1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 ESTATE OF KIM JACKSON, et al., CASE NO. 1:21-CV-0415 AWI EPG

8 Plaintiffs

ORDER ON PLAINTIFFS’ MOTION TO

9 v. STRIKE

10 CITY OF MODESTO and GALEN CARROLL, (Doc. No. 44) 11 Defendants 12 13 14 This case stems from a fatal encounter between decedent Kim Jackson (“Jackson”) and 15 members of the Modesto Police Department (“MPD”). Plaintiffs are Jackson’s Estate and her 16 family members. Following prior Rule 12(b) motions, the only remaining defendants are the City 17 of Modesto (“the City”) and former Modest Police Chief Galen Carroll (“Carroll”). Currently 18 before the Court is Plaintiffs’ Rule 12(f) motion to strike Defendants’ second affirmative defense, 19 which invokes discretionary act immunity under Cal. Gov. Code § 820.2 and derivative immunity 20 under Cal. Gov. Code § 815.2. For the reasons that follow, the motion will be granted. 21 22 GENERAL BACKGROUND1 23 On October 8, 2016, Jackson was 52 years old and suffered from mental health and 24 substance abuse issues that substantially limited her ability to care for herself, concentrate, think, 25 and communicate. That night, Jackson was intoxicated and went to her father’s house. Jackson 26 vandalized her father’s house, and her father called the police. When the police arrived, Jackson 27 1 This general background is derived from the Second Amended Complaint and is the Court’s shorthand. A thorough 28 recitation of the relevant facts may be found at: Estate of Jackson v. City of Modesto, 2022 U.S. Dist. LEXIS 137906 1 had left. Shortly after the police left, Jackson returned to her father’s house with kitchen knives in 2 her hands. Jackson’s father called the police again. When the police arrived, the decision was 3 made to take Jackson into custody under Cal. Health & Safety Code § 5150. When the officers 4 approached, Jackson approached them with a raised knife and was not obeying orders. In 5 response, one officer fired his taser and another fired his pistol. After Jackson was shot, she 6 dropped the knives, turned her back, and began staggering away from the officers; she was no 7 longer a threat to them. However, as Jackson was staggering away the same officer fired his pistol 8 a second time and another officer fired a bean bag shotgun that had been erroneously loaded with 9 a breaching round. Both shots hit Jackson in the back, and the breaching round caused 10 catastrophic damage to Jackson. Jackson died shortly after being shot by the breaching round. 11 Two days after the shooting, the City issued a misleading press release that omitted key facts, 12 including the fact that Jackson had been shot in the back with a breaching round as she was 13 unarmed and staggering away from the officers. 14 15 RULE 12(f) FRAMEWORK 16 Rule 12(f) of the Federal Rules of Civil Procedure allows the court to strike from “any 17 pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous 18 matter.” Fed. R. Civ. P. 12(f). The purpose of a Rule 12(f) motion is to avoid the costs that arise 19 from litigating spurious issues by dispensing with those issues prior to trial. See Whittlestone, Inc. 20 v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir 2010); Sidney-Vinstein v. A.H. Robins Co., 697 21 F.2d 880, 885 (9th Cir.1983). An affirmative defense may be insufficient either as a matter of law 22 or as a matter of pleading. Gomez v. J. Jacobo Farm Labor Contr., Inc., 188 F.Supp.3d 986, 991 23 (E.D. Cal. 2016). An affirmative defense is legally insufficient if it “lacks merit under any set of 24 facts the defendant might allege.” Neylon v. County of Inyo, 2017 U.S. Dist. LEXIS 137212, *3- 25 *4 (E.D. Cal. Aug. 25, 2017); Gomez, 188 F.Supp.3d at 991. Affirmative defenses are insufficient 26 as a matter of pleading if they fail to give the plaintiff “fair notice of the defense.” Simmons v. 27 Navajo Cnty., 609 F.3d 1011, 1012 (9th Cir. 2010); Wyshak v. City Nat’l Bank, 607 F.2d 824, 28 827 (9th Cir. 1979); Gomez, 188 F.Supp.3d at 991. “‘[T]he fair notice’ required by the pleading 1 standards only requires describing [an affirmative] defense in ‘general terms.’” Kohler v. Flava 2 Enters., Inc., 779 F.3d 1016, 1019 (9th Cir. 2015); Gomez, 188 F.Supp.3d at 991. “Fair notice . . . 3 requires that the defendant state the nature and grounds for the affirmative defense.” Neylon, 4 2017 U.S. Dist. LEXIS 137212 at *4; Gomez, 188 F.Supp.3d at 992; United States v. Gibson 5 Wine Co., 2016 U.S. Dist. LEXIS 55053, *13(E.D. Cal. Apr. 25, 2016). “Although ‘fair notice’ is 6 a low bar that does not require great detail, it does require a defendant to provide ‘some factual 7 basis’ for its affirmative defense.” Spencer v. Lopez, 2022 U.S. Dist. LEXIS 144441, *4 (E.D. 8 Cal. Aug. 11, 2022); Neylon, 2017 U.S. Dist. LEXIS 137212 at *4; Gomez, 188 F.Supp.3d at 992; 9 Gibson Wine, 2016 U.S. Dist. LEXIS 55053 at *13. Fact barren affirmative defenses or bare 10 references to doctrines or statutes are unacceptable because they “do not afford fair notice of the 11 nature of the defense pleaded.” Neylon, 2017 U.S. Dist. LEXIS 137212 at *4; Gomez, 188 12 F.Supp.3d at 992; Gibson Wine, 2016 U.S. Dist. LEXIS 55053 at *14; see G&G Closed Circuit 13 Events, LLC v. Alfaro, 2023 U.S. Dist. LEXIS 20420, *14 (E.D. Cal. Feb. 6, 2023). 14 15 PLAINTIFFS’ MOTION 16 Plaintiffs’ Argument 17 Plaintiffs argue that the second affirmative defense does not provide “fair notice” of any 18 defense based on the discretionary immunity of Cal. Gov. Code § 820.2.2 The allegations are 19 merely conclusory statements that contain no supporting facts. The allegations do not explain why 20 or how Carroll’s decisions implicate § 820.2. Like Neylon, the allegations in this case do not 21 explain what discretionary decisions are at issue or what decisions serve as the basis for § 820.2 22 immunity. Plaintiffs argue that because they have to guess at what conduct is entitled to 23 immunity, fair notice has not been provided. 24

25 2 Cal. Gov. Code § 820.2 in relevant part reads: “[A] public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not 26 such discretion be abused.” Cal. Gov. Code § 820.2. The immunity of § 820.2 "is reserved for those 'basic policy decisions [which have] . . . been [expressly] committed to coordinate branches of government,' and as to which 27 judicial interference would thus be 'unseemly.'" Liberal v. Estrada, 632 F.3d 1064, 1084 (9th Cir. 2011) (quoting Gillan v. City of San Marino, 147 Cal.App.4th 1033, 1051 (2007)). Decisions that do not rise to the level of “basic 28 policy decisions,” but instead are merely “operational” decisions, do not receive immunity under § 820.2. See 1 Defendants’ Opposition 2 Defendants argue that Plaintiffs are essentially contending that the second affirmative 3 defense must outline the discretionary decisions made by Carroll supporting all material elements 4 of the asserted defense. However, this is not the standard that must be followed. The textual 5 differences between Rule 8(a) for pleading causes of action and Rule 8(c) for listing affirmative 6 defenses demonstrate that a party is not required to “show” entitlement of its defenses, but is only 7 required to affirmatively state its affirmative defenses. Thus, the defense is sufficiently pled, and 8 Plaintiffs’ motion should be denied.3 9 Second Affirmative Defense 10 Defendants’ second affirmative defense reads: 11 [I]n response to Plaintiffs’ Sixth, Seventh, Eighth, Ninth, and Tenth Claims, brough under California state law, at all times mentioned in the [Second Amended 12 Complaint] and immediately prior thereto, Defendants are entitled to statutory immunity under California Government Code §§ 820.2 and 815.2(b), for any 13 alleged injury resulting from any alleged act or omission which was the result of the exercise of the discretion vested in [Carroll]. Specifically, [Carroll] is immune 14 for his decisions relating to the creation and maintenance of policies and practices of the [MPD]. Thus, these responding public entity and public official defendants 15 are statutorily immune from liability attributed to conduct in hiring, training, and supervision of employees. 16 Doc. No. 42 at p.10. 17 Discussion4 18 Initially, the Court rejects Defendants’ argument that it is sufficient to merely list § 820.2 19 as an affirmative defense. As stated above, great detail is not required, but some factual basis is 20 necessary to provide “fair notice;” a fact barren list is insufficient. See Spencer, 2022 U.S. Dist. 21 LEXIS 144441 at *4; Neylon, 2017 U.S. Dist. LEXIS 137212 at *4; Gomez, 188 F.Supp.3d at 22 23 3 Defendants also argue that its second affirmative defense is legally sufficient. However, Plaintiffs are only 24 challenging the pleading sufficiency of the second affirmative defense, not the legal sufficiency. Cf. Gomez, 188 F.Supp.3d at 991 (explaining that an affirmative defense may be insufficient either as a matter of law or as a matter of 25 pleading). Because Plaintiffs do not challenge the legal sufficiency of the second affirmative defense, Defendants’ argument is unnecessary and will not be addressed at this time. 26 4 Both parties note that there is uncertainty with respect to the appropriate Rule 12(f) standards when evaluating 27 affirmative defenses. Some courts apply the Iqbal pleading standards of Rule 8(a), while other apply the more lenient “fair notice” standard. See RLI Ins. Co. v. City of Visalia, 297 F.Supp.3d 1038, 10578 n.21 (E.D. Cal. 2018). In the 28 absence of controlling Ninth Circuit authority, this Court will continue to apply the “fair notice” standard as described 1 992; Gibson Wine, 2016 U.S. Dist. LEXIS 55053 at *13. Therefore, the mere invocation of § 2 820.2 does not provide “fair notice.” See id. 3 In Neylon, this Court dealt with an affirmative defense that read: 4 California Government Code § 820.2 provides a public employee with immunity for an injury resulting from his act or omission where the act or omission was the 5 result of the exercise of the discretion vested in him, whether or not such discretion be abused. On information and belief, at all relevant times and in the performance 6 of all acts and/or omissions alleged in the complaint, Inyo County Personnel acted within the discretion vested in them as public employees. Thus, these Defendants 7 are not liable for any injuries resulting from the acts and/or omissions alleged in the complaint, even if the sheriff's deputies employed by the County of Inyo abused 8 their discretion. 9 Neylon, 2017 U.S. Dist. LEXIS 137212 at *22. The Court held that fair notice was not provided. 10 Id. at *26. Specifically, the Court held: 11 . . . the seventh affirmative defense clearly identifies § 820.2 as being asserted. However, the allegations do not explain the discretionary policy decision at issue. 12 All that can be said is that Defendants think that § 820.2 somehow applies in this case based on unknown discretionary conduct. Moreover, the allegations do not 13 limit the defense to only two of the three state law causes of action and they do not limit the defense to only Sheriff Lutze and Inyo County. Instead, the seventh 14 affirmative defense indicates that it applies to all claims and all parties. The opposition shows that Defendants know that § 820.2 could apply in only a limited 15 capacity — to two defendants and two claims. Despite this knowledge, Defendants alleged a broad application of § 820.2 without any limitation. The allegation is 16 misleading and is not a proper pleading practice. A plaintiff should not have to guess at who is asserting a defense or to which claim a defense applies. The 17 seventh affirmative defense requires Neylon to guess at who is actually alleging immunity, at what conduct is entitled to immunity, and how the immunity might 18 apply or to which claims the immunity might apply. A plaintiff who is forced to make such guesses does not know the true nature or grounds of the defense, and 19 thus, does not have “fair notice.” 20 Id. at *24-*26 (emphasis added) (citations omitted). 21 Here, unlike in Neylon, there is no ambiguity about which defendants are asserting the 22 defense, nor is there ambiguity about which claims are the subject of the defense. The City and 23 Carroll are the only defendants, and Carroll is the only defendant who can invoke § 820.2.5 24 Further, the second affirmative defense expressly states that § 820.2 immunity applies to the sixth, 25 seventh, eighth, ninth, and tenth causes of action, which are all state law claims. 26

27 5 The second affirmative defense invokes derivative immunity Cal. Gov. Code § 815.2, which reads in relevant part: “Except as provided by statute, a public entity is not liable for an injury resulting from an act or omission of an 28 employee of the public entity where the employee is immune from liability.” Cal. Gov. Code § 815.2(b); Asgari v. 1 Nevertheless, the second affirmative defense does suffer from one defect identified in 2 Neylon – the discretionary decisions at issue are not identified. If Defendants believe that certain 3 policy decisions were made, that those decisions serve as the basis for liability, and that those 4 decisions are immunized through § 820.2, then Defendants need to identify what those policy 5 decisions are. Great detail is not required, nor do facts that meet the plausibility standard need to 6 be pled, but Defendants should at least identify or describe the policy decisions that they believe 7 serve as the basis for § 820.2 immunity.6 Cf. Neylon, 2017 U.S. Dist. LEXIS 137212 at *25. The 8 conclusory allegation that policy decisions were immunized is little more than another method of 9 identifying § 820.2, and merely listing general categories of “hiring, training, and supervision” 10 leaves Plaintiffs and the Court guessing at what specific policy decisions are at issue. See id. If 11 Defendants do not know or cannot identify a particular policy decision that applies to the 12 Plaintiffs’ claims and that fits within § 820.2, then Defendants should not attempt to invoke § 13 820.2 as an affirmative defense. See Gomez, 188 F.Supp.3d at 993 n.2. 14 Because no specific policy decision have been identified, the second affirmative defense 15 does not provide “fair notice” and will be stricken. See Neylon, 2017 U.S. Dist. LEXIS 137212 at 16 *25-*26. However, because it is not clear that amendment would be futile, the second affirmative 17 defense will be stricken with leave to amend.7 See Wyshak, 607 F.2d at 826; Spencer, 2022 U.S. 18 Dist. LEXIS 144441 at *3, *7; Neylon, 2017 U.S. Dist. LEXIS 137212 at *26. 19 20 ORDER 21 Accordingly, IT IS HEREBY ORDERED that: 22 1. Plaintiffs’ motion to strike (Doc. No. 44) is GRANTED; 23 2. Defendants’ second affirmative defense is STRICKEN; 24

25 6 As an example only, an allegation that “Carroll’s policy decision to require all officers to undergo 4 hours of yearly training with respect to the proper use of non-lethal force options is immune through operation of § 820.2,” would be 26 an allegations that sufficiently provides fair notice of a policy at issue.

27 7 The Court notes that Plaintiffs cited and relied on Gomez and Neylon, which were both decided by the undersigned. Despite this, Defendants’ opposition surprisingly does not cite to or discuss either case in any way. Instead, 28 Defendants rely heavily on non-binding, out of district, unpublished cases that all pre-date Gomez. Defendants’ 1 Within fourteen (14) days of service of this order, Defendants may file an amended answer 2 that is consistent with the analysis of this order; and 3 14, If Defendants fail to file a timely amended answer, then leave to amend will be deemed 4 automatically withdrawn without further order from the Court, and this case will proceed 5 with the second affirmative defense remaining stricken from Defendants’ active answer. 6 7 IT IS SO ORDERED. □□ g |Dated: _ February 27, 2023 7 □□ 7 Cb Lei — SENIOR DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28