1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KYLE MIHOLICH, Case No.: 21-cv-1123-WQH-AGS Individually and on Behalf of All Others 12 Similarly Situated, ORDER 13 Plaintiff, 14 v. 15 SENIOR LIFE INSURANCE 16 COMPANY, 17 Defendant. 18 HAYES, Judge: 19 The matters before the Court are the Motion for Reconsideration filed by Defendant 20 Senior Life Insurance Company (ECF No. 20) and the Motion to Strike Affirmative 21 Defenses filed by Plaintiff Kyle Miholich (ECF No. 21). 22 I. BACKGROUND 23 On June 16, 2021, Plaintiff Kyle Miholich filed a Class Action Complaint against 24 Defendant Senior Life Insurance Company, arising from Defendant’s alleged violations of 25 the Telephone Consumer Protection Act of 1991 (“TCPA”),

, et seq. (ECF 26 No. 1). On September 7, 2021, Plaintiff filed a First Amended Class Action Complaint 27 (“FAC”). (ECF No. 8). 28 1 On September 21, 2021, Defendant filed a Motion to Dismiss and/or Strike the FAC 2 (the “Motion to Dismiss”) pursuant to Rules 12(b)(1), 12(b)(6), 12(f), and 23 of the Federal 3 Rules of Civil Procedure. (ECF No. 9). On February 10, 2022, the Court issued an Order 4 denying the Motion to Dismiss. (ECF No. 17). 5 On February 24, 2022, Defendant filed an Answer to the FAC, including twenty- 6 three affirmative defenses to Plaintiff’s claims. (ECF No. 18). 7 On March 10, 2022, Defendant filed the Motion for Reconsideration, requesting 8 reconsideration of the February 10, 2022 Order denying the Motion to Dismiss, or, in the 9 alternative, requesting certification for interlocutory appeal. (ECF No. 20). On March 14, 10 2022, Plaintiff filed the Motion to Strike Affirmative Defenses. (ECF No. 21). On April 4, 11 2022, the parties filed Responses in opposition to the respective pending motions. (ECF 12 Nos. 24-25). On April 11, 2022, the parties filed Replies in support of their respective 13 motions. (ECF Nos. 27-28). 14 II. MOTION FOR RECONSIDERATION 15 Defendant contends that “the Court erred by failing to fully consider or address 16 [Defendant’s] cited authorities,” the allegations, and judicially noticeable evidence. (ECF 17 No. 20-1 at 7). Defendant asserts that the allegations in the FAC do not “support an 18 inference that [Defendant] actually sent the text messages,” required for pleading direct 19 liability. (Id.). Defendant further asserts that the alleged conduct does not fall within the 20 TCPA “where judicially noticeable (and undisputed) facts demonstrate that Plaintiff 21 publicly listed his phone number as his business line and the text messages alleged were 22 plainly intended for and directly related to his business use of that number.” (Id.). 23 Plaintiff contends “Defendant has failed to satisfy the requirements for 24 reconsideration under Local Rule 7.1(i), Rule 59(e) and Rule 60(b).” (ECF No. 24 at 12). 25 Plaintiff contends that “[t]he Court’s Order accurately reflects the allegations in the FAC 26 which support a plausible inference that Defendant sent the text messages at issue.” (Id. at 27 13-14). Plaintiff contends that “Defendant has not argued nor offered any viable basis for 28 1 reconsideration” of the Court’s determination that Plaintiff alleged and presented sufficient 2 facts to support the existence of an injury in fact. (Id. at 15). 3 “Whether or not to grant reconsideration is committed to the sound discretion of the 4 court.” Navajo Nation v. Confederated Tribes & Bands of the Yakama Indian Nation, 331

, 1046 (9th Cir. 2003) (citing

229 F.3d at 883). “Reconsideration is 6 appropriate if the district court (1) is presented with newly discovered evidence, (2) 7 committed clear error or the initial decision was manifestly unjust, or (3) if there is an 8 intervening change in controlling law.” Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, 9 Inc.,

(9th Cir. 1993). “Clear error occurs when the reviewing court on 10 the entire record is left with the definite and firm conviction that a mistake has been 11 committed.” Smith v. Clark Cty. Sch. Dist.,

(9th Cir. 2013). 12 The TCPA prohibits the initiation of telephone solicitations, including text 13 messages, to telephones listed on the National Do-Not-Call Registry. See

64.1200(c) (“No person or entity shall initiate any telephone solicitation to: . . . . (2) A 15 residential telephone subscriber who has registered his or her telephone number on the 16 national do-not-call registry of persons who do not wish to receive telephone solicitations 17 that is maintained by the Federal Government.”). The Federal Communications 18 Commission (“FCC”) has concluded that “a person or entity ‘initiates’ a telephone call 19 when it takes the steps necessary to physically place a telephone call, and generally does 20 not include persons or entities, such as third-party retailers, that might merely have some 21 role, however minor, in the causal chain that results in the making of a telephone call.” In 22 re Joint Petition filed by Dish Network, LLC, 28 FCC Rcd. 6574, 6583 (2013). 23 In the February 10, 2022 Order Motion to Dismiss, the Court held that “the FAC’s 24 allegations support an inference that Defendant sent the text messages to Plaintiff.” (ECF 25 No. 17 at 9-10). In support of this determination, the Court considered the FAC in its 26 entirety, including the following allegations: 27 The FAC alleges that “Defendant has sent multiple text messages to Plaintiff on his cellular telephone, between approximately April 27, 2021 and May 12, 28 1 2021, from the telephone numbers (855) 383-4711 and (855) 354-7422.” (ECF No. 8 ¶ 11). The FAC alleges that “[t]he text messages advertised 2 “Financed Leads,” contained a link to webinar provided by Defendant, and 3 were “an attempt to promote or sell Defendant’s services.” (Id. ¶¶ 12-14). 4 (Id. at 8). 5 The FAC alleges that Defendant—not a third party—sent the text messages at issue.1 6 (See ECF No. 8 ¶ 11). Cases that involve allegations that a party other than the defendant 7 initiated the solicitations at issue are thus inapplicable. See, e.g., Thomas v. Taco Bell 8 Corp.,

(9th Cir. 2014) (“After reviewing the record, we agree with 9 the district court that ‘[d]irect liability is inapplicable here as the parties do not dispute that 10 the actual sender of the text was Ipsh, a separate provider of text-message based services 11 retained by ESW.’” (alteration in original) (citation omitted)); Rogers v. Postmates Inc., 12 No. 19-cv-05619-TSH,

, at *3 (N.D. Cal. July 9, 2020) (“Direct liability 13 is inapplicable here as the parties do not dispute that the actual sender of the text was not 14 Postmates, but Bird Dog, a third party.”). 15 The FAC contains factual allegations in support of Defendant’s direct liability 16 beyond the bare assertion that Defendant sent the text messages. (See ECF No. 8 ¶¶ 14-17 17 (alleging that the text messages advertised “Financed Leads,” “linked to a webinar 18 provided by Defendant” that “references [a] ‘Senior Life Insurance Opportunity 19 Webinar,’” and were “for the purpose, at least in part, to offer a service in the form of lead 20 financing to prospective contractors,” and alleging that Defendant has recently held other 21 webinars “promoting ‘LEAD FINANCING.’”)). The Court’s determination that the factual 22 allegations in the FAC support a plausible inference that Defendant initiated the text 23 messages was not erroneous. See Bell Atl. Corp. v. Twombly,

(2007) 24

25 26 1 Defendant contends that “the FAC reflects Plaintiff’s uncertainty as to the true identity of the sender by suggesting that unnamed ‘agents’ of Defendant may have sent the alleged text messages.” (ECF No. 20- 27 1 at 12). However, the allegation that Defendant sent the solicitations “either directly or through its agents,” (id. ¶ 32), is contained in the section of the FAC discussing class-wide allegations, not the 28 1 (“Asking for plausible grounds . . . does not impose a probability requirement at the 2 pleading stage; it simply calls for enough fact to raise a reasonable expectation that 3 discovery will reveal evidence of illegal [conduct].”). 4 The do-not-call provisions of the TCPA protect “residential telephone subscribers,” 5 not businesses.

(c); see Satterfield v. Simon & Schuster, Inc.,

(9th Cir. 2009) (“The TCPA was enacted to ‘protect the privacy interests of 7 residential telephone subscribers . . . .’” (quoting S. Rep. No. 102-178, at 1 (1991))). “To 8 the extent that some business numbers have been inadvertently registered on the national 9 registry, calls made to such numbers will not be considered violations of [the TCPA].” In 10 the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act 11 of 1991, 20 FCC Rcd. 3788, 3793 (2005). 12 The Court considered the evidence presented by the parties regarding the use and 13 nature of Plaintiff’s cellular telephone. (See ECF No. 17 at 7 (“Defendant submits evidence 14 establishing that Plaintiff’s telephone number is listed as the ‘Business Phone’ number for 15 Defendant’s insurance business on the California Department of Insurance licensing 16 database. Plaintiff responds by submitting a Declaration in support of his Opposition, 17 which states that ‘[t]he telephone number ending [in] 5823 is my personal cellular 18 telephone number, which I use to make and receive a variety of calls, including but not 19 limited to personal calls with family members and friends.’”) (citations omitted)). 20 Determining whether a wireless subscriber is a residential subscriber is “fact intensive,” In 21 re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 22 18 FCC Rcd. 14014, 14039 (2003), and requires case-by-case review for instances of 23 mixed business/residential use, In the Matter of Rules and Regulations Implementing the 24 Telephone Consumer Protection Act of 1991, 20 FCC Rcd. at 3793 (discussing “home- 25 based businesses”). The Court held that it was “unable to conclude as a matter of law that 26 Plaintiff was not a residential telephone subscriber covered by the TCPA.” (ECF No. 17 at 27 7). 28 1 The Court’s conclusion is consistent with caselaw in this circuit. See, e.g., Trim v. 2 Mayvenn, Inc., No. 20-cv-03917-MMC,

, at *4 (N.D. Cal. Apr. 5, 2022) 3 (“Courts have routinely looked at the facts and circumstances surrounding a particular case 4 before deciding whether TCPA protection extended to a particular telephone number that 5 was used for both business and residential purposes. [W]here there is evidence supporting 6 both the contention that the [p]laintiff's phone number was a residential number and that 7 the phone number was a business number, however, a disputed issue of material fact . . . 8 may exist.” (quotations and citations omitted) (alterations in original)); Gross v. GG 9 Homes, Inc., No. 21-cv-271-DMS-BGS,

, at *4 (S.D. Cal. July 8, 2021) 10 (rejecting the contention that “calls to phone numbers used partially for business reasons 11 cannot generate a constitutionally cognizable injury” under the TCPA); Clements v. 12 Porch.com, Inc., No. 20-cv-00003-SLG,

, at *5 (D. Alaska Sept. 24, 13 2020) (“[T]he FCC regulations implementing Section 227(c) do not categorically exclude 14 all numbers used for any business purpose and the FCC has declined to exempt phone 15 numbers used by home-based businesses from the do-not-call rules.”). 16 Defendant relies on Chennette v. Porch.com, Inc.,

(D. Idaho 17 2020), which granted dismissal on the basis that the telephone at issue was used for 18 business purposes. However, on reconsideration, the Chennette court acknowledged that 19 its determination that the plaintiffs’ “phone numbers were business numbers” rested on the 20 fact that the plaintiffs pleaded that the phones were used in conducting business and offered 21 no facts “supporting the assertion that Plaintiffs’ numbers are residential.” Chennette v. 22 Porch.com, Inc., No. 20-cv-00201-SRB,

, at *6 (D. Idaho Nov. 2, 2020) 23 (denying reconsideration of the court’s earlier decision to grant the motion to dismiss). In 24 contrast, Plaintiff in this case presents facts supporting the residential nature of his cellular 25 telephone sufficient at this stage to establish a material dispute as to whether plaintiff is a 26 residential telephone subscriber. 27 Defendant’s assertion that the text messages targeted the business use of Plaintiff’s 28 cellular telephone does not change this result. The analysis of whether a subscriber is a 1 residential telephone subscriber focuses on the nature of the subscriber’s use of the 2 telephone, not an individual caller’s purpose in contacting the subscriber. See In re Rules 3 and Regulations Implementing the Telephone Consumer Protection Act of 1991,

Rcd. at 14038 (focusing on the subscriber’s use of a telephone in discussing the reach of 5 the TCPA). The Court “is unable to conclude as a matter of law that Plaintiff was not a 6 residential telephone subscriber covered by the TCPA based on the limited evidence 7 presented by the parties.” (ECF No. 17 at 7). The Motion for Reconsideration is denied. 8 III. REQUEST FOR CERTIFICATION FOR INTERLOCUTORY APPEAL 9 In the Motion for Reconsideration, Defendant states: “[s]hould the Court disagree 10 that reconsideration is appropriate, [Defendant] respectfully requests, in the alternative, 11 that the Court certify its [February 10, 2022] Order for interlocutory appeal to the Ninth 12 Circuit pursuant to

(b).” (ECF No. 20-1 at 8). Defendant contends that 13 both questions raised in its motion for reconsideration are “controlling questions of law 14 that could materially affect the outcome of this litigation” and subject to “substantial 15 differences of opinion amongst courts.” (Id.). Defendant contends that “an immediate 16 appeal would advance the ultimate termination of this case” because a decision in 17 Defendant’s favor would result in dismissal of this case “in its entirety.” (Id. at 8-9). 18 Plaintiff contends that the issues raised by Defendant involve “fact intensive 19 inquiries that are not suitable for appeal . . . and cannot be easily decided by the Ninth 20 Circuit.” (ECF No. 24 at 21). Plaintiff contends that “an interlocutory appeal would delay 21 the progress of this litigation because certification of the Court’s decision would effectively 22 stay all case deadlines and discovery to allow the appellate court to review issues that 23 Defendant is likely to raise again in a future motion” or opposition. (Id. at 28). 24 A district court may certify an otherwise non-appealable order for review by an 25 appellate court when three conditions are met: (1) the order involves a “controlling question 26 of law”; (2) there is “substantial ground for difference of opinion”; and (3) “an immediate 27 appeal from the order may materially advance the ultimate termination of the litigation.” 28

(b). All three criteria must be met in order for a district court to certify an 1 issue for interlocutory appeal. Couch v. Telescope Inc.,

(9th Cir. 2010). 2 “Section 1292(b) is a departure from the normal rule that only final judgments are 3 appealable, and therefore must be construed narrowly.” James v. Price Stern Sloan, Inc., 4

, 1067 n.6 (9th Cir. 2002); United States v. Woodbury,

, 788 5 n.11 (9th Cir. 1959) (“§ 1292(b) is to be applied sparingly and only in exceptional cases”). 6 “A controlling question of law must be one of law—not fact—and its resolution must 7 ‘materially affect the outcome of litigation in the district court.’” ICTSI Or., Inc. v. Int’l 8 Longshore and Warehouse Union,

(9th Cir. 2022) (quoting In re 9 Cement Antitrust Litig. (MDL No. 296),

, 1026 (9th Cir. 1981)). “To 10 determine if a ‘substantial ground for difference of opinion’ exists under § 1292(b), courts 11 must examine to what extent the controlling law is unclear.” Couch,

. 12 “Courts traditionally will find that a substantial ground for difference of opinion exists 13 where the circuits are in dispute on the question and the court of appeals of the circuit has 14 not spoken on the point, if complicated questions arise under foreign law, or if novel and 15 difficult questions of first impression are presented.”

(quotation omitted). 16 The first question Defendant seeks the Court to certify is “the legal standard for 17 pleading direct liability under the TCPA . . . .” (ECF No. 20 at 20). However, Defendant 18 does not dispute the applicability of the legal principles employed by the Court in its 19 analysis of direct liability. Defendant instead challenges the Court’s application of the law 20 to the facts alleged in the FAC, asserting that the facts alleged do not support a plausible 21 inference that Defendant sent the text messages. However, the application of established 22 law to a particular set of facts is not a “controlling question of law” for purposes of § 23 1292(b). Likewise, “[t]hat settled law might be applied differently does not establish a 24 substantial ground for difference of opinion.” Couch,

. 25 The second question Defendant seeks the Court to certify is “whether a plaintiff that 26 publishes their phone number in connection with a business and receives text messages 27 directed to the business use of that number has standing as a ‘residential telephone 28 subscriber’ under the TCPA’s DNC provisions.” (ECF No. 20 at 20). The position that any 1 business use of a cellular telephone disqualifies the subscriber from the protection of the 2 TCPA, even where the subscriber has offered competing evidence of residential use, is not 3 supported by caselaw in this circuit or any appellate decision nationwide. See Section II of 4 this Order; see also Blevins v. Premium Merch. Funding One, LLC, No. 2:18-cv-377, 2018

, at *2 (S.D. Ohio Oct. 25, 2018) (collecting cases nationwide). To the extent 6 that Defendant’s objection rests on the specific evidence presented by the parties in this 7 case, certification is inappropriate because Defendant does not present a pure question of 8 law. The request for certification for interlocutory appeal is denied. 9 IV. MOTION TO STRIKE 10 Rule 12(f) of the Federal Rules of Civil Procedure provides that “a court may strike 11 from a pleading an insufficient defense or any redundant, immaterial, impertinent, or 12 scandalous matter.” Fed. R. Civ. P. 12(f). “The function of a 12(f) motion to strike is to 13 avoid the expenditure of time and money that must arise from litigating spurious issues by 14 dispensing with those issues prior to trial . . . .” Whittlestone, Inc. v. Handi-Craft Co., 618

(9th Cir. 2010) (alteration in original) (quoting Fantasy, Inc. v. Fogerty, 984

, 1527 (9th Cir. 1993)). “The key to determining the sufficiency of pleading an 17 affirmative defense is whether it gives plaintiff fair notice of the defense.” Simmons v. 18 Navajo Cty.,

(9th Cir. 2010) (quoting Wyshak v. City Nat'l Bank, 607

(9th Cir. 1979)). Fair notice generally requires that the defendant state the 20 nature and grounds for the affirmative defense. See Conley v. Gibson,

(1957); 21 see also Simmons,

. 22 Motions to strike are generally disfavored and should not be granted unless it is clear 23 that the matter to be stricken could have no possible bearing on the subject matter of the 24 litigation. See, e.g., Chaconas v. JP Morgan Chase Bank,

(S.D.

). Courts often require that the moving party make a showing of prejudice before 26 granting a 12(f) motion to strike. See, e.g., Fantasy, 984 F.2d at 1528. The decision to grant 27 or deny a motion to strike under Rule 12(f) is within the discretion of the court. See id. 28 /// 1 A. Eighth Affirmative Defense: Good Faith 2 Plaintiff contends that Defendant’s good faith defense should be stricken with 3 prejudice because the TCPA is a strict liability statute that precludes consideration of good 4 faith. Plaintiff further contends that Plaintiff would be prejudiced if any of the challenged 5 affirmative defenses are not stricken “because it would require unnecessary written 6 discovery, as well as unnecessary topics of oral examination” and would lead to confusion. 7 (ECF No. 21-1 at 10). 8 Defendant contends that its good faith defense should not be stricken because “at 9 least two courts—including one in this district—have expressly recognized a ‘good faith’ 10 defense to the TCPA.” (ECF No. 25 at 7). Defendant further contends that “Plaintiff has 11 not shown that he will suffer any prejudice if [Defendant’s] Affirmative Defenses are not 12 stricken” and relies on “conclusory statements . . . insufficient to demonstrate prejudice 13 under Rule 12(f).” (Id. at 13-14). 14 The Eighth Affirmative Defense (“Good Faith”) provides: “At all times relevant to 15 the matters alleged in the FAC, Defendant acted in good faith, reasonably and without any 16 actual or constructive knowledge of any alleged breach of any legal duty owed to Plaintiff, 17 or any other alleged wrong done to Plaintiff.” (ECF No. 18 at 11). The Court of Appeals 18 has not addressed the issue of whether good faith is a defense to an alleged TCPA violation, 19 and the FCC has only addressed the issue in the context of autodialed or prerecorded calls, 20 not calls to phones listed on the do-not-call registry. See In re Rules and Regulations 21 Implementing the Telephone Consumer Protection Act of 1991, 18 FCC Rcd. at 14117-18. 22 There is limited authority suggesting that good faith may be applicable in TCPA litigation. 23 See Chyba v. First Fin. Asset Mgmt., Inc., No. 12-cv-1721-BEN (WVG),

1744136, at *12 (S.D. Cal. Apr. 30, 2014) (concluding that good faith could be a defense 25 where a debt collector contacted a debtor in reliance on the creditor’s assertion that the 26 debtor had consented to be contacted); Labau v. Cellco P’ship, No. 2:13-cv-00844-MCE- 27 EFB,

, at *2 (E.D. Cal. July 1, 2014) (concluding that good faith could 28 be a defense where a defendant contacted the plaintiff after her brother-in-law 1 misrepresented to the defendant that the plaintiff’s number was his own). Given this legal 2 authority and the lack of factual development in this case, the Court declines to conclude 3 that good faith is inapplicable as a matter of law at this stage in the litigation. Plaintiff’s 4 request that the Court strike Defendant’s Eighth Affirmative Defense is denied. 5 B. Tenth Defense: Inadequate Joinder 6 Plaintiff contends that Defendant’s “10th Affirmative Defense should be stricken 7 with prejudice” in whole or in part “because it has been waived due to [Defendant’s] failure 8 to raise it in its initial Motion to Dismiss . . . .” (ECF No. 21-1 at 8). Plaintiff contends that 9 the defense is immaterial because “the allegations in the FAC relate to the direct liability 10 of [Defendant]” and that improper joinder does not bar liability. (ECF No 27 at 6). 11 Defendant contends that a challenge for failure to join a party under Federal Rule of 12 Civil Procedure 12(b)(7) “would not have been appropriate here based upon the state of 13 the pleadings, which solely allege a direct TCPA liability theory against [Defendant].” 14 (ECF No. 25 at 11). Defendant contends that “[t]he failure to join a party required by Rule 15 19(b) is an unwaivable defense” and “where Rule 19(a) comes into play, the Court may 16 raise the absence of ‘necessary parties sua sponte.’” (Id. (quotations omitted) (alteration in 17 original)). Defendant contends that striking the defense at this stage is premature and that 18 the defense should not be stricken on a technical basis. 19 The Tenth Affirmative Defense (“Inadequate Joinder”) provides: 20 Plaintiff’s claims fail due to his failure to join necessary or indispensable parties in this action, including but not limited to the person(s) or entity (or 21 entities) who sent the alleged text messages in purported violation of the 22 TCPA and/or acted on such person’s or entity’s behalf in doing so. 23 (ECF No. 18 at 12). A necessary party is a party that must be joined under Rule 19(a) of 24 the Federal Rules of Civil Procedure so long as the party is “subject to service of process 25 and . . . will not deprive the court of subject-matter jurisdiction.” Fed. R. Civ. P. 19(a). In 26 contrast, an indispensable party is a necessary party whose absence requires dismissal of 27 the action under Rule 19(b). See Confederated Tribes of Chehalis Indian Reservation v. 28 Lujan,

, 1498-500 (9th Cir. 1991). An assertion that there has been a “failure 1 to join necessary parties is waived if objection is not made in defendant's first responsive 2 pleading . . . .” Citibank N.A. v. Oxford Prop. & Fin. Ltd.,

, 1262 n.4 (9th 3 Cir. 1982). However, an assertion that there has been a failure to join indispensable parties 4 may be raised for the first time at a later point in the proceedings. See id.; Fed. R. Civ. P. 5 12(h)(2). Further, “[t]he absence of ‘necessary’ parties may be raised by reviewing courts 6 sua sponte . . . at any stage in the proceeding.” CP Nat. Corp. v. Bonneville Power Admin., 7

, 911-12 (9th Cir. 1991). 8 The Court cannot conclude at this stage in the proceedings that Defendant’s 9 inadequate joinder defense has no possible bearing on the subject matter of the litigation 10 because it has been waived. The Court further declines to grant the Motion to Strike based 11 on Plaintiff’s position that the defense is not a bar to liability, and thus, not technically a 12 proper affirmative defense. See San Diego Unified Port Dist. v. Monsanto Co.,

3d 854, 861 (S.D. Cal. 2018) (“[D]istrict courts within this circuit have held that denials 14 that are improperly pled as defenses should not be stricken on that basis alone.”); Savage 15 v. Citibank N.A., No. 14-cv-03633-BLF,

, at *4 (N.D. Cal. Aug. 14, 16 2015) (“While the failure to state a claim or the failure to join an indispensable party may 17 not technically be affirmative defenses, the Court perceives no good reason to strike these 18 otherwise permissible (and self-explanatory) defenses on sematic grounds.”). Plaintiff’s 19 request that the Court strike Defendant’s Tenth Affirmative Defense is denied. 20 C. Sixteenth Defense: Failure to Mitigate 21 Plaintiff contends that the failure to mitigate defense should be stricken with 22 prejudice “because failure to mitigate is immaterial to the TCPA . . . .” (ECF No. 21-1 at 23 6). Plaintiff contends that “Plaintiff’s pleading makes it clear that Plaintiff does not seek 24 any actual damages and has even stated as such in its moving papers.” (ECF No. 27 at 5). 25 Plaintiff contends that the defense, as pleaded, is “boilerplate” and “is not sufficient to put 26 Plaintiff on fair notice . . . .” (Id. at 6). 27 Defendant contends that an election of statutory damages does not invalidate a 28 failure to mitigate defense, particularly because “the pleadings leave open the possibility 1 for actual damages.” (ECF No. 25 at 9). Defendant contends that its defense provides fair 2 notice to Plaintiff. 3 The Sixteenth Affirmative Defense (“Failure to Mitigate”) provides: “Plaintiff is not 4 entitled to relief because, if Plaintiff has been damaged, Plaintiff has failed to mitigate his 5 damages, and therefore any recovery against Defendant is barred or should be reduced 6 accordingly.” (ECF No. 18 at 14). Statutory damages are the only form of damages 7 expressly requested in the Prayer for Relief contained in the FAC, and Plaintiff disclaims 8 any request for actual damages in his Reply. (See ECF No. 27 at 5 (“Plaintiff does not seek 9 any actual damages . . . .”); see also Springer v. Fair Isaac Corp., No. 14-CV-02238-TLN- 10 AC,

, at *5 (E.D. Cal. Aug. 14, 2015) (acknowledging that the plaintiff 11 clarified in his reply that he did not seek actual damages)). The TCPA does not impose a 12 duty on plaintiffs to mitigate statutory damages. Cf. Malibu Media, LLC v. Peterson, No. 13 16-CV-786 JLS (NLS),

, at *6 (S.D. Cal. May 1, 2017) (declining to 14 strike failure to mitigate defense for copyright infringement claim because actual damages 15 are relevant to determining statutory damages under that act); Kohler v. Staples the Off. 16 Superstore, LLC,

(S.D. Cal. 2013) (discussing motion to strike where 17 complaint expressly requested “actual” damages). The defense of failure to mitigate 18 concerns Plaintiff’s conduct in response to the injury alleged in the FAC. Discovery on this 19 issue likely will not be duplicative of other discovery in this case and would thus require 20 unnecessary expenditure of time and expense. Plaintiff’s request that the Court strike 21 Defendant’s Sixteenth Affirmative Defense is granted. 22 D. Twenty-Third Defense: Reservation of Defenses 23 Plaintiff contends that “Affirmative Defense No. 23 should be stricken with 24 prejudice because reservation of rights (or reservation of defenses) [ ] is not actually an 25 affirmative defense.” (ECF No. 21-1 at 9). Plaintiff contends that “any attempt to add a 26 defense must satisfy the applicable Federal Rules” and that “this Court has routinely 27 stricken this type of reservation of rights defense.” (Id. at 9-10). 28 1 Defendant “acknowledges that it may be required to seek leave to amend its Answer 2 to assert additional defenses in accordance with the Federal Rules of Civil Procedure” but 3 contends that the defense should not be stricken because “Plaintiff has not shown any 4 prejudice that would result if [Defendant’s] reservation of defenses were to remain.” (ECF 5 No. 25 at 13). 6 The Twenty-Third Affirmative Defense (“Reservation of Defenses”) provides: 7 Certain additional affirmative and other defenses to the FAC and to the purported claims for relief stated therein may be available to Defendant. 8 However, these additional defenses may require discovery before they can be 9 properly alleged as certain information is in the hands of Plaintiff and/or third parties. Thus, Defendant reserves the right to assert other separate and 10 additional defenses, if and when they become appropriate in this action and to 11 the extent allowed. 12 (ECF No. 18 at 16). This defense is improper to the extent that it relieves Defendant of its 13 future obligations to comply with the Federal Rules of Civil Procedure in amending 14 pleadings and asserting new affirmative defenses. Otherwise, the reservation of rights is 15 superfluous and “immaterial.” Fed. R. Civ. P. 12(f). Plaintiff’s request that the Court strike 16 Defendant’s Twenty-Third Affirmative Defense is granted. 17 V. CONCLUSION 18 IT IS HEREBY ORDERED that the Motion for Reconsideration filed by Defendant 19 Senior Life Insurance Company (ECF No. 20) is denied. Defendant’s requests for 20 reconsideration and certification for interlocutory appeal are denied. 21 /// 22 23 /// 24 25 /// 26 27 /// 28 1 IT IS FURTHER ORDERED that the Motion to Strike Affirmative Defenses filed 2 || by Plaintiff Kyle Miholich (ECF No. 21) is granted in part and denied in part. The motion 3 granted as to the request to strike Defendant’s Sixteenth Affirmative Defense (“Failure 4 ||to Mitigate’) and Twenty-Third Affirmative Defense (“Reservation of Defenses’’), and is 5 |}otherwise denied. Defendant’s Sixteenth and Twenty-Third Affirmative Defenses are 6 || stricken from the Answer. 7 || Dated: May 12, 2022 BME: Kho Zz. Ae a 8 Hon. William Q. Hayes 9 United States District Court 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28