Peden v. Whitney

Background

Timothy and Patricia Peden hired Mark Whitney, doing business as Whitney Homes, to build a retaining wall at the Pedens' hillside home in Guerneville, California. The Pedens stopped the work on December 2, 2025, and terminated Whitney in writing the next day. The lawsuit followed, including claims described in the opinion as involving the Racketeer Influenced and Corrupt Organizations Act and negligence-based property damage. Whitney also asserted counterclaims for breach of the construction agreement and related relief. Whitney Homes, Inc. filed a separate answer.

Whitney and Whitney Homes, Inc. filed answers containing the same 15 affirmative defenses. An affirmative defense is a defense based on additional facts or legal grounds that avoid or limit a plaintiff's claim. The defenses included waiver, estoppel, unclean hands, comparative fault, failure to mitigate damages, modification, assumption of risk, failure of conditions precedent, offset, breach of contract by the plaintiffs, substantial compliance, excused performance, and differing site conditions. Most were stated only as a legal label followed by the words that the Pedens' claims were barred by that doctrine.

The Pedens moved under Federal Rule of Civil Procedure 12(f) to strike all 15 defenses. Whitney and Whitney Homes, Inc. agreed that the first defense, failure to state a claim, and the sixth defense, lack of damages, could be stricken and did not seek permission to replead them. They argued that the answers' factual sections, counterclaim, and paragraph-by-paragraph responses supplied enough notice for the other 13 defenses. The Pedens did not oppose allowing amendment of those 13 defenses, but requested a 14-day deadline.

Legal standard

Rule 12(f) allows a court to strike an insufficient defense from a pleading. The court explained that an affirmative defense must give the opposing party fair notice of the defense's nature, not merely name the doctrine. The court applied the district's prevailing approach requiring some factual basis for an affirmative defense, while noting that the defenses failed under either that approach or the more flexible standard proposed by the defendants.

Analysis

The court held that the first and sixth defenses were legally improper. Failure to state a claim and lack of damages challenge the Pedens' ability to prove their own case; they do not assert new matter that avoids the claims. The court therefore struck both defenses from both answers without leave to amend because additional facts could not convert them into proper affirmative defenses.

The court struck the remaining 13 defenses because they did not identify which claims they addressed or allege who did what, when it happened, or how the facts related to a contract term, transaction, or event. The court rejected the argument that a general factual narrative elsewhere in the answers and the counterclaim supplied fair notice. Because the doctrines have different elements, the defendants needed to connect particular facts to each particular defense. The court also said that citations to jury instructions, counsel's letters, discovery responses, and the parties' familiarity with the dispute did not substitute for facts in the answers.

The court specifically addressed the offset and differing-site-conditions defenses. The offset defense referred generally to the counterclaim but did not identify the transactions or amounts to be used as offsets or the claims they would offset. The differing-site-conditions defense mentioned design changes and the suspension of work but did not identify who supplied the plans and specifications, a fact relevant to the legal theory. The court struck the differing-site-conditions defense as insufficiently pleaded and expressed no view on whether it could ultimately succeed.

Disposition

The court granted the motion to strike. It struck the First and Sixth Affirmative Defenses from both answers without leave to amend. It struck the Second through Fifth and Seventh through Fifteenth Affirmative Defenses from both answers with leave to amend. The defendants may file amended answers within 21 days of the order. Each amended defense must, where practicable, identify the claim or claims it addresses and allege the conduct, transaction, contract term, or event supporting it. Specific references to numbered paragraphs in the answer or counterclaim will suffice. Any new or different affirmative defenses require a stipulation or a motion under Rule 15.