68 dfj request for reconsideration of order denying mts

8/14/2019 68 DFJ Request for Reconsideration of Order Denying MTS

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PLAINTIFFS REQUEST FOR RECONSIDERATION OF COURTS ORDER

DENYING MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE 1

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Eugene D. Lee SB# 236812LAW OFFICE OF EUGENE LEE555 West Fifth Street, Suite 3100Los Angeles, California 90013Telephone: (213) 992-3299

Facsimile: (213) 596-0487Email: [email protected]

Joan Herrington, SB# 178988BAY AREA EMPLOYMENT LAW OFFICE5032 Woodminster LaneOakland, CA 94602-2614Telephone: (510) 530-4078Facsimile: (510) 530-4725Email: [email protected] Counsel to LAW OFFICE OF EUGENE LEE

Attorneys for PlaintiffDAVID F. JADWIN, D.O.

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

DAVID F. JADWIN, D.O.,

Plaintiff,

v.

COUNTY OF KERN; et al.

Defendants.

Case No. 1:07-cv-00026-OWW-TAG

PLAINTIFFS REQUEST FORRECONSIDERATION BY THE DISTRICTCOURT OF MAGISTRATE JUDGES

RULING ON PLAINTIFFS MOTION TOSTRIKE FIFTH AFFIRMATIVE DEFENSE[28 U.S.C. 636(b)(1)(A); Local Rule 72-303]

Date Action Filed: January 6, 2007Date Set for Trial: August 26, 2008

Plaintiff DAVID F. JADWIN, D.O. (Plaintiff) respectfully submits the following points and

authorities in support of his request for reconsideration of Magistrate Judge Theresa A. Goldners

October 23, 2007 order denying plaintiffs motion to strike defendants fifth affirmative defense. (Doc.

64).

Plaintiff contends that the order denying plaintiffs motion to strike is clearly erroneous and

Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 1 of 42


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contrary to law for the following reasons:

1. The Court disregarded the narrowing of the issues by the parties during meet and confer

regarding the defendants fifth affirmative defense (FAD). During meet and confers, the parties

narrowed and resolved the FAD to a mutual understanding that, as defendants stated, [t]he legal basis

for the fifth affirmative defense is comparative fault. Plaintiffs behavior was a contributing factor to the

injuries for which he is seeking general damages. Comparative fault is accepted. (Doc. 46, 4).

Plaintiff relied on this understanding, focusing exclusively on contributory/comparative negligence in

his motion briefing. The Court ruled plaintiff had assumed a faulty premise that contributory

negligence was the only defense exclusively advanced by the FAD, then proceeded to suggest other

defenses for which the FAD could stand.

2. The FAD fails to provide fair notice to plaintiff, in sufficient particularity, of the defense

being advanced. The Court suggested that the FAD could stand for no less than four separate defenses:

(i) contributory negligence, (ii) unclean hands, (iii) equitable estoppel, and (iv) an erstwhile defense that

can loosely be described as hostile work environment causation (essentially a contributory negligence

defense). The Court does not say whether the FAD could stand for other possible defenses. The FAD

has become a placeholder for a defense of defendants choosing. Plaintiff remains at a loss as to which

specific defense the FAD advances.

3. The Court sua sponte raised the affirmative defenses of unclean hands, equitable estoppel

and an erstwhile defense that can loosely be described as hostile work environment causation.

Defendants had raised these defenses not once during the meet and confer process, nor even in their

motion briefing.

I. INTRODUCTIONPlaintiff David F. Jadwin, D.O., F.C.A.P., former Chair of Pathology at Kern Medical Center

(KMC) and senior pathologist since 2000, filed a complaint on January 6, 2007. The complaint

alleges, among other things, that defendants engaged in the following illegal acts: whistleblower

retaliation, disability discrimination, medical leave interference and retaliation, demotion and pay

reduction without due process, and Fair Labor Standard Act violations. When plaintiff began reporting

several patient care quality issues at KMC starting in 2001, defendants responded by singling out and



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targeting plaintiff for harassment, retaliation and humiliation over the course of the next six years. In

2005, defendants conduct finally caused plaintiff to suffer clinical depression. When plaintiff began

reduced work schedule sick leave in 2006 to treat his depression, defendants responded by demoting him

and retaliating against him further, effectively ending plaintiffs pathology career.

II. PROCEDURAL HISTORYOn January 6, 2007, plaintiff filed his complaint (Doc. 1). Plaintiff subsequently filed two

supplemental complaints on April 24 (Doc. 24) and June 13, 2007 (Doc. 30), respectively. Defendants

filed their answer on April 30, 2007 (Doc. 25), and their answer to the second supplemental complaint

on June 21, 2007 (Doc. 31, a true and correct copy of which is attached as Exhibit 1).

In their answer, Defendants asserted the fifth affirmative defense as follows:

Defendants allege that, during Plaintiffs employment at Kern Medical Center, Plaintiffwas arrogant, disagreeable, uncooperative, intimidating, overbearing, self-righteous andunfriendly and that Plaintiffs behavior contributed to and was the direct and proximatecause of any stresses, disabilities or injuries that Plaintiff believes he sustained.

The parties met and conferred extensively regarding the FAD starting on May 11, 2007. On July

11, 2007, Plaintiff filed the motion to strike the FAD (Doc. 32). Magistrate Judge Theresa A. Goldner

heard oral arguments on August 13, 2007.

On October 23, 2007, the Court issued an order denying plaintiffs motion to strike (Doc. 64, a

true and correct copy of which is attached as Exhibit 2). The Court found that the FAD was legally

sufficient and that an order striking the defense is not warranted at this time. See Orderat p. 7:2-3. The

Court also found that the FAD does not reflect cruelly on plaintiffs character, does not use repulsive

language, and is not sufficiently derogatory or degrading to constitute a scandalous matter within the

meaning of Rule 12 of the Federal Rules of Civil Procedure. See Orderat pp. 7:24 8:1.

III.AUTHORITY FOR MOTIONA District Court judge may reconsider pre-trial matters where it has been shown that the

magistrate judges order is clearly erroneous or contrary to law. 28 U.S.C. 636(b)(1)(A); Local Rule

72-303. A motion to reconsider is appropriate if the court committed clear error or the initial decision

was manifestly unjust. School District No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263

(9th Cir. 1993).



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IV.LEGAL ANALYSIS & ARGUMENTA. The Court Disregarded the Parties Meet and ConferThe purpose of meet and confer is to resolve and narrow disputes between parties prior to

resorting to court intervention.Dondi Prop. Corp. v. Commerce Sav. and Loan Ass'n (N.D.Tex. 1988)

121 F.R.D. 284, 289 ([t]he purpose of the conference requirement is to promote a frank exchange

between counsel to resolve issues by agreement or to at least narrow and focus the matters in

controversy before judicial resolution is sought.);El Dorado Irrigation Dist. v. Traylor Bros., Inc.,

2005 U.S. Dist. LEXIS 26011 (D. Cal. 2005) (The meet and confer process, critical to narrow

discovery disputes, and which are required by the rules, should not be interpreted as an invitation to be

initially stubborn or careless, nor used as a means by which discovery timeliness can be unilaterally

extended).

Plaintiff and defendants had been meeting and conferring extensively regarding the FAD from

May 11, 2007 to July 6, 2007. (Doc. 33). During the course of that process, the parties mutually

narrowed the many defenses potentially advanced by the vaguely-worded FAD to a single defense:

contributory/comparative fault. On May 9, 2007, Mark Wasser, counsel of record for defendants, stated:

The legal basis for the fifth affirmative defense is comparative fault. Plaintiffsbehavior was a contributing factor to the injuries for which he is seeking general

damages. Comparative fault is accepted. (Doc. 46, p. 7)(Emphasis added).

Once the parties had reached an understanding that the FAD was advancing the defense of

contributory/comparative fault, plaintiff proceeded to brief defendants on the inapplicability of that

defense to the claims alleged in plaintiffs complaint. In response, on May 17, 2007, Mr. Wasser stated:

With regard to the fifth affirmative defense, we believe the facts in this case may presentan opportunity to test the application ofcontributory and comparative fault theoriesin the context of the statutory claims you have asserted. (Doc. 33, p. 12)(Emphasisadded).

In briefing the motion to strike, Plaintiffdetrimentally relied on this narrowing of the issues

which the parties had achieved through meet and confer. As Plaintiff noted in his reply brief, In fact,

Defendants have expressly admitted that the FAD articulates a comparative negligence defense. (Doc.

45, p. 2:11-16, a true and correct copy of which is attached as Exhibit 3). Plaintiffs motion to strike and

reply focused exclusively on the inapplicability of a contributory/comparative fault defense to plaintiffs



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Sec. People, Inc. v. Classic Woodworking, LLC, 2005 U.S. Dist. LEXIS 44641 (D. Cal. 2005) (With

respect to the former, the Ninth Circuit, citing Conley v. Gibson, has held that [t]he key to determining

the sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of the

defense.)(citations omitted); Ganley v. County of San Mateo, 2007 U.S. Dist. LEXIS 26467 (D. Cal.

2007) (However, the mere assertion of a broad category of legal theories, such as estoppel, with

numerous possible applications requires additional specificity to satisfy the notice pleading standard.).

If the parties meet and confer process is given no effect, then the FAD as currently worded fails

to provide fair notice to plaintiff of the defense being advanced. The FAD contains only loosely

generalized indictments on Plaintiffs character and behavior, accusing him of being arrogant,

disagreeable, uncooperative, intimidating, overbearing, self-righteous and unfriendly.

The Court itself suggested that the FAD could stand for no less than four separate defenses:

contributory negligence, unclean hands, equitable estoppel, and hostile work environment causation

(essentially a contributory negligence defense). The Court does not say whether there are even more

possible defenses advanced by the FAD. The question remains, which defense does the FAD stand

for? Plaintiff is not on fair notice as to what that defense is. The FAD has essentially become a

placeholder for defendants; defendants have the option to ascribe whatever affirmative defense they

wish to the FAD without so much as having to request the Courts leave to amend their answer.

Meanwhile, plaintiff must surmise every possible defense for which the FAD might stand and litigate

accordingly so as to account for them all.

C. The Court Sua Sponte Raised Affirmative DefensesIf defendant waives a matter by failing to plead it as an affirmative defense, the court usually

cannot thereafter raise the issue on its own. Hittner, Schwarzer, Tashima & Wagstaffe, Federal Civil

Procedure Before Trial (2007) 8:229.1; see alsoState of Nevada Employees Assoc., Inc. v. Keating

(9th Cir. 1990) 903 F2d 1223, 1225 (where D had not pleaded res judicata as defense, court could not

decide sua sponte that P's claims were barred by res judicata);Eriline Co. S.A. v. Johnson (4th Cir.

2006) 440 F3d 648653 (court precluded from sua sponte raising statute of limitations defense).

The Court sua sponte raised the affirmative defenses of unclean hands, equitable estoppel and

hostile work environment causation. Defendants never once raised these defenses during the meet and



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confer process and in their motion briefing.

The Court rules that defendants raised these defenses in the FAD. A plain reading of the FAD

dictates otherwise. For instance, nowhere does the FAD reference unclean hands or inequitable

misconduct by plaintiff.

The wording of the FAD most immediately suggests a contributory negligence defense:

[Plaintiffs behavior] was the direct and proximate cause of any [damages] that Plaintiff believes he

sustained. In fact, the parties mutually arrived at exactly this conclusion during meet and confer.

Plaintiff has already submitted extensive briefing why this defense is utterly inapplicable to plaintiffs

strict liability/intentional claims. (Doc. 32). The Court chose not to address plaintiffs arguments.

The Court states that the FAD advances an equitable estoppel defense. However, legal authority

establishes that defendants must allege all of the elements of equitable estoppel in their pleadings.

Advanced Cardiovascular Sys., Inc. v. Medtronic, Inc., 1996 U.S. Dist. LEXIS 11696 (D. Cal. 1996)

(To plead equitable estoppel, a party must allege three essential elements: (1) the party to be estopped,

who usually must have had knowledge of the true facts, communicated something in a misleading way,

either by words, conduct or silence; (2) the pleading party relied upon that communication; and (3) the

pleading party would be harmed materially if the other party is permitted to assert any claim inconsistent

with his earlier conduct.); Ganley v. County of San Mateo, 2007 U.S. Dist. LEXIS 26467 (D. Cal.

2007) (While in some cases, merely naming a particular defense will be sufficient to satisfy the notice

pleading standard, other affirmative defenses require greater specificity, including additional factual

allegations, in order to be properly pleaded (citing Sun Microsystems v. Dataram Corp., No. CIV. 96-

20708 SW, 1997 U.S. Dist. LEXIS 4557, 1997 WL 50272, at *4 (N.D. Cal. Feb. 4, 1997 for the holding

that a plaintiff must plead each element of estoppel to survive a motion to strike.).

The Court further states that [p]laintiffs hostile work environment allegations bring into issue

the totality of the circumstances of his work environment . . . Each of these issues concerns defendants

and plaintiffs behavior at KMC. The fifth affirmative defense alleges that plaintiffs own behavior

caused the problems he encountered at KMC. Order, p. 5:5-11. The Court concludes this constitutes an

affirmative defense. But an affirmative defense requires more than mere relevance; it must dispose of

plaintiffs claims even after assuming plaintiffs allegations are true. Sec. People, Inc. v. Classic



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Woodworking, LLC, 2005 U.S. Dist. LEXIS 44641 (D. Cal. 2005) (striking an allegation as a denial, not

an affirmative defense, and citing Black's Law Dictionary 451 (8th ed. 2004) for the proposition that an

affirmative defense assumes the truth of the opposing parties' allegations). If plaintiffs allegations are

deemed true that defendants created a hostile working environment with retaliatory intent, then the fact

that plaintiffs own behavior allegedly contributed to and directly and proximately caused the hostile

working environment, even if deemed to be true, does not dispose of plaintiffs claim. It is not an

affirmative defense. This represents just another variation of the contributory negligence defense, which

plaintiffs briefing already extensively establishes is in no way applicable to plaintiffs strict

liability/retaliatory intent claims. (Doc. 32).

In light of the fact that the FAD did not sufficiently advance the above defenses, defendants have

waived them. See Hittner, Schwarzer, Tashima & Wagstaffe, Federal Civil Procedure Before Trial

(2007) 8: 229 (Generally, if not asserted in a responsive pleading, the affirmative defense is waived,

and evidence of such defense is inadmissible at trial)(citingArizona v. California (2000) 530 US 392,

410, 120 S.Ct. 2304, 23162317; Carroll v. AcmeCleveland Corp. (7th Cir. 1992) 955 F2d 1107, 1115;

Ingraham v. United States (5th Cir. 1987) 808 F2d 1075, 1079).

The Court is therefore sua sponte raising the defenses after defendants have already waived

them. This is clearly erroneous and contrary to law.

V. CONCLUSIONPlaintiff does not make this request lightly. It is always a daunting decision to request

reconsideration of an esteemed Magistrate Judges order. However, plaintiff must respectfully object

that the Courts order is clearly erroneous and contrary to law for the foregoing reasons. Plaintiff

respectfully requests that the Court reconsider Magistrate Judge Goldners order and grant Plaintiffs

motion to strike.

//

//

//

//

///



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Respectfully submitted on October 29, 2007.

/s/ Eugene D. Lee SB# 236812

LAW

OFFICE OF

EUGENE

LEE

555 West Fifth Street, Suite 3100Los Angeles, California 90013Telephone: (213) 992-3299Facsimile: (213) 596-0487Email: [email protected]

/s/ Joan Herrington, SB# 178988 (as authorized on10/29/07)BAY AREA EMPLOYMENT LAW OFFICE5032 Woodminster LaneOakland, CA 94602-2614Telephone: (510) 530-4078Facsimile: (510) 530-4725Email: [email protected] Counsel to LAW OFFICE OF EUGENE LEE

Attorneys for Plaintiff DAVID F. JADWIN, D.O.



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EXHIBITS

EXHIBIT 1. Defendants Answer to Second Supplemental Complaint (Doc. 31)

EXHIBIT 2. Order Denying Motion to Strike (Doc. 64).

EXHIBIT 3. Plaintiffs Reply to Opposition to Motion to Strike (Doc. 45).



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EXHIBIT 1. Defendants Answer to Second Supplemental Complaint (Doc. 31)



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ANSWER TO SECOND SUPPLEMENTAL COMPLAINT

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Mark A. Wasser CA SB #060160LAW OFFICES OF MARK A. WASSER400 Capitol Mall, Suite 1100Sacramento, CA 95814Phone: (916) 444-6400Fax: (916) 444-6405

E-mail: [email protected] C. Barmann, Sr.KERN COUNTY COUNSELMark Nations, Chief Deputy1115 Truxton Avenue, Fourth FloorBakersfield, CA 93301Phone: (661) 868-3800Fax: (661) 868-3805E-mail: [email protected]

Attorneys for Defendants County of Kern,Peter Bryan, Irwin Harris, Eugene Kercher,

Jennifer Abraham, Scott Ragland, Toni Smithand William Roy


EASTERN DISTRICT OF CALIFORNIA

DAVID F. JADWIN, D.O.

Plaintiff,

vs.

COUNTY OF KERN, et al.,

Defendants.

)))

)))))))

Case No.: 1:07-cv-26

ANSWER TO SECOND

SUPPLEMENTAL COMPLAINT

Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer

Abraham, Scott Ragland, Toni Smith and William Roy answer the Second Supplemental

Complaint as follows:

1. Defendants deny the allegations contained in paragraphs 1, 2 and 3.2. Defendants admit the allegations contained in paragraph 4.3. Defendants deny the allegations contained in paragraph 5.

mailto:[email protected]:[email protected]:[email protected]:[email protected]


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5. In response to the allegations contained in paragraph 8, Defendants admit thatPeter Bryan was Chief Executive Officer of Kern Medical Center and a resident of California

during most of the time alleged in the Complaint. Defendants deny the remaining allegationscontained in paragraph 8.

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8. In response to the allegations contained in paragraph 16, Defendants admit thatPlaintiff is a pathologist. Defendants are without knowledge or information sufficient to form a

belief as to the truth of the remaining averments in paragraph 16.

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9. In response to the allegations contained in paragraph 17, Defendants admit thatPlaintiff was hired as a pathologist at Kern Medical Center and was appointed to the position of

Chair of the Pathology Department. Defendants deny all remaining allegations contained in

paragraph 17.

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10. In response to the allegations contained in paragraph 18, Defendants admit thatPlaintiff complained about departmental procedures and policies at Kern Medical Center and

interfered with patient care provided by Kern Medical Center and its physicians. Defendants

deny all remaining allegations contained in paragraph 18.

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12. In response to the allegations contained in paragraph 21, Defendants admit thatPlaintiff requested and received multiple leaves of absence and that the terms and conditions of

the leaves Plaintiff received are memorialized in writings. Defendants deny all remaining

allegations contained in paragraph 21.

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13. In response to the allegations contained in paragraphs 22, 23 and 24, Defendantsadmit that Plaintiff requested and received multiple leaves of absence for multiple reasons, was

removed from his position as Chair of the Pathology Department because he was neither working

full-time nor present in the hospital and that his compensation was reduced. Defendants also

admit that Plaintiff complained about the policies and procedures at Kern Medical Center, wrote

4. Defendants admit the allegations contained in paragraphs 6 and 7.

6. Defendants admit the allegations contained in paragraphs 9, 10, 11, 12, 13 and 14.7. Defendants deny all the allegations contained in paragraph 15.

11. Defendants deny all the allegations contained in paragraphs 19 and 20.



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letters to several physicians and administrators at Kern Medical Center and other health care

organizations and was placed on administrative leave. Defendants deny all remaining allegations

in those paragraphs.

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16. In answer to the allegations contained in paragraph 27, Defendants admit thatPlaintiff is on paid administrative leave. Defendants deny all remaining allegations contained in

paragraph 27.

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17. In answer to the allegations contained in paragraphs 28 and 29, Defendants admitthat Plaintiff was employed as a pathologist in Kern Medical Center and assigned to the position

of Chair of the Pathology Department and that he was compensated and provided with certain

benefits pursuant to a written employment agreement. Defendants deny all remaining allegations

contained in paragraphs 28 and 29.

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18. In response to the allegations contained in paragraph 30, Defendants admit thatPlaintiff was expected to be an effective member of the physicians staff at Kern Medical Center

and to contribute to the overall improvement of the hospital. Defendants deny all remaining


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19. In response to the allegations contained in paragraphs 31, 32 and 33, Defendantsadmit that interpretation of the referenced documents is a question of law. Defendants deny all

remaining allegations contained in those paragraphs.

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21. In response to the allegations contained in paragraphs 35, 36 and 37, Defendantsadmit that interpretation of the referenced documents is a question of law. Defendants deny all

remaining allegations contained in those paragraphs.

14.

In response to the allegations contained in paragraph 25, Defendants admit thatPlaintiff has been provided with the information he requested from the computer that was

previously assigned to him. Defendants deny all remaining allegations contained in paragraph

25.

15. Defendants deny all the allegations contained in paragraph 26.

20. Defendants admit the allegations contained in paragraph 34.



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24. In response to the allegations contained in paragraphs 40 and 41, Defendantsadmit that Plaintiffs former attorney sent a letter to Bernard Barmannand that Plaintiff met with

Mr. Barmann on or about February 9, 2006. Defendants deny all remaining allegations

contained in those paragraphs.

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25. In response to the allegations contained in paragraphs 42 and 43, Defendantsadmit that Plaintiff complained about policies and procedures at Kern Medical Center, disagreed

with other staff physicians about patient care and wrote letters expressing his disagreement.

Defendants deny all remaining allegations contained in those paragraphs.

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26. In response to the allegations contained in paragraphs 44, 45, 46 and 47,Defendants admit that disagreements arose between Plaintiff and William Roy regarding the

review of pathology reports, the timeliness and accuracy of Plaintiffs pathology reports and

Plaintiffs management of the Pathology Department and that letters were written by the Plaintiff

and others regarding these issues. Defendants deny all remaining allegations contained in those

paragraphs.

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27. In response to the allegations contained in paragraphs 48, 49, 50, 51, 52, 53 and54, Defendants admit that disagreements arose between Plaintiff and other physicians at Kern

Medical Center, including some of the Defendants, regarding the review of pathology reports,

the timeliness and accuracy of Plaintiffs pathology reports, Plaintiffs management of the

Pathology Department, hospital policies and procedures and patient care. Defendants further

admit that letters were written by the Plaintiff and others regarding these issues. Defendants

deny all remaining allegations contained in those paragraphs.

. Defendants are without knowledge or information sufficient to form a belief as tothe truth of the averments contained in paragraph 38.

23. In response to the allegations contained in paragraph 39, Defendants admit thatPlaintiff complained about policies and procedures at Kern Medical Center and that his actionsinterfered with patient care. Defendants deny all remaining allegations contained in paragraph

39.



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28. In response to the allegations contained in paragraphs 55, 56, 57, 58 and 59,Defendants admit that Plaintiff disrupted the October, 2005, Monthly Oncology Conference and

prevented appropriate discussion of case management and that other physicians at Kern Medical

Center, including some of the Defendants, were concerned about Plaintiffs conduct and with hisinterference with patient care. Defendants further admit that letters were written by Plaintiff,

William Roy and others about the incident. Defendants deny all remaining allegations in those

paragraphs.

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30. In response to the allegations contained in paragraph 64, Defendants are withoutknowledge or information sufficient to form a belief as to the truth of the averments contained in

paragraph 64.

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31. In response to the allegations contained in paragraphs 65, 66, 67, 68, 69, 70, 71and 72, Defendants admit that letters were sent and received by Plaintiff and some of the

Defendants regarding Plaintiffs conduct and criticism of Kern Medical Centers policies and

procedures. Defendants deny all remaining allegations contained in those paragraphs.

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33. In response to the allegations contained in paragraph 74 and 75, Defendants admitthat Plaintiffs entitlement to leave under FMLA and CFRA is a question of law. Defendants


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34. In response to the allegations contained in paragraph 76, 77, 78, 79 and 80,Defendants admit that Plaintiff requested and received leaves of absence on multiple occasions

for multiple reasons and that there are several documents authored by Plaintiff and others

regarding the reasons for his leaves of absence and the terms of the leaves. Defendants deny all

remaining allegations in those paragraphs.

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35. In response to the allegations contained in paragraph 81, 82, 83, 84, 85 and 86,Defendants admit that Plaintiff exchanged written correspondence with Peter Bryan and others

regarding leaves of absence. Defendants deny that Plaintiff engaged in any whistleblowing

29. Defendants deny all the allegations contained in paragraphs 60, 61, 62 and 63.




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activity and that Plaintiff is or ever was a whistleblower. Defendants deny all remaining

allegations in those paragraphs.

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37. In response to the allegations contained in paragraphs 89, 90, 91 and 92,Defendants admit that Plaintiff and Peter Bryan exchanged written correspondence regarding

leaves of absence that Plaintiff requested and Plaintiffs tenure as Chair of the Pathology

Department at Kern Medical Center. Defendants also admit that on or about July 10, 2006, the

Joint Conference Committee voted to remove Plaintiff from his position as Chair of the

Pathology Department at Kern Medical Center. Defendants deny all remaining allegations

contained in those paragraphs.

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39. In response to the allegations contained in paragraphs 94, 95, 96, 97 and 98,Defendants admit that Plaintiffs employment agreement was amended to reduce Plaintiffs base

compensation and that Plaintiff continued to send and receive written communications to others

regarding his leaves of absence. Defendants deny all remaining allegations contained in those

paragraphs.

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40. In response to the allegations contained in paragraph 99, Defendants admit thatPlaintiff returned to work as a staff pathologist at Kern Medical Center in October, 2006 and that

Phillip Dutt was appointed Acting Chair of the Pathology Department. Defendants deny all

remaining allegations contained in paragraph 99.

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42. In response to the allegations contained in paragraphs 101 and 102, Defendantsadmit that Plaintiff exchanged written correspondence with David Culberson. Defendants deny

all remaining allegations contained in those paragraphs.

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. Defendants are without knowledge or information sufficient to form a belief as tothe truth of the averments contained in paragraphs 87 and 88.



3. In response to the allegations contained in paragraph 103, Defendants admit thatPlaintiff has been provided with the information he requested from the County-owned computer



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paragraph 103.

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48. In response to the allegations contained in paragraphs 108, 109 and 110,Defendants admit that Plaintiff and Peter Bryan exchanged written communications regarding

Plaintiffs request for leaves of absence. Defendants deny all remaining allegations contained in

those paragraphs.

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50. In answer to the allegations contained in paragraphs 112, 113, 114, 115, 116 and117, Defendants admit that Plaintiff exchanged written communications with Peter Bryan

regarding his work schedule and requests for leaves of absence and met with Peter Bryan and

others to discuss those subjects. Defendants deny all remaining allegations contained in those

paragraphs.

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52. In response to the allegations contained in paragraphs 120, 121 and 122,Defendants admit that plaintiff and Peter Bryan exchanged written communications regarding

Plaintiffs leaves of absence and performance as Chair of the Pathology Department. Defendants



5. In answer to the allegations contained in paragraph 105, Defendants admit thatPlaintiff is on paid administrative leave. Defendants deny all remaining allegations contained in

paragraph 105.

46. In response to the allegations contained in paragraph 106, Defendants admit thatPlaintiff requested and received a reduced work schedule. Defendants deny all remaining


7. Defendants are without knowledge or information sufficient to form a belief as tothe truth of the averments contained in paragraph 107.


1. Defendants are without knowledge or information sufficient to form a belief as tothe truth of the averments contained in paragraphs 118 and 119.



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58. In response to the allegations contained in paragraph 136, Defendants admit thatPlaintiff is on paid, unrestricted, administrative leave and is free to pursue whatever other career

or business opportunities he desires. Defendants deny all remaining allegations contained in

paragraph 136.

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60. In response to the allegations contained in paragraph 138, Defendants admit thatPlaintiffs base compensation as a staff pathologist is less than it was when he was Chair of the

Pathology Department. Defendants deny all remaining allegations contained in paragraph 138.

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62. In response to the allegations contained in paragraph 145, Defendants admit thatPlaintiff filed a claim with Defendant, County of Kern, and that the claim has been rejected.

Defendants deny all remaining allegations contained in paragraph 145.

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4. In answer to the allegations contained in paragraph 124, Defendants admit thatPlaintiff is on paid administrative leave. Defendants deny all remaining allegations contained inparagraph 124.

. Defendants deny all the allegations contained in paragraphs 125, 126, 127 and128.

. Defendants deny all the allegations contained in paragraphs 129, 130, 131, 132,133 and 134.



1. Defendants deny all the allegations contained in paragraphs 139, 140, 141, 142,143 and 144.

3. Defendants are without knowledge or information sufficient to form a belief as tothe truth of the averments contained in paragraphs 146 and 147.

4. Defendants are without knowledge or information sufficient to form a belief as tothe truth of the averments contained in paragraphs 148, 149, 150, 151 and 152.



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71. In response to the allegations contained in paragraph 161, Defendants admit thatinterpretation of Labor Code 1102.5 is a matter of law. Defendants deny all remaining


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75. In response to the allegations contained in paragraphs 168, 169 and 170,Defendants admit that interpretation of Government Code 12945.2(a)(1) and Title 2 of

California Code of Regulations 7297.7(a) and 7297.2(c) is a matter of law. Defendants deny

all remaining allegations contained in those paragraphs.

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. Defendants incorporate herein, all of their responses to paragraphs 1 through 153,inclusive.

7. In response to the allegations contained in paragraph 155, Defendants admit thatinterpretation of Health and Safety Code 1278.5 is a matter of law. Defendants deny all

remaining allegations contained in paragraph 155.

. Defendants deny all the allegations contained in paragraphs 156, 157 and 158 andfurther deny that Plaintiff has engaged in any whistleblowing activity or is a whistleblower.


0. Defendants incorporate herein, their responses to paragraphs 1 through 159,inclusive.

2. Defendants deny all the allegations contained in paragraphs 162, 163, 164 and165 and further deny that Plaintiff made any whistleblowing reports.


74. Defendants incorporate herein, their responses to 1 through 166, inclusive.

76. Defendants deny all the allegations contained in paragraphs 171 and 172.7. Defendants are without knowledge or information sufficient to form a belief as to

the truth of the averments contained in paragraph 173.



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83. In response to the allegations contained in paragraphs 181, 182, 183, 184, 185,186, 187 and 188, Defendants admit that interpretation of the California Family Rights Act is a

question of law. Defendants deny all remaining allegations contained in those paragraphs.

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87. In response to the allegations contained in paragraph 194, Defendants admit thatinterpretation of the California Fair Employment and Housing Act is a question law. Defendants

deny all remaining allegations remaining in paragraph 194.

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. Defendants incorporate herein, their responses to paragraphs 1 through 173,inclusive.

9. In response to the allegations contained in paragraph 175, Defendants admit thatinterpretation of 29 U.S.C. 2611(4)(A)(ii)(I) and 29 U.S.C. 2615(a) is a matter of law.Defendants deny all remaining allegations contained in paragraph 175.

80. Defendants deny all the allegations contained in paragraphs 176, 177 and 178.. Defendants are without knowledge or information sufficient to form a belief as to


2. Defendants incorporate herein, their answers to paragraphs 1 through 179,inclusive.

84. Defendants deny all the allegations contained in paragraphs 189, 190 and 191.5. Defendants are without knowledge or information sufficient to form a belief as to



88. Defendants deny all the allegations contained in paragraphs 195 and 196.9. Defendants are without knowledge or information sufficient to form a belief as to






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97. In response to the allegations contained in paragraph 205, Defendants admit thatinterpretation of the Fourteenth Amendment to the United States Constitution is a question of

law. Defendants deny all remaining allegations contained in paragraph 205.

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104. In response to the allegations contained in paragraphs 228 and 229, Defendantsadmit that interpretation of the Code of Federal Regulations, including 20C.F.R. 541.118(1) and

541.18(6), is a question of law. Defendants deny all remaining allegations contained in those

paragraphs.



94. Defendants deny all the allegations contained in paragraph 202.. Defendants are without knowledge or information sufficient to form a belief as to



8. Defendants deny all the allegations contained in paragraphs 206, 207, 208, 209,210, 211, 212, 213 and 214.



1. Defendants deny all the allegations contained in paragraphs 217, 218, 219, 220,221, 222, 223, 224 and 225.





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105. Defendants deny all the allegations contained in paragraphs 230, 231 and 232.As and for a first affirmative defense, Defendants allege that Plaintiffs Second

Supplemental Complaint and each and every purported claim contained therein fails to state a

claim upon relief can be granted.As and for a second affirmative defense, Defendants allege that this Court lacks subject

matter jurisdiction over Plaintiffs alleged claims and should refuse to exercise jurisdiction over

Plaintiffs state claims because they predominate and the alleged federal claims are insubstantial.

As and for a third affirmative defense, Defendants allege that Defendants actions as

alleged in the Second Supplemental Complaint were privileged under California Evidence Code

sections 1157, 1157.5, 1157.6 and 1157.7, California Business and Professions Code sections

800 through 809.9 and California Civil Code section 47(a) and (b) in that Defendants actions

were in furtherance of medical peer review, maintenance of quality-of-care standards, discharge

of official duties and performed in the course of official proceedings authorized by law and that

Defendants and each of them are, therefore, immune from liability.

As and for a fourth affirmative defense, Defendants allege that California Civil Code

section 47(a) and (b) immunizes Defendants and each of them from liability for the matters

alleged in the Second Supplemental Complaint.

As and for a fifth affirmative defense, Defendants allege that, during Plaintiffs

employment at Kern Medical Center, Plaintiff was arrogant, disagreeable, uncooperative,

intimidating, overbearing, self-righteous and unfriendly and that Plaintiffs behavior contributed

to and was the direct and proximate cause of any stresses, disabilities or injuries that Plaintiff

believes he sustained.

As and for a sixth affirmative defense, Defendants allege that Plaintiffs injuries, as

alleged in the Second Supplemental Complaint occurred more than one year before Plaintiff

commenced this action and that Plaintiffs claims are, therefore, barred by the statue of

limitations established in California Code of Civil Procedures 340.

As and for a seventh affirmative defense, Defendants allege that Plaintiffs injuries, as

alleged in the Second Supplemental Complaint occurred more than two years before Plaintiff



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commenced this action and that Plaintiffs claims are, therefore, barred by the statue of

limitations established in California Code of Civil Procedures 335.1.

As and for an eighth affirmative defense, Defendants allege that Plaintiff has available

adequate administrative remedies which he failed to exhaust and that his claims are, therefore,barred.

As and for a ninth affirmative defense, Defendants allege that the Defendants and each of

them have qualified immunity for each and every claim alleged in the Second Supplemental

Complaint because, in doing the things alleged, they were each acting within the course and

scope of their duties as public officials and did not violate any of Plaintiffs constitutional rights

and, even if they did, none of the alleged constitutional rights was clearly established.

WHEREFORE, Defendants pray that Plaintiff take nothing by way of his Second

Supplemental Complaint and that judgment thereon be entered in favor of Defendants and

against Plaintiff and that Defendants be awarded their reasonable costs of suit and attorneys fees

together with such other and further relief as the Court deems just.

Dated: June 20, 2007 LAW OFFICES OF MARK A. WASSER

By: /s/ Mark A. Wasser

Mark A. WasserAttorney for Defendants, County of Kern, et al.



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EXHIBIT 2. Order Denying Motion to Strike (Doc. 64).



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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA


Plaintiff,

vs.

COUNTY OF KERN, et al.,

Defendants.

___________________________________/

Case No. 1:07-cv-0026-OWW-TAG

ORDER DENYING MOTION TO STRIKEFIFTH AFFIRMATIVE DEFENSEAND REQUEST FOR SANCTIONS

(Doc. 32)

Plaintiff David F. Jadwin, D.O. has moved to strike the fifth affirmative defense in the

answer to second supplemental complaint filed by defendants County of Kern, Peter Bryan, Irwin

Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith, and William Roy

(collectively, "defendants"), and for sanctions against defendants counsel. (Docs. 31, 32). The

court has read and considered the pleadings, considered the arguments of counsel made at the

motion hearing in this matter, and makes the following ruling.

1. Legal standards.

A party may move to strike any insufficient defense or any redundant, immaterial,

impertinent or scandalous matter. Fed. R. Civ. P. 12(f). For a defense to be deemed

insufficient as a matter of law, the court must be convinced that there are no questions of fact,

that any questions of law are clear and not in dispute, and that under no set of circumstances

Case 1:07-cv-00026-OWW-TAG Document 64 Filed 10/23/2007 Page 1 of 8Case 1:07-cv-00026-OWW-TAG Document 68 Filed 10/29/2007 Page 26 of 42


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could the defense succeed. Galley v. County of San Mateo, 2007 WL 902551, at *1 (N.D.Cal.

March 22, 2007) (citations omitted). Matters are redundant when they are needlessly repetitive

or unrelated to the issues involved in the action. Gilbert v. Eli Lilly & Co., Inc., 56 F.R.D. 166,

120 n. 4 (D.Puerto Rico 1972)(citations omitted). Immaterial allegations are those that have noessential or important relationship to the claim for relief or the defense being pleaded. Fantasy,

Inc. v. Fogerty, 984 F. 2d 1524, 1527 (9th Cir. 1993), reversed on other grounds, Fogerty v.

Fantasy, Inc. , 510 U.S. 517, 534-535 (1994). Allegations are impertinent when they are

irrelevant to the issues in the case or are otherwise inadmissible. Id. Scandalous matters are

those that reflect cruelly upon a persons moral character, use repulsive language, or detract from

the dignity of the court. Skadegaard v. Farrell, 578 F. Supp. 1209, 1221 (D. New Jersey 1984),

overruled on other grounds, Aitchison v. Raffiani, 708 F.2d 96 (3rd Cir. 1983).

The purpose of a motion to strike is to avoid litigating spurious issues, and it can operate

as an early challenge to the legal sufficiency of a defense. Fantasy, Inc. v. Fogerty, 984 F. 2d at

1527; California v. United States, 512 F.Supp. 36, 38 (N.D. Cal. 1981). Nevertheless, motions

to strike are generally disfavored and not frequently granted, for three reasons: (1) the liberal

pleading standard in federal practice; (2) they are often deployed as a delay tactic; and (3) the

prevailing view that a case should be tried on the proofs rather than the pleadings. Kaiser

Aluminum & Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir.

1982); Bassiri v. Xerox Corp., 292 F.Supp.2d 1212, 1220 (C.D. Cal. 2003); Lazar v. Trans

Union, L.L.C., 195 F.R.D. 665, 669 (C.D. Cal. 2000); see Rennie & Laughlin, Inc. v. Chrysler

Corp., 242 F.2d 208, 213 (9th Cir. 1958).

When considering a motion to strike a defense, the court must view the defense in the

light most favorable to the defendants and resolve any doubt regarding the sufficiency or

relevancy of the challenged defense in the defendants favor. Lazar v. Trans Union LLC , 195

F.R.D. at 669; ); In re TheMart.com, Inc. Securities Litigation, 114 F.Supp.2d 955, 965 (C.D.

Cal. 2000)(citing California v. United States, 512 F.Supp. at 36). Accordingly, a motion to strike



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a defense should not be granted unless it can be shown that no evidence in support of the defense

would be admissible or that the defense could have no possible bearing on the issues in the

action. See Gay-Straight Alliance Network v. Visalia Unified School Dist., 262 F. Supp.2d

1088, 1099 (E.D. Cal. 2001)

2. Motion to strike fifth affirmative defense.

Plaintiff's second supplemental complaint alleges eleven state and federal claims against

eight defendants, arising out of plaintiff's employment as a pathologist at Kern Medical Center

(KMC) in Bakersfield, California. (Doc. 30). Defendants answer to the second supplemental

complaint contains nine affirmative defenses. (Doc. 31). The fifth affirmative defense alleges:

As and for a fifth affirmative defense, Defendants allege that, during Plaintiffs

employment at Kern Medical Center, Plaintiff was arrogant, disagreeable,uncooperative, intimidating, overbearing, self-righteous and unfriendly and thatPlaintiffs behavior contributed to and was the direct and proximate cause of anystresses, disabilities or injuries that Plaintiff believes he sustained. (Doc. 31,12:18-22).

Plaintiff has moved for an order striking the fifth affirmative defense from the answer and

awarding sanctions against defendants counsel. (Doc. 32). Plaintiff contends the fifth

affirmative defense is an insufficient defense and a scandalous matter under Rule 12(f) and

should therefore be stricken.

A. Fifth affirmative defense.

Plaintiff characterizes the fifth affirmative defense as contributory negligence and argues

that it is insufficient because contributory negligence is not a defense to any of plaintiffs claims.

Defendants assert that the fifth affirmative defense merely describes plaintiffs behavior at KMC

and alleges that plaintiffs own behavior caused at least some of the hostility in the work

environment that plaintiff complains about.

(a). Hostile work environment allegations.

Plaintiffs complaint alleges that plaintiff worked in a deteriorating pathology

department at KMC for nearly seven years, and that when he complained about it and other



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issues, he was defamed, harassed, retaliated and discriminated against, demoted, and subjected to

a hostile work environment. The complaint contains several allegations that plaintiff was

damaged by a hostile work environment and work hostility. These allegations are contained

primarily in the first 152 paragraphs of the complaint, and are incorporated by reference into allof plaintiff's claims.

Plaintiffs complaint includes state law retaliation and discrimination claims wherein he

alleges that he suffered a hostile work environment at KMC. For example, plaintiff alleges that

after he was demoted from head of the pathology department to staff pathologist, he continued

to suffer a hostile work environment and retaliation. (Doc. 30, 9:13-14)(italics added).

Plaintiffs whistleblower claim alleges that in February 2006, he reported his various

[c]oncerns, as well as the retaliation, defamation and hostile work environment [p]laintiff was

experiencing at KMC. (Doc. 30, 13:13-15)(italics added). Plaintiffs discrimination claims

alleges that he notified KMC in 2003 that he suffered from depression due to work-related

hostility and KMCs failure to resolve [p]laintiff's compliance and patient care issues (Doc. 30,

28:18-19), and that by 2005, he was suffering extreme stress from the hostile work environment

created by the harassment, defamation, discrimination, and retaliatory actions of [d]efendants.

(Doc. 30, 28:22-23. 29:1-2)(italics added). Plaintiff also alleges that defendants willfully and

intentionally creat[ed] a hostile work environment, subjecting him to acts of defamation and

ratification thereof, demotion and excessive reduction in pay, disparate treatment, unwarranted

criticism and reprimands, threats, requests for his resignation, interference with and denial of his

right to medical leave, refusing to engage in good faith in an interactive process and denying him

reasonable accommodations and procedural due process because of his protected characteristics

and/or activities alleged herein. (Doc. 30, 33:5-11)(italics added).

(b). The fifth affirmative defense is relevant to plaintiffs claims.

Plaintiffs complaint alleges that he suffered a hostile work environment and seeks

damages as a result under a variety of legal theories, including under FEHA. Non-sexual



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harassment hostile environment claims are subject to the same hostile environment analysis

applied to sexual harassment cases, i.e., whether the conduct was so severe and pervasive as to

constitute a hostile work environment. See e.g., Muller v. Automotive Club of Southern

California, 61 Cal. App. 4th 431, 446 (1998), disapproved on other grounds, Colmenares v.Braemar Country Club, Inc., 29 Cal. 4th 1019, 1031 (2003). Plaintiffs hostile work environment

allegations bring into issue the totality of the circumstances of his work environment, which

includes matters such as the conditions of plaintiff's work at KMC, the quality of his work

relationships at KMC, his management of the pathology department, and the link between those

matters and plaintiff's injuries. Each of these issues concerns defendants and plaintiffs behavior

at KMC. The fifth affirmative defense alleges that plaintiff's own behavior caused the problems

he encountered at KMC.

The possibility that plaintiff's own behavior may have been the source of his problems at

KMC is also illustrated by allegations in plaintiff's own complaint. For example, the complaint

alleges that in February 2006, defendant Bryan sent a letter advising plaintiff that your decision

to confront the issues this way is not a good one....It is not your message that people react to but

rather how you deliver it.... (Doc. 30, 21:10-19)(italics added).

(c). Characterization of the fifth affirmative defense.

Plaintiff reads the fifth affirmative defense narrowly and argues that it asserts only

contributory negligence. The court is not persuaded by plaintiff's argument, because it is based on

a faulty premise. The problem with plaintiffs premise is that it characterizes the fifth affirmative

defense as exclusively contributory negligence and ignores the fact that it concerns other

defenses as well. The substance of the fifth affirmative defense is that plaintiff's own misconduct

created the situation that resulted in his injuries. An allegation that a party has acted inequitably

or asserted a claim in bad faith gives rise to an unclean hands defense. An allegation that a party

has sought to benefit from his own wrongdoing gives rise to an equitable estoppel. Both are

apparent in the fifth affirmative defense. Given that the court is obliged to view the fifth



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affirmative defense in the light most favorable to defendants and to resolve any doubt regarding

the sufficiency or relevancy of the defense in defendants favor, the court does not subscribe to

plaintiffs narrow interpretation of the defense.

The fifth affirmative defense can be characterized as an assertion of an unclean handsdefense which if proven, closes the doors of a court of equity to one tainted with inequitableness

or bad faith relative to the matter in which he seeks relief, however inappropriate may have been

the behavior of the defendant. Precision Instrument Manufacturing Co. v. Automotive

Maintenance Machinery Co., 324 U.S. 806, 814, 65 S.Ct. 993, 997 (1945). The fifth affirmative

defense can also be characterized as an assertion of an equitable estoppel defense, which

precludes a party from asserting rights he otherwise would have had against another when his

own conduct renders assertions of those rights contrary to equity. Aetna Casualty and Surety

Company v. Jeppeson & Company, 440 F. Supp. 394, 403-404 (D. Nev. 1977)(internal

quotation omitted); Metalclad Corp. v. Ventana Environmental Organizational Partnership, 109

Cal.App. 4th 1705, 1713 (2003)(citation omitted) .

Unclean hands and equitable estoppel are affirmative defenses under federal and state

law, and their application is primarily a question of fact in each case. See Hass v. Darigold Dairy

Products Co., 751 F.2d 1096, 1099 (9th Cir. 1985); Kendall-Jackson Winery, Ltd. v. Superior

Court, 76 Cal.App. 4th 970, 978 (1999); City of Culver City v. State Board of Equalization, 29

Cal. App. 3d 404, 411(1972. The court has found no case law to suggest that the defenses of

unclean hands and equitable estoppel are inapplicable in the context of at least some of plaintiff's

claims, including the 1983 claim.

Moreover, this action is in the early stages of discovery. It is possible that defendants

may prove a set of facts in which plaintiffs behavior created the hostile work environment from

which at least some of his damages arise. After viewing the fifth affirmative defense in the light

most favorable to defendants and resolving any doubt regarding the sufficiency or relevancy of

the defense in defendants favor, the court is not convinced that there are no facts to support the



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fifth affirmative defense or that under no set of circumstances could the defense succeed.

Accordingly, the court concludes that the fifth affirmative defense is legally sufficient and that an

order striking the defense is not warranted at this time. The motion to strike the defense on the

ground that it is legally insufficient is denied without prejudice to plaintiff's right to seek thesame relief after discovery and development of the evidence.

B. Scandalous matter.

Plaintiff contends the fifth affirmative defense is a scandalous matter and should be

stricken because it alleges that plaintiff was arrogant, disagreeable, uncooperative, intimidating,

overbearing, self-righteous and unfriendly. Plaintiff contends these contentions assert offensive

character defects and are a pretextual reason for defendants' wrongful conduct towards plaintiff.

The court has considered the content, nature, and context of the fifth affirmative defense.

The defense describes plaintiffs alleged behavior during his employment at KMC, which if

proven, is neither admirable nor cruelly derogatory. Plaintiff makes similar, if not harsher,

statements regarding the behavior of defendant Roy, who is also KMC physician. For example,

plaintiff alleges that in March 2006, he reported to KMCs chief executive officer that defendant

Roy has made outrageous false statements about the pathology department and myself, which

cause great concern about his ethical integrity....I think it is outrageous that the medical staff sits

by and lets this individual act in such a pompous, destructive manner. I feel a personal duty to

the pathology department (and the hospital) to push the issue of his bad conduct in whatever

venue may be needed to control the actions of this individual. (Doc. 30, 22:1-5)(italics added).

Pompous is synonymous with overbearing. Thus, at least one of the words that plaintiff uses to

describe a defendants behavior is nearly identical to the word that plaintiff considers

scandalous when it is used to describe his own behavior.

The court is not persuaded by plaintiffs argument. The fifth affirmative defense does not

reflect cruelly on plaintiffs character, does not use repulsive language, and is not sufficiently

derogatory or degrading to constitute a scandalous matter within the meaning of Rule 12 of the



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Federal Rules of Civil Procedure. The motion to strike the defense as a scandalous matter is

denied.

3. Motion for Sanctions.

Plaintiff requests that the court award sanctions against defendants attorney because,according to plaintiff, there is no basis in law or fact to support the fifth affirmative defense. Fed.

R. Civ. P. 11 (c ). As discussed above, the fifth affirmative defense is legally sufficient and will

not be stricken at this time. The court concludes that defendants attorney has not asserted a

frivolous defense or falsely certified defendants answer to the complaint, and the court is

persuaded by Attorney Wassers declaration that defendants have a good faith belief in the

factual basis for the fifth affirmative defense. Sanctions are not warranted and plaintiffs request

for sanctions is denied.

ORDERS

Based on the foregoing, IT IS HEREBY ORDERED that:

1. Plaintiff's motion to strike the fifth affirmative defense is DENIED without prejudice,

and plaintiffs request for sanctions is DENIED. (Doc. 32).

IT IS SO ORDERED.

Dated: October 23, 2007 /s/ Theresa A. Goldnerj6eb3d UNITED STATES MAGISTRATE JUDGE



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EXHIBIT 3. Plaintiffs Reply to Opposition to Motion to Strike (Doc. 45).



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REPLY TO OPPOSITION TO MOTION TO STRIKE 5TH AFFIRMATIVE DEFENSE 1

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Eugene D. Lee SB# 236812LAW OFFICE OF EUGENE LEE555 West Fifth Street, Suite 3100Los Angeles, California 90013Telephone: (213) 992-3299Facsimile: (213) 596-0487Email: [email protected]

Joan Herrington, SB# 178988BAY AREA EMPLOYMENT LAW OFFICE5032 Woodminster LaneOakland, CA 94602-2614Telephone: (510) 530-4078Facsimile: (510) 530-4725Email: [email protected] Counsel to LAW OFFICE OF EUGENE LEE

Attorneys for Plaintiff

DAVID F. JADWIN, D.O.


EASTERN DISTRICT OF CALIFORNIA


Plaintiff,

v.

COUNTY OF KERN; et al.

Defendants.

Civil Action No. 1:07-cv-00026-OWW-TAG

PLAINTIFFS REPLY TO OPPOSITIONTO MOTION TO STRIKE FIFTHAFFIRMATIVE DEFENSE

Date: August 13, 2007Time: 9:30 a.m.Place: U.S. Bankruptcy CourtBakersfield Courtroom 8

Date Action Filed: January 6, 2007Date Set for Trial: August , 2008

Plaintiff respectfully submits his reply to Defendants Opposition to the Motion to Strike the

Fifth Affirmative Defense, (FAD) which states:

As and for a fifth affirmative defense, Defendants allege that, during Plaintiffsemployment at Kern Medical Center, Plaintiff was arrogant, disagreeable, uncooperative,intimidating, overbearing, self-righteous and unfriendly and that Plaintiffs behaviorcontributed to and was the direct and proximate cause of any stresses, disabilities orinjuries that Plaintiff believes he sustained. Answer, 12:15-22.

A. THE FIFTH AFFIRMATIVE DEFENSE SHOULD BE STRICKEN AS INSUFFICIENTA plaintiffs contributory negligence is not a defense to an intentional tort. Godfrey v. Steinpress



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(1982) 128 Cal.App.3d 154; Weidenfeller v. Star & Garter(1991) 1 Cal.App.4th 1. Nor is it a defense to

strict liability causes of action.

1. Defendants Concede that Contributory Negligence is Irrelevant Here.Defendants have expressly admitted in the Opposition that [this action] is not a traditional

negligence case and contributory negligence is not a relevant concept. Opposition, 4:24-25

(emphasis added). Nonetheless, Defendants still argue in the Opposition that this Court should not strike

their Fifth Affirmative Defense (FAD) because Plaintiffs behaviorcontributed to hostility in the

work environment. Opposition, 6:11-12 (emphasis in original). In their Answer, Defendants avoid

labeling their Fifth Affirmative Defense as one of Comparative Negligence, but a plain reading of

Defendants arguments reveals it as such.

In fact, Defendants have expressly admitted that the FAD articulates a comparative negligence1

defense. In an email to Plaintiffs counsel dated May 9, 2007, Mr. Mark Wasser, counsel of record for

Defendants, stated as follows:

The legal basis for the fifth affirmative defense is comparative fault. Plaintiffsbehavior was a contributing factor to the injuries for which he is seeking generaldamages. Comparative fault is accepted. We can discuss this, too, if you want.Exhibit 1, Lee Decl. at 4 (emphasis added).

Hence, by Defendants own admission, the FAD is legally insufficient because this action is nota traditional negligence case, contributory negligence does not apply and the legal basis for the FAD is

comparative negligence.

2. Contrary to Defendants Contention, Plaintiffs Allegations of General Damages AreDirectly Related to Plaintiffs Statutory Claims

Defendants contend that Plaintiffs allegations of non-economic damages, such as emotional

distress, anxiety, humiliation, and loss of reputation [are] distinctly unrelated to Defendants alleged

failure to comply with CFRA, FMLA or other statutes Plaintiff cites and that they therefore constitute

generic personal injury claims to which the FAD applies. Opposition, 8:6-8 (emphasis added).

1 Contributory negligence and comparative negligence are used interchangeably here because both constitute affirmativedefenses to negligence-based causes of action, not causes of action based on strict liability or intentional tort as Plaintiff isasserting without exception in this action. See Motion to Strike, 3:21.5 7:5, for an exhaustive discussion. It should furtherbe noted that, in any case, the FAD on its face fails to properly articulate a comparative/contributory negligence defense;hence, Defendants have waived it.



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This is incorrect Plaintiffs allegations of general damages are directly related to the remedies

provided by the statutes that he alleges Defendants violated. In fact, the FEHA and CFRA2 specifically

permit recovery for general damages.

The California Supreme Court held in State Personnel Bd. v. Fair Employment & Housing Com.,

that these same remedies [authorized under Cal. Govt. C. 12970 (damages for emotional pain,

suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses)]

along with compensatory and punitive damages, may be awarded by a superior court in a private

enforcement action under the FEHA. 39 Cal. 3d 422, 433-434 (Cal. 1985).

Similarly, the California Court of Appeal has held:

In a civil action under the FEHA, at least, an injured employee is entitled to all reliefgenerally available in noncontractual actions, including punitive damages . . . . It issettled that employment discrimination . . . can cause emotional distress and that suchdistress is compensable under traditional theories of tort law.Murillo v. Rite Stuff Foods, 65 Cal. App. 4th 833, 848 (Cal. Ct. App. 1998) (citationsomitted).

3. Contrary to Defendants Contention, Contributory/Comparative Negligence Is Not ADefense in Strict Liability Cases

Defendants further contend that Safeway Stores, Inc. v. Nest-Kart, 21 Cal.3d 322 (1978) stands

for the proposition that evidence of a partys own behavior is relevant even in strict liability cases.

Opposition, 8:12-13. The case is utterly inapposite. There, the California Supreme Court considered the

issue of how to apportion liability between co-defendant joint tortfeasors, one of which had been

found strictly liable and the other both negligent and strictly liable. The court concluded that it was

appropriate to apply comparative fault apportionment of liability between the co-defendants according to

the jurys determination.Id. at 331-32. Safeway Stores in no way stands for the proposition that a

plaintiffs contributory or comparative negligence is relevant even in strict liability cases.Id.

Not only have Defendants insisted on re-litigating the well-settled proposition that a plaintiffs

contributory negligence is not an affirmative defense to an intentional tort or strict liability actions, in

doing so they have made incorrect and misleading representations about the law to this Court.

2 CFRA is a part of the FEHA and subject to the same remedies.



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For the foregoing reasons, Defendants FAD should be stricken as legally insufficient.

B. THE FIFTH AFFIRMATIVE DEFENSE SHOULD BE STRICKEN AS SCANDALOUSUnder Rule 26, affirmative defenses which are legally sufficient may still be stricken if they are

redundant, immaterial, impertinent, or scandalous. SEC v. Gulf & Western Industries, Inc. 502 F.Supp

343, 345 (D.D.C. 1980).

Plaintiffs Motion contends that the FAD is scandalous and cites Skadegaard v. Farrell 578

F.Supp. 1209, 1221 (D.N.J. 1984) for its holding that scandalous allegations are those that cast a

cruelly derogatory light on a party or other person. Motion, 7:8.5-8.5.3Skadegaardfurther established

that allegations must be neither (1) unnecessarily derogatory nor (2) irrelevant.Id. at 1221.

1. The Fifth Affirmative Defense Is Unnecessarily DerogatoryThe Opposition states Nothing in the defense attacks Plaintiffs character or competence.

Opposition, 6:10; see alsoId. at 7:10. Defendants further argue that the FADs allegations that Plaintiff

was arrogant, disagreeable, uncooperative, intimidating, overbearing, self-righteous, and unfriendly

describe Plaintiffs behavior and not his character. Opposition, 6:11-15. This erstwhile distinction is

belied by the syntax of the FAD: [. . . ] Defendants allege that [. . .] Plaintiffwas arrogant,

disagreeable, uncooperative, intimidating, overbearing, self-righteous, and unfriendly and that

Plaintiffs behavior) (emphasis added). The FAD itself contradicts Defendants assertion that the

mal-adjectives at issue in the first clause relate to behavior rather than character.

The first clause of the FAD constitutes a purely gratuitous attack on Plaintiffs character. It is

unnecessarily derogatory and is therefore scandalous.

2. The Fifth Affirmative Defense Is Irrelevant4The FAD is an ex post facto pretext manufactured by Defendants to explain their adverse actions

against Plaintiff and is irrelevant to this action.

3 The Opposition contends that Skadegaard[does] not support [Plaintiffs] position. Opposition, 6:16. Yet, the Oppositionthen cites Skadegaard for the same proposition as Plaintiff, its holding that an attack on a partys moral character isscandalous if it is degrading and irrelevant. Opposition, 7:4-6.4 Plaintiff challenges the FAD not on the grounds that it is immaterial, but on the grounds that it is insufficient andscandalous. Nevertheless, Defendants raise the issue of immateriality sua sponte. The Opposition states: immaterialmatter is that which has no essential or important relationship to the claim. Opposition, 4:5-10, citing Fantasy, Inc. v.Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993).



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Defendants citeRDF Media Ltd. v. Fox Broadcasting Co.as an example where the court struck

scandalous allegations from a complaint. There, the court reasoned that the plaintiff had quoted sharp

words from newspaper articles to lend credence to the opinions of commentators and give the

appearance that such opinions are legally relevant to the dispute. Opposition, 7:12-19, citingRDF

Media Ltd. v. Fox Broadcasting Co., 372 F. Supp. 2d 556.

Here, the converse applies. In alleging the FAD, Defendants omitted quotations from any

contemporaneous employee performance reviews that might substantiate their derogatory attack on

Plaintiffs character. Opposition, 7:12-19, citing RDF Media Ltd. v. Fox Broadcasting Co., 372 F. Supp.

2d 566 (C.D. Cal. 2005). This is because, a

68 dfj request for reconsideration of order denying mts

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