246 Answer To Sac

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Mark A. Wasser CA SB #060160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 2640 Sacramento, California 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 E-mail: [email protected] Bernard C. Barmann, Sr. CA SB #060508 KERN COUNTY COUNSEL Mark Nations, Chief Deputy CA SB #101838 1115 Truxtun Avenue, Fourth Floor Bakersfield, California 93301 Phone: (661) 868-3800 Fax: (661) 868-3805 E-mail: [email protected]

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Attorneys for Defendants County of Kern, Peter Bryan and Irwin Harris

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANSWER TO SECOND AMENDED COMPLAINT

Plaintiff, vs.

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COUNTY OF KER, et aI.,

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Defendants.

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Case No.: 1:07-cv-00026-0WW-TAG

DAVID F. JADWIN, D.O.

Defendants County of Kern, Peter Bryan and Irwin Harris answer the Second Amended Complaint as follows:

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1.

Defendants deny the allegations contained in paragraphs 1, 2 and 3.

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2.

In response to the allegations contained in Paragraph 4, Defendants admit that

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Plaintiff is a citizen of the United States and a resident ofthe County of Los Angeles.

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Defendants deny the remaining allegations contained in paragraph 4.

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3.

Defendants deny the allegations contained in paragraph 5.

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4.

Defendants admit the allegations contained in paragraphs 6 and 7.

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5.

In response to the allegations contained in paragraph 8, Defendants admit that

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Peter Bryan was Chief Executive Officer of Kern Medical Center and a resident of California

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during some of the time alleged in the Complaint. Defendants deny the remaining allegations

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contained in paragraph 8.

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6.

In response to the allegations contained in paragraph 9, Defendants admit that

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Irwin Harris was Medical Director of Kern Medical Center and a resident of California during

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some of the time alleged in the Complaint. Defendants deny the remaining allegations contained

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in paragraph 9.

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7.

Defendants deny all the allegations contained in paragraph 10.

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8.

In response to the allegations contained in paragraph II, Defendants admit that

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Plaintiff is a pathologist. Defendants are without knowledge or information sufficient to form a

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

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9.

In response to the allegations contained in paragraph 12, Defendants admit that

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Plaintiff was hired as a pathologist at Kern Medical Center and was appointed to the position of

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

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paragraph 12.

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10.

In response to the allegations contained in paragraph 13, Defendants admit that

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Plaintiff complained about policies and procedures at Kern Medical Center, repeatedly interfered

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with patient care and refused to work collaboratively and professionally with the medical staff at

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Kern Medical Center. Defendants deny all remaining allegations contained in paragraph 13.

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II.

Defendants deny all the allegations contained in paragraphs 14 and 15.

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12.

In response to the allegations contained in paragraph 16, Defendants admit that

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Plaintiff requested and received multiple leaves of absence for multiple reasons. Defendants

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deny all remaining allegations contained in paragraph 16.

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13.

In response to the allegations contained in paragraph 17, Defendants admit that

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Plaintiffrequested and received multiple leaves of absence for multiple reasons and was

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ultimately removed from his position as Chair of the Pathology Department because he was not

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present at the hospital and that his compensation was reduced to that of a staff pathologist. -2ANSWER TO SECOND AMENDED COMPLAINT

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14.

Defendants admit the allegations contained in paragraph 18.

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15.

In response to the allegations contained in paragraph 19, Defendants admit that

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Plaintiff began work as a staff pathologist at Kern Medical Center on October 4,2006.

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Defendants deny the remaining allegations in paragraph 19.

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16.

Defendants deny all the allegations contained in paragraph 20.

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17.

Defendants deny all the allegations contained in paragraph 21 and further deny

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that Plaintiff is a "whist1eblower."

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18.

Defendants deny all the allegations contained in paragraph 22.

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19.

In response to the allegations contained in paragraph 23, Defendants admit that

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Plaintiff was placed on paid administrative leave on December 7, 2006. Defendants deny all

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remaining allegations contained in paragraph 23.

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20.

In response to the allegations contained in paragraphs 24, Defendants admit that

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Plaintiff complained about policies and procedures at Kern Medical Center and wrote letters to

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other physicians and to hospital administration about many subjects. Defendants deny all

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remaining allegations contained in paragraphs 24.

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21.

In response to the allegations contained in paragraph 25, Defendants admit that

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Plaintiff has been provided with the information he requested from the computer that was

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

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25.

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22.

Defendants deny all the allegations contained in paragraphs 26, 27 and 28.

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23.

In response to the allegations contained in paragraph 29, Defendants admit that

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Plaintiffs employment agreement expired by its own terms on October 4,2007. Defendants

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deny all remaining allegations contained in paragraph 29.

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24.

Defendants deny all the allegations contained in paragraph 30.

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25.

In response to the allegations contained in paragraphs 31, 32 and 33, Defendants

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admit that Plaintiff had an employment agreement with the County of Kern and it was amended

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and that the agreement and amendments speak for themselves. Defendants deny all remaining

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allegations contained in those paragraphs. -3ANSWER TO SECOND AMENDED COMPLAINT

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26.

In response to the allegations contained in paragraphs 34,35,36,37,38,39 and

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40, Defendants admit that Plaintiffs employment agreements speak for themselves. Defendants

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deny all remaining allegations contained in those paragraphs.

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27.

Defendants are without knowledge or information sufficient to form a belief as to

the truth of the averments contained in paragraph 41. 28.

In response to the allegations contained in paragraph 42, Defendants admit that

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Plaintiff complained about policies and procedures at Kern Medical Center, repeatedly interfered

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with patient care and refused to work collaboratively and professionally with the medical staff at

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Kern Medical Center. Defendants deny all remaining allegations contained in paragraph 42.

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29.

In response to the allegations contained in paragraphs 43 and 44, Defendants

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admit that Plaintiffs former attorney sent a letter to Bernard Barmann and that Plaintiff met with

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

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contained in those paragraphs.

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30.

Defendants deny all the allegations contained in paragraph 45.

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31.

In response to the allegations contained in paragraphs 46, Defendants admit that

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Plaintiff complained about policies and procedures at Kern Medical Center, repeatedly interfered

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with patient care and refused to work collaboratively and professionally with the medical staff at

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Kern Medical Center. Defendants deny all remaining allegations contained in paragraph 46.

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32.

In response to the allegations contained in paragraphs 47, 48, 49, 50, 51, 52, 53,

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54,55, 56 and 57, Defendants admit that disagreements arose between Plaintiff and other

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members of the medical staff at Kern Medical Center over several subjects, that Plaintiff

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complained about policies and procedures at Kern Medical Center, repeatedly interfered with

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patient care, refused to work collaboratively and professionally with the medical staff at Kern

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Medical Center and wrote letters to members of the medical staff and administration about

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several subjects. Defendants deny all remaining allegations contained in those paragraphs.

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33.

In response to the allegations contained in paragraphs 58, 59 and 60, Defendants

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admit that Plaintiff made a presentation to the monthly oncology conference at Kern Medical

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Center on October 12, 2005, that Plaintiffs presentation was too long and was both inappropriate -4ANSWER TO SECOND AMENDED COMPLAINT

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and unprofessional and that the conference was disrupted as a result of Plaintiff s behavior.

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Defendants deny all remaining allegations contained in those paragraphs.

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34.

In response to the allegations contained in paragraphs 61, 62 and 63, Defendants

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admit that members of the medical staff at Kern Medical Center wrote letters about Plaintiff s

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behavior at the October 12,2005 oncology conference and that Plaintiff was thereafter counseled

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about this behavior by the medical staff leadership. Defendants deny all remaining allegations

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contained in those paragraphs.

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35.

Defendants deny all the allegations contained in paragraphs 64 and 65.

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36.

In response to the allegations contained in paragraphs 66, 67, 68, 69, 70, 71 and

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72, Defendants admit that written correspondence was sent and received by Plaintiff and

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members of the medical staff at Kern Medical Center and others regarding Plaintiff s behavior

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and his criticisms of Kern Medical Center's policies and procedures and his refusal to work

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collaboratively and professionally with the medical staff at Kern Medical Center. Defendants

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deny all remaining allegations contained in those paragraphs.

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37.

Defendants deny all the allegations contained in paragraph 73.

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38.

In response to the allegations contained in paragraphs 74, 75 and 76, Defendants

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admit that written correspondence was sent and received by Plaintiff and members ofthe medical

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staff at Kern Medical Center and others regarding Plaintiff s behavior and his criticisms of Kern

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Medical Center's policies and procedures and his refusal to work collaboratively and

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professionally with the medical staff at Kern Medical Center. Defendants deny all remaining

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allegations contained in those paragraphs

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39.

In response to the allegations contained in paragraphs 77 and 78, Defendants

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admit that Plaintiffs entitlement to leave under FMLA and CFRA is a question of law.

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Defendants deny all remaining allegations contained in those paragraphs.

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40.

In response to the allegations contained in paragraphs 79,80,81,82,83 and 84,

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Defendants admit that Plaintiff requested and received multiple leaves of absence for multiple

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reasons and that Plaintiff and others sent and received written correspondence about his leaves 0

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absence. Defendants deny all remaining allegations contained in those paragraphs. -5ANSWER TO SECOND AMENDED COMPLAINT

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41.

In response to the allegations contained in paragraphs 85 and 86, Defendants

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admit that Plaintiff exchanged written correspondence with Peter Bryan and others regarding

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Plaintiff s absences from Kern Medical Center. Defendants deny that Plaintiff engaged in any

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"whistleblowing" activity and deny that Plaintiff is or ever was a "whistleblower". Defendants

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deny all remaining allegations contained in those paragraphs.

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42.

In response to the allegations contained in paragraphs 87, 88, 89 and 90,

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Defendants admit that Plaintiff requested and received multiple leaves of absence for multiple

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reasons and that Plaintiff and others sent and received written correspondence about his leaves 0

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

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43.

Defendants are without knowledge or information sufficient to form a belief as to

the truth of the averments contained in paragraphs 91 and 92. 44.

In response to the allegations contained in paragraph 93, Defendants admit

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Plaintiff sent a letter to Peter Bryan on June 2, 2006. Defendants deny all remaining allegations

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in paragraph 93.

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45.

In response to the allegations contained in paragraphs 94, 95, 96 and 97,

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Defendants admit that Plaintiff and Peter Bryan exchanged written correspondence regarding

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Plaintiff s absence from Kern Medical Center and the effect it had on his ability to discharge his

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duties as Chair ofthe Pathology Department at Kern Medical Center. Defendants also admit that

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on or about July 10, 2006, the Joint Conference Committee removed Plaintiff from his position

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as Chair of the Pathology Department at Kern Medical Center. Defendants deny all remaining

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allegations contained in those paragraphs.

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46.

In response to the allegations contained in paragraphs 98, 99,100,101 and 102,

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Defendants admit that Plaintiff and his attorney negotiated an amendment to Plaintiff s

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employment agreement, that Plaintiff and his attorney exchanged written correspondence with

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County representatives about the amendment and that it was approved and executed by Plaintiff

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and the County. Defendants deny all remaining allegations contained in those paragraphs.

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47.

In response to the allegations contained in paragraphs 103, 104 and 105,

Defendants admit that Plaintiff commenced work as a staff pathologist at Kern Medical Center in -6ANSWER TO SECOND AMENDED COMPLAINT

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October, 2006 and continued to complain about policies and procedures at Kern Medical Center,

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interfere with patient care, refuse to work collaborative1y and professionally with the medical

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staff at Kern Medical Center and write letters to members of the medical staff and administration

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about several subjects. Defendants deny all remaining allegations contained in those paragraphs.

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48.

In response to the allegations contained in paragraph 106, Defendants admit that

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Plaintiff was placed on paid administrative leave on or about December 7, 2006 and received a

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letter from David Culberson about that. Defendants deny all remaining allegations contained in

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that paragraph.

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49.

In response to the allegations contained in paragraph 107, Defendants admit that

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Plaintiff has been provided with all the information he has requested from the County-owned

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computer that was previously assigned to him. Defendants deny all remaining allegations

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contained in paragraph 107.

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50.

Defendants deny all the allegations contained in paragraph 108.

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51.

In response to the allegations contained in paragraph 109, Defendants admit that

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Plaintiff requested and received a reduced work schedule. Defendants deny all remaining

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allegations contained in paragraph 109.

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52.

Defendants are without knowledge or information sufficient to form a belief as to

the truth of the averments contained in paragraph 110. 53.

In response to the allegations contained in paragraphs 111,112 and 113,

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Defendants admit that Plaintiff and Peter Bryan exchanged written communications regarding

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

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those paragraphs.

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54.

Defendants deny all the allegations contained in paragraph 114.

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55.

In answer to the allegations contained in paragraphs 115, 116, 117, 118 and 119,

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Defendants admit that Plaintiff exchanged written communications with Peter Bryan regarding

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Plaintiffs work schedule and requests for leaves of absence and met with Peter Bryan and others

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

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paragraphs. -7ANSWER TO SECOND AMENDED COMPLAINT

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56.

Defendants deny all the allegations contained in paragraph 120.

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57.

Defendants are without knowledge or infonnation sufficient to form a belief as to

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the truth of the averments contained in paragraphs 121 and 122. 58.

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In response to the allegations contained in paragraphs 123, 124 and 125,

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Defendants admit that Plaintiff and Peter Bryan exchanged written communications regarding

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

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deny all remaining allegations contained in those paragraphs.

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59.

Defendants deny all the allegations contained in paragraph 126.

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60.

Defendants are without knowledge or infonnation sufficient to fonn a belief as to

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the truth of the avennents contained in paragraph 127. 61.

Defendants deny all the allegations contained in paragraphs 128, 129, 130 and

62.

Defendants deny all the allegations contained in paragraphs 132, 133, 134 and

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63.

Defendants deny all the allegations contained in paragraph 136.

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64.

In response to the allegations contained in paragraph 137, Defendants admit the

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131.

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135.

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written notices they gave to Plaintiff speak for themselves. Defendants deny all remaining

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allegations contained in paragraph 137.

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65.

In response to the allegations contained in paragraph 138, Defendants admit

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Plaintiffs employment agreement expired by its tenns on October 4, 2007. Defendants deny all

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remaining allegations contained in paragraph 13 8.

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66.

Defendants deny all the allegations contained in paragraph 139.

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67.

In response to the allegations contained in paragraph 140, Defendants admit

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Plaintiff negotiated and signed an agreement to be a staff pathologist and began work as a staff

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pathologist on or about October 4, 2006. Defendants deny all remaining allegations contained in

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paragraph 140.

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68.

Defendants deny all the allegations contained in paragraphs 141, 142, 143, 144,

145 and 146 and further deny that Plaintiff is entitled to damages against the Defendants or any -8ANSWER TO SECOND AMENDED COMPLAINT

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of them. 69.

In response to the allegations contained in paragraphs 147, 148 and 149,

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Defendants admit Plaintiff has filed multiple claims with Defendant, County of Kern, and is

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threatening to be a vexatious litigant. Defendants deny all remaining allegations contained in

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those paragraphs.

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70.

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Defendants are without knowledge or information sufficient to form a belief as to

the truth of the averments contained in paragraphs 150, 151, 152, 153, 154, 155, 156 and 157.

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71.

Defendants deny all the allegations contained in paragraph 158.

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72.

Defendants incorporate herein all oftheir responses to paragraphs 1 through 158,

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inclusive. 73.

In response to the allegations contained in paragraph 160, Defendants admit

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interpretation of Health and Safety Code §1278.5 is a matter oflaw. Defendants deny all

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remaining allegations contained in paragraph 160.

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74.

Defendants deny all the allegations contained in paragraphs 161, 162 and 163 and

further deny that Plaintiff has engaged in any "whistleb10wing activity" or is a "whist1eb10wer".

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75.

Defendants deny all the allegations contained in paragraph 164.

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76.

Defendants incorporate herein their responses to paragraphs 1 through 164,

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inclusive.

77.

In response to the allegations contained in paragraph 165, Defendants admit

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interpretation of Labor Code § 11 02.5 is a matter of law. Defendants deny all remaining

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allegations contained in paragraph 166.

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78.

Defendants deny all the allegations contained in paragraphs 167, 168, 169 and

170 and further deny that Plaintiff made any "whist1eb10wing reports".

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79.

Defendants deny all the allegations contained in paragraph 171.

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80.

Defendants incorporate herein their responses to paragraphs 1 through 171,

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inclusive.

81.

In response to the allegations contained in paragraphs 173, Defendants admit that

interpretation of Government Code §§ 12949(f), 12945.2(a)(1) and Title 2 of California Code of -9ANSWER TO SECOND AMENDED COMPLAINT

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Regulations §7297.7(a) is a matter oflaw. Defendants deny all remaining allegations contained

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in paragraph 173.

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82.

Defendants deny all the allegations contained in paragraphs 174 and 175.

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83.

Defendants deny all the allegations contained in paragraph 176.

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84.

Defendants incorporate herein their responses to paragraphs 1 through 176,

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inclusive. 85.

In response to the allegations contained in paragraph 178, Defendants admit that

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interpretation of29 U.S.C. §261 I(4)(A)(ii)(I) and 29 U.S.C. §2615(a) is a matter oflaw.

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Defendants deny all remaining allegations contained in paragraph 178.

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86.

Defendants deny all the allegations contained in paragraphs 179, 180 and 181.

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87.

Defendants deny all the allegations contained in paragraph 182.

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88.

Defendants incorporate herein their answers to paragraphs 1 through 182,

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inclusive. 89.

In response to the allegations contained in paragraphs 184, 185, Defendants admit

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interpretation of the California Family Rights Act is a question oflaw. Defendants deny all

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remaining allegations contained in those paragraphs.

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90.

Defendants deny all the allegations contained in paragraphs 186 and 187.

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91.

Defendants deny all the allegations contained in paragraph 188.

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92.

Defendants incorporate herein their responses to paragraphs 1 through 188,

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inclusive. 93.

In response to the allegations contained in paragraph 190, Defendants admit

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interpretation of the California Fair Employment and Housing Act is a question law. Defendants

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deny all remaining allegations remaining in paragraph 190.

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94.

Defendants deny all the allegations contained in paragraphs 191 and 192.

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95.

Defendants deny all the allegations contained in paragraph 193.

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96.

Defendants incorporate herein their responses to paragraphs I through 193,

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inclusive. 97.

Defendants deny all the allegations contained in paragraph 195. -10ANSWER TO SECOND AMENDED COMPLAINT

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98.

Defendants deny all the allegations contained in paragraph 196.

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99.

Defendants incorporate herein their responses to paragraphs 1 through 196,

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inclusive.

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100.

Defendants deny all the allegations contained in paragraph 198.

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101.

Defendants deny all the allegations contained in paragraph 199.

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102.

Defendants incorporate herein their responses to paragraphs 1 through 199,

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inclusive. 103.

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In response to the allegations contained in paragraph 201, Defendants admit that

interpretation ofthe Fourteenth Amendment to the United States Constitution is a question of law. Defendants deny all remaining allegations contained in paragraph 201.

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104.

Defendants deny all the allegations contained in paragraphs 202, 203, 204, 205,

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206,207,208,209,210,211 and 212 and further deny Plaintiff has suffered any harm or injury

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and further deny Plaintiff is entitled to any relief.

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105.

Defendants deny all the allegations contained in paragraph 213.

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106.

Defendants incorporate herein their responses to paragraphs 1 through 213,

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inclusive.

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107.

In response to the allegations contained in paragraph 215, Defendants admit

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interpretation of29 U.S.c. §2611(4)(A)(ii)(I) and 29 U.S.C. §2615(b)(l) is a matter oflaw.

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Defendants deny all remaining allegations contained in paragraph 215. 108.

Defendants deny all the allegations contained in paragraphs 216, 217, 218 and

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109.

Defendants deny all the allegations contained in paragraph 220.

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110.

Defendants incorporate herein their responses to paragraphs 1 through 220,

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219.

inclusive.

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111.

Defendants deny all the allegations contained in paragraphs 222, 223 and 224.

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As and for a first affirmative defense, Defendants allege that Plaintiff s Second Amended

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

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can be granted. -11ANSWER TO SECOND AMENDED COMPLAINT

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As and for a second affirmative defense, Defendants allege that this Court lacks subject

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

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

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

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alleged in the Second Amended Complaint were privileged under California Evidence Code §§

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1157,1157.5,1157.6 and 1157.7, California Business and Professions Code §§ 800 through

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809.9 and California Civil Code § 47(a) and (b) in that Defendants' actions were in furtherance

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of medical peer review, maintenance of quality-of-care standards, discharge of official duties and

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

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of them are, therefore, immune from liability.

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

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

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the Second Amended Complaint.

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As and for a fifth affinnative defense, Defendants allege that, during Plaintiff s

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

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intimidating, overbearing, self-righteous and unfriendly; that Plaintiffrefused to work

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collaboratively or professionally with the medical staff at Kern Medical Center; that he made

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unfounded, frivolous and repetitive complaints and criticisms of Kern Medical Center, its

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policies and procedures; and made unfounded and frivolous complaints against members of the

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medical staff at Kern Medical Center and that Plaintiffs behavior contributed to and was the

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direct and proximate cause of any stresses, disabilities or injuries that Plaintiff believes he

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sustained.

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

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

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

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limitations established in California Code of Civil Procedures §340.

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As and for a seventh affirmative defense, Defendants allege that Plaintiff s injuries, as alleged in the Second Amended Complaint occurred more than two years before Plaintiff -12ANSWER TO SECOND AMENDED COMPLAINT

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

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limitations established in California Code of Civil Procedures §335.1.

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

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

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barred.

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

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

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

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

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and, even if they did, none of the alleged constitutional rights was clearly established. As and for a tenth affirmative defense, Defendants allege that all of Plaintiffs injuries, as

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alleged in the Second Amended Complaint, arose within the course and scope of Plaintiffs

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employment and that Plaintiffs sole and exclusive remedy lies under the California Workers

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Compensation Act.

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

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Amended Complaint and that judgment thereon be entered in favor of Defendants and against

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

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

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Dated: October 27, 2008

LAW OFFICES OF MARK A. WASSER By: lsi Mark A. Wasser Mark A. Wasser Attorney for Defendants, County of Kern, et al.

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26 27 28 -13ANSWER TO SECOND AMENDED COMPLAINT