The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
ORDER GRANTING PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S AFFIRMATIVE DEFENSES (Doc. 13)
Plaintiff J & J Sports Productions, Inc. ("Plaintiff") seeks to strike the affirmative defenses asserted by defendants Ana Teresa Catano and Ramiro Catano, individually and doing business as La Fiesta Seafood & More ("Defendants"). (Doc. 13). On October 15, 2012, Defendants filed their opposition to the motion. (Doc. 17). The Court heard the arguments of counsel on November 6, 2012. For the following reasons, Plaintiff's motion to strike is GRANTED.
I. Factual and Procedural History
Plaintiff alleges the company possessed the exclusive commercial distribution rights to Manny Pacquiao v. Shane Mosley, WBO Welterweight Championship Fight Program ("the Program), which was broadcast on May 7, 2011. (Doc. 1 at 5). On May 25, 2012, Plaintiff initiated this action by filing a complaint against Defendants, alleging Defendants intercepted the Program signal and displayed it at La Fiesta Seafood & More without purchasing a sublicense from Plaintiff. Id. at 6. Therefore, Plaintiffs assert Defendants violated the Communications Act of 1934 and the Cable & Television Consumer Protection and Competition Act of 1992 ("the Cable Act"). Id. at 5-8. In addition, 2 Plaintiffs contend Defendants are liable for the tort of conversion and violation of California Business 3 and Professions Code, Section 17200. Id. at 8-9.
On September 11, 2012, Defendants filed their answer to Plaintiff's complaint, in which they 5 assert twenty-one affirmative defenses, and reserved "the right to assert additional applicable defenses 6 as may become apparent at subsequent stages of this action." (Doc. 11 at 8-10). Plaintiff seeks to 7 strike Defendants' affirmative defenses and the reservation clause. (Doc. 13). 8
Rule 8 of the Federal Rules of Civil Procedure requires a party responding to a pleading to "state in short and plain terms its defenses to each claim asserted against it." Fed. R. Civ. P. 8(b)(1). Further, responding parties are instructed to "state any avoidance or affirmative defense, including: accord and satisfaction; assumption of risk; contributory negligence; duress; estoppel; failure of consideration; fraud; illegality; injury by fellow servant; laches; license; payment; release; res judicata; statute of frauds; statute of limitations; and waiver." Fed. R. Civ. P. 8(c).
The Court may strike "an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter" from a pleading, either on the Court's own motion or by motion of a party. Fed. R. Civ. P. 12(f). A defense may be "insufficient" as a matter of pleading or as a matter of law. See Security People, Inc. v. Classic Woodworking, LLC, 2005 U.S. Dist. LEXIS 44641, at *5 (N.D. Cal. Mar. 4, 2005) (citing Wyshak v. City Nat'l Bank, 607 F.2d 824, 827 (9th Cir. 1979); Kaiser Aluminum & Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir. 1982)). The Ninth Circuit has explained a defense is insufficiently pled if it fails to give "fair notice" of the defense. Wyshak, 607 F.2d at 827. A defense is insufficient as a matter of law when there are no questions of fact, questions of law are clear and not in dispute, and the defense would not succeed under any circumstances. SEC v. Sands, 902 F. Supp. 1149, 1165 (C.D. Cal. 1995) (citations omitted). Further, a defense may be stricken as immaterial if it "has no essential or important relationship to the claim for relief or the defenses being pleaded." Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) (citations omitted), rev'd on other grounds, 510 U.S. 517 (1994); see also Fed. R. Civ. P. 12(f).
The purpose of a motion to strike under Rule 12(f) "is to avoid the expenditure of time and 2 money that must arise from litigating spurious issues." Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 3 880, 885 (9th Cir. 1983). However, motions to strike affirmative defenses "are disfavored and 4 infrequently granted." (Neveau v. City of Fresno, 392 F. Supp. 2d 1159, 1170 (E.D. Cal. 2005). 5 "'Courts must view the pleading under attack in the light more favorable to the pleader.' Garcia ex rel. 6 Marin v. Clovis Unified School Dist., No. 1:08--CV--1924 AWI SMS, 2009 WL 2982900, at *23 7
(E.D.Cal. Sept.14, 2009) (internal citation omitted). '[E]ven when technically appropriate and well-8 founded, Rule 12(f) motions often are not granted in the absence of a showing of prejudice to the 9 moving party.' Hernandez v. Balakian, No. CV--F--06--1383 OWW DLB, 2007 WL 1649911, at *1 (E.D.Cal. June 1, 2007) (internal quotation marks omitted)." J & J Sports Productions, Inc. v. Delgado, 2011 WL 219594 at *2 (E.D. Cal. Jan. 19, 2011). Even if a court strikes an affirmative defense, leave to amend should be freely given where the opposing party will not be prejudiced given the strong policy favoring resolution of cases "on the proofs rather than the pleadings." Rennie & Laughlin, Inc. v. Chrysler Corp., 242 F.2d 208, 213 (9th Cir. 1957); Wyshak, 607 F.2d at 827.
III. Discussion and Analysis
As an initial matter, the parties disagree over the pleading standards for affirmative defenses. Plaintiff contends the heightened pleading standards of Twombly are applicable, and affirmative defenses must be supported by factual allegations. (Doc. 13 at 8-9) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). On the other hand, Defendants contend "the bases and rationale for pleading requirements in responsive pleadings is different" and "[t]he law remains that, unless the defense is one that falls under Rule 9, there is no requirement that a party plead an affirmative defense with specificity." (Doc. 17 at 4) (citing Wong v. U.S., 373 F.3d 952, 969 (9th Cir. 2004); Woodfield v. Nat'l Mut. Ins. Co., 193 F.3d 354, 362 (5th Cir. 1999)).
Because the Ninth Circuit has yet to hold that the heightened pleading standards are applicable to affirmative defenses, this Court has declined to reach this issue. See, e.g., J & J Sports Prods. v. Gidha, 2012 U.S. Dist. LEXIS 20427 (E.D. Cal. Feb. 17, 2012); J & J Sports Prods., Inc. v. Luhn, 2011 U.S. Dist. LEXIS 122670, (E.D. Cal. Oct. 24, 2011). Moreover, as recently as 2010, the Ninth Circuit applied Wyshak as the appropriate standard in evaluating the sufficiency of pleading affirmative defenses. Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1023 (9th Cir. 2010).
Accordingly, the Court evaluates the following affirmative defenses with the standard set forth in 3 Wyshak, requiring "fair notice." See id, 607 F.2d at 827. 4 A. First Affirmative Defense: "Defendants allege that Plaintiff fails to state facts sufficient to constitute a claim upon which relief can be granted." (Doc. 11 at 8).
Plaintiff contends this "is not a proper affirmative defense." (Doc. 13 at 10) (citation omitted).
Proper "[a]ffirmative defenses plead matters extraneous to the plaintiff's prima facie case, which deny 8 plaintiff's right to recover, even if the allegations of the complaint are true." Federal Deposit Ins. Corp. v. Main Hurdman, 655 F. Supp. 259, 262 (E.D. Cal. 1987). In contrast, a denial of allegations in the complaint or "an assertion that the [plaintiff] cannot prove the elements of [its] claim" is not a proper affirmative defense. Solis v. Couturier, 2009 U.S. Dist. LEXIS 63271, at * 8-9 (E.D. Cal. July 8, 2009). Accordingly, "[f]ailure to state a claim is an assertion of a defect in Plaintiff's prima facie case, not an affirmative defense." Joe Hand Promotions, Inc. v. Estrada, 2011 U.S. Dist. LEXIS 61010, at *5 (E.D. Cal. June 8, 2011); see also Boldstar Tech., LLC v. Home Depot, Inc., 517 F. Supp. 2d 1283, 1291 (S.D. Fla. 2007) ("Failure to state a claim is a defect in the plaintiff's claim; it is not an additional set of facts that bars recovery notwithstanding the plaintiff's valid prima facie case"). Therefore, Defendants' first affirmative defense is STRICKEN.
B. Second Affirmative Defense: "Defendants allege that Plaintiff consented to all allegations alleged in the complaint." (Doc. 11 at 8).
In the Complaint, Plaintiff alleges the company "did not authorize transmission, interception, reception, divulgence, exhibition, or display of the Program . . . to the commercial establishment operated by the foregoing Defendants." (Doc. 1 at 9). As Plaintiff argues, "an affirmative defense presumes that allegations of the Complaint are true. (Doc. 13 at 11) (citing Federal Deposit Ins. Corp., 655 F. Supp. at 262). Here, the factual allegations of the Complaint are sufficiently pled, and the Court must assume their truth.
To succeed on a claim for violations of the Communications Act and the Cable Act, Plaintiff must demonstrate Defendants intercepted the Program and published it without authorization. 47 U.S.C. §§ 553(a), 605(a). Likewise, under California law, "consent negatives the wrongful element of the defendants act," and prevents the existence of conversion. Tavernier v. Maes, 242 Cal. App. 2d 2 532, 552 (1966); see also Judicial Council of California, Judicial Council of California Civil Jury 3 Instructions, § 2100 (2011) (identifying lack of consent as an element of conversion). 4 By alleging Plaintiff consented to their actions, Defendants seek to negate elements of the 5 claims presented in Plaintiff's complaint. Notably, an allegation that "merely negates an element [the 6 plaintiff] ...