United States District Court, E.D. California
ORDER GRANTING PLAINTIFFS' MOTION TO STRIKE (DOC.
matter is before the court on the motion of plaintiffs Estate
of Alejandro Sanchez and Bertha Sanchez to strike the third
affirmative defense pleaded in defendants' answer. (Doc.
No. 42.) The court deems the motion suitable for decision
without oral argument pursuant to Local Rule 230(g). Having
considered the parties' briefing, the court will grant
factual allegations of this case have been set forth in a
prior order of this court and need not be repeated here.
(See Doc. No. 28.) After the court granted in part
defendants' motion to dismiss (id.), plaintiffs
filed the operative first amended complaint. (Doc. No. 33
(“FAC”).) Defendants filed their answer to the
FAC on June 27, 2019 (Doc. No. 41), in response to which
plaintiffs filed the instant motion to strike on July 17,
2019. (Doc. No. 42.) In that motion, plaintiffs argue that
the third affirmative defense should be stricken because it
is duplicative of the eleventh affirmative defense.
(Id. at 5.) Defendants opposed the motion on August
6, 2019. (Doc. No. 43.)
12(f) of the Federal Rules of Civil Procedure provides that
“[t]he 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)). A
decision whether to strike certain material is committed to
the sound discretion of the district court. Id.;
Fed. Sav. & Loan Ins. Corp. v Gemini Mgmt., 921
F.2d 241, 244 (9th Cir. 1990). However, motions to strike are
generally disfavored and “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.” Neveu v. City of Fresno, 392
F.Supp.2d 1159, 1170 (E.D. Cal. 2005) (citation and quotation
marks omitted); see also Neilson v. Union Bank of Cal.,
N.A., 290 F.Supp.2d 1101, 1152 (C.D. Cal. 2003)
(“Motions to strike are generally regarded with
disfavor because of the limited importance of pleading in
federal practice, and because they are often used as a
delaying tactic.”). In resolving such motions, the
court must view the pleading in a light most favorable to the
non-moving party and resolve any doubt as to the relevance of
the challenged allegations in favor of the non-moving party.
See In re 2TheMart.com, Inc. Sec. Litig., 114
F.Supp.2d 955, 965 (C.D. Cal. 2000).
the parties' disagreement in their briefing involves a
dispute over the proper standard to be applied in resolving
motions to strike. In their opposition brief, defendants
argue that to succeed on a motion to strike under Rule 12(f),
the movant must make a showing of prejudice. (Doc. No. 43 at
3-4.) Plaintiffs disagree, arguing that no showing of
prejudice is required. (Doc. No. 42 at 5-6.)
courts within the Ninth Circuit are presently split on this
question. Compare, e.g., Vieste, LLC v. Hill
Redwood Dev., No. C 09-04024 JSW, 2010 WL 11484768, at
*3 (N.D. Cal. July 13, 2010) (“[C]ourts often require a
showing of prejudice before granting a motion to
strike.”); Greenburg v. Life Ins. Co. of N.
Am., No. C 08-03240 JW, 2008 WL 5396387, at *1 (N.D.
Cal. Dec. 18, 2008) (holding that motions to strike
“should be denied unless the matter has no logical
connection to the controversy at issue and may prejudice one
or more of the parties to the suit”); Hernandez v.
Balakian, No. 1:06-cv-01383-OWW-DLB, 2007 WL 1649911, at
*2 (E.D. Cal. June 1, 2007), with, e.g.,
Television Educ., Inc. v. Contractors Intelligence Sch.,
Inc., No. 2:16-cv-01433-WBS-EFB, 2016 WL 7212791, at *1
(E.D. Cal. Dec. 12, 2016) (“[T]he court will not
require plaintiff to show ‘prejudice' or complete
lack of ‘bearing' with respect to the affirmative
defenses at issue here.”); Houston Cas. Co. v. Crum
& Forster Ins. Co., No. 1:16-cv-00535-LJO-EPG, 2016
WL 4494444, at *5 (E.D. Cal. Aug. 25, 2016) (“[T]he
Court concludes [plaintiff] need not show prejudice for the
Court to grant its motion to strike.”). Of course, none
of these decisions are binding on this court. Moreover, as
plaintiffs point out in their briefing, the undersigned has
previously had occasion to address this question, holding
that “Rule 12(f) clearly authorizes the Court to strike
an insufficient, redundant, immaterial, or impertinent
defenses, without mention of the need for a showing of
prejudice by the party moving to strike.” Hernandez
v. Kokor, No. 1:16-cv-00716-DAD-MJS, 2017 WL 4004165, at
*3 (E.D. Cal. Sept. 12, 2017). Defendants offer nothing to
persuade the court that its prior ruling was incorrect, and
the court accordingly declines to revisit it. The court
therefore declines to require plaintiffs to make a showing of
remaining issue is whether, as plaintiffs suggest, the third
affirmative defense is merely redundant of the eleventh
affirmative defense and should be stricken. Here, the third
affirmative defense states in relevant part that all of
plaintiffs' claims “fall within the immunities and
defenses and all rights granted to [defendants] by virtue of
the provisions of the California Government Code 810-996.6.
Defendants rely on Vargas v. County of Yolo, 2016 WL
3916329, at *6 (E.D. Cal. July 20, 2016) for the language
herein to preserve these defenses.” (Doc. No. 41 at
10.) Meanwhile, the eleventh affirmative defense states that
“[a]s to all state law claims for relief . . .
[plaintiffs] have failed to comply with the requirements of
California Government Code § 900 et seq., i.e. the
California Government Tort Claims Act.” (Id.
Vargas, as in this case, the defendants relied upon
California Government Code §§ 810-996.6.
Vargas, 2016 WL 3916329, at *6. The district court
in that case interpreted this affirmative defense “as
an assertion of immunity and the failure to comply with the
Government Claims Act is the factual basis on which the
assertion lies.” Id. Because defendants here
have explicitly referenced Vargas in their third
affirmative defense, the undersigned will likewise construe
that affirmative defense as an assertion that plaintiffs'
claims are barred due to their failure to comply with the
California Government Claims Act. See Cal. Gov't
Code § 900 et seq. So construed,
defendants' third affirmative defense is effectively
identical to their eleventh affirmative defense. As such, it
is redundant and will be stricken.
remaining question is whether leave to amend the answer
should be granted. Defendants have requested that the court
grant leave to amend in the event plaintiffs' motion is
granted. (Doc. No. 43 at 5.) However, the court concludes
that granting leave to amend would be procedurally improper
given that no motion to amend is currently pending before the
court. The court declines to grant such relief sua
sponte. See Quinones v. UnitedHealth Grp. Inc.,
No. 14-00497 LEK-RLP, 2015 WL 6159116, at *4 (D. Haw. Oct.
19, 2015) (“To the extent that Plaintiff's
memorandum in opposition requests leave to amend to name
additional defendants, . . . the request is improper.
Plaintiff must do so by filing the proper motion pursuant to
Fed.R.Civ.P. 15(a)(2)[.]”). Defendants may seek leave
to amend their answer at a later date should they wish to do
reasons set forth above, plaintiffs' motion to strike
defendants' third affirmative ...