1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 BRYAN WILLIAMS, ) CV 19-2689-RSWL-(Ex) ) 13 Plaintiff, ) ) ORDER re: Plaintiff’s 14 ) Motion to Strike [15] v. ) 15 ) ) 16 EL CAMARON, LLC; ALYSSON’S )

FLOWERS AND GIFTS, )

17 ) ) 18 Defendants. ) ) 19 ) ) 20 ) 21 Plaintiff Bryan Williams (“Plaintiff”) brings this 22 Action against Defendant El Camaron, LLC and Defendant 23 Alysson’s Flowers and Gifts (collectively “Defendants”) 24 for unlawful discrimination in places of public 25 accommodation pursuant to the Americans with 26 Disabilities Act (“ADA”) and California’s Unruh Civil 27 Rights Act (“Unruh Act”). Before the Court is 28 Plaintiff’s Motion to Strike all of the affirmative 1 defenses that Defendants raised in their Answer 2 (“Motion”) [15]. Having reviewed all papers submitted 3 pertaining to this Motion, the Court NOW FINDS AND 4 RULES AS FOLLOWS: the Court GRANTS in part and DENIES 5 in part Plaintiff’s Motion. 6 I. BACKGROUND 7 On April 9, 2019, Plaintiff initiated this Action 8 against Defendants. See generally Compl., ECF No. 1. 9 Plaintiff, who is paraplegic and uses a wheelchair for 10 mobility, alleges that he encountered several barriers 11 to access at Defendants’ property, including 12 inaccessible parking spaces, inaccessible paths of 13 entrance, and non-compliant service counters. Id. ¶¶ 14 2, 13. As a result of his alleged encounter with these 15 barriers, Plaintiff asserts causes of action for 16 discrimination based on disability in violation of the 17 ADA and Unruh Act. 18 Defendants filed their Answer on May 13, 2019, 19 asserting ten affirmative defenses. See generally 20 Defs.’ Answer (“Answer”), ECF No. 12. Plaintiff filed 21 the instant Motion to Strike All of Defendants’ 22 Affirmative Defenses [15] on June 3, 2019. Defendants 23 filed their Opposition [17] on July 27, 2019,1 and 24 Plaintiff filed his Reply [19] on July 28, 2019. On 25 July 22, 2019, after the parties fully briefed the 26 instant Motion, Defendants filed a First Amended Answer 27 28 1 Defendants’ Opposition was filed two days late. 1] [23]. 2 II. DISCUSSION Legal Standard 4 Pursuant to Federal Rule of Civil Procedure 12(f), 5] the Court may “strike from a pleading an insufficient 6 || defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “In 8 |} determining specifically whether a defense is 9} ‘sufficient,’ the Ninth Circuit has explained that ‘the 10] key . . . is whether it gives plaintiff fair notice of 11] the defense.” Whiting v. City of Palm Desert, 2018 WL 12 | 6034968, at *2 (C.D. cal. May 17, 2018) (quoting Wyshak City Nat’l Bank, 607 F.2d 824, 827 (9th Cir. 1979)). 14 The grounds for a motion to strike must appear on 15] the face of the pleading under attack. SEC v. Sands, 16] 902 F. Supp. 1149, 1165 (C.D. Cal. 1995). In addition, 17] the Court must view the pleading under attack ina light more favorable to the pleader when ruling ona 19]/motion to strike. In re 2TheMart.com, Inc. Sec. 20] Litig., 114 F. Supp. 2d 955, 965 (C.D. Cal. 2000) 21] (citing California v. United States, 512 F. Supp. 36, (N.D. Cal. 1981)). 23 Motions to strike are generally viewed with 24] disfavor, and will usually be denied unless the 25]}allegations in the pleading have no possible relation the controversy, and may cause prejudice to one of the parties. Travelers Cas. and Sur. Co. of Am. v. 28 || Dunmore, No. CIV S-07-2493 LKK/DAD, 2010 WL 5200940, at

1 *3 (E.D. Cal. Dec. 15, 2010). “Ultimately, the 2 decision whether to strike a matter lies within the 3 sound discretion of the district court.” Lexington 4 Ins. Co. v. Energetic Lath & Plaster, Inc., No. 15-cv- 5 00861-KJM-EFB, 2015 WL 5436784, at *11 (E.D. Cal. Sept. 6 15, 2015). 7 B. Discussion 8 On July 22, 2019, after the parties submitted their 9 papers pertaining to the instant Motion, Defendants 10 filed a First Amended Answer. See ECF No. 23. 11 However, the First Amended Answer was not filed in 12 response to an amended complaint, nor made within 21 13 days after Defendants filed their first Answer, and 14 thus Defendants were required to get Plaintiff’s 15 written consent or the Court’s approval—which they have 16 failed to do. See Fed. R. Civ. Proc. 15(a). Thus, the 17 Court STRIKES Defendants’ First Amended Answer, and 18 proceeds to address the merits of Plaintiff’s Motion 19 with respect to the affirmative defenses as stated in 20 Defendants’ first Answer. 21 Defendants’ First Affirmative Defense of failure to 22 state a claim is an assertion of a defect in 23 Plaintiff’s prima facie case, and not an affirmative 24 defense. See Zivkovic v. S. Cal. Edison. Co., 302 F.3d 25 1080, 1088 (9th Cir. 2002)(“A defense which 26 demonstrates that plaintiff has not met its burden of 27 proof is not an affirmative defense.”). Thus, it fails 28 as a matter of law, and the Court GRANTS Plaintiff’s 1 Motion to Strike the First Affirmative Defense without 2 leave to amend. 3 Defendants’ Second Affirmative Defense is that 4 Plaintiff has waived any right to recovery by 5 falsifying a claim for having been to Defendants’ 6 property. “Waiver is the intentional relinquishment or 7 abandonment of a known right.” United States v. Perez, 8 116 F.3d 840, 845 (9th Cir. 1997)(internal quotations 9 omitted). Even assuming the truth of Defendants’ 10 allegation that Plaintiff has not been to the property, 11 it is unclear how this fact shows that Plaintiff has 12 relinquished or abandoned his right to sue. Thus, the 13 Court GRANTS Plaintiff’s Motion to Strike Defendants’ 14 Second Affirmative Defense. Because Defendants may be 15 able to allege facts which support a waiver defense, 16 the Court STRIKES with 20 days leave to amend 17 Defendants’ Second Affirmative Defense. 18 Defendants’ Third Affirmative Defense is for 19 unclean hands. Plaintiff claims that Defendants fail 20 to provide Plaintiff with fair notice of the conduct 21 allegedly giving rise to this defense. However, in 22 other portions of Defendants’ Answer, Defendants 23 clearly state that “Plaintiff’s false claim of a visit 24 to the premises which serves the wholesale trade only, 25 demonstrates his unclean hands.” Answer ¶ 10. The 26 Court finds this allegation sufficient to provide 27 Plaintiff with fair notice. Thus, the Court DENIES 28 Plaintiff’s Motion to Strike Defendants’ Third 1 Affirmative Defense. 2 Defendants’ Fourth Affirmative Defense is that 3 Plaintiff is estopped by his conduct from recovering 4 any relief. “In order to validly assert an affirmative 5 defense of estoppel . . . [Defendants] must show that 6 the traditional elements of estoppel are present, 7 including that [Plaintiff] made a definite 8 misrepresentation of fact to [Defendants] with reason 9 to believe [Defendants] would rely upon it.” Solis v. 10 Couturier, No. 2:08-cv-02732-RRB-GGH, 2009 WL 2022343, 11 at *2 (E.D. Cal. July 8, 2009)(internal quotations 12 omitted). Defendants fail to set forth any facts 13 establishing how Plaintiff made a misrepresentation to 14 Defendants, which Defendants relied upon to their 15 detriment. Thus, the Court GRANTS Plaintiff’s Motion 16 to Strike Defendants’ Fourth Affirmative Defense. 17 Because Defendants may be able to allege additional 18 facts to support the defense, the Court STRIKES with 20 19 days leave to amend Defendants’ Fourth Affirmative 20 Defense. 21 Defendants’ Fifth Affirmative Defense is that they 22 have fully performed under the obligations sued upon. 23 However, “[t]his defense is merely a denial of 24 liability and not a proper affirmative defense.” 25 Whiting, 2018 WL 6034968, at *6. Thus, it fails as a 26 matter of law and the Court GRANTS Plaintiff’s Motion 27 to Strike Defendants’ Fifth Affirmative Defense without 28 leave to amend. 1 Defendants’ Sixth Affirmative Defense is laches, 2 waiver, and unclean Hands. Defendants’ already assert 3 waiver and unclean hands as their Second and Third 4 Affirmative Defenses, respectively. As such, they are 5 stricken as redundant from the Sixth Affirmative 6 Defense. See Fed. R. Civ. Proc. 12(f)(permitting the 7 Court to strike any redundant matter from a pleading). 8 Moreover, Defendants fail to include any facts 9 establishing why a laches defense applies, and thus 10 fail to provide fair notice to Plaintiff. Thus, the 11 Court GRANTS Plaintiff’s Motion to Strike the Sixth 12 Affirmative Defense. Because Defendants may be able to 13 eliminate the redundant pleading of waiver and unclean 14 hands, and allege additional facts to support the 15 laches defense, the Court STRIKES with 20 days leave to 16 amend Defendants’ Sixth Affirmative Defense. 17 Defendants’ Seventh Affirmative Defense is that 18 Plaintiff’s Complaint is not brought in good faith and 19 is frivolous in nature, thereby entitling Defendants to 20 reasonable expenses incurred in the defense of this 21 Action pursuant to California Code of Civil Procedure 22 §§ 128.5 and 128.7. While California Code of Civil 23 Procedure §§ 128.5 and 128.7 may eventually be relevant 24 if the case terminates in Defendants’ favor, “these 25 statutes are not affirmative defenses because they do 26 not attempt to excuse conduct alleged in the 27 complaint.” Thornton v. Solutionone Cleaning Concepts, 28 Inc., No. CIV F 06-1455 AWI SMS, 2007 WL 210586, at *4 1 (E.D. Cal. Jan. 26, 2007). Accordingly, the Court 2 GRANTS Plaintiff’s Motion to Strike Defendants’ Seventh 3 Affirmative Defense without leave to amend. 4 Defendants’ Eighth Affirmative Defense is that 5 Plaintiff failed to mitigate damages. Plaintiff argues 6 that this defense fails to give Plaintiff fair notice, 7 and is irrelevant since Plaintiff only seeks statutory 8 damages under the Unruh Act, which cannot be mitigated. 9 However, as stated in his Complaint, Plaintiff seeks 10 “injunctive, declaratory and all other appropriate 11 relief under the ADA and Unruh Act, including but not 12 limited to reasonable attorney’s fees, litigation 13 expenses and costs of suit . . . .” See Compl. at 15. 14 Given Plaintiff’s vague language of “all other 15 appropriate relief,” the Court cannot conclude at this 16 juncture that Plaintiff’s claim for damages is limited 17 to statutory damages. See e.g. Vogel v. Linden 18 Optometry APC, 2013 WL 1831686, at *4 (denying 19 plaintiff’s motion to strike a failure to mitigate 20 defense where “Plaintiff’s Complaint can be read to 21 seek damages in excess of the statutory minimum”). 22 Thus, the Court DENIES Plaintiff’s Motion to Strike 23 Defendants’ Eighth Affirmative Defense. 24 Defendants’ Ninth Affirmative Defense states the 25 following: “Defendants claim the protection of Civil 26 Code § 55.56 in that the owners of the property are a 27 small business, the tenant is [a] very small business 28 with two employees, and the purported barriers to 1 access are not such barriers. There is no intentional 2 violation, and all purported violations are either 3 corrected, or in the process of being remedied.” 4 Answer ¶ 13. California Civil Code § 55.56 provides 5 several exemptions from liability and limits on 6 liability to Defendants in Construction-Related 7 Accessibility Standards Claims. In part, this Code 8 limits the statutory damages available for defendants 9 who are small businesses and who have corrected alleged 10 violations within a certain time frame. See generally 11 Cal. Civ. Code § 55.56. Thus, the fact that Defendants 12 are small businesses and the alleged violations are 13 either corrected or in the process of being remedied, 14 is relevant to whether the statutory damages sought by 15 Plaintiff should be reduced. Moreover, despite 16 Plaintiff’s contrary assertion, Defendants’ statement 17 that they are small businesses and that the purported 18 violations are being remedied is sufficient to provide 19 Plaintiff with fair notice. Thus, the Court DENIES 20 Plaintiff’s Motion to Strike Defendants’ Ninth 21 Affirmative Defense. 22 Defendants’ Tenth Affirmative Defense reserves the 23 right to assert additional affirmative defenses that 24 may be ascertained through discovery. However, “[t]he 25 right to reserve additional defenses is not itself an 26 affirmative defense. . . . [and] it appears to 27 duplicate rights already preserved by the Federal 28 Rules.” Whiting, 2018 WL 6034968, at *7(citing Federal 1 Rule of Civil Procedure 12(h), which directs parties to 2 add affirmative defenses through the Rule 15 amendment 3 procedure). Thus, the Court GRANTS without leave to 4 amend Defendants’ Tenth Affirmative Defense. 5 /// 6 /// 7 /// 8 /// 9 /// 10 /// 11 /// 12 /// 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 III. CONCLUSION 2 Based on the foregoing, the Court STRIKES 3 Defendants’ First Amended Answer. The Court GRANTS 4 Plaintiff’s Motion to Strike the following affirmative 5 defenses without leave to amend: Defendants’ First 6 Affirmative Defense; Defendants’ Fifth Affirmative 7 Defense; Defendants’ Seventh Affirmative Defense; and 8 Defendants’ Tenth Affirmative Defense. The Court 9 GRANTS Plaintiff’s Motion to Strike the following 10 affirmative defenses with 20 days leave to amend: 11 Defendants’ Second Affirmative Defense; Defendants’ 12 Fourth Affirmative Defense; and Defendants’ Sixth 13 Affirmative Defense. The Court DENIES Plaintiff’s 14 Motion to Strike the following affirmative defenses: 15 Defendants’ Third Affirmative Defense; Defendants’ 16 Eighth Affirmative Defense; and Defendants’ Ninth 17 Affirmative Defense. 18 19 20 21 IT IS SO ORDERED. 22 /s/ RONALD S.W. LEW 23 DATED: August 29, 2019 24 HONORABLE RONALD S.W. LEW Senior U.S. District Judge 25 26 27 28