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Eugene D. Lee SB# 236812 LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, California 90013 Telephone: (213) 992-3299 Facsimile: (213) 596-0487 Email: [email protected] Joan Herrington, SB# 178988 BAY AREA EMPLOYMENT LAW OFFICE 5032 Woodminster Lane Oakland, CA 94602-2614 Telephone: (510) 530-4078 Facsimile: (510) 530-4725 Email: [email protected] Of Counsel to LAW OFFICE OF EUGENE LEE Attorneys for Plaintiff DAVID F. JADWIN, D.O.

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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, v. COUNTY OF KERN; et al. Defendants.

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Civil Action No. 1:07-cv-00026-OWW-TAG PLAINTIFF’S REPLY TO OPPOSITION TO MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE Date: August 13, 2007 Time: 9:30 a.m. Place: U.S. Bankruptcy Court Bakersfield Courtroom 8 Date Action Filed: Date Set for Trial:

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January 6, 2007 August , 2008

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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 Plaintiff’s employment at Kern Medical Center, Plaintiff was arrogant, disagreeable, uncooperative, intimidating, overbearing, self-righteous and unfriendly and that Plaintiff’s behavior contributed to and was the direct and proximate cause of any stresses, disabilities or injuries that Plaintiff believes he sustained. Answer, 12:15-22. A. THE FIFTH AFFIRMATIVE DEFENSE SHOULD BE STRICKEN AS “INSUFFICIENT” A plaintiff’s contributory negligence is not a defense to an intentional tort. Godfrey v. Steinpress REPLY TO OPPOSITION TO MOTION TO STRIKE 5TH AFFIRMATIVE DEFENSE

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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

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strict liability causes of action.

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1. Defendants Concede that Contributory Negligence is Irrelevant Here.

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Defendants have expressly admitted in the Opposition that “[this action] is not a traditional

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

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

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their Fifth Affirmative Defense (“FAD”) because “Plaintiff’s behavior contributed to hostility in the

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

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

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Defendants’ arguments reveals it as such. In fact, Defendants have expressly admitted that the FAD articulates a comparative negligence1

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

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Defendants, stated as follows:

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

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Hence, by Defendants’ own admission, the FAD is legally insufficient because this action is not 17 a traditional negligence case, contributory negligence does not apply and the legal basis for the FAD is 18 comparative negligence. 19 20

2. Contrary to Defendants’ Contention, Plaintiff’s Allegations of General Damages Are Directly Related to Plaintiff’s Statutory Claims

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Defendants contend that Plaintiff’s allegations of “non-economic damages, such as emotional 22 distress, anxiety, humiliation, and loss of reputation [are] distinctly unrelated to Defendants’ alleged 23 failure to comply with CFRA, FMLA or other statutes Plaintiff cites” and that they therefore constitute 24 generic personal injury claims to which the FAD applies. Opposition, 8:6-8 (emphasis added). 25 26 27 28

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Contributory negligence and comparative negligence are used interchangeably here because both constitute affirmative defenses to negligence-based causes of action, not causes of action based on strict liability or intentional tort as Plaintiff is asserting without exception in this action. See Motion to Strike, 3:21.5 – 7:5, for an exhaustive discussion. It should further be 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 – Plaintiff’s allegations of general damages are directly related to the remedies

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

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permit recovery for general damages. The California Supreme Court held in State Personnel Bd. v. Fair Employment & Housing Com.,

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that these “same remedies [authorized under Cal. Gov’t. C. § 12970 (damages for emotional pain,

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

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

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

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Similarly, the California Court of Appeal has held:

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

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

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

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for the proposition that “evidence of a party’s own behavior is relevant even in strict liability cases.”

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

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

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

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

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

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plaintiff’s contributory or comparative negligence is “relevant even in strict liability cases”. Id.

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Not only have Defendants insisted on re-litigating the well-settled proposition that a plaintiff’s

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

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

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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 “SCANDALOUS”

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Under Rule 26, affirmative defenses which are legally sufficient may still be stricken if they are

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

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

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Plaintiff’s Motion contends that the FAD is “scandalous” and cites Skadegaard v. Farrell 578

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

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“cruelly” derogatory light on a party or other person. Motion, 7:8.5-8.5.3 Skadegaard further established

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

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1. The Fifth Affirmative Defense Is “Unnecessarily Derogatory”

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The Opposition states “Nothing in the defense attacks Plaintiff’s character or competence.”

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Opposition, 6:10; see also Id. at 7:10. Defendants further argue that the FAD’s allegations that “Plaintiff

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

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describe Plaintiff’s “behavior” and not his “character”. Opposition, 6:11-15. This erstwhile distinction is

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belied by the syntax of the FAD: “[. . . ] Defendants allege that [. . .] Plaintiff was arrogant,

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

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Plaintiff’s behavior…”) (emphasis added). The FAD itself contradicts Defendants’ assertion that the

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

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The first clause of the FAD constitutes a purely gratuitous attack on Plaintiff’s character. It is “unnecessarily derogatory” and is therefore scandalous.

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The FAD is an ex post facto pretext manufactured by Defendants to explain their adverse actions 23 against Plaintiff and is irrelevant to this action. 24 25 26 27 28

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The Opposition contends that Skadegaard “[does] not support [Plaintiff’s] position.” Opposition, 6:16. Yet, the Opposition then cites Skadegaard for the same proposition as Plaintiff, its holding that an attack on a party’s moral character is “scandalous” 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” and “scandalous”. Nevertheless, Defendants raise the issue of “immateriality” sua sponte. The Opposition states: “‘immaterial’ matter 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 cite RDF Media Ltd. v. Fox Broadcasting Co.as an example where the court struck

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

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

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“appearance that such opinions are legally relevant to the dispute”. Opposition, 7:12-19, citing RDF

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

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

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contemporaneous employee performance reviews that might substantiate their derogatory attack on

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

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2d 566 (C.D. Cal. 2005). This is because, as the Motion discussed at length, the documented

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explanations Defendants provided at the time they took adverse employment actions against Plaintiff

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make no reference to Plaintiff’s character. Now after the fact, the FAD alleges Plaintiff has a bad

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character and offers this as the explanation for the adverse actions. Motion, 7:16.5 – 8:8.

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The FAD is nothing more than pretext and is irrelevant to this action.

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Moreover, as discussed in Section A, supra, whether or not Plaintiff “contributed” to the hostility

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of the work environment is by Defendants’ own admissions “not relevant”. Opposition, 4:24-25.

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For the foregoing reasons, the FAD is scandalous because it is unnecessarily derogatory and

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irrelevant and should be stricken.

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C. PLAINTIFF WILL BE PREJUDICED BY THE FIFTH AFFIRMATIVE DEFENSE

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1. Defendants Concede That Plaintiff Need Not Show Prejudice under Rule 12

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Defendants’ Opposition does not challenge Plaintiff’s assertion in the Motion that Plaintiff is not

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required to show prejudice in bringing a motion to strike. Motion, 8:21.5 – 9:3 (citing Atlantic Richfield

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Co. v. Ramirez, 176 F.3d 481 (9th Cir. 1999)). Defendants have therefore conceded this point.

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2. Defendants Concede That Plaintiff Will Be Prejudiced by the Fifth Affirmative Defense

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Nevertheless, Plaintiff contends that, if the FAD is not stricken, Plaintiff will be prejudiced.

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Motion, 8:21.5 – 9:16.5. Such prejudice would include “unnecessary additional expense in terms of time

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and money”. Motion, 9:12.5-16.5.

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Defendants have conceded that “the function of a motion to strike is to avoid the expenditure of REPLY TO OPPOSITION TO MOTION TO STRIKE 5TH AFFIRMATIVE DEFENSE

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time and money that must arise from litigating spurious issues by dispensing them before trial.”

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Opposition, 4:5-7 (emphasis added). In other words, Defendants concede that prejudice flows

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inevitably from the need to litigate “spurious issues”. As Plaintiff has already shown that the FAD

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raises “spurious issues”, Defendants have conceded that Plaintiff will be prejudiced unless the FAD is

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stricken. Given the foregoing, Plaintiff has met any showing of prejudice that this Court might require.

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Thus, the Court should strike the FAD without delay.

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D. DELAYING PLAINTIFF’S MOTION TO STRIKE UNTIL AFTER DISCOVERY WOULD ONLY COMPOUND PLAINTIFF’S PREJUDICE

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Defendants argue that Plaintiff’s motion to strike is “premature” because “there has been no 10

discovery and no facts have been developed.”5 Opposition, 5:2. Defendants selectively cite case law in

11 which motions to strike were filed after the parties had already had an opportunity to engage in 12 discovery. In so doing, Defendants bootstrap this gratuitous exercise in arbitrary caselaw selection into 13 the contention that granting a motion to strike prior to discovery would put this Court “at odds with what 14 the courts did in S.E.C. v. Sands and LeDuc v. Kentucky Cent. Life Ins. Co.” Opposition, 5:13-15. 15 This proposition is incorrect and misleading. 16 In California ex rel. State Lands Com. v. United States, the District Court for the Northern 17 District of California entertained a nearly identical argument that a plaintiff’s pre-discovery motion to 18 strike affirmative defenses was premature. There, the defendant had argued that “all facts surrounding 19 the controversy involved in the lawsuit should be ascertained before determining whether sufficient facts 20 exist to apply the three defenses to bar the action.” 512 F. Supp. 36, 38 (N.D.Cal. 1981). 21 The court rejected defendant’s argument and granted plaintiff’s motion to strike. In support of its 22 ruling, the court stated: 23 [W]here the motion may have the effect of making the trial of the action less complicated, or have the effect of otherwise streamlining the ultimate resolution of the

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The Opposition further emphasizes that Defendants “even offered to consider striking the defense voluntarily . . . if evidence to support the defense has not been developed by then.” Opposition, 5:21-23. Plaintiff does not dispute the accuracy of this account but notes that Defendants’ promise to “consider” striking the FAD is no accommodation at all. Likewise, by offering to “stipulate that Plaintiff can bring this motion later, after Defendants have had an opportunity for discovery,” Defendants do no more than grant Plaintiff a right it already had to file a motion for summary judgment or other dispositive motion at that juncture. Opposition, 5:19-20. It is in this context that Plaintiff’s rejection of those “offers” should be understood.

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action, the motion to strike will be well taken. See, e.g., Narragansett Tribe v. So. R. I. Land Devel., 418 F. Supp. 798, 801-802 (D.R.I.1976). By framing the question as whether it will be ultimately more time consuming to determine the applicability of the three [affirmative] defenses . . . it is clear that the latter would be more time consuming and burdensome to the Court. Thus, resolution of the State’s motion to strike at this stage of the proceedings will have only beneficial effects. Id.at 38-39. While the Opposition is correct in stating that “motions to strike are disfavored”, such motions

5 must nevertheless be granted without delay when warranted. Opposition, 3:20-24. In fact, in both cases 6 which the Opposition cites in support of its proposition, SEC v. Sands, 902 F. Supp. 1149, 1167 7 (C.D.Cal. 1995) and RDF Media Ltd. v. Fox Broad. Co., 372 F. Supp. 2d 556, 567 (C.D.Cal. 2005), the 8 District Court for the Central District of California granted plaintiff’s motion to strike with respect to 9 the majority of the affirmative defenses or allegations requested to be stricken. 10 A motion to strike is appropriate when an affirmative defense is insufficient as a matter of law. 11 California v. United States (ND CA 1981) 512 F. Supp. 36, 38. Here, the FAD is legally insufficient on 12 its face. No amount of evidence can convert a legally insufficient affirmative defense into a legally 13 sufficient one. Therefore, delaying grant of this motion until after discovery simply compounds the 14 prejudice to Plaintiff. 15 16

E. RULE 11 SANCTIONS AGAINST DEFENDANTS’ COUNSEL ARE WARRANTED

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Rule 11 sanctions against Defendants’ counsel are warranted.

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Defendants’ counsel has delayed this litigation by refusing to withdraw a scandalous affirmative

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defense that he already knew from Plaintiff’s briefing during extensive meet and confers to be legally

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insufficient. This refusal has forced Plaintiff to motion this Court to seek the only remedy available to

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him against the FAD’s scandalous allegations.

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In addition, given Defendants’ counsel’s Rule 11 certification of the facts on which his argument

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is based, Plaintiff respectfully requests that Defendants stipulate to, and/or the Court order, that the list

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of “undisputed facts” set forth in the Scheduling Conference Order, entered on June 6, 2007, be

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supplemented to include the following undisputed facts which the FAD implicitly admits to: (1)

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Plaintiff’s work environment at KMC was hostile; and (2) persons other than Plaintiff contributed to the

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hostility of his work environment. The doctrine of judicial estoppel should preclude Defendants from

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maintaining otherwise later in this litigation. REPLY TO OPPOSITION TO MOTION TO STRIKE 5TH AFFIRMATIVE DEFENSE

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F. CONCLUSION For the foregoing reasons, we respectfully request this Court to strike Defendants’ Fifth

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Affirmative Defense pursuant to Rule 12(f); and to award Plaintiff sanctions against Defendants’

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counsel in the amount of at least $4,500.00 pursuant to Rule 11(B)(2).

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In addition, Plaintiff respectfully request that the Court order that the list of “undisputed facts”

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set forth in the Scheduling Conference Order be supplemented to include the following undisputed facts

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which the FAD as currently alleged implicitly admits to: (1) Plaintiff’s work environment at KMC was

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hostile; and (2) persons other than Plaintiff contributed to the hostility of his work environment.

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RESPECTFULLY SUBMITTED on August 6, 2007.

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/s/ Eugene D. Lee SB# 236812 LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, California 90013 Telephone: (213) 992-3299 Facsimile: (213) 596-0487 Email: [email protected]

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/s/ Joan Herrington, SB# 178988 (as authorized on 8/6/07) BAY AREA EMPLOYMENT LAW OFFICE 5032 Woodminster Lane Oakland, CA 94602-2614 Telephone: (510) 530-4078 Facsimile: (510) 530-4725 Email: [email protected] Of Counsel to LAW OFFICE OF EUGENE LEE

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

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