The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO STRIKE
This action is based on alleged violation by school officials of students' and student advisor's First Amendment and other rights. Plaintiffs filed a motion to strike pursuant to Federal Rule of Civil Procedure 12(f) all of the twenty defenses asserted in Defendants' answer. Subsequently Defendants withdrew affirmative defenses 1-5, 9 and 14-17 but opposed the motion in other respects. (Opp'n at 2.) For the reasons which follow, the motion is GRANTED IN PART AND DENIED IN PART.
This action arises out of incidents related to The Tomahawk, a newspaper published by the journalism class at Fallbrook High School ("FHS"). Plaintiffs allege that tn November 2007, Plaintiff Chantal Ariosta ("Arisota"), a senior attending the journalism class, wrote an article regarding the alleged refusal of former Fallbrook Union High School District ("FUHSD") Superintendent Tom Anthony to comply with a request from the fire marshal to close the school for use as an evacuation center during the wildfires of October 2007, and the FUHSD's subsequent buyout of the Superintendent's contract. (First Am. Compl. at 3.) Defendant Rod King ("King"), the FHS principal, ordered the article removed in its entirety from the newspaper. (Id. at 3-4).
In spring 2008, Plaintiff Margaret Dupes ("Dupes"), a senior student, wrote an editorial, which was a critique of the Bush Administration's abstinence-only policy of sex education and a response to an assembly sponsored by FHS promoting abstinence-only sex education which was held earlier in the school year. Plaintiff Daniela Rogulj ("Rogulj"), a student and Opinion Page Editor collaborated on the editorial with Dupes and edited it. King caused the editorial to be removed from the newspaper. (Id. at 4.)
Plaintiff David Evans ("Evans") was during the relevant times a teacher at FHS and the advisor to the journalism class and The Tomahawk. In June 2008, he complained to the FUHSD President about the foregoing events. The next day King met with Evans and expressed his displeasure over Evans' conversation with the FUHSD President and informed him he was canceling the journalism class, terminating the publication of The Tomahawk, and removing Evans as faculty advisor. (Id. at 4-5.)
This action was brought against the FUHSD and King by Evans, Arisota, Dupes, Rogulj and two students who registered for and planned to take the journalism class. The First Amended Complaint alleges claims for violation of California Education Code Section 48907, Article I, Section 2(a) of the California Constitution, First Amendment of the United States Constitution, and California Labor Code Section 1102.5(b) and (c). Plaintiffs seek declaratory and injunctive relief and damages, including punitive damages against King.
The action was filed in state court and removed by Defendants based on federal question jurisdiction. Defendants filed an answer asserting twenty affirmative defenses. Plaintiffs moved pursuant to Rule 12(f) to strike them as legally insufficient and inadequately pled.
Rule 12(f) gives the court authority to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." "The function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial." Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds, 510 U.S. 517 (1994) (internal quotation marks, brackets and citation omitted); Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). "Rule 12(f) motions are generally viewed with disfavor because striking a portion of a pleading is a drastic remedy and because it is often sought by the movant simply as a dilatory tactic." Waste Mgmt Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001) (internal quotation marks and citations omitted); see also Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir. 1989).
However, where "motions to strike remove unnecessary clutter from the case, they serve to expedite, not delay." Heller Fin., 883 F.2d at 1294. Therefore, "a defense that might confuse the issues in the case and would not, under the facts alleged, constitute a valid defense to the action can and should be deleted." Waste Mgmt Holdings, 252 F.3d at 347. The relevant issue on a Rule 12(f) motion to strike an insufficient defense is whether as a matter of law the defense asserted is insufficient. See Fabrica Italiana Lavorazione Materie Organiche, S.A. v. Kaiser Aluminum & Chem. Corp., 684 F.2d 776, 779 (11th Cir. 1982); Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir. 1982); see also Heller Fin., 883 F.2d at 1294. "Affirmative defenses will be stricken only when they are insufficient on the face of the pleadings." Heller Fin., 883 F.2d at 1294.
Plaintiffs also move to strike a number of defenses as inadequately pleaded. The pleading requirements for affirmative defenses are no more stringent than those for the complaint. 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1274 (2009). Specifically, a defense must be stated "in short and plain terms" as required by Rule 8(b), and "each allegation must be concise and direct" as required by Rule 8(d)(1). Id. The defendant must put plaintiff on "fair notice of the nature of the defense pleaded." Wyshak v. City Nat'l , 607 F.2d 824, 827 (9th Cir. 1979). Great specificity is not required at the pleading stage because a defense which is not asserted in the answer is ordinarily waived. See 999 v. C.I.T. , 776 F.2d 866, 870 n.2 (9th Cir. 1985); see also Fed. R. Civ. P. 8(c) ("In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense"). Accordingly, great specificity regarding the factual basis for the defense is not required by Rule 8 applies. 5 Wright & Miller, Fed. Practice and Proc. § 1274.
Sixth Affirmative Defense
Plaintiffs move to strike Defendants' sixth affirmative defense for qualified immunity as legally insufficient. This defense is alleged to apply to "any violation of a statutory or constitutional right." (Answer at 5.) Plaintiffs argue that this overstates the scope of qualified immunity. Defendants agree, and request leave to amend to limit the defense to the federal claims, which are asserted only against King. (Opp'n at 3.)
For the first time in the reply brief, Plaintiffs also argue that the unlawfulness of King's cancellation of the journalism class in retaliation for Evans' exercise of his First Amendment rights was so apparent at the time in light of pre-existing law, that the qualified immunity defense to the retaliation claim should be stricken as to the federal claims as well. Because this argument was raised for the first time in reply, Defendants did not have an opportunity to respond. Parties should not raise new issues for the first time in their reply briefs. Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir. 1990). The court therefore declines to address this issue at this time. However, Plaintiffs may raise it in an appropriate motion and give Defendants an opportunity to respond.
Accordingly, Plaintiffs' motion to strike the sixth affirmative defense is granted with leave to amend. In the amended answer Defendants shall state that this defense is asserted only with respect to the third and fourth causes of action pursuant to 42 U.S.C. § 1983 and only against King.
Eighth Affirmative Defense
Plaintiffs next move to strike the eighth affirmative defense as legally insufficient. The defense is based on immunity for discretionary acts of public employees pursuant to California Government Code Section 820.2. Plaintiffs argue that the defense is insufficient as a matter of law as to each cause of action. (See Pls' Mem. of P.&A. at 5-7.) Defendants oppose the motion only to the extent it challenges the sufficiency of the defense with respect to the decision to cancel the journalism class. They argue that the decision to cancel the class was a discretionary act. (Opp'n at 4.)
The cancellation of the journalism class is included, among other factual bases, in the second cause of action for violation of the California constitution, third and fourth causes of action pursuant to 42 U.S.C. § 1983, and fifth cause of action for violation of California Labor Code Section 1102.5.*fn1 Accordingly, Defendants have conceded the insufficiency of the defense with respect to the first cause of action and to the extent the remaining causes of action are based on other factual allegations than the cancellation of the journalism class. See Civ. Loc. Rule 7.1(f)(3). In the alternative, the court finds Plaintiffs' arguments in this regard (Pls' Mem. of P.&A. at 5-6) well supported and well taken.
Defendants' opposition is unavailing with respect to the federal constitutional claims asserted in the third and fourth causes of action because "[c]onduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 . . . cannot be immunized by state law." Howlett v. Rose, 496 U.S. 356, 376 (1990).
The opposition is also without merit with respect to the fifth cause of action for violation of Labor Code Section 1102.5. Plaintiff Evans alleges that the cancellation of the journalism class was a retaliatory act for his refusal to participate in King's censorship of The Tomahawk and/or for reporting it to the FUHSD's board members. (First Am. Compl. at 9-10.) As a result of the cancellation, Evans was removed from his position as advisor to the journalism class and lost the related stipend. (Id.) Evans claims the FUHSD violated subsections (b) and (c), which prohibit an employer from "retaliat[ing] against an employee for disclosing information to a government . . . agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute," id. § 1102.5(b), or for "refusing to participate in an activity that would result in a violation of state or federal statute," id. § 1102.5(c).
This cause of action is asserted only against the FUHSD. Section 820.2 by its express terms applies only to "public employees." Cal. Gov't Code § 820.2 ("Except as otherwise provided by statute, 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 such discretion be abused."). The FUHSD is a public entity as defined in section 811.2 ("Public entity" includes the State, . . . a county, city, district, public authority, public agency . . .."). Section 820.2 applies to public employees, which are defined as "employee[s] of a public entity." Id. § 811.4. California Government Claims Act includes separate provisions for liability and immunity of public entities on one hand, ...