United States District Court, C.D. California
ORDER RE: PLAINTIFF'S MOTION TO STRIKE
HONORABLE RONALD S.W. LEW SENIOR U.S. DISTRICT JUDGE
Bryan Williams (“Plaintiff”) brings this Action
against Defendant El Camaron, LLC and Defendant Alysson's
Flowers and Gifts (collectively “Defendants”) for
unlawful discrimination in places of public accommodation
pursuant to the Americans with Disabilities Act
(“ADA”) and California's Unruh Civil Rights
Act (“Unruh Act”). Before the Court is
Plaintiff's Motion to Strike all of the affirmative
defenses that Defendants raised in their Answer
(“Motion”) . Having reviewed all papers
submitted pertaining to this Motion, the Court NOW
FINDS AND RULES AS FOLLOWS: the Court GRANTS
in part and DENIES in part
April 9, 2019, Plaintiff initiated this Action against
Defendants. See generally Compl., ECF No. 1.
Plaintiff, who is paraplegic and uses a wheelchair for
mobility, alleges that he encountered several barriers to
access at Defendants' property, including inaccessible
parking spaces, inaccessible paths of entrance, and
non-compliant service counters. Id. ¶¶ 2,
13. As a result of his alleged encounter with these barriers,
Plaintiff asserts causes of action for discrimination based
on disability in violation of the ADA and Unruh Act.
filed their Answer on May 13, 2019, asserting ten affirmative
defenses. See generally Defs.' Answer
(“Answer”), ECF No. 12. Plaintiff filed the
instant Motion to Strike All of Defendants' Affirmative
Defenses  on June 3, 2019. Defendants filed their
Opposition  on July 27, 2019,  and Plaintiff filed his
Reply  on July 28, 2019. On July 22, 2019, after the
parties fully briefed the instant Motion, Defendants filed a
First Amended Answer .
to Federal Rule of Civil Procedure 12(f), the Court may
“strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous
matter.” Fed.R.Civ.P. 12(f). “In determining
specifically whether a defense is ‘sufficient,' the
Ninth Circuit has explained that ‘the key . . . is
whether it gives plaintiff fair notice of the defense.”
Whiting v. City of Palm Desert, 2018 WL 6034968, at
*2 (C.D. cal. May 17, 2018)(quoting Wyshak v. City
Nat'l Bank, 607 F.2d 824, 827 (9th Cir. 1979)).
grounds for a motion to strike must appear on the face of the
pleading under attack. SEC v. Sands, 902 F.Supp.
1149, 1165 (C.D. Cal. 1995). In addition, the Court must view
the pleading under attack in a light more favorable to the
pleader when ruling on a motion to strike. In re
2TheMart.com, Inc. Sec. Litig., 114 F.Supp.2d 955, 965
(C.D. Cal. 2000) (citing California v. United
States, 512 F.Supp. 36, 39 (N.D. Cal. 1981)).
to strike are generally viewed with disfavor, and will
usually be denied unless the allegations in the pleading have
no possible relation to the controversy, and may cause
prejudice to one of the parties. Travelers Cas. and Sur.
Co. of Am. v. Dunmore, No. CIV S-07-2493 LKK/DAD, 2010
WL 5200940, at *3 (E.D. Cal. Dec. 15, 2010).
“Ultimately, the decision whether to strike a matter
lies within the sound discretion of the district
court.” Lexington Ins. Co. v. Energetic Lath &
Plaster, Inc., No. 15-cv-00861-KJM-EFB, 2015 WL 5436784,
at *11 (E.D. Cal. Sept. 15, 2015).
22, 2019, after the parties submitted their papers pertaining
to the instant Motion, Defendants filed a First Amended
Answer. See ECF No. 23. However, the First Amended
Answer was not filed in response to an amended complaint, nor
made within 21 days after Defendants filed their first
Answer, and thus Defendants were required to get
Plaintiff's written consent or the Court's
approval-which they have failed to do. See Fed. R.
Civ. Proc. 15(a). Thus, the Court STRIKES
Defendants' First Amended Answer, and proceeds to address
the merits of Plaintiff's Motion with respect to the
affirmative defenses as stated in Defendants' first
First Affirmative Defense of failure to state a claim is an
assertion of a defect in Plaintiff's prima facie case,
and not an affirmative defense. See Zivkovic v. S. Cal.
Edison. Co., 302 F.3d 1080, 1088 (9th Cir.
2002)(“A defense which demonstrates that plaintiff has
not met its burden of proof is not an affirmative
defense.”). Thus, it fails as a matter of law, and the
Court GRANTS Plaintiff's Motion to
Strike the First Affirmative Defense without leave to amend.
Second Affirmative Defense is that Plaintiff has waived any
right to recovery by falsifying a claim for having been to
Defendants' property. “Waiver is the intentional
relinquishment or abandonment of a known right.”
United States v. Perez, 116 F.3d 840, 845 (9th Cir.
1997)(internal quotations omitted). Even assuming the truth
of Defendants' allegation that Plaintiff has not been to
the property, it is unclear how this fact shows that
Plaintiff has relinquished or abandoned his right to sue.
Thus, the Court GRANTS Plaintiff's
Motion to Strike Defendants' Second Affirmative Defense.