United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION TO STRIKE (ECF NO. 13)
Janis L. Sammartino United States District Judge
before the Court is Plaintiff Adnan Rahman's Motion to
Strike Affirmative Defenses in Defendant's First Amended
Answer (“MTS”), (ECF No. 13), Defendant's
Response in Opposition to Plaintiff's Motion to Strike
(“Opp'n”), (ECF No. 15), and Plaintiff's
Reply in Support of Motion to Strike (“Reply”),
(ECF No. 16). The Court took the matter under submission
without oral argument pursuant to Civil Local Rule 7.1(d).
(ECF No. 18.) Having considered the Parties' arguments
and the law, the Court GRANTS IN PART and DENIES IN PART
Plaintiff's Motion to Strike.
2011, Plaintiff received emergency medical services at
Palomar Medical Center (“Palomar”) in Escondido,
California. (Compl ¶ 11, ECF No. 1.) At least one of
those services was provided by Dr. Tantuwaya. (Id.
¶ 12-15.) Subsequently, although Plaintiff's
Medi-Cal coverage allegedly paid some of these
emergency-medical claims, “[t]he services provided by
Dr. Tantuwaya were not included in these claims . . . despite
Dr. Tantuwaya's knowledge of [Plaintiff's] Medi-Cal
eligibility.” (Id. ¶¶ 14, 15.)
Defendant California Account Services has since taken action
on this alleged debt, including by making alleged false
representations to credit reporting agencies regarding
“the amount, nature, and legal status of the purported
debt alleged to be owed by Plaintiff . . . .”
(Id. ¶¶ 22-30.)
marshaled these allegedly false representations into a
Complaint alleging claims against Defendant under the Fair
Debt Collection Practices Act (“FDCPA”), 15
U.S.C. § 1692 et seq., (id.
¶¶ 32-37); the Rosenthal Fair Debt Collection
Practices Act (“Rosenthal Act”), Cal. Civ. Code
§ 1788 et seq., (id. ¶¶
38-43); and the Consumer Credit Reporting Agencies Act
(“CCRAA”), Cal. Civ. Code § 1785.1 et
seq., (id. ¶¶ 44-55). Defendant filed
an Answer to the Complaint, (ECF No. 11), including several
affirmative defenses which underlie the substance of this
Motion to Strike.
12(f) provides that the court “may strike from a
pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.”
Fed.R.Civ.P. 12(f). “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 . . . .” Whittlestone,
Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir.
2010) (quoting Fantasy, Inc. v. Fogerty, 984 F.2d
1524, 1527 (9th Cir. 1993), rev'd on other
grounds, 510 U.S. 517 (1994)). Accordingly, “[a]
defense may be struck if it fails to provide ‘fair
notice' of the basis of the defense.”
Qarbon.com Inc. v. eHelp Corp., 315 F.Supp.2d 1046,
1048 (N.D. Cal. 2004); see also Wyshak v. City Nat'l
Bank, 607 F.2d 824, 826 (9th Cir. 1979).
to strike are ‘generally disfavored because they are
often used as delaying tactics and because of the limited
importance of pleadings in federal practice.' ”
Cortina v. Goya Foods, Inc., 94 F.Supp.3d 1174, 1182
(S.D. Cal. 2015) (quoting Rosales v. Citibank, 133
F.Supp.2d 1177, 1180 (N.D. Cal. 2001)). “[M]otions to
strike should not be granted unless it is clear that the
matter to be stricken could have no possible bearing on the
subject matter of the litigation.” Colaprico v. Sun
Microsystems, Inc., 758 F.Supp. 1335, 1339 (N.D. Cal.
1991). “When ruling on a motion to strike, this Court
‘must view the pleading under attack in the light most
favorable to the pleader.' ” Id. (citing
RDF Media Ltd. v. Fox Broad. Co., 372 F.Supp.2d 556,
561 (C.D. Cal. 2005)).
initial matter, the Court addresses the threshold issue of
whether the Twombly and Iqbal
“plausibility” standard governs Defendant's
pleading of its affirmative defenses. Plaintiff contends that
it does, (e.g., MTS 2-6); Defendant contends that
the original enunciation of the “fair notice”
standard in Wyshak v. City National Bank, 607 F.2d
824 (9th Cir. 1979), governs instead, (Opp'n 3). The
Court agrees with Plaintiff.
to the Supreme Court's articulation of the
“plausibility” standard for pleading under
Federal Rule of Civil Procedure 8, there was no question that
in our Circuit the Wyshak “fair notice”
standard governed pleading an affirmative defense under Rule
8. Pursuant to Wyshak, “[t]he key to
determining the sufficiency of pleading an affirmative
defense is whether it gives plaintiff fair notice of the
defense.” 607 F.2d at 827 (citing Conley v.
Gibson, 355 U.S. 41, 47-48 (1957); 5 Wright & Miller
Federal Practice and Procedure, § 1274 at 323). However,
in 2007 and 2009, the Supreme Court issued seminal decisions
in Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009),
holding that Rule 8 requires a plaintiff to plead facts
supporting a “plausible” rather than merely
“possible” claim to relief. E.g.,
Iqbal, 556 U.S. at 678-79.
Twombly and Iqbal, district courts in the
Ninth Circuit have come to differing conclusions regarding
whether those cases necessitate a different interpretation of
Wyshak's “fair notice” standard.
See, e.g., J & J Sports Prods., Inc. v.
Scace, No. 10CV2496-WQH-CAB, 2011 WL 2132723, at *1
(S.D. Cal. May 27, 2011) (discussing split). Ultimately, this
Court agrees with the numerous district courts that have
concluded the Twombly and Iqbal
“plausibility” standard applies with equal force
to the pleading of affirmative defenses. Although there is a
valid question as to whether the logic of Twombly
and Iqbal-rendered in the context of Rule
8(a)-applies with equal force to Rule 8(c) governing
affirmative defenses, this Court concludes that
Wyshak compels application of the plausibility
standard to pleading affirmative defenses. Specifically, the
only case Wyshak cited to support its “fair
notice” standard is Conley v. Gibson, 355 U.S.
41, 47-48 (1957), Wyshak, 607 F.2d at 827, and
Conley has since been abrogated insofar as it
permitted pleading at a standard lower than
Twombly's plausibility standard, see
Twombly, 550 U.S. at 555, 560-61 (citing Conley
for “fair notice” rule statement immediately
prior to articulating “plausibility” standard and
expressly abrogating Conley's “no set of
facts” language). Accordingly, “fair
notice” necessarily now encompasses the
“plausibility” standard; whatever standard
“fair notice” previously encompassed no longer
exists. E.g., Madison v. Goldsmith &
Hull, No. 5:13-CV-01655 EJD, 2013 WL 5769979, at *1
(N.D. Cal. Oct. 24, 2013); Gonzalez v. Heritage Pac.
Fin., LLC, No. 2:12-CV-01816-ODW, 2012 WL 3263749, at *2
(C.D. Cal. Aug. 8, 2012); Perez v. Gordon & Wong Law
Grp., P.C., No. 11-CV-03323-LHK, 2012 WL 1029425, at
*6-8 (N.D. Cal. Mar. 26, 2012).
the Court reviews for plausibility Defendant's pleaded
affirmative defenses of (1) Statutes of Limitations; (2) Bona
Fide Error; (3) Good Faith; and (4) Offset. The Court
addresses each in turn.