In Savage v. Citibank N.A., 2015 WL 4880858 (N.D.Cal., 2015), Judge Freeman addressed whether a Rosenthal Act/TCPA Defendant’s affirmative defenses should be stricken due to factually inadequate pleading.
Defendants’ sixth affirmative defense of unclean hands, eighth affirmative defense of laches, ninth affirmative defense of waiver, tenth affirmative defense of estoppel, eleventh affirmative defense of justification, and twelfth affirmative defense of ratification are all, in Defendants’ words, “factually intensive.” Defs.’ Opp. 6. Yet Defendants have alleged no facts. Plaintiff furthermore contends that the defenses of “justification” and “ratification” are not affirmative defenses. Given the absence of factual pleading, the Court cannot tell. Insofar as Plaintiff has asserted tort claims against Defendants, “justification” and “ratification” may be appropriate defenses to those claims. Suffice it to say, Defendants will need to amend to demonstrate the factual basis for each of these asserted defenses and may benefit from a more judicious selection of affirmative defenses. Plaintiff’s motion to strike is GRANTED, with leave to amend, as to Defendants’ sixth, eighth, ninth, tenth, eleventh, and twelfth affirmative defenses. The thirteenth affirmative defense asserts that Defendants had a “valid purpose” for calling him. Plaintiff contends that “valid purpose” is not an affirmative defense and that it is likewise insufficiently pled. Pl.’s Mot. 9. Defendants merely argue that the “valid purpose” defense is “set forth in the state and/or federal statutes at issue here (i.e., the federal TCPA statute and the state RFDCPA statute) or based on the rights set forth in the United States Constitution.” Defs.’ Opp. 6. “Valid purpose” is not a common defense and Defendants provide no specific statutory citation so that the Court may determine whether such a defense is even applicable in this case. In the absence of any showing of a potentially valid defense by Defendants, Plaintiff’s motion to strike the thirteenth affirmative defense is GRANTED with prejudice. Defendants’ twenty-second affirmative defense asserts that Plaintiff’s claims are barred by applicable statutes of limitations including those set forth in California Civil Code § 1788.30(f). The statute of limitations defense may be understood with respect to facts pled in Plaintiff’s complaint. To the extent the limitations defense rests on facts not in the complaint however, Defendants’ pleadings fail to provide fair notice. Plaintiff’s motion to strike the twenty-second affirmative defense is accordingly GRANTED with leave to amend, though the Court will not require amendment if Defendants intend to rely on the facts alleged in the complaint. Defendants’ twenty-fourth affirmative defense asserts that Plaintiff’s claim for damages must be offset by any amount owing on the credit card account at issue. It is not clear whether the RFDCPA, the TCPA, or any of Plaintiff’s tort claims permits such an offset.1 In any case, because Defendants’ allegations lack specificity regarding what amount (if any) is owed and should be offset, the Court GRANTS Plaintiff’s motion to strike the twenty-fourth affirmative defense with leave to amend. Accord Camacho v. Jefferson Capital Sys., LLC, No. 14–CV–02728–BLF, 2014 WL 4954817, at *3 (N.D.Cal. Oct. 2, 2014). Defendants’ thirty-first affirmative defense asserts that Plaintiff’s RFDCPA claim is barred by California Civil Code § 1788.30(d), which shields a debt collector from civil liability “if, within 15 days either after discovering a violation which is able to be cured, or after the receipt of a written notice of such violation, the debt collector notifies the debtor of the violation, and makes whatever adjustments or corrections are necessary to cure the violation with respect to the debtor.” Defendants allege no such curative letter and the defense is therefore factually and legally deficient. Plaintiff’s motion to strike the thirty-first affirmative defense is GRANTED with leave to amend.