Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

J & J Sports Productions, Inc. v. Olivo

United States District Court, S.D. California

June 8, 2015



M. JAMES LORENZ, District Judge.

Plaintiff, J & J Sports Productions, Inc., owned the exclusive rights to distribute "The Clash in Cotai", a boxing match between Manny Pacquiao and Brandon Rios (hereinafter the " Program "). On November 23, 2014, the fight was broadcast across the United States. Plaintiff alleges that Defendants knowingly intercepted and showed the fight without permission of Plaintiff, in violation of the Telecommunications Act of 1996, 47 U.S.C. § 605, et seq., the Cable Television Consumer Protection and Competition Act of 1992, 47 U.S.C. § 553, et seq., and California Business and Professional Code § 17200, et seq. Plaintiff also alleges a common law claim of conversion. Defendants appear to deny all allegations and raise fifteen enumerated affirmative defenses. Plaintiff now brings a Motion to Strike Defendants' Answers and Affirmative Defenses. Under Civil Local Rule 7.1.d.1., the Court decides the matter on the papers submitted and without oral argument.


On November 19, 2014, Plaintiff filed the Complaint, which named Jose Alberto Olivo and Juan Pablo Martinez, both individually and d/b/a Club Caribe, as well as Club Caribe ("Caribe") as an unknown business entity. However, Caribe was not properly served with a summons and therefore not initially a party to this action. Accordingly, when Defendants Olivo, Martinez, and Caribe each filed an Answer to the Complaint, the Court struck the Answer filed by Caribe. Summons for Caribe was reissued and Caribe was properly served. Before Caribe filed an answer, Plaintiff brought a Motion to Strike Defendants' Answers and Affirmative Defenses against Defendants Olivo and Martinez. When Caribe filed its Answer, Plaintiff brought a motion to strike against it as well. As the Answers of Olivo, Martinez, and Caribe are identical except for cosmetic differences and the filing parties, and the motions to strike brought against those answers are substantively the same, this Court will consider them together for purposes of this Order. Further, as Defendants' Opposition to Plaintiff's Motion to Strike was filed before the deadline for Caribe to file an opposition, this Court will consider it to be timely.


When responding to pleadings a party must "state in short and plain terms its defenses to each claim asserted against it" and when contesting an allegation "a denial must fairly respond to the substance of the allegation." FED. R. CIV. P. 8(b)(1)-(2).

Affirmative defenses must give the plaintiff "fair notice of the defense." Wyshak v. City National Bank, 607 F.2d 824, 827 (9th Cir. 1979). This does not require detailed factual support for the defense but must make clear the basis for the defense. See Conley v. Gibson, 355 U.S. 41, 47-48 (1957). An affirmative defense which negates an element of a plaintiff's claim is not an affirmative defense but an answer to that claim. Zivkovic v. Southern Cal. Edison, 302 F.3d 1080, 1088 (9th Cir. 2002). The Ninth Circuit has declined to extend the heightened pleading standard promulgated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), to affirmative defenses. Kohler v. Islands Restaurants, LP, 280 F.R.D. 560, 565-66 (S.D. Cal. 2012) (Whelan, J.); see Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1023 (9th Cir. 2010).

A court may strike "an insufficient defense or any redundant, immaterial, impertinent or scandalous material" from a pleading. FED. R. CIV. P. 12(f). However, motions to strike are not widely favored, see Colaprico v. Sun Microsystems, Inc., 758 F.Supp. 1335, and leave to amend stricken pleadings should be freely granted. FED. R. CIV. P. 15(a)(2); Forman v. Davis, 371 U.S. 178 (1962).


Plaintiff's Motion to Strike argues both that Defendants' answers ( i.e., responses to the allegations enumerated in the complaint) are invalid, and Defendants' affirmative defenses are not legally sufficient. The Court will consider the two separately.

A. Answers to Allegations

Plaintiff's complaint contains forty-eight allegations and includes four separate counts. The first nineteen allegations address jurisdiction and the parties to the matter, as well as other allegations general to all counts. Beginning with the twentieth allegation, the complaint is broken into four counts, with all preceding allegations reincorporated into each count. In their Answer to the complaint, Defendants list four counts but merely state that "Defendant denies each and every allegation of the complaint" by means of response to each of the counts. (Answer at 2.) Defendants' answers to the allegations of the Complaint are insufficient.

Under Rule 8(b), parties may either respond to allegations individually or submit a general denial of the entire pleading. FED. R. CIV. P. 8(b)(3). If a party wishes to submit a general denial, they must seek to deny all facets of the complaint, or deny all allegations except those specifically designated for admission. Id. at (c). Otherwise a party must address the substance of each allegation. Id. at (b). In this case, Defendants' answers satisfy neither requirement. Some allegations cannot be disputed in good faith. For example, Defendants Martinez and Olivo are indeed identified on the liquor license issued to Club Caribe as alleged in the complaint. (Compl. at 8, 10.) Therefore, a general denial is not valid. As the denials do not address the substance of any counts, the answers are also invalid as a response to individual allegations.

In light of these deficiencies, Defendants' answers are stricken with leave to amend. Defendants should take care to review the substance of the allegations before submitting an amended answer. Defendants should only deny those allegations which they intend to contest.

B. Affirmative Defenses

Defendants' affirmative defenses are insufficient as a matter of law. The defenses are either denials of the elements of the complaint, are irrelevant to the claims alleged, or do not state sufficient facts to put Plaintiff on notice of the grounds for the defense.

The first affirmative defense states that the claim in this case has been settled by accord and satisfaction. Similarly, the ninth affirmative defense claims that "the debt... has been paid in full by Defendant according to agreement by the parties." (Answer at 2, 4.) Accord and satisfaction is normally a defense in contract law. As Plaintiff has not alleged a breach of contract, accord and satisfaction is inappropriate. Further, neither of these affirmative defenses contain sufficient factual statements to put Plaintiff on notice of the circumstances under which Defendant allegedly made payment which settled the present dispute. Therefore, the first and ninth affirmative defenses are stricken with leave to amend.

Next, Defendants allege that Plaintiff's claim is barred by assumption of risk because Plaintiff "engag[ed] in transactions with Defendant for the distribution of goods[.]" (Answer at 2.) While normally a defense in tort law, this application of assumption of risk relies on the existence of a contract between Plaintiff and Defendants. As stated above, Plaintiff has not alleged a contract claim and so this defense is invalid. Even in its most basic form, assumption of risk would be inappropriate as currently alleged because Plaintiff cannot reasonably be expected to assume the risk of illegal interception of their broadcast by third parties. Defendants' second affirmative defense is stricken with leave to amend.

The third affirmative defense alleges that Plaintiffs injuries "were the direct result of Plaintiff's own negligence apart from any negligence of the Defendant. Plaintiff's negligence consisted of channel stuffing and other unfair business practices." (Answer at 2-3.) This is invalid for two reasons. First, Plaintiff does not make any claims based on a negligence standard, [1] so stating that Defendants' negligence was not causal of Plaintiff's injury is inapposite. Second, although comparative negligence can bear on strict liability claims, see Daly v. General Motors Corp., 20 Cal.3d 725, 737 (Cal. 1978), the alleged negligence of Plaintiff has no discernible relationship to this case. Defendants' third affirmative defense is stricken with leave to amend.

Defendants' fourth, sixth, seventh, and tenth affirmative defenses each state that Plaintiff's claims are barred because the contract under which they are brought is unenforceable. This is immaterial as Plaintiff has not alleged any cause of action based on a contract claim. There is no possibility for Defendant to cure these affirmative defenses, as alleging that there was a contract between Plaintiff and Defendants would be a denial of elements of the complaint. Accordingly, Defendants' fourth, sixth, seventh, and tenth affirmative defenses are stricken without leave to amend.

The fifth defense states that "Plaintiff's claim is barred by estoppel because Plaintiff took action unilaterally in its business dealing with Defendant and assured Defendant that it would not be held responsible for consequent harm. Defendant relied on Plaintiff's representation[.]" (Answer at 3.) Defendant asserts nothing that indicates the nature of the alleged business dealings with Plaintiff or the purported statements on which Defendant relied. Defendants' fifth affirmative defense is stricken with leave to amend.

Defendants' eighth affirmative defense states that there was a license agreement between Plaintiff and Defendant. This is not an affirmative defense but a direct refutation of the claims made by Plaintiff. The eighth defense is stricken without leave to amend.

Defendants eleventh and twelfth defenses assert that Plaintiff cannot recover because of waiver and unclean hands, respectively. These doctrines are normally grounded in principles of contract law. As there is no contract breach alleged in the complaint, they are superfluous to the instant case. Further, both defenses allege that Plaintiff broadcast the Program to Defendants intentionally. This is a refutation of Plaintiff's assertions in the complaint, rather than an affirmative defense. For these reasons, the eleventh and twelfth affirmative defenses are stricken without leave to amend.

In the thirteenth affirmative defense, Defendants contend that Plaintiff's claim is barred by laches. Laches is common law doctrine, usually reserved for matters in equity, barring claims made after long delays that prejudice the party they are brought against. See Black's Law Dictionary 1006 (10th ed. 2014). As this case is not one of equity, laches is inappropriate. Even if an equitable doctrine were proper in this instance, there has not been sufficient time to merit invocation of laches. The underlying purpose of laches is analogous to a statute of limitations in modern law. None of the claims brought by Plaintiff has passed their respective statutes of limitations.[2] If the statute of limitations has not passed, invoking laches would hardly be appropriate. As such, Defendants' thirteenth affirmative defense is stricken without leave to amend.

Defendants' fourteenth affirmative defense alleges that Defendant acted in "good faith and observed all reasonable standards[.]" (Answer at 5.) The fifteenth affirmative defense alleges that "any unauthorized publication was not caused by a volitional act attributable to the Defendant." Id. Essentially, both of these defenses assert that Defendant had no intent to illegally intercept and broadcast the Program. However, as of Plaintiff's claims are all based on a strict liability standard, see supra note 1, a lack of volitional intent on the part of Defendants is immaterial. Therefore, the fourteenth and fifteenth affirmative defenses are stricken without leave to amend. Insofar as these affirmative defenses claim that Defendants were "assured by Plaintiff" that they would not be harmed, (Answer at 5), those assertions would be more appropriate as part of an estoppel defense.

All of Defendants' affirmative defenses are defective either because they are denials of Plaintiff's allegations, they are inapposite to the causes of action, or because they contain insufficient facts to put Plaintiff on notice of the nature of the affirmative defense. For these reasons, all of Defendants' affirmative defenses are stricken. The Court envisions situations where some of the affirmative defenses could be cured by Defendants. Accordingly, defenses which can be cured are stricken with leave to amend. Defendants should take care to amend defenses to give Plaintiff fair notice about the substance of the defense. Further, Defendants should only include assertions responsive to claims alleged by Plaintiff.


For the foregoing reasons, Plaintiff's Motion to Strike Defendants' Answers and Affirmative Defenses is GRANTED with respect to both the answers to allegations and affirmative defenses. The answers to Plaintiff's claims may be cured. Therefore, the answers are stricken with LEAVE TO AMEND. Some of Defendants' affirmative defenses may be rectified. As such, affirmative defenses one, two, three, five, and nine are stricken with LEAVE TO AMEND. The rest of Defendants' affirmative defenses cannot be cured. Accordingly, defenses four, six, seven, eight, ten, eleven, twelve, thirteen, fourteen, and fifteen are stricken WITHOUT LEAVE TO AMEND. Any Amended Answers or defenses must be filed within fourteen (14) days of this order.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.