ORDER DENYING DEFENDANTS' MOTION TO OFFSET DAMAGE AWARD BY SETTLEMENT PAID ON BEHALF OF CFMG, ROBERT EURY AND ANN HAMPTON

Re: Dkt. No. 252

YVONNE GONZALEZ ROGERS, District Judge.

Now before the Court is defendants' motion to offset damage award by settlement paid on behalf of CFMG, Robert Eury, and Ann Hampton. (Dkt. No. 252.) Having carefully considered the pleadings and the papers submitted on this motion, the trial evidence, and the prior filings in this matter, and for the reasons set forth below, defendants' motion is DENIED.

I. RELEVANT FACTUAL BACKGROUND

Plaintiff Stephany Borges is the mother of decedent Daren Borges, who died after being in a state of acute methamphetamine intoxication while detained in a sobering cell of the Humboldt County Correctional Facility on June 13, 2014. Plaintiff filed her operative First Amended Complaint on August 12, 2012. (Dkt. No. 25.) On March 16, 2016, plaintiff and defendants California Forensics Medical Group, Robert Eury, and Ann Hampton (collectively the "CFMG defendants") agreed to resolve plaintiff's remaining claims against the CFMG defendants for $250,000.1 (Dkt. Nos. 65, 127, 128.)

Following a jury trial against defendants Michael Downey, Tim Hershberger, Terri Bittner, Tim Hammer, David Swim, and the County of Humboldt (collectively the "County defendants"), the jury found in plaintiff's favor on three claims, namely (i) denial of the right to adequate medical care in violation of the Due Process Clause of the Fourteenth Amendment, (ii) denial of the right to have medical care summoned in violation of California Government Code Section 845.6 as against defendants Bittner, Hammer and Swim; and (iii) Monell liability against the County of Humboldt under 42 U.S.C. 1983 based on either (a) an official policy, practice, or custom, or (b) failure to train its employees. (Dkt. No. 240.) The jury awarded plaintiff $2.5 million in compensatory damages and no punitive damages. (Dkt. Nos. 240, 242.)

II. LEGAL STANDARD

"Courts have held that a settlement may be credited against a non-settling defendant's liability where the settlement and damage award cover common damages." Davis v. Prison Health Servs., 2012 WL 4462520, at *3 (N.D. Cal. 2012) (citing Miller v. Apartments and Homes of New Jersey, Inc., 646 F.2d 101 (3d. Cir. 1981)). "Set-off is an affirmative defense under Fed. R. Civ. P. 8(c)." See First Nat. Ins. Co. v. GEO Grout, Inc., 2010 WL 4722496, at *4 (N.D. Cal. 2010); Hunter v. Ohio Indem. Co., 2008 WL 728893, at *6 (N.D. Cal. 2008); Airport Mgmt. Servs., LLC v. RLW, Inc., 2010 WL 5172910, at *2 (D. Nev. 2010) (noting that "the doctrine of offset is an affirmative defense"). "Under the Federal Rules of Civil Procedure, a party, with limited exceptions, is required to raise every defense in its first responsive pleading, and defenses not so raised are deemed waived." Morrison v. Mahoney, 399 F.3d 1042, 1046 (9th Cir. 2005).

"A defendant seeking an offset against a money judgment has the burden of proving the offset." C.B. v. City of Sonora, 769 F.3d 1005, 1032 (9th Cir. 2014) (en banc) (citing Conrad v. Ball Corp., 24 Cal.App.4th 439 (1994)); see also Davis, 2012 WL 4462520, at *3; Velez v. Roche, 335 F.Supp.2d 1022, 1042 (N.D. Cal. 2004) (noting that defendants bear the burden of proving set-off in a Section 1983 case). A nonsettling defendant is only entitled to an offset if two conditions are satisfied. "First, the nonsettling defendant must demonstrate that the settlement and award (against which the offset is sought) were for the same injury." Velez, 335 F. Supp. 2d at 1042 (citing Getty Petroleum Corp. v. Island Transp. Corp., 862 F.2d 10, 15 (2d Cir. 1988); see also Banks Ex Rel. Banks v. Yokemick, 177 F.Supp.2d 239, 264 (S.D.N.Y. 2001) (stating that "the settlement must be predicated on the tortfeasors' liability for damages attributable to the same injury"). "Second, the injury must be indivisible such that there is joint and several liability among the settling and nonsettling defendants." Id. (citing Goad v. Macon County, 730 F.Supp. 1425, 1426 (M.D. Tenn. 1989) ("[I]f the claims against the settling defendants were separate and distinct claims from the trial defendants, the losing trial defendants cannot call for a set-off . . . ."); see also Hoffman v. McNamara, 688 F.Supp. 830, 831 (D. Conn. 1988) (no offset where plaintiff's injuries are divisible among several defendants).

III. DISCUSSION

Plaintiff argues that County defendants cannot satisfy the two-prong test set forth above. However, she also contends that defendants failed to assert offset as an affirmative defense in their answer and therefore the defense is waived. The Court addresses each.2

A. Waiver of Affirmative Defense

As an initial matter, and as noted, the County defendants failed to assert offset as an affirmative defense in their answer filed on September 1, 2015. (Dkt. No. 30.) They similarly failed to assert this defense by seeking to amend or supplement their answer to include the defense after plaintiff settled with the CFMG defendants on March 16, 2016. The defense was not raised until the eve of trial over one year later, and then only in County defendants' pretrial conference statement. (Dkt. No. 129 at 3-4.)

County defendants offer no explanation for the untimeliness. Rather, defendants argue that the affirmative defense of offset was not waived because "[t]he key to determining the sufficiency of an affirmative defense is whether it gives plaintiff fair notice of the defense." Wyshak v. City National Bank, 607 F.2d 824, 827 (9th Cir. 1979); see also Charles Alan Wright and Arthur R. Miller, 5 Federal Practice and Procedure § 1274, at 455-56 (1990). As referenced above, defendants waited until the eve of trial to raise the offset defense. As such, sufficient notice was not provided.3 Had plaintiff received timely notice that defendants intended to assert offset, plaintiff may have declined to settle with CFMG, settled with CFMG on only a subset of her claims, or pursued a different litigation strategy. These each constitute prejudicial consequences due to defendants' failure to plead the defense.

Accordingly, the defense is "deemed waived." See Morrison, 399 F.3d at 1046.4

B. First Prong: Same Injury

Notwithstanding the foregoing, the Court analyzes the issue under the two-pronged test. With respect to the first prong, County defendants have not shown that the settlement and jury award were for the same injury. See Velez, 335 F. Supp. 2d at 1042. County defendants argue that "the injuries and damages asserted by plaintiff . . . against CFMG and the [County] defendants were identical, i.e., decedent's loss of life damages and plaintiff's wrongful death damages." Defendants do not persuade. At the time of the CFMG settlement, plaintiff had seven remaining claims against the CFMG defendants. At trial plaintiff prevailed against the County defendants on three claims, only one of which was also asserted against the CFMG defendants, namely denial of medical care under the Fourteenth Amendment. Five of the claims covered by the CFMG settlement were not tried not part of the jury verdict, and two of the claims giving rise to the jury's award of damages were not covered by the CFMG settlement.5 Defendants make no attempt to distinguish between the various kinds of damages under each claim. For example, the CFMG settlement covered injuries arising from CFMG's alleged violation of the Americans with Disabilities Act ("ADA") whereas the jury verdict did not include damages for such a violation. The Court thus finds that the claims covered by the jury award included potentially different injuries from those covered by the CFMG settlement.

C. Second Prong: Indivisible Injury

Next, County defendants fail to carry their burden of showing that plaintiff's injury is "indivisible such that there is joint and several liability among the settling and nonsettling defendants." Velez, 335 F. Supp. 2d at 1042. Here, the "extent of [the] respective liabilities [of CFMG and County defendants] to plaintiff are not necessarily co-extensive." See id. at 1043. As in Velez, "this case differs from the situation where the role of settling defendant is indistinguishable from that of the trial defendant." Id. The focus of the trial here centered on the County defendants' own screening procedures and failure to conduct adequate cell checks. This conduct is separate and distinct from that of CFMG and Nurse Hampton, the latter of whom only testified for 34 minutes. Plaintiff's claims against the CFMG defendants covered distinct and separate conduct of defendants not similarly situated with the County defendants. As noted, these alleged violations of the ADA, negligence, professional negligence — medical malpractice, and breach of contract. For example, plaintiff's settlement with CFMG included negligence claims, whereas the jury verdict was based on the correctional officers' deliberate indifference or reckless disregard of the consequence of their acts or omissions. Given the focus of the trial and the split verdict, the Court is confident that the jury's verdict reflected its assessment of the individual damage caused by each defendant to plaintiff. (Dkt. No. 239 at 27; see also Dkt. No. 240).

Defendants' reliance on Davis, a Section 1983 retaliation case in which plaintiff brought claims against Prison Health Services ("PHS"), Alameda County, and several employees of each entity, is misplaced. Davis, 2012 WL 4462520, at *1. There, plaintiff settled with the PHS defendants for $375,000 before trial. Id. at *2. At trial, plaintiff prevailed on her retaliation claim against defendants Captain Ayala and Lieutenant Griffith of the Alameda County Sheriff's Department, and the jury awarded damages in the amount of $528,957. Id. Captain Ayala moved to obtain an offset on the judgment in the amount of the PHS settlement. Id. The court found that "a partial offset [was] appropriate to avoid a duplicative recovery by plaintiff" largely because the "structure of the trial, during which plaintiff called numerous PHS witnesses, was predicated on plaintiff's claim that PHS, Ayala and Griffith conspired to retaliate against her." Id at *4. Here, by contrast, plaintiff did not allege collusion between the CFMG and County defendants, nor does the record show a conspiracy to deprive Daren Borges of his right to adequate medical care.6

IV. CONCLUSION

For the reasons discussed above, defendants' motion for an offset of damages is DENIED.

This terminates Dkt. No. 252.

IT IS SO ORDERED.