Court finds 12 |! that its bare assertion of the defense provides inadequate notice”); Big 5, 2012 WL 1511748 13 at *5 (providing that even though Defendant asserted the defense, the defendant did not 14 || indicate the grounds upon which it relies in asserting the defense, and as such the “bare assertion of the defense provides inadequate notice”). This Court concludes that the ‘16 outcomes in Islands and Big 5 conflict with the Ninth Circuit’s conclusion that a defendant 17 only state a defense in general terms as well as the pleading requirements in Rule 8. ‘18 || Kohler, 779 F.3d at 1019; see also FED. R. C1v. P. 8(b) (requiring that a defendant need 19 only “state in short and plain terms its defense to each claim”); FED. R. Civ. P. 8(c) (requiring that a defendant must only state an affirmative defenses). 21 Second, the Vogel decision is from the Central District, and preceded the Ninth 22 || Circuit’s holding in Kohler that affirmative defenses should be reviewed under the fair 23 || notice standard. Before the Kohler decision, the Central District held affirmative defenses 24 the Twombly standard, but since Kohler, no loriger does so. Compare Vogel, 291 F.R. 25 ||D. at 441 (holding that “7wombly ‘s plausibility standard applies to affirmative defenses”) 26 || with Loi Nguyen v. Durham Sch. Servs., L.P., 358 F. Supp. 3d 1056, 1060 (C.D. Cal. 2019) 27 Court now concludes that the strict pleading standard of Twigbal should 28 || not apply to affirmative defenses and instead applies the less-demanding ‘fair notice’ =10-: | standard used by the Ninth Circuit in Kohler’). Thus, because Vogel preceded Kohler, and 2 therefore, applied the Twombly/Igbal standard when reviewing the defendant’s affirmative 3 defense, Vogel is inapposite to this case. See Craten v. Foster Poultry Farms Inc., No. CV- 4 15-02587-PHX-DLR, 2016 WL 3457899, at *2 (D. Ariz. June 24, 2016) (citing to Vogel > while noting that “many courts have determined that ‘Rule 8’s requirements with respect 6 pleading defenses in an answer parallels the Rule’s requirements for pleading claims in complaint,’” and holding that “the Court concludes that Twombly and Igbal do not 8 govern affirmative defenses, and that... the affirmative defenses are adequately pled”), 9 Third, the Court finds the Hernandez case distinguishable in light of the fact that 10 only the Northern District has continued to apply the Twombly/Igbal 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 TwomblylIgbal standard”). 14 Meanwhile, the Central, Eastern, and Southern Districts agree that courts should review affirmative defenses under the fair notice standard after the Ninth Circuit’s decision in 16 Flava. See, e.g., Nguyen, 358 F. Supp. 3d at 1060 (concluding that the Central District will 17 longer apply the 7wombly/Igbal standard and will apply the fair notice standard instead 18 lin light of Kohler); RLI Ins. Co. v. City of Visalia, 297 F. Supp. 3d 1038, 1058 (E.D. Cal. 19 8), 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, Ine. , 779 F.3d 1016, 1019 21 || (9th Cir. 2015), to have resolved the split regarding whether the heightened plausibility 22 |i requirement set out in [Bell Atlantic Corp. v, T wombly, 550 U.S. 544 (2007),] and [Ashcroft 23 Iqbal, 556 U.S. 662 (2009),] modifies the fair notice standard traditionally applied ||to affirmative defenses and have held that it does not”) (internal quotations omitted); || Weintraub, 299 F.R.D. at 664-65 (advising that even pre-Kohler, the Southern District || utilized the fair notice standard rather than the 7 womblylIgbal standard when reviewing adequacy of affirmative defenses); Venson, 2020 WL 4015708 at *1 (noting that the || Southern District requires affirmative defenses to provide fair notice). -11- dl The Court finds that requiring a defendant to state factual support for this affirmative 2 || defense inherently conflicts with merely requiring a defendant to merely state a defense in 3 general terms under Rule 8 and the fair notice standard. Thus, this Court denies □□□□□□□□□□ 4 motion to strikes this affirmative defense. . 5 3. Defendant’s Fourteenth Affirmative Defense of Fundamental 6 Alterations . . 7 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’ 9 under 42 U.S.C. §§ 12182(b)(2)(A)Gi), (b)(2)(A)Giii).”- ECF No. 5 at 12:6-10. Plaintiff, 10 again, argues that the Fourteenth Affirmative Defense fails to plead facts showing “why W removal of the barriers set forth in Plaintiff's Complaint would constitute a fundamental alteration.” ECF No, 11 at 8:14-21. Defendant responds by arguing that arguing that the 3 Ninth Circuit has recognized as an affirmative defense that a public accommodation is not 14 required to make an accommodation that will fundamentally alter the nature of the 16 For the same reasons outlined with respect to the Court’s ruling on the.Tenth 7 Affirmative Defense, the Court believes that even though other cases have required 13 defendants to provide the grounds for the assertion of fundamental alteration, see, ¢.g., 19 Islands, 280 F.R.D. at 371 (granting motion to strike the defense of fundamental alteration 20 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 39 | alteration”), those cases conflict with Kohler’s decision. A defendant need only state an 33 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 of Equivalent Facilitation Defendant’s Fifteenth Affirmative Defense alleges that “Plaintiff's claims are barred because Defendant provided equivalent facilitation with regard to the alleged barriers set forth in Plaintiff's Complaint.” ECF No. 5 at 12:11-14, Plaintiff again, argues that . “12. 1} Defendant has failed to plead facts in support of the affirmative defense asserted. ECF No. 2 at 8:23-9:10. Defendant again, responds by arguing that it is a validly recognized 3 ll affirmative defense without addressing whether Defendant pled facts in support of the 4 || defense asserted. ECF No. 13 at 9:20-10:7. 5 The Court finds Defendant has-sufficiently pled 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 10 | RSWL SPX, 2012 WL 424377, at *2 (C.D. Cal. Feb. 8, 2012) (denying motion to strike i the defendant’s equivalent facilitation defense as sufficiently pled and finding it “is a 12 proper affirmative defense against Plaintiffs claims under the ADA and... Unruh A 13 | Thus, the Court denies Plaintiff's Motion to Strike the Fifteenth Affirmative Defense. 14 5. Defendant’s Seventeenth Affirmative Defense of Undue Burden and Parsi 16 Defendant’s Seventeenth Affirmative Defense alleges that “Plaintiff's claim for 7 injunctive relief and other equitable relief is barred because it will cause Defendant 18 significant harm in the nature of undue burden and hardship that outweighs any purported 19 benefit of the Court bypassing the Department of Justice’s Congressionally-mandated 50 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 53 arguing that its affirmative defense is a validly recognized one while declining to comment on whether Defendant pled 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 § 36 302(b)(2)(A)(ili), 42 U.S.C. § 12182(b)(2)(A)iii).” Big 5 Corp., 2012 WL 1511748 at *3— 4. Here, Plaintiff's complaint pleads claims under section 302(b)(2)(A)(iii). See ECF No. 38 1 at 17:22-18:6. Thus, while other courts have stricken this defense on the basis that undue . ak | burden only operates as a defense to a claim under section 302(b)(2)(A)(iii) of the ADA, 2 and no such claim was alleged in the complaints in those cases, see, e. g , Big 5 Corp., 2012 3 1511748 at *3—4 (noting that “Cin the event that Plaintiff seeks to amend the 4 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 © |! Plaintiff's claim that the complaint did not include a claim under ADA § 302(b)(2)A Mii) 7 striking Defendant’s undue burden defense without prejudice with leave to restate the 8 |i 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 10 lan appropriate defense. Further, because Defendant adequately pled this defense, the Court 1 denies Plaintiff's motion to strike Defendant’s Seventeenth Affirmative Defense. 12 B. Defenses Plaintiff Alleges Fail as a Matter of Law 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 - some of Defendant’s affirmative defenses lack basis in the law. Defendant disagrees. As | 16 |! set forth below, the Court agrees with Defendant that Plaintiff's Motion should be denied 17 || as to the Sixth and Twelfth Affirmative Defenses. . □ 18 1. Defendant’s Sixth Affirmative Defense of Good Faith. 19 Defendant’s Sixth Affirmative Defense of Good Faith alleges that “Defendant has || acted reasonably and in good faith at all times material to Plaintiff’s Complaint based on relevant facts, law and circumstances known by Defendant at the time that Defendant |lacted.” ECF No. 5 at 10: 13-17. Plaintiff argues that (1) “there is no state of mind requirement for an ADA or Unruh Act claim and, therefore, the defense of ‘good faith? is |! inapplicable,” and (2) Defendant fails to allege any facts showing how it acted in good || faith. ECF No. 11 at 6:1-9. Defendant responds by arguing that the defense of good faith a well-recognized affirmative defense in accessibility matters,” noting that motions to || strike the same defense have been denied by other courts. ECF No. 13 at 7:3-12. “[A] plaintiff need not show intentional discrimination in order to make out a -14- □ | 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(f)). Thus, 5 “(t]he Ninth Circuit has held that violating the ADA is a per se violation of the Unruh 6 Act,” Montoya v. City of San Diego, A434 F, Supp. 3d 830, 852 (S.D. Cal. 2020) (citing Civ. 7 Code § 51(f)), 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, 10 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 at 852. Thus, the defense of good faith, although potentially irrelevant to a violation of 13 llthe ADA, is relevant to violations alleged undet the UCRA.” For instance, in Kohler v. 14 |! Islands Restaurants, LP, the court rejected the plaintiff's argument that the defendant’s reliance on the good faith defense “is preempted by federal law,” choosing instead, to agree” 16 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 where a facility is not compliant with the California Disabled Persons Act but still 19 : 20 | 21 ||2 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. 23. || 2017) (holding that the plaintiff's state law claim substantially predominated over his ADA | Title III claim, and as such, judicial economy, convenience, fairness, and comity warranted 24 court declining supplemental jurisdiction over the Unruh Act claims) (Bashant, J.); 25 || 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 26 Court could not “exercise supplemental jurisdiction to hear Mr. Harris’ state law claims” 27 dismissed the state law claims without prejudice) (Burns, J.). As a result, the answer, 28 along with its affirmative defenses, would need to be reviewed by the superior court under California’s code pleadings standard. . . -15- | compliant with ADA, because the Disabled Persons Act may demand higher standards than 2 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. □□□ 4 |! but see Staples, 291 F.R.D. at 471-72 (denying the plaintiff's motion to strike the > || defendant’s affirmative defenses based on good faith because “a plaintiff alleging an Unruh © |! 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 pled sufficient facts to provide Plaintiff fair notice. Thus, the Court denies □□□□□□□□□□□ > motion to strike Defendant’s Sixth Affirmative Defense. 10 2. Defendant's T welfth Affirmative Defense of Article IT Standing I] 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 |i concrete harm, this Court lacks Article II standing to hear this case.” ECF No. 5 at 11:22- 14 28. Plaintiff argues that Defendant’s Twelfth Affirmative Defense should be stricken |Thecause (1) it fails to include facts to support the affirmative defense 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 |lat 7:25-9:6 (citing Fed. R. Civ. P. 12(6)(1)). 19 With respect to Plaintiff's first argument, this Court believes Defendant may raise 20 || lack of standing by affirmative defense. See Kohler v. Big 5 Corp., No. 2:12-CV-00500- 21 THN, 2012 WL 1511748, at *5 (C.D. Cal. Apr. 30, 2012) (denying the plaintiff's motion 22 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 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 *1 (E.D. Cal. 26 17, 2009) (noting that “[IJack 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., .16- ' ||309 F. Supp. 3d 854, 861 (S.D. Cal. 2018) (denying the plaintiff's motion to strike the 2 |i defendant’s defense of lack of standing based on the plaintiff's argument that it was not a 3 true affirmative defense, noting that the defense provided the plaintiff fair notice, and “the 4 || 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 [iI standing is 6 Ila 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 Plaintiff's second argument that: Defendant pled insufficient facts for this 1! |) affirmative defense, the Court finds that Defendant adequately pled this defense. 12 Defendant specified that Plaintiff may not have standing due to a lack of damages, injury, 13 harm, unlike other cases where courts granted motions to strike because the defendants 14 || made conclusory statements that the plaintiffs simply “lacked standing.” See, e. g., Staples, F.R.D-at 469 (striking the 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); /slandsP, 280 F.R.D. at 567 (same). Here, the Court 19 || finds Defendant provided fair notice of its defense. Thus, the Court denies □□□□□□□□□□□ 20 |! Motion to Strike Defendant’s Twelfth Affirmative Defense of Article II Standing. 21 C. □ Plaintiff’s Argument of Prejudice 22 Plaintiff argues that she “is prejudiced by having to defend against poorly pled affirmative defenses,” which will cause irrelevant discovery and potentially complicate 24 trial. ECF No. 11 at 10:7-21. Defendant responds by arguing that Plaintiff has not made 25 || an adequate showing of prejudice. ECF No. 13 at 11:7-15. 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 -|7- to show they will suffer prejudice if the defenses are left in the defendants’ Answer.” The 2 court reasoned that it could not “conceive how these defenses will ‘cost both parties and 3 the court unnecessary time and resources,” noting, instead, that “it is more likely the parties 4 ll and the court have already needlessly expended more resources on this motion.” Jd. 5 Although the Court agrees that there are instances in which a motion to strike © || affirmative defenses will limit discovery, such as where defendants name excessive 7 Il 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 prejudiced the parties more than the Court’s denial. -——SCS7S PT 16 D. Defendant’s Request for Judicial Notice is Denied 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 toa 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, . 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 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 “can be accurately and -18- readily determined from sources whose accuracy cannot reasonably be questioned.” FED. 2 Evin. 201(b)(1)-(2). While the Court may permissibly take judicial notice of facts from 3 court records, see, @, g., Asdar Group v. Pillsbury, Madison & Sutro, 99 F.3d 289, 290, fn. 4 ily (9th Cir, 1996) (taking. judicial notice of court records), Defendant, again, did not specify 5 which facts, if any, from the decisions provided to the Court it would like the Court to 6 |ltake 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. ? 118-5645 8, 2020 WL 2029351 (9th Cir. Mar. 27, 2020) (taking judicial notice of a decision 10 || in another case “but not the facts contained therein”); Montantes v. Inventure Foods, No. I 14-cv-1128-MWF, 2014 WL 3305578, at *2 C.D. Cal. July 2, 2014 (stating that courts 12 “take judicial notice of proceedings in other courts ... if those proceedings have a direct 13 || relation to matters at issue”) (internal quotation marks omitted); Peviani v. Hostess Brands, 14 ll ine., 750 F, Supp. 2d 1111, 1117 (C.D. Cal. 2010) (taking judicial notice of two district decisions at the defendant’s request but noting “that these decisions have no binding 16 || authority on this court); Marsh v. San Diego Cty., 432 F. Supp. 2d 1035, 1043 □□□□□ Cal. 17 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 CONCLUSION | 21 || ~—__—s‘ 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. 11, 13, and 1 6, the Motion is moot as Defendant hasagreed-to withdraw these defenses. 24 ITISSOORDERED. Jt, || DATED: oct. 2020 A Vy, hau My 26 \H@N ROGER T. BENITEZ 7 United States District Judge 28