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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: mwasserialmarkwasser.com 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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DAVID F. JADWIN, D.O.

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Plaintiff, vs.

COUNTY OF KERN, et aI.,

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Defendants.

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

DEFENDANTS' REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS Date: January 12,2009 Time: 10:00 a.m. Place: U.S. District Court, Courtroom 3 2500 Tulare Street, Fresno, CA Date Action Filed: January 6, 2007 Trial Date: March 24, 2009

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Defendants submit this reply memorandum in support of their motion for judgment on the pleadings.

ARGUMENT

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A.

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Defendants' motion for judgment on the pleadings is a dispositive motion. Granting the

PlaintifPs Opposition Is Not Timely.

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DEFENDANTS' REPLY MEMORANDUM OF POINTS AND AUTHORITIES )N SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS

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motion will dispose of any claims included in the Court's order. The Court's October 20,2008,

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Revised Scheduling Order directs that all dispositive motions were to be filed by November 13,

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2008 and all opposition papers were to be filed by December I, 2008. Plaintiffs opposition was

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not filed until December 26, 2008. It is untimely.

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Defendants request that the Court refuse to consider Plaintiffs opposition for that reason.

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B.

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At the October 6, 2008 hearing, when the Court granted Plaintiffs motion to file the

Defendants' Motion For Judgment on the Pleadings is Properly Filed.

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Second Amended Complaint, Defendants asked the Court to set aside time in the Revised

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Scheduling Order for the filing of a Rule 12(b)(6) motion to challenge Plaintiffs new claims.

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The Court declined to do that but, instead, suggested Defendants combine any Rule 12 challenge

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they wanted to make with their dispositive motions so the schedule could remain as compact and

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efficient as possible.

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That is exactly what Defendants did. Defendants combined their motion for judgment on

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the pleadings with their motion for summary judgment. Both are dispositive motions and they

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were both filed in compliance with the dispositive motion cut-off in the Revised Scheduling

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Order.

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The motion for judgment on the pleadings was properly filed and is properly before the Court for consideration.

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c.

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Plaintiff asserts Defendants' motion for judgment on the pleadings is frivolous because

Exhaustion of Administrative Remedies is Not Relevant.

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Defendants have admitted Plaintiff exhausted his administrative remedies. Defendants did admit

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that. Plaintiff has exhausted his administrative remedies. But, exhaustion of administrative

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remedies is not the issue.

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Exhaustion of administrative remedies has nothing to do with complying with the claims

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filing requirement of the Govermnent Claims Act because filing a claim is not an administrative

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remedy.

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In Boziach v. State ofCalifornia, 32 Cal.App.3rd 688, 698 (1973) the court discussed the origins of the doctrine of exhaustion of administrative remedies and the claims-filing -2DEFENDANTS' REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS

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requirements in the California Government Code. After summarizing the policies that underlie

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each, the comt concluded by stating, "[t]he doctrine of exhaustion of administrative remedies has

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no relationship whatever to division 3.6 of the Government Code [the claims-filing statutes] ... ".

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Id.

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In Lozada v. City and County ofSan Francisco, 145 Cal.App.4th 1139, 1154-1156

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(2006), the court also discussed exhaustion of administrative remedies and the claims-filing

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requirements of the Government Claims Act. In Lozada, a peace officer alleged violations of the

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Public Safety Officers Procedural Bill of Rights Act (POBRA), California Government Code

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§3300, et seq. POBRA does not require exhaustion of administrative remedies before filing

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suit--even if administrative remedies exist-because the statute grants superior courts "initial

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jmisdiction." See Mounger v. Gates, 193 Cal.App.3rd 1248, 1254-1257 (1987).

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Relying on POBRA's exemption from the exhaustion of administrative remedies, Lozada

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did not file a claim under the Government Claims Act. He argued having to comply with the

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claims-filing requirement of the Government Claims Act would defeat the superior court's

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"initial jmisdiction" under POBRA.

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The court rejected his position and held a claim was still required because the policies

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underlying the doctrine of exhaustion of administrative remedies and the claims-filing

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requirements of the Government Claims Act serve two different and mutually exclusive

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purposes. Id. at 1155. The court wrote, "elimination of the exhaustion requirement does not

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release a litigant from the need to comply with the Government Claims Act requirements." Id.

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Other courts have agreed. See, e.g., Richards v. Department ofAlcoholic Beverage

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Control, 139 Cal.App.4th 304, 315 (2006) ("presentation of a claim ... is a separate, additional

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prerequisite to commencing an action against ... a local public entity and is not a substitute for

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the exhaustion of an administrative remedy.")

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The fact that Plaintiff exhausted his administrative remedies does not excuse him from

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complying with the separate and distinct obligation to file a claim under the Government Claims

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Act.

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D.

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Plaintiff s attempt to defend the adequacy of the claim falls far short of what the law

Plaintiff Has Not Complied With the Government Claims Act.

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requires. His complaint to the California Department of Fair Employment and Housing and his

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demand letter to the County are not substitutes for a proper claim. His argument that lay people

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who might write a claim should be given some slack enjoys no support in the case law. Further,

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there is no evidence a lay person wrote Plaintiffs claim. On the contrary, it reflects legal writing

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and analysis.

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As is more fully explained in Defendants' memorandum in support of the motion,

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Plaintiffs claim was specific. It referenced particular legal theories, including breach of

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contract, wrongful termination, conspiracy, per se libel, negligent hiring, negligent supervision 0

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negligent retention, and intentional infliction of emotional distress - none of which are claims in

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the complaint he ultimately filed.

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California law is well-developed and clear. A complaint must be congruent with the

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claim that was submitted. See Fall River Joint Unified School District v. Superior Court, 206

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Cal.App.3d 431, 434 (1988); Donahue v. State ofCalifornia, 178 Cal.App.3d 795,802-803

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(1986); State ex rei. Dept. ofTransportation v. Superior Court, 159 Cal.App.3d 331, 338 (1984);

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Nelson v. State ofCalifornia, 139 Cal.App.3d 72, 79-80 (1982); Lopez v. Southern Cal.

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Permanente Medical Group, 115 Cal.App.3d 673, 676-677 (1981); Shelton v. Sup. Ct., 56

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Cal.App.3d 66, 82-83 (1976).

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Plaintiffs claim did not put the County on notice of the claims he actually filed. His complaint does not contain a single theory that was in his claim. Defendants acknowledge that claims under FEHA are exempt from the claims-filing

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requirement of the Government Claims Act, at least when monetary damages are only incidental

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to injunctive relief. See Snipes v. City ofBakersfield, 145 Cal.App.3d 861, 868-870 (2006). The

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expansive nature of Plaintiff s complaint and his general prayer for compensatory damages

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makes it impossible to determine from the pleadings the extent to which his alleged FEHA

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monetary damages are "incidental" and the extent to which Plaintiff intends to use his FEHA

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claims to bootstrap other damages. -4-

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It is clear Plaintiffs other state-law claims are subject to the claims-filing requirements.

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Defendants, therefore, request that the Court enter judgment on the pleadings in favor of the

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Defendants.

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Respectfully submitted,

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Dated: December 31, 2008

LAW OFFICES OF MARK A. WASSER

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By: /s/ Mark A. Wasser Mark A. Wasser Attorney for Defendants, County of Kern, et al.

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