Leff

MEMORANDUM **

The facts and procedural history are known to the parties, and we do not repeat them here. The issue on appeal is whether the defendant Perry Leff waived his right to assert Deborah Raffin’s lack of authority to sue to recover assets of the Viner Family Trust of 1997 as a defense under Federal Rule of Civil Procedure 9(a) by not pleading Raffin’s lack of authority by specific denial in his answer.

Under the terms of the Trust and California law, Raffin, as trustee, lacked authority to sue to recover trust assets without the consent of her hold that Leff did not waive his right to assert lack of authority as a defense by raising that issue in his motion for summary judgment rather than in his Answer. In general, Federal Rule of Civil Procedure 12 requires that defenses be asserted “in the responsive pleading or by motion before pleading” or be subject to waiver. Summers v. Interstate Tractor & Equip. Co., 466 F.2d 42 , 49 (9th Cir.1972). Our case law suggests, however, that a motion for summary judgment may be an appropriate vehicle for asserting lack of authority by specific denial pursuant to Rule 9. See De Saracho v. Custom Food Mach., Inc., 206 F.3d 874 , 878…