Demurrers and Motions to Strike—they Aren't Just for Defendants Anymore

• Publication year: 2015
• Author: By Andrew Friedman

Demurrers and Motions to Strike—They Aren't Just for Defendants Anymore

By Andrew Friedman

Official Publication of the State Bar of California Labor and Employment Law Section

Andrew H. Friedman is a partner with Helmer Friedman LLP in Los Angeles, where he represents employees in all aspects of employment law. Mr. Friedman is the author of a two-volume, approximately 1,500 page, employment discrimination law treatise, titled Litigating Employment Discrimination Cases (James Publishing, 2014).

For decades, employment defense counsel have filed demurrers (state court)¹ and motions to strike (federal court)² to challenge plaintiffs' complaints in an effort to narrow the issues and/or force plaintiffs to clarify ambiguous allegations and claims. Relatively recently, however, plaintiffs' employment counsel have begun to seize the demurrer and motion to strike as weapons of their own to combat boilerplate, everything-but-the-kitchen-sink affirmative defenses.

The three most common grounds on which plaintiffs rely when filing demurrers/motions to strike are that affirmative defenses are: (1) insufficient as a matter of pleading because the Answer does not contain factual support; (2) legally insufficient because they are not actual affirmative defenses or are not cognizable given the claims asserted; and (3) uncertain because they do not identify to which specific cause(s) of action they apply. In response, the defense bar has argued that: (1) there is no requirement that affirmative defenses be supported by facts; (2) it is unfair to expect defendants to have facts to support defenses at such an early stage in litigation; and (3) demurrers/motions to strike are a waste of time, money, and judicial resources.

Having to referee this dispute is the judiciary, which has warmed to the idea of plaintiffs using these mechanisms to challenge insufficient affirmative defenses. Indeed, one prominent Los Angeles Superior Court judge recently penned an article strongly suggesting that plaintiffs demur to answers because "too many attorneys lard their answers with empty affirmative defenses that cry out for removal" and that the elimination of these defenses will "force counsel to focus on the real issues."³ Moreover, a leading California civil litigation practice treatise authored by California judges—California Practice Guide: Civil Procedure Before Trial—specifically recommends that plaintiffs file demurrers to eliminate improper affirmative defenses, explaining that "[a] demurrer can be an effective tool for eliminating 'boilerplate' affirmative defenses that often appear in answers (e.g. 'waiver,' 'estoppel,' 'unclean hands,' etc.)."⁴

The purpose of this article is to: (1) outline the authorities addressing the pleading standards applicable to affirmative defenses; (2) discuss arguments favoring and disfavoring challenges to affirmative defenses; and (3) summarize the law regarding challenges to the most frequently asserted affirmative defenses. Because California Superior Court decisions are neither readily available nor citable as precedent,⁵ and because the California courts of appeal have not thoroughly addressed demurrers to answers, the bulk of this article discusses federal cases.

CALIFORNIA AND FEDERAL LAW GENERALLY MANDATE THAT ALL PLEADINGS HAVE EVIDENTIARY SUPPORT

Section 128.7 of the California Code of Civil Procedure and Rule 11 of the Federal Rules of Civil Procedure provide that, whenever a pleading—which necessarily includes an answer with affirmative defenses—is filed, the filing attorney certifies that, to the best of his or her knowledge, formed after an inquiry reasonable under the circumstances, the pleading has evidentiary support. Under the letter, if not the spirit, of these certification requirements, defense attorneys should not assert any affirmative defenses in their answers unless they have first made a reasonable inquiry and determined evidentiary support exists for each affirmative defense asserted. Many courts have held that Rule 11 sanctions can be imposed against attorneys who assert affirmative defenses lacking evidentiary support.⁶ Aside from section 128.7 and Rule 11, other provisions of both California and federal law, as discussed in more detail below, mandate that affirmative defenses be pled with evidentiary support.

FEDERAL LAW: GROUNDS UPON WHICH A MOTION TO STRIKE AFFIRMATIVE DEFENSES MAY BE BROUGHT

Rule 12 of the Federal Rules of Civil Procedure allows a court to "strike from a pleading an insufficient defense."⁷ An affirmative defense may be insufficient as a matter of law or as a matter of pleading.⁸

An affirmative defense is insufficient as a matter of law when it is not recognized as a defense to a particular claim⁹ or if it is not a true affirmative defense—a defense which, for example, demonstrates only that the plaintiff has not met her burden of proof on a necessary element of one of her claims.¹⁰ Such a defense is merely rebuttal against the evidence presented by the plaintiff.¹¹ On the other hand, "[a]n affirmative defense, under the meaning of Federal Rule of Civil Procedure 8(c), is a defense that does not negate the elements of the plaintiff's claim, but instead precludes liability even if all of the elements of the plaintiff's claim are proven."¹²

An affirmative defense is insufficient as a matter of pleading if it does not comport with Rule 8 of the Federal Rules of Civil Procedure, which governs the general rules of pleading—whether by complaint or answer—in the federal courts. Rule 8 provides that claims for relief must set forth a "short and plain statement of the claim"¹³ and that affirmative defenses must be set forth in "short and plain terms."¹⁴ In 1957, in Conley v. Gibson,¹⁵ the Supreme Court explained that Rule 8 requires that a plaintiff's "short and plain statement" of her claim be sufficient to provide the defendant with "fair notice of what the plaintiff's claim is and the grounds upon which it rests."¹⁶ Although the Supreme Court did not (and has not) expressly addressed what it means for a defendant to plead its affirmative defenses in "short and plain terms," the Ninth Circuit, in Wyshak v. City National Bank,¹⁷ adopted the "fair notice" standard from Conley and held that "the key to determining the sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of the defense."¹⁸ Accordingly, when pleading an affirmative defense under Conley and Wyshak, defendants are required to set forth a "short and plain" statement that gives the opposing party "fair notice" of the defense and the evidentiary facts upon which it rests.¹⁹

In 2007 and 2009, the United States Supreme Court abrogated Conley and clarified the Rule 8 pleading requirements in two opinions, Bell Atlantic Corporation v. Twombly²⁰ and Aschroft v. Iqbal.²¹ In these opinions, the Supreme Court determined that Federal Rule 8 mandates that a pleading offer more than mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action."²² In other words, "[t]hreadbare recitals . . . supported by mere conclusory statements, do not suffice."²³

Following the Twombly and Iqbal decisions, the district courts in the Ninth Circuit were confronted with the question of whether to stick with the Conley/Wyshak fair-notice standard when evaluating the sufficiency of affirmative defenses, or adopt the stricter Iqbal/Twombly plausibility standard. Because Twombly and Iqbal do not specifically address affirmative defenses, employment defense counsel argue Iqbal/Twombly should not apply to affirmative defenses. Rather, to the extent that defense counsel acknowledge that any pleading standard should apply to affirmative defenses, they argue that courts should reject the Iqbal/Twombly plausibility standard in favor of the Conley/Wyshak fair-notice standard, which they contend remains good law.

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In Vogel v. Huntington Oaks Delaware Partners, LLC,²⁴ the Honorable Otis D. Wright II of the U.S. District Court for the Central District of California persuasively explained why the Iqbal/Twombly plausibility standard replaced the Conley/Wyshak fair-notice standard:

Framing the issue as a choice between Twombly's plausibility standard and Wyshak's fair-notice standard is misleading, because Twombly merely revised the fair-notice standard on which Wyshak is based. In Wyshak, the Ninth Circuit adopted the prevailing fair-notice standard for pleading complaints and applied it to affirmative defenses. At the time, fair notice was defined by Conley v. Gibson, which held that dismissal was warranted only if it appeared clear to the court that there were "no set of facts" that would entitle the plaintiff to relief. But Conley is no longer good law. Twombly and Iqbal soundly rejected the "no set of facts" standard by holding that fair notice requires the pleading of factual matter that creates a plausible right to relief. . . .
As a result, Twombly "changed the legal foundation underlying" Wyshak, and Twombly's plausibility requirement should apply to affirmative defenses just as Conley's "no set of facts" standard did before Twombly was decided . . . . In reaching this decision, the [c]ourt recognizes that nowhere in the text of Twombly, Iqbal, nor Conley does the Supreme Court discuss affirmative defenses. But simply because the issue was not before the Supreme Court does not mean Twombly's logic applies with any less force to affirmative defenses.²⁵

Similarly, in Barnes v. AT&T Pension Benefit Plan-Nonbargained Program,²⁶ the Honorable Marilyn Hall Patel of the U.S. District Court for the Northern District of California "set forth a well-reasoned and thorough analysis in support of her finding that the pleading standard articulated by the Supreme Court in Twombly and Iqbal likewise applies to affirmative defenses."²⁷

Not surprisingly, given the cogent opinions by Judge Wright, Judge Patel, and others, the vast majority of the district courts across the United States (including...