1 2 3 4 5 6 7 10 11 Lia D. Mollica, No. 2:19-cv-02017-KJM-DB 12 Plaintiff, ORDER 13 Vv. 14 County of Sacramento, et al., 1S Defendants. 16 17 Lia D. Mollica moves to strike several affirmative defenses from the defendants’ answers 18 | to her amended complaint under Federal Rule of Civil Procedure 12(f). The court grants the 19 | motion in part and denies it in part. 20 | I. BACKGROUND 21 Mollica alleges she severely injured her foot falling from the top bunk of her bed in the 22 | Sacramento County Main Jail. See generally Am. Compl., ECF No. 20. She also alleges she was 23 | denied necessary medical care. See generally id. She asserts claims against the County of 24 | Sacramento, the Sacramento County Sheriff’s Department, and several individual officers, citing 25 | 42 U.S.C. § 1983, the Rehabilitation Act, the Americans with Disabilities Act, California 26 | Government Code section 845.6, the Tom Bane Civil Rights Act, and California tort law. See id. 27 | 6-11, 70-119. 28 | ////
1 The defendants have answered Mollica’s allegations. See County Defs.’ Answer, ECF 2 No. 22; Indiv. Defs.’ Answer, ECF No. 29. They deny liability and assert thirteen affirmative 3 defenses, detailed below, which Mollica moves to strike under Rule 12(f). See Mot. Strike 4 County, ECF No. 24; Mot. Strike Indiv. Defs., ECF No. 30.1 The defendants oppose the motions, 5 which are now fully briefed, and the court submitted them without oral argument. See County 6 Defs.’ Opp’n, ECF No. 26; Reply County Defs., ECF No. 28; Indiv. Defs.’ Opp’n, ECF No. 31; 7 Reply Indiv. Defs., ECF No. 32; Minute Orders, ECF Nos. 27, 33. 9 The court may strike “from a pleading an insufficient defense or any redundant, 10 immaterial, impertinent or scandalous matter.” Fed. R. Civ. P. 12(f). A defense may be 11 insufficient (1) as a matter of pleading or (2) as a matter of law. Cal. Brewing Co. v. 3 Daughters 12 Brewing LLC, No. 15- 02278, 2016 WL 4001133, at *1 (E.D. Cal. Jul. 26, 2016). 13 An affirmative defense is insufficient as a matter of pleading if it does not provide “fair 14 notice” of the defense to the plaintiff.2 See Wyshak v. City Nat’l Bank, 607 F.2d 824, 827 (9th 15 Cir. 1979) (per curiam). An answer provides fair notice of an affirmative defense if it identifies 16 “the nature and grounds for the affirmative defense.” Dodson v. Munirs Co., No. 13-0399, 2013 17 WL 3146818, at *2 (E.D. Cal. June 18, 2013). This is a “low bar” that requires some factual 18 basis, but not great detail. Gomez v. J. Jacobo Farm Labor Contractor, Inc., 188 F. Supp. 3d 19 986, 992 (E.D. Cal. 2016) (citations omitted). Generalized references to a legal doctrine or a 1 Mollica also moved to strike the defendants’ answers to her original complaint. ECF No. 11. Her amended complaint mooted that motion. See Valadez-Lopez v. Chertoff, 656 F.3d 851, 857 (9th Cir. 2011) (“[I]t is well-established that an amended complaint supersedes the original, the latter being treated thereafter as non-existent.” (citation and quotation marks omitted)). 2 Some federal district courts have imposed a higher standard based on an interpretation of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). See L.F. by & through Brown v. City of Stockton, No. 17-01648, 2018 WL 3817558, at *2 (E.D. Cal. Aug. 10, 2018) (collecting authority). The Ninth Circuit has not imposed a higher standard based on those decisions. See Kohler v. Flava Enters., Inc., 779 F.3d 1016, 1019 (9th Cir. 2015) (“[T]he fair notice required by the pleading standards only requires describing the [affirmative] defense in general terms.” (citation and quotation marks omitted)). This court has also declined to adopt a higher pleading standard and sees no reason to revisit that decision here. See L.F., 1 statute normally fall short of this standard unless they rely on a well-known defense whose 2 applicability is clear in context. See id. at 992–93. 3 A defense is insufficient as a matter of law if it is redundant, immaterial, impertinent or 4 scandalous. Fed. R. Civ. P. 12(f). An allegation is “redundant” if it is “needlessly repetitive or 5 wholly foreign to the issues involved in the action.” Cal. Dep’t. of Toxic Substances Control v. 6 Alco Pac., Inc., 217 F. Supp. 2d 1028, 1033 (C.D. Cal. 2002). An allegation is “immaterial” if 7 there is no essential or important relationship to the pleaded claims or defenses. Fantasy, Inc. v. 8 Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on other grounds, 510 U.S. 517 (1994). An 9 allegation is “impertinent” if it consists of statements that do not pertain and are unnecessary to 10 the issues. Id. An allegation is “scandalous” if it casts a “cruelly derogatory light on a party or 11 other person.” In re 2TheMart.com, Inc. Sec. Litig., 114 F. Supp. 2d 955, 965 (C.D. Cal. 2000). 12 In addition to these requirements, some courts have required a party moving to strike to 13 show it would suffer prejudice if its motion were denied. See, e.g., Wynes v. Kaiser Permanente 14 Hospitals, No. 10-00702, 2011 WL 1302916, at * 12 (E.D. Cal. Mar. 31, 2011) (“[C]ourts often 15 require a showing of prejudice by the moving party . . . .”); Wolk v. Green, 516 F. Supp. 2d 1121, 16 1134 (N.D. Cal. 2007) (“[T]he remedy of striking a pleading should generally be granted only to 17 avoid prejudice to the moving party . . . .”). Although a party who moves to strike can certainly 18 improve its chances of success by showing prejudice would be likely, “Rule 12(f) says nothing 19 about a showing of prejudice.” Houston Cas. Co. v. Crum & Forster Ins. Co., No. 16-535, 2016 20 WL 4494444, at *4 (E.D. Cal. Aug. 25, 2016) (citation omitted)). This court therefore declines to 21 require a showing of likely prejudice as an absolute prerequisite. 23 The defendants all rely on the same thirteen affirmative defenses. The court considers 24 these defenses together, as the analysis is the same for each defendant. 25 A. Qualified Immunity (Affirmative Defense No. 1) 26 The defendants first assert an affirmative defense based on qualified immunity: 27 For any claim under 42 U.S.C. section 1983, at all times mentioned 28 in the First Amended Complaint, employees of Defendants were 1 acting in good faith and are entitled to qualified immunity, which 2 inures to the benefit of any public entity Defendant. 3 County Defs.’ Answer at 6; see also Indiv. Defs.’ Answer at 6.
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1 2 3 4 5 6 7 10 11 Lia D. Mollica, No. 2:19-cv-02017-KJM-DB 12 Plaintiff, ORDER 13 Vv. 14 County of Sacramento, et al., 1S Defendants. 16 17 Lia D. Mollica moves to strike several affirmative defenses from the defendants’ answers 18 | to her amended complaint under Federal Rule of Civil Procedure 12(f). The court grants the 19 | motion in part and denies it in part. 20 | I. BACKGROUND 21 Mollica alleges she severely injured her foot falling from the top bunk of her bed in the 22 | Sacramento County Main Jail. See generally Am. Compl., ECF No. 20. She also alleges she was 23 | denied necessary medical care. See generally id. She asserts claims against the County of 24 | Sacramento, the Sacramento County Sheriff’s Department, and several individual officers, citing 25 | 42 U.S.C. § 1983, the Rehabilitation Act, the Americans with Disabilities Act, California 26 | Government Code section 845.6, the Tom Bane Civil Rights Act, and California tort law. See id. 27 | 6-11, 70-119. 28 | ////
1 The defendants have answered Mollica’s allegations. See County Defs.’ Answer, ECF 2 No. 22; Indiv. Defs.’ Answer, ECF No. 29. They deny liability and assert thirteen affirmative 3 defenses, detailed below, which Mollica moves to strike under Rule 12(f). See Mot. Strike 4 County, ECF No. 24; Mot. Strike Indiv. Defs., ECF No. 30.1 The defendants oppose the motions, 5 which are now fully briefed, and the court submitted them without oral argument. See County 6 Defs.’ Opp’n, ECF No. 26; Reply County Defs., ECF No. 28; Indiv. Defs.’ Opp’n, ECF No. 31; 7 Reply Indiv. Defs., ECF No. 32; Minute Orders, ECF Nos. 27, 33. 9 The court may strike “from a pleading an insufficient defense or any redundant, 10 immaterial, impertinent or scandalous matter.” Fed. R. Civ. P. 12(f). A defense may be 11 insufficient (1) as a matter of pleading or (2) as a matter of law. Cal. Brewing Co. v. 3 Daughters 12 Brewing LLC, No. 15- 02278, 2016 WL 4001133, at *1 (E.D. Cal. Jul. 26, 2016). 13 An affirmative defense is insufficient as a matter of pleading if it does not provide “fair 14 notice” of the defense to the plaintiff.2 See Wyshak v. City Nat’l Bank, 607 F.2d 824, 827 (9th 15 Cir. 1979) (per curiam). An answer provides fair notice of an affirmative defense if it identifies 16 “the nature and grounds for the affirmative defense.” Dodson v. Munirs Co., No. 13-0399, 2013 17 WL 3146818, at *2 (E.D. Cal. June 18, 2013). This is a “low bar” that requires some factual 18 basis, but not great detail. Gomez v. J. Jacobo Farm Labor Contractor, Inc., 188 F. Supp. 3d 19 986, 992 (E.D. Cal. 2016) (citations omitted). Generalized references to a legal doctrine or a 1 Mollica also moved to strike the defendants’ answers to her original complaint. ECF No. 11. Her amended complaint mooted that motion. See Valadez-Lopez v. Chertoff, 656 F.3d 851, 857 (9th Cir. 2011) (“[I]t is well-established that an amended complaint supersedes the original, the latter being treated thereafter as non-existent.” (citation and quotation marks omitted)). 2 Some federal district courts have imposed a higher standard based on an interpretation of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). See L.F. by & through Brown v. City of Stockton, No. 17-01648, 2018 WL 3817558, at *2 (E.D. Cal. Aug. 10, 2018) (collecting authority). The Ninth Circuit has not imposed a higher standard based on those decisions. See Kohler v. Flava Enters., Inc., 779 F.3d 1016, 1019 (9th Cir. 2015) (“[T]he fair notice required by the pleading standards only requires describing the [affirmative] defense in general terms.” (citation and quotation marks omitted)). This court has also declined to adopt a higher pleading standard and sees no reason to revisit that decision here. See L.F., 1 statute normally fall short of this standard unless they rely on a well-known defense whose 2 applicability is clear in context. See id. at 992–93. 3 A defense is insufficient as a matter of law if it is redundant, immaterial, impertinent or 4 scandalous. Fed. R. Civ. P. 12(f). An allegation is “redundant” if it is “needlessly repetitive or 5 wholly foreign to the issues involved in the action.” Cal. Dep’t. of Toxic Substances Control v. 6 Alco Pac., Inc., 217 F. Supp. 2d 1028, 1033 (C.D. Cal. 2002). An allegation is “immaterial” if 7 there is no essential or important relationship to the pleaded claims or defenses. Fantasy, Inc. v. 8 Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on other grounds, 510 U.S. 517 (1994). An 9 allegation is “impertinent” if it consists of statements that do not pertain and are unnecessary to 10 the issues. Id. An allegation is “scandalous” if it casts a “cruelly derogatory light on a party or 11 other person.” In re 2TheMart.com, Inc. Sec. Litig., 114 F. Supp. 2d 955, 965 (C.D. Cal. 2000). 12 In addition to these requirements, some courts have required a party moving to strike to 13 show it would suffer prejudice if its motion were denied. See, e.g., Wynes v. Kaiser Permanente 14 Hospitals, No. 10-00702, 2011 WL 1302916, at * 12 (E.D. Cal. Mar. 31, 2011) (“[C]ourts often 15 require a showing of prejudice by the moving party . . . .”); Wolk v. Green, 516 F. Supp. 2d 1121, 16 1134 (N.D. Cal. 2007) (“[T]he remedy of striking a pleading should generally be granted only to 17 avoid prejudice to the moving party . . . .”). Although a party who moves to strike can certainly 18 improve its chances of success by showing prejudice would be likely, “Rule 12(f) says nothing 19 about a showing of prejudice.” Houston Cas. Co. v. Crum & Forster Ins. Co., No. 16-535, 2016 20 WL 4494444, at *4 (E.D. Cal. Aug. 25, 2016) (citation omitted)). This court therefore declines to 21 require a showing of likely prejudice as an absolute prerequisite. 23 The defendants all rely on the same thirteen affirmative defenses. The court considers 24 these defenses together, as the analysis is the same for each defendant. 25 A. Qualified Immunity (Affirmative Defense No. 1) 26 The defendants first assert an affirmative defense based on qualified immunity: 27 For any claim under 42 U.S.C. section 1983, at all times mentioned 28 in the First Amended Complaint, employees of Defendants were 1 acting in good faith and are entitled to qualified immunity, which 2 inures to the benefit of any public entity Defendant. 3 County Defs.’ Answer at 6; see also Indiv. Defs.’ Answer at 6. This defense gives adequate 4 notice of the individual defendants’ intent to argue they are entitled to qualified immunity against 5 claims under § 1983, a commonly litigated and well-understood affirmative defense. See, e.g., 6 Devermont v. City of San Diego, No. 12-01823, 2013 WL 2898342, at *8 (S.D. Cal. June 14, 7 2013) (denying motion to strike qualified immunity as affirmative defense because it is a familiar, 8 well-established defense in civil rights actions that plaintiffs can “probe” as cases progress). The 9 motion to strike this defense is denied. 10 B. Reasonable Diligence (Affirmative Defense No. 2) 11 The defendants next assert an affirmative defense based on their alleged exercise of 12 “reasonable diligence”: 13 Defendants allege that in connection with any mandatory duty under 14 state law imposed upon them or employee thereof, by enactment to 15 protect against any particular risk of injury, they or employees 16 thereof exercised reasonable diligence to discharge such duty. 17 County Defs.’ Answer at 6; see also Indiv. Defs.’ Answer at 6. This defense targets the 18 complaint’s negligence and professional negligence claims. See First Am. Compl. ¶¶ 109–19; see 19 also County Opp’n at 7 (confirming this defense applies to these claims). The defense also is 20 redundant of the elements of those claims, which require a plaintiff to prove the defendant had a 21 duty and breached that duty. See Paul v. Patton, 235 Cal. App. 4th 1088, 1095 (2015) 22 (professional negligence); Ladd v. Cty. of San Mateo, 12 Cal. 4th 913, 917 (1996) (ordinary 23 negligence). A defense that attempts to prove a plaintiff has not carried its burden is not an 24 affirmative defense. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002); L.F. 25 2018 WL 3817558, at *4. The motion to strike this defense is granted. 26 Ordinarily, courts freely grant leave to amend stricken pleadings. Wyshak, 607 F.2d at 27 826; Butcher v. City of Marysville, 398 F. Supp. 3d 715, 728–31 (E.D. Cal. 2019); see also Fed. 28 R. Civ. P. 15(a)(2). But courts may deny leave to amend if “any amendment would be futile.” 29 Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008) (quotation marks 1 omitted). Here, no amendment would address the problem described in the previous paragraph; 2 nor is any amendment necessary. The defendants may argue and attempt to prove that they did 3 not violate a duty of care without asserting an affirmative defense. Leave to amend is denied. 4 C. California Government Code sections 815 et seq. and 900 et seq. (Affirmative 5 Defenses Nos. 3 and 4) 6 The defendants’ third affirmative defense cites California Government Code sections 815 7 and other sections that follow: 8 All acts and omissions alleged in the First Amended Complaint, 9 where based in state law, fall within the immunities and defenses 10 described in §§ 815 et seq. of the California Government Code. 11 County Defs.’ Answer at 6; see also Indiv. Defs.’ Answer at 6–7. Under section 815, “Except as 12 otherwise provided by statute[,] . . . [a] public entity is not liable for an injury, whether such 13 injury arises out of an act or omission of the public entity or a public employee or any other 14 person.” Cal. Gov’t Code § 815(a). The sections following section 815 define or limit various 15 immunities. See, e.g., id. § 815.2(a) (“A public entity is liable for injury proximately caused by 16 an act or omission of an employee of the public entity within the scope of his employment if the 17 act or omission would, apart from this section, have given rise to a cause of action against that 18 employee or his personal representative.”). 19 The defendants’ fourth affirmative defense mirrors the third; it cites California 20 Government Code sections 900 and others that follow: 21 All acts and omissions alleged in the First Amended Complaint, 22 where based in state law, fall within the immunities and defenses 23 described in §§ 900 et seq. of the California Government Code. 24 County Defs.’ Answer at 7; see also Indiv. Defs.’ Answer at 7. Among other provisions, these 25 sections impose various requirements on plaintiffs who assert claims against public entities. See, 26 e.g., Cal. Gov’t Code §§ 910–913.2 (describing an administrative claims process). 27 These defenses are too vague to give fair notice of which immunities which defendants 28 intend to assert against which claims and on the basis of what statutes. See, e.g., Butcher, 398 F. 29 Supp. 3d at 730 (granting motion to strike an affirmative defense asserting that plaintiffs’ claims 30 fell “within the immunities and defenses described in section 815, et seq., and 900, et seq., of the 1 Government Code”). To give fair notice, a defense based on a statutory provision must 2 normally cite the statute and offer a “brief description” of it. See, e.g., L.F., 2018 WL 3817558, 3 at *4. The motion to strike these defenses is granted. Because an amendment could clarify the 4 defendants’ intent, leave to amend is granted. 5 D. California Civil Code section 1431.2 (Affirmative Defense No. 5) 6 The defendants’ fifth affirmative defense cites California Civil Code section 1431.2: 7 Plaintiff's recovery is barred or reduced proportionately by the 8 careless, negligence, and willful conduct of the Plaintiff and/or third 9 parties, which proximately caused any damage claimed in this action 10 pursuant to California Civil Code § 1431.2. 11 County Defs.’ Answer at 7; see also Indiv. Defs.’ Answer at 7. Under section 1431.2, in an 12 action for personal injury such as this one, “[e]ach defendant shall be liable only for the amount 13 of non-economic damages allocated to that defendant in direct proportion to that defendant’s 14 percentage of fault, and a separate judgment shall be rendered against that defendant for that 15 amount.” Cal. Civ. Code § 1431.2(a). This defense gives fair notice that the defendants intend to 16 argue and prove that their liability should be limited in proportion to their fault for any California 17 law claims susceptible to a comparative fault analysis. The motion to strike this defense is 18 denied. 19 E. California Civil Code sections 3333.1 and 3333.2 (Affirmative Defense Nos. 6 20 and 7) 21 The defendants’ sixth affirmative defense cites California Civil Code section 3333.1: 22 In the event these answering Defendants are found liable, which 23 these answering Defendants deny and state merely for the purpose of 24 this affirmative defense, these answering Defendants may elect to 25 introduce evidence of any amount paid or payable, if any, as a benefit 26 to Plaintiff and claim credit pursuant to California Civil Code 27 § 3333.1. 28 County Defs.’ Answer at 7; see also Indiv. Defs.’ Answer at 7. The defendants’ seventh 29 affirmative defense is similar, citing California Civil Code section 3333.2: 30 In the event these answering Defendants are found liable, which 31 these answering Defendants deny and state merely for the purpose of 32 this affirmative defense, damages for non-economic losses for any 1 professional negligence/malpractice cannot exceed the amount 2 specified in California Civil Code § 3333.2. 3 County Defs.’ Answer at 7; see also Indiv. Defs.’ Answer at 7. 4 Section 3333.1 permits defendants facing claims of professional negligence to “introduce 5 evidence of any amount payable as a benefit to the plaintiff as a result of the personal injury 6 pursuant to the United States Social Security Act, any state or federal income disability or 7 worker’s compensation act, any health, sickness or income-disability insurance, accident 8 insurance that provides health benefits or income-disability coverage, and any contract or 9 agreement of any group, organization, partnership, or corporation to provide, pay for, or 10 reimburse the cost of medical, hospital, dental, or other health care services.” Cal. Civ. Code 11 §3333.1(a). Under section 3333.2, “the amount of damages for noneconomic losses” in an 12 “action for injury against a health care provider based on professional negligence” may not 13 “exceed two hundred fifty thousand dollars.” Id. § 3333.2(a)–(b). 14 This defense gives plaintiff fair notice that the defendants intend to rely on the evidence 15 described in section 3333.1 and argue damages should be limited under section 3333.2. In 16 context it also is clear that these defenses relate to the claim for professional negligence. The 17 motion to strike these defenses is denied. 18 F. California Code of Civil Procedure section 667.7 (Affirmative Defense No. 8) 19 The defendants’ eighth affirmative defense cites California Code of Civil Procedure 20 section 667.7: 21 In the event these answering Defendants are found liable, which 22 these answering Defendants deny and state merely for the purpose of 23 this affirmative defense, these answering Defendants may elect to 24 have future damages, if in excess of the amount specified in 25 California Code of Civil Procedure § 667.7, paid in full or in part as 26 specified in California Code of Civil Procedure§ 667.7. 27 County Defs.’ Answer at 7; see also Indiv. Defs.’ Answer at 7. Section 667.7 permits a trial court 28 to enter a judgment requiring certain damages to be paid in periodic payments rather than as a 29 lump sum. See Cal. Civ. Proc. Code § 667.7(a). This defense gives fair notice the defendants 30 ///// 1 may request that future damages awarded to plaintiff under her California law claims be paid 2 periodically or as a lump sum. The motion to strike this defense is denied. 3 G. California Civil Code section 1714.8 (Affirmative Defense No. 9) 4 The defendants’ ninth affirmative defense cites California Civil Code section 1714.8: 5 Plaintiff’s injuries or damages, if any, were a result or caused solely 6 by the natural course of a disease or condition, or were the natural or 7 expected result of reasonable treatment rendered for the disease or 8 condition and Plaintiff's claims herein are barred by California Civil 9 Code § 1714.8. 10 County Defs.’ Answer at 7; see also Indiv. Defs.’ Answer at 8. Under section 1714.8, “[n]o 11 health care provider shall be liable for professional negligence or malpractice for any occurrence 12 or result solely on the basis that the occurrence or result was caused by the natural course of a 13 disease or condition, or was the natural or expected result of reasonable treatment rendered for the 14 disease or condition.” This defense gives fair notice that the defendants may attempt to prove 15 plaintiff’s injuries fall within the description provided in the statute and limit their liability to her 16 California law claims. The motion to strike this defense is denied. 17 H. California Code of Civil Procedure section 425.13 (Affirmative Defense 18 No. 10) 19 The defendants’ tenth affirmative defense cites California Code of Civil Procedure section 20 425.13: 21 Plaintiff has failed to comply with the California Code of Civil 22 Procedure § 425.13 with respect to her alleged claim for punitive 23 damages against a medical care provider, with respect to any alleged 24 claim against such health care provider under California statutes. 25 County Defs.’ Answer at 7–8; see also Indiv. Defs.’ Answer at 8. Under section 425.13, “[i]n any 26 action for damages arising out of the professional negligence of a health care provider, no claim 27 for punitive damages shall be included in a complaint or other pleading unless the court enters an 28 order allowing an amended pleading that includes a claim for punitive damages to be filed.” Cal. 29 Civ. Proc. Code § 425.13(a). 30 “Federal district courts have divided on whether § 425.13 applies in federal court.” Est. of 31 Prasad ex rel. Prasad v. Cty. of Sutter, 958 F. Supp. 2d 1101, 1119 (E.D. Cal. 2013) (collecting 1 authority). The Ninth Circuit has not considered the question. After reviewing the persuasive 2 authority on each side of this divide, this court has previously concluded that section 425.13 3 conflicts with Federal Rule of Civil Procedure 8(a)(3) and has thus decided that section 425.13 is 4 not applicable in federal court. Padilla v. Beard, No. 14-01118, 2014 WL 6059218, at *10–11 5 (E.D. Cal. Nov. 12, 2014). The court declines to revisit that decision here. The motion to strike 6 this defense is granted without leave to amend; any amendment would be futile. 7 I. California Code of Civil Procedure sections 340.5 and 945.6 (Affirmative 8 Defense No. 11) 9 The defendants’ eleventh affirmative defense is based on the statute of limitations for 10 Mollica’s state law claims: 11 The state law claims as against any against [sic] a health care 12 provider are barred by the applicable statute of limitations, including 13 California Code of Civil Procedure § 340.5 and/or § 945.6. 14 County Defs.’ Answer at 8; see also Indiv. Defs.’ Answer at 8. This defense gives fair notice that 15 the defendants intend to argue that plaintiff’s state law claims are barred by the limitations 16 provisions in sections 340.5 and 945.6. See Wyshak, 607 F.2d at 827 (holding affirmative defense 17 based on statute of limitations gave fair notice because attached memorandum cited statute in 18 question). The motion to strike this defense is denied. 19 J. Failure to Mitigate Damages (Affirmative Defense No. 12) 20 In their twelfth affirmative defense, the defendants’ allege Mollica did not exercise 21 reasonable diligence to mitigate her damages: 22 Plaintiff failed to exercise reasonable diligence so as to mitigate the 23 damages, if any, alleged in the First Amended Complaint and the 24 resultant damages, if any, complained of were directly and 25 proximately caused by the failure, neglect, and refusal of Plaintiff to 26 exercise reasonable diligence and effort to mitigate the damages 27 alleged. 28 County Defs.’ Answer at 8; see also Indiv. Defs.’ Answer at 8. 29 A generalized statement such as this gives fair notice of an affirmative defense based 30 on an allegation that plaintiff did not mitigate her damages. L.F., 2018 WL 3817558, at *3–4. 31 The motion to strike this defense is denied. 1 K. Assumption of Risk (Affirmative Defense No. 13) 2 In their final affirmative defense, the defendants allege Mollica assumed the risk of injury: 3 Based upon information and belief, Plaintiff freely and voluntarily 4 assumed the risk of injury and damage alleged in this action with full 5 knowledge and appreciation of the magnitude thereof. 6 County Defs.’ Answer at 8; see also Indiv. Defs.’ Answer at 8. This defense is too vague to give 7 fair notice of how the defendants intend to argue or prove that plaintiff assumed any risk. It is 8 stricken. The defendants propose to amend the defense by alleging they did not cause the fall and 9 that Mollica “assumed the risk of injury when falling from the top bunk onto the floor.” See 10 County Opp’n at 18; Indiv. Def. Opp’n at 19. The theory of this proposed amendment defies 11 common sense. Mollica cannot have assumed the risk of falling while she was falling. Leave to 12 amend is denied. 14 The motion to strike at ECF No. 11 is denied as moot. The motions to strike at ECF Nos. 15 14 and 20 are granted in part and denied in part: 16 The motions to strike affirmative defenses 1, 5, 6, 7, 8, 9, 11, and 12 are denied. 17 Affirmative defenses 3 and 4 are stricken with leave to amend. 18 Affirmative defenses 2, 10, and 13 are stricken without leave to amend. 19 Any amended answers must be filed within fourteen days. 20 This order resolves ECF Nos. 11, 24, and 30. 22 DATED: July 7, 2021.