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Terrylyn Mccain v. California Highway Patrol

October 19, 2012


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Presently pending before the court is defendants Mike's Towing Service, Inc. and Michael D. Olivarez's ("Tow Defendants") motion for leave to file a clarified answer to plaintiff's first amended complaint. (Dkt. Nos. 115, 118.)*fn1 On October 4, 2012, plaintiff filed a "motion to strike" the Tow Defendants' motion, which the court liberally construes as an opposition to the Tow Defendants' motion. (Dkt. No. 122.)*fn2 Subsequently, on October 10, 2012, the Tow Defendants filed a reply brief in support of their motion. (Dkt. No. 123.)*fn3

At the October 18, 2012 hearing, plaintiff represented herself, and attorney Floyd Cranmore appeared on behalf of the Tow Defendants. The undersigned has fully considered the parties' briefs, the parties' oral arguments, and appropriate portions of the record. For the reasons that follow, the undersigned grants the Tow Defendants' motion for leave to file a clarified answer and denies plaintiff's motion to strike.


This civil rights action, alleging numerous constitutional violations, arises from a traffic stop effectuated by officers of the California Highway Patrol, plaintiff's subsequent arrest and detention, and the towing of plaintiff's vehicle by the Tow Defendants. (See First Amended Complaint, Dkt. No. 109.) Plaintiff filed her original complaint on May 11, 2011, which was served on the Tow Defendants' counsel via mail on May 17, 2011. (Dkt. Nos. 1, 5.) Twenty days later, on June 6, 2011, the Tow Defendants responded to the original complaint by filing a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. No. 7.) Subsequently, on August 26, 2011, the undersigned issued findings and recommendations recommending that the Tow Defendants' motion to dismiss plaintiff's original complaint be granted in part and denied in part. (Dkt. No. 52.) On September 24, 2011, before the district judge ruled on the findings and recommendations, the Tow Defendants filed an answer to plaintiff's original complaint "as amended" by the August 26, 2011 findings and recommendations. (Dkt. No. 60.) The district judge ultimately adopted the undersigned's findings and recommendations regarding the Tow Defendants' motion to dismiss on December 12, 2011. (Dkt. No. 91.)

On December 1, 2011, the undersigned issued a status (pre-trial scheduling) order providing that "[n]o further joinder of parties or amendments to pleadings will be permitted except with leave of court and upon a showing of good cause." (Dkt. No. 83 at 2.) It also ordered the parties to complete discovery by January 25, 2013, complete law and motion (except as to discovery-related matters) by March 28, 2013, and set a pretrial conference for June 26, 2013, and a jury trial for August 26, 2013. (Id. at 3-4, 6-7.)

Thereafter, on April 30, 2012, the undersigned granted plaintiff's motion to amend her original complaint to substitute the true name of a previous Doe defendant. (Dkt. No. 111 at 3-4.) The order provided that plaintiff's proposed first amended complaint (dkt. no. 109) was to be deemed the operative first amended complaint. (Dkt. No. 111 at 4.) The order further required the defendants who had already appeared and filed answers to the original complaint to file, on or before May 18, 2012, either an answer to plaintiff's first amended complaint or a notice of that defendant's intent to stand on its original answer. (Id.) On May 16, 2012, the Tow Defendants filed a notice of intent to stand on their original answer in response to the first amended complaint. (Dkt. No. 112.)

The instant motion for leave to file a clarified answer followed on September 4, 2012. (Dkt. No. 115.) The Tow Defendants now seek to amend their answer for the following reasons: (1) to clarify that their answer raises a good faith defense; (2) to revise certain grammatical errors in the answer; and (3) to make corrections reflecting that California Highway Patrol officer J. Pini was substituted for a Doe defendant. (Dkt. No. 115-1 at 2.) Along with their motion papers, the Tow Defendants submitted a proposed amended answer to plaintiff's first amended complaint that identifies the proposed changes. (Dkt. No. 117-3.)


Unless a party is entitled to amend its pleading as a matter of course pursuant to Rule 15(a)(1) of the Federal Rules of Civil Procedure, Rule 15(a)(2) provides that "a party may amend its pleading only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)(2). Rule 15(a)(2) further provides that "[t]he court should freely give leave when justice so requires," id., and the Ninth Circuit Court of Appeals has stated that "requests for leave should be granted with 'extreme liberality.'" Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009) (citation omitted). However, the Court of Appeals has also cautioned that "liberality in granting leave to amend is subject to several limitations," which include "undue prejudice to the opposing party, bad faith by the movant, futility, and undue delay." Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) (citation and quotation marks omitted); accord AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006).

Furthermore, because the court already entered a pre-trial scheduling order requiring a showing of good cause for any further amendments to pleadings, the Tow Defendants are required to satisfy this "good cause" standard to obtain leave to amend their answer. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-09 (9th Cir. 1992).

The Tow Defendants contend that leave to amend is warranted, primarily because the proposed amended answer would clarify that they are asserting a good faith defense in this action, i.e., that the Tow Defendants exercised no discretion of their own in towing plaintiff's vehicle, but acted at the apparently lawful direction of CHP officers. The Tow Defendants argue that, although the original answer does not explicitly use the phrase "good faith defense," the current answer's admissions, denials, and affirmative defenses already raise the good faith defense under applicable Ninth Circuit precedent by asserting that the Tow Defendants towed plaintiff's vehicle at the apparently lawful direction of CHP officers, thus providing fair notice of the affirmative defense. Nevertheless, the Tow Defendants also argue that a clarified record is necessary to avoid any future confusion and unnecessary litigation in regards to this issue.

With respect to pleading affirmative defenses, the Ninth Circuit explained that: "The key to determining the sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of the defense." Wyshak v. City Nat'l Bank, 607 F.2d 824, 827 (9th Cir. 1979); see also In re Gayle Sterten, 546 F.3d 278, 285 (3d Cir. 2008) (noting that "the proper focus of our inquiry" is whether framing the defense as a denial of an allegation "specifically deprived [the plaintiff] of an opportunity to rebut that defense or to alter her litigation strategy accordingly"). Although Rule 8 requires affirmative defenses to be included in responsive pleadings, absent prejudice to the plaintiff, the district court has discretion to allow a defendant to plead an affirmative defense in a subsequent motion. See Ledo Fin. Corp. v. Summers, 122 F.3d 825, 827 (9th Cir. 1997); see also Rivera v. Anaya, 726 F.2d 564, ...

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