68 Dfj Request For Reconsideration Of Order Denying Mts
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Case 1:07-cv-00026-OWW-TAG
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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]
5 6 7 8 9 10
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.
11 UNITED STATES DISTRICT COURT 12 FOR THE EASTERN DISTRICT OF CALIFORNIA 13 14 DAVID F. JADWIN, D.O.,
Case No. 1:07-cv-00026-OWW-TAG
15 Plaintiff, 16 v. 17 18
PLAINTIFF’S REQUEST FOR RECONSIDERATION BY THE DISTRICT COURT OF MAGISTRATE JUDGE’S RULING ON PLAINTIFF’S MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE
COUNTY OF KERN; et al. [28 U.S.C. § 636(b)(1)(A); Local Rule 72-303] Defendants.
19
Date Action Filed: Date Set for Trial:
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January 6, 2007 August 26, 2008
21 22 23 Plaintiff DAVID F. JADWIN, D.O. (“Plaintiff”) respectfully submits the following points and
24 25 26 27 28
authorities in support of his request for reconsideration of Magistrate Judge Theresa A. Goldner’s October 23, 2007 order denying plaintiff’s motion to strike defendants’ fifth affirmative defense. (Doc. 64). Plaintiff contends that the order denying plaintiff’s motion to strike is clearly erroneous and
PLAINTIFF’S REQUEST FOR RECONSIDERATION OF COURT’S ORDER DENYING MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE
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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
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regarding the defendants’ fifth affirmative defense (“FAD”). During meet and confers, the parties
4
narrowed and resolved the FAD to a mutual understanding that, as defendants stated, “[t]he legal basis
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for the fifth affirmative defense is comparative fault. Plaintiff’s behavior was a contributing factor to the
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injuries for which he is seeking general damages. Comparative fault is accepted.” (Doc. 46, ¶ 4).
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Plaintiff relied on this understanding, focusing exclusively on contributory/comparative negligence in
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his motion briefing. The Court ruled plaintiff had assumed a “faulty premise” that contributory
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negligence was the only defense exclusively advanced by the FAD, then proceeded to suggest other
10
defenses for which the FAD could stand.
11
2.
The FAD fails to provide fair notice to plaintiff, in sufficient particularity, of the defense
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being advanced. The Court suggested that the FAD could stand for no less than four separate defenses:
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(i) contributory negligence, (ii) unclean hands, (iii) equitable estoppel, and (iv) an erstwhile defense that
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can loosely be described as “hostile work environment causation” (essentially a contributory negligence
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defense). The Court does not say whether the FAD could stand for other possible defenses. The FAD
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has become a placeholder for a defense of defendants’ choosing. Plaintiff remains at a loss as to which
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specific defense the FAD advances.
18
3.
The Court sua sponte raised the affirmative defenses of unclean hands, equitable estoppel
19
and an erstwhile defense that can loosely be described as “hostile work environment causation”.
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Defendants had raised these defenses not once during the meet and confer process, nor even in their
21
motion briefing.
22 23
I. INTRODUCTION Plaintiff David F. Jadwin, D.O., F.C.A.P., former Chair of Pathology at Kern Medical Center
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(“KMC”) and senior pathologist since 2000, filed a complaint on January 6, 2007. The complaint
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alleges, among other things, that defendants engaged in the following illegal acts: whistleblower
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retaliation, disability discrimination, medical leave interference and retaliation, demotion and pay
27
reduction without due process, and Fair Labor Standard Act violations. When plaintiff began reporting
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several patient care quality issues at KMC starting in 2001, defendants responded by singling out and
PLAINTIFF’S REQUEST FOR RECONSIDERATION OF COURT’S ORDER DENYING MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE
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targeting plaintiff for harassment, retaliation and humiliation over the course of the next six years. In
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2005, defendants’ conduct finally caused plaintiff to suffer clinical depression. When plaintiff began
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reduced work schedule sick leave in 2006 to treat his depression, defendants responded by demoting him
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and retaliating against him further, effectively ending plaintiff’s pathology career.
5 6
II.
PROCEDURAL HISTORY
On January 6, 2007, plaintiff filed his complaint (Doc. 1). Plaintiff subsequently filed two
7
supplemental complaints on April 24 (Doc. 24) and June 13, 2007 (Doc. 30), respectively. Defendants
8
filed their answer on April 30, 2007 (Doc. 25), and their answer to the second supplemental complaint
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on June 21, 2007 (Doc. 31, a true and correct copy of which is attached as Exhibit 1).
10
In their answer, Defendants asserted the fifth affirmative defense as follows:
11
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.
12 13
The parties met and conferred extensively regarding the FAD starting on May 11, 2007. On July 14 11, 2007, Plaintiff filed the motion to strike the FAD (Doc. 32). Magistrate Judge Theresa A. Goldner 15 heard oral arguments on August 13, 2007. 16 On October 23, 2007, the Court issued an order denying plaintiff’s motion to strike (Doc. 64, a 17 true and correct copy of which is attached as Exhibit 2). The Court found that the FAD was “legally 18 sufficient and that an order striking the defense is not warranted at this time”. See Order at p. 7:2-3. The 19 Court also found that the FAD “does not reflect cruelly on plaintiff’s character, does not use repulsive 20 language, and is not sufficiently derogatory or degrading to constitute a scandalous matter within the 21 meaning of Rule 12 of the Federal Rules of Civil Procedure”. See Order at pp. 7:24 – 8:1. 22 III. AUTHORITY FOR MOTION 23 A District Court judge may reconsider pre-trial matters where it has been shown that the 24 magistrate judge’s order is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); Local Rule 25 72-303. A motion to reconsider is appropriate if the court committed clear error or the initial decision 26 was manifestly unjust. School District No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 27 (9th Cir. 1993). 28
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IV. LEGAL ANALYSIS & ARGUMENT
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A. The Court Disregarded the Parties’ Meet and Confer
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The purpose of meet and confer is to resolve and narrow disputes between parties prior to
4
resorting to court intervention. Dondi Prop. Corp. v. Commerce Sav. and Loan Ass'n (N.D.Tex. 1988)
5
121 F.R.D. 284, 289 (“[t]he purpose of the conference requirement is to promote a frank exchange
6
between counsel to resolve issues by agreement or to at least narrow and focus the matters in
7
controversy before judicial resolution is sought.”); El Dorado Irrigation Dist. v. Traylor Bros., Inc.,
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2005 U.S. Dist. LEXIS 26011 (D. Cal. 2005) (“The meet and confer process, critical to narrow
9
discovery disputes, and which are required by the rules, should not be interpreted as an invitation to be
10
initially stubborn or careless, nor used as a means by which discovery timeliness can be unilaterally
11
extended”).
12
Plaintiff and defendants had been meeting and conferring extensively regarding the FAD from
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May 11, 2007 to July 6, 2007. (Doc. 33). During the course of that process, the parties mutually
14
narrowed the many defenses potentially advanced by the vaguely-worded FAD to a single defense:
15
contributory/comparative fault. On May 9, 2007, Mark Wasser, counsel of record for defendants, stated:
16 17
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. (Doc. 46, p. 7)(Emphasis added).
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Once the parties had reached an understanding that the FAD was advancing the defense of
19
contributory/comparative fault, plaintiff proceeded to brief defendants on the inapplicability of that
20
defense to the claims alleged in plaintiff’s complaint. In response, on May 17, 2007, Mr. Wasser stated:
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With regard to the fifth affirmative defense, we believe the facts in this case may present an opportunity to test the application of contributory and comparative fault theories in the context of the statutory claims you have asserted.” (Doc. 33, p. 12)(Emphasis added).
22 23
In briefing the motion to strike, Plaintiff detrimentally relied on this narrowing of the issues 24 which the parties had achieved through meet and confer. As Plaintiff noted in his reply brief, “In fact, 25 Defendants have expressly admitted that the FAD articulates a comparative negligence defense.” (Doc. 26 45, p. 2:11-16, a true and correct copy of which is attached as Exhibit 3). Plaintiff’s motion to strike and 27 reply focused exclusively on the inapplicability of a contributory/comparative fault defense to plaintiff’s 28
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claims (Docs. 37 and 45, respectively). Plaintiff did not brief the other possible defenses which might
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arguably be advanced by the FAD, such as unclean hands, equitable estoppel, etc., nor did plaintiff
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argue that the FAD was insufficient for failing to give plaintiff fair notice of the defense advanced
4
thereby. Plaintiff did not think this was necessary.
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The Court disregarded this mutual understanding that had been reached through meet and confer, suggesting that 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 plaintiff’s premise is that it characterizes the fifth affirmative defense as exclusively contributory negligence and ignores the fact that it concerns other defenses as well.
10
The Court then proceeded to consider the FAD anew, as if the meet and confer process had never
11
occurred. Ultimately, the Court sua sponte raised other defenses for which the FAD could conceivably
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stand, such as unclean hands (Order, p. 6:4-8), equitable estoppel (Order, p. 6:8-14), and an erstwhile
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defense that can loosely be described as “hostile work environment causation” (essentially a
14
contributory negligence defense) (Order, p. 5:5-16). None of these other defenses had been discussed by
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the parties during meet and confer, nor were they raised in the motion briefing by either party.
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Disregard of the parties’ mutual understanding reached through meet and confer undermines the
17
meet and confer process and brings into question its usefulness and validity. Doing so constitutes clear
18
error and leads to an unjust result.
19
B. The Fifth Affirmative Defense Does Not Put Plaintiff on “Fair Notice”
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Fed. R. Civ. P. 8(b) requires that “A party shall state in short and plain terms the party's defenses
21
to each claim asserted . . . .”. Courts have interpreted this to mean that affirmative defenses must give a
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plaintiff “fair notice”, with sufficient specificity or particularity, of the defense being advanced.
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Qarbon.com, Inc. v. eHelp Corp., 315 F. Supp. 2d 1046, 1049 (D. Cal. 2004) (“Like complaints,
24
affirmative defenses must give plaintiff ‘fair notice’ of the defense being advanced. In the present case,
25
eHelp's affirmative defenses fail to provide ‘fair notice’ of what the defense is and the grounds upon
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which it rests.”)(citation omitted)(emphasis added); Woodfield v. Bowman (5th Cir. 1999) 193 F3d 354,
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362 (“a defendant nevertheless must plead an affirmative defense with enough specificity or factual
28
particularity to give the plaintiff ‘fair notice’ of the defense that is being advanced.”)(footnote omitted);
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Sec. People, Inc. v. Classic Woodworking, LLC, 2005 U.S. Dist. LEXIS 44641 (D. Cal. 2005) (“With
2
respect to the former, the Ninth Circuit, citing Conley v. Gibson, has held that ‘[t]he key to determining
3
the sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of the
4
defense.’”)(citations omitted); Ganley v. County of San Mateo, 2007 U.S. Dist. LEXIS 26467 (D. Cal.
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2007) (“However, the mere assertion of a broad category of legal theories, such as estoppel, with
6
numerous possible applications requires additional specificity to satisfy the notice pleading standard.”).
7
If the parties’ meet and confer process is given no effect, then the FAD as currently worded fails
8
to provide fair notice to plaintiff of the defense being advanced. The FAD contains only loosely
9
generalized indictments on Plaintiff’s character and behavior, accusing him of being “arrogant,
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disagreeable, uncooperative, intimidating, overbearing, self-righteous and unfriendly.”
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The Court itself suggested that the FAD could stand for no less than four separate defenses:
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contributory negligence, unclean hands, equitable estoppel, and “hostile work environment causation”
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(essentially a contributory negligence defense). The Court does not say whether there are even more
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possible defenses advanced by the FAD. The question remains, which defense does the FAD stand
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for? Plaintiff is not on fair notice as to what that defense is. The FAD has essentially become a
16
placeholder for defendants; defendants have the option to ascribe whatever affirmative defense they
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wish to the FAD without so much as having to request the Court’s leave to amend their answer.
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Meanwhile, plaintiff must surmise every possible defense for which the FAD might stand and litigate
19
accordingly so as to account for them all.
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C. The Court Sua Sponte Raised Affirmative Defenses
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If defendant waives a matter by failing to plead it as an affirmative defense, the court usually
22
cannot thereafter raise the issue on its own. Hittner, Schwarzer, Tashima & Wagstaffe, Federal Civil
23
Procedure Before Trial (2007) § 8:229.1; see also State of Nevada Employees Assoc., Inc. v. Keating
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(9th Cir. 1990) 903 F2d 1223, 1225 (where D had not pleaded res judicata as defense, court could not
25
decide sua sponte that P's claims were barred by res judicata); Eriline Co. S.A. v. Johnson (4th Cir.
26
2006) 440 F3d 648653 (court precluded from sua sponte raising statute of limitations defense).
27 28
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
3
dictates otherwise. For instance, nowhere does the FAD reference “unclean hands” or inequitable
4
misconduct by plaintiff.
5
The wording of the FAD most immediately suggests a contributory negligence defense:
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“[Plaintiff’s behavior] was the direct and proximate cause of any [damages] that Plaintiff believes he
7
sustained”. In fact, the parties mutually arrived at exactly this conclusion during meet and confer.
8
Plaintiff has already submitted extensive briefing why this defense is utterly inapplicable to plaintiff’s
9
strict liability/intentional claims. (Doc. 32). The Court chose not to address plaintiff’s arguments.
10
The Court states that the FAD advances an equitable estoppel defense. However, legal authority
11
establishes that defendants must allege all of the elements of equitable estoppel in their pleadings.
12
Advanced Cardiovascular Sys., Inc. v. Medtronic, Inc., 1996 U.S. Dist. LEXIS 11696 (D. Cal. 1996)
13
(“To plead equitable estoppel, a party must allege three essential elements: (1) the party to be estopped,
14
who usually must have had knowledge of the true facts, communicated something in a misleading way,
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either by words, conduct or silence; (2) the pleading party relied upon that communication; and (3) the
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pleading party would be harmed materially if the other party is permitted to assert any claim inconsistent
17
with his earlier conduct.”); Ganley v. County of San Mateo, 2007 U.S. Dist. LEXIS 26467 (D. Cal.
18
2007) (“While in some cases, merely naming a particular defense will be sufficient to satisfy the notice
19
pleading standard, other affirmative defenses require greater specificity, including additional factual
20
allegations, in order to be properly pleaded” (citing Sun Microsystems v. Dataram Corp., No. CIV. 96-
21
20708 SW, 1997 U.S. Dist. LEXIS 4557, 1997 WL 50272, at *4 (N.D. Cal. Feb. 4, 1997 for the holding
22
that “a plaintiff must plead each element of estoppel to survive a motion to strike.”).
23
The Court further states that “[p]laintiff’s hostile work environment allegations bring into issue
24
the totality of the circumstances of his work environment . . . Each of these issues concerns defendants’
25
and plaintiff’s behavior at KMC. The fifth affirmative defense alleges that plaintiff’s own behavior
26
caused the problems he encountered at KMC.” Order, p. 5:5-11. The Court concludes this constitutes an
27
affirmative defense. But an affirmative defense requires more than mere relevance; it must dispose of
28
plaintiff’s claims even after assuming plaintiff’s 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
2
an affirmative defense, and citing Black's Law Dictionary 451 (8th ed. 2004) for the proposition “that an
3
‘affirmative defense’ assumes the truth of the opposing parties' allegations”). If plaintiff’s allegations are
4
deemed true that defendants created a hostile working environment with retaliatory intent, then the fact
5
that plaintiff’s own behavior allegedly “contributed to and directly and proximately caused” the hostile
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working environment, even if deemed to be true, does not dispose of plaintiff’s claim. It is not an
7
affirmative defense. This represents just another variation of the contributory negligence defense, which
8
plaintiff’s briefing already extensively establishes is in no way applicable to plaintiff’s strict
9
liability/retaliatory intent claims. (Doc. 32).
10
In light of the fact that the FAD did not sufficiently advance the above defenses, defendants have
11
waived them. See Hittner, Schwarzer, Tashima & Wagstaffe, Federal Civil Procedure Before Trial
12
(2007) § 8: 229 (“Generally, if not asserted in a responsive pleading, the affirmative defense is waived,
13
and evidence of such defense is inadmissible at trial”)(citing Arizona v. California (2000) 530 US 392,
14
410, 120 S.Ct. 2304, 2316–2317; Carroll v. Acme–Cleveland Corp. (7th Cir. 1992) 955 F2d 1107, 1115;
15
Ingraham v. United States (5th Cir. 1987) 808 F2d 1075, 1079).
16 17
The Court is therefore sua sponte raising the defenses after defendants have already waived them. This is clearly erroneous and contrary to law.
18
V. CONCLUSION
19
Plaintiff does not make this request lightly. It is always a daunting decision to request
20
reconsideration of an esteemed Magistrate Judge’s order. However, plaintiff must respectfully object
21
that the Court’s order is clearly erroneous and contrary to law for the foregoing reasons. Plaintiff
22
respectfully requests that the Court reconsider Magistrate Judge Goldner’s order and grant Plaintiff’s
23
motion to strike.
24
//
25
//
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//
27
//
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///
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Respectfully submitted on October 29, 2007.
2 3 4 5 6
/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]
11
/s/ Joan Herrington, SB# 178988 (as authorized on 10/29/07) 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
12
Attorneys for Plaintiff DAVID F. JADWIN, D.O.
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13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
PLAINTIFF’S REQUEST FOR RECONSIDERATION OF COURT’S ORDER DENYING MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE
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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. Plaintiff’s 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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Mark A. Wasser CA SB #060160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 1100 Sacramento, CA 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 E-mail: [email protected] Bernard C. Barmann, Sr. KERN COUNTY COUNSEL Mark Nations, Chief Deputy 1115 Truxton Avenue, Fourth Floor Bakersfield, CA 93301 Phone: (661) 868-3800 Fax: (661) 868-3805 E-mail: [email protected]
9 10 11
Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith and William Roy
12 13
UNITED STATES DISTRICT COURT
14
EASTERN DISTRICT OF CALIFORNIA
15 16
DAVID F. JADWIN, D.O. Plaintiff,
17 18 19
vs. COUNTY OF KERN, et al., Defendants.
20
) Case No.: 1:07-cv-26 ) ) ANSWER TO SECOND ) SUPPLEMENTAL COMPLAINT ) ) ) ) ) )
21 22 23
Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer
24
Abraham, Scott Ragland, Toni Smith and William Roy answer the Second Supplemental
25
Complaint as follows:
26
1.
Defendants deny the allegations contained in paragraphs 1, 2 and 3.
27
2.
Defendants admit the allegations contained in paragraph 4.
28
3.
Defendants deny the allegations contained in paragraph 5. ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
1
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4.
Defendants admit the allegations contained in paragraphs 6 and 7.
2
5.
In response to the allegations contained in paragraph 8, Defendants admit that
3
Peter Bryan was Chief Executive Officer of Kern Medical Center and a resident of California
4
during most of the time alleged in the Complaint. Defendants deny the remaining allegations
5
contained in paragraph 8.
6
6.
Defendants admit the allegations contained in paragraphs 9, 10, 11, 12, 13 and 14.
7
7.
Defendants deny all the allegations contained in paragraph 15.
8
8.
In response to the allegations contained in paragraph 16, Defendants admit that
9 10 11
Plaintiff 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. 9.
In response to the allegations contained in paragraph 17, Defendants admit that
12
Plaintiff was hired as a pathologist at Kern Medical Center and was appointed to the position of
13
Chair of the Pathology Department. Defendants deny all remaining allegations contained in
14
paragraph 17.
15
10.
In response to the allegations contained in paragraph 18, Defendants admit that
16
Plaintiff complained about departmental procedures and policies at Kern Medical Center and
17
interfered with patient care provided by Kern Medical Center and its physicians. Defendants
18
deny all remaining allegations contained in paragraph 18.
19
11.
Defendants deny all the allegations contained in paragraphs 19 and 20.
20
12.
In response to the allegations contained in paragraph 21, Defendants admit that
21
Plaintiff requested and received multiple leaves of absence and that the terms and conditions of
22
the leaves Plaintiff received are memorialized in writings. Defendants deny all remaining
23
allegations contained in paragraph 21.
24
13.
In response to the allegations contained in paragraphs 22, 23 and 24, Defendants
25
admit that Plaintiff requested and received multiple leaves of absence for multiple reasons, was
26
removed from his position as Chair of the Pathology Department because he was neither working
27
full-time nor present in the hospital and that his compensation was reduced. Defendants also
28
admit that Plaintiff complained about the policies and procedures at Kern Medical Center, wrote ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
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letters to several physicians and administrators at Kern Medical Center and other health care
2
organizations and was placed on administrative leave. Defendants deny all remaining allegations
3
in those paragraphs.
4
14.
In response to the allegations contained in paragraph 25, Defendants admit that
5
Plaintiff has been provided with the information he requested from the computer that was
6
previously assigned to him. Defendants deny all remaining allegations contained in paragraph
7
25.
8
15.
Defendants deny all the allegations contained in paragraph 26.
9
16.
In answer to the allegations contained in paragraph 27, Defendants admit that
10
Plaintiff is on paid administrative leave. Defendants deny all remaining allegations contained in
11
paragraph 27.
12
17.
In answer to the allegations contained in paragraphs 28 and 29, Defendants admit
13
that Plaintiff was employed as a pathologist in Kern Medical Center and assigned to the position
14
of Chair of the Pathology Department and that he was compensated and provided with certain
15
benefits pursuant to a written employment agreement. Defendants deny all remaining allegations
16
contained in paragraphs 28 and 29.
17
18.
In response to the allegations contained in paragraph 30, Defendants admit that
18
Plaintiff was expected to be an effective member of the physicians’ staff at Kern Medical Center
19
and to contribute to the overall improvement of the hospital. Defendants deny all remaining
20
allegations contained in paragraph 30.
21
19.
In response to the allegations contained in paragraphs 31, 32 and 33, Defendants
22
admit that interpretation of the referenced documents is a question of law. Defendants deny all
23
remaining allegations contained in those paragraphs.
24
20.
Defendants admit the allegations contained in paragraph 34.
25
21.
In response to the allegations contained in paragraphs 35, 36 and 37, Defendants
26
admit that interpretation of the referenced documents is a question of law. Defendants deny all
27
remaining allegations contained in those paragraphs.
28 ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
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22.
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Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 38.
3
23.
In response to the allegations contained in paragraph 39, Defendants admit that
4
Plaintiff complained about policies and procedures at Kern Medical Center and that his actions
5
interfered with patient care. Defendants deny all remaining allegations contained in paragraph
6
39.
7
24.
In response to the allegations contained in paragraphs 40 and 41, Defendants
8
admit that Plaintiff’s former attorney sent a letter to Bernard Barmann and that Plaintiff met with
9
Mr. Barmann on or about February 9, 2006. Defendants deny all remaining allegations
10 11
contained in those paragraphs. 25.
In response to the allegations contained in paragraphs 42 and 43, Defendants
12
admit that Plaintiff complained about policies and procedures at Kern Medical Center, disagreed
13
with other staff physicians about patient care and wrote letters expressing his disagreement.
14
Defendants deny all remaining allegations contained in those paragraphs.
15
26.
In response to the allegations contained in paragraphs 44, 45, 46 and 47,
16
Defendants admit that disagreements arose between Plaintiff and William Roy regarding the
17
review of pathology reports, the timeliness and accuracy of Plaintiff’s pathology reports and
18
Plaintiff’s management of the Pathology Department and that letters were written by the Plaintiff
19
and others regarding these issues. Defendants deny all remaining allegations contained in those
20
paragraphs.
21
27.
In response to the allegations contained in paragraphs 48, 49, 50, 51, 52, 53 and
22
54, Defendants admit that disagreements arose between Plaintiff and other physicians at Kern
23
Medical Center, including some of the Defendants, regarding the review of pathology reports,
24
the timeliness and accuracy of Plaintiff’s pathology reports, Plaintiff’s management of the
25
Pathology Department, hospital policies and procedures and patient care. Defendants further
26
admit that letters were written by the Plaintiff and others regarding these issues. Defendants
27
deny all remaining allegations contained in those paragraphs.
28 ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
4
Case 1:07-cv-00026-OWW-TAG
1
28.
Document 68
Filed 10/29/2007
Page 16 of 42
In response to the allegations contained in paragraphs 55, 56, 57, 58 and 59,
2
Defendants admit that Plaintiff disrupted the October, 2005, Monthly Oncology Conference and
3
prevented appropriate discussion of case management and that other physicians at Kern Medical
4
Center, including some of the Defendants, were concerned about Plaintiff’s conduct and with his
5
interference with patient care. Defendants further admit that letters were written by Plaintiff,
6
William Roy and others about the incident. Defendants deny all remaining allegations in those
7
paragraphs.
8
29.
Defendants deny all the allegations contained in paragraphs 60, 61, 62 and 63.
9
30.
In response to the allegations contained in paragraph 64, Defendants are without
10
knowledge or information sufficient to form a belief as to the truth of the averments contained in
11
paragraph 64.
12
31.
In response to the allegations contained in paragraphs 65, 66, 67, 68, 69, 70, 71
13
and 72, Defendants admit that letters were sent and received by Plaintiff and some of the
14
Defendants regarding Plaintiff’s conduct and criticism of Kern Medical Center’s policies and
15
procedures. Defendants deny all remaining allegations contained in those paragraphs.
16
32.
Defendants deny all the allegations contained in paragraph 73.
17
33.
In response to the allegations contained in paragraph 74 and 75, Defendants admit
18
that Plaintiff’s entitlement to leave under FMLA and CFRA is a question of law. Defendants
19
deny all remaining allegations contained in those paragraphs.
20
34.
In response to the allegations contained in paragraph 76, 77, 78, 79 and 80,
21
Defendants admit that Plaintiff requested and received leaves of absence on multiple occasions
22
for multiple reasons and that there are several documents authored by Plaintiff and others
23
regarding the reasons for his leaves of absence and the terms of the leaves. Defendants deny all
24
remaining allegations in those paragraphs.
25
35.
In response to the allegations contained in paragraph 81, 82, 83, 84, 85 and 86,
26
Defendants admit that Plaintiff exchanged written correspondence with Peter Bryan and others
27
regarding leaves of absence. Defendants deny that Plaintiff engaged in any “whistleblowing
28 ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
5
Case 1:07-cv-00026-OWW-TAG
Document 68
Filed 10/29/2007
Page 17 of 42
1
activity” and that Plaintiff is or ever was a “whistleblower”. Defendants deny all remaining
2
allegations in those paragraphs.
3 4 5
36.
Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraphs 87 and 88. 37.
In response to the allegations contained in paragraphs 89, 90, 91 and 92,
6
Defendants admit that Plaintiff and Peter Bryan exchanged written correspondence regarding
7
leaves of absence that Plaintiff requested and Plaintiff’s tenure as Chair of the Pathology
8
Department at Kern Medical Center. Defendants also admit that on or about July 10, 2006, the
9
Joint Conference Committee voted to remove Plaintiff from his position as Chair of the
10
Pathology Department at Kern Medical Center. Defendants deny all remaining allegations
11
contained in those paragraphs.
12
38.
Defendants deny all the allegations contained in paragraph 93.
13
39.
In response to the allegations contained in paragraphs 94, 95, 96, 97 and 98,
14
Defendants admit that Plaintiff’s employment agreement was amended to reduce Plaintiff’s base
15
compensation and that Plaintiff continued to send and receive written communications to others
16
regarding his leaves of absence. Defendants deny all remaining allegations contained in those
17
paragraphs.
18
40.
In response to the allegations contained in paragraph 99, Defendants admit that
19
Plaintiff returned to work as a staff pathologist at Kern Medical Center in October, 2006 and that
20
Phillip Dutt was appointed Acting Chair of the Pathology Department. Defendants deny all
21
remaining allegations contained in paragraph 99.
22
41.
Defendants deny all the allegations contained in paragraph 100.
23
42.
In response to the allegations contained in paragraphs 101 and 102, Defendants
24
admit that Plaintiff exchanged written correspondence with David Culberson. Defendants deny
25
all remaining allegations contained in those paragraphs.
26 27
43.
In response to the allegations contained in paragraph 103, Defendants admit that
Plaintiff has been provided with the information he requested from the County-owned computer
28 ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
6
Case 1:07-cv-00026-OWW-TAG
Document 68
Filed 10/29/2007
Page 18 of 42
1
that was previously assigned to him. Defendants deny all remaining allegations contained in
2
paragraph 103.
3 4 5
44.
Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 104. 45.
In answer to the allegations contained in paragraph 105, Defendants admit that
6
Plaintiff is on paid administrative leave. Defendants deny all remaining allegations contained in
7
paragraph 105.
8 9 10 11 12 13
46.
In response to the allegations contained in paragraph 106, Defendants admit that
Plaintiff requested and received a reduced work schedule. Defendants deny all remaining allegations contained in paragraph 106. 47.
Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 107. 48.
In response to the allegations contained in paragraphs 108, 109 and 110,
14
Defendants admit that Plaintiff and Peter Bryan exchanged written communications regarding
15
Plaintiff’s request for leaves of absence. Defendants deny all remaining allegations contained in
16
those paragraphs.
17
49.
Defendants deny all the allegations contained in paragraph 111.
18
50.
In answer to the allegations contained in paragraphs 112, 113, 114, 115, 116 and
19
117, Defendants admit that Plaintiff exchanged written communications with Peter Bryan
20
regarding his work schedule and requests for leaves of absence and met with Peter Bryan and
21
others to discuss those subjects. Defendants deny all remaining allegations contained in those
22
paragraphs.
23 24 25
51.
Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraphs 118 and 119. 52.
In response to the allegations contained in paragraphs 120, 121 and 122,
26
Defendants admit that plaintiff and Peter Bryan exchanged written communications regarding
27
Plaintiff’s leaves of absence and performance as Chair of the Pathology Department. Defendants
28
deny all remaining allegations contained in those paragraphs. ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
7
Case 1:07-cv-00026-OWW-TAG
53.
1 2
Document 68
Filed 10/29/2007
Page 19 of 42
Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 123. 54.
3
In answer to the allegations contained in paragraph 124, Defendants admit that
4
Plaintiff is on paid administrative leave. Defendants deny all remaining allegations contained in
5
paragraph 124.
6 7 8 9
55.
Defendants deny all the allegations contained in paragraphs 125, 126, 127 and
56.
Defendants deny all the allegations contained in paragraphs 129, 130, 131, 132,
128.
133 and 134.
10
57.
Defendants deny all the allegations contained in paragraph 135.
11
58.
In response to the allegations contained in paragraph 136, Defendants admit that
12
Plaintiff is on paid, unrestricted, administrative leave and is free to pursue whatever other career
13
or business opportunities he desires. Defendants deny all remaining allegations contained in
14
paragraph 136.
15
59.
Defendants deny all the allegations contained in paragraph 137.
16
60.
In response to the allegations contained in paragraph 138, Defendants admit that
17
Plaintiff’s base compensation as a staff pathologist is less than it was when he was Chair of the
18
Pathology Department. Defendants deny all remaining allegations contained in paragraph 138.
19 20 21
61.
Defendants deny all the allegations contained in paragraphs 139, 140, 141, 142,
143 and 144. 62.
In response to the allegations contained in paragraph 145, Defendants admit that
22
Plaintiff filed a claim with Defendant, County of Kern, and that the claim has been rejected.
23
Defendants deny all remaining allegations contained in paragraph 145.
24 25 26 27
63.
Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraphs 146 and 147. 64.
Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraphs 148, 149, 150, 151 and 152.
28 ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
8
Case 1:07-cv-00026-OWW-TAG
1 2 3 4 5
65.
Document 68
Filed 10/29/2007
Page 20 of 42
Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 153. 66.
Defendants incorporate herein, all of their responses to paragraphs 1 through 153,
inclusive. 67.
In response to the allegations contained in paragraph 155, Defendants admit that
6
interpretation of Health and Safety Code §1278.5 is a matter of law. Defendants deny all
7
remaining allegations contained in paragraph 155.
8 9 10 11 12 13 14
68.
Defendants deny all the allegations contained in paragraphs 156, 157 and 158 and
further deny that Plaintiff has engaged in any “whistleblowing activity” or is a “whistleblower”. 69.
Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 159. 70.
Defendants incorporate herein, their responses to paragraphs 1 through 159,
inclusive. 71.
In response to the allegations contained in paragraph 161, Defendants admit that
15
interpretation of Labor Code §1102.5 is a matter of law. Defendants deny all remaining
16
allegations contained in paragraph 161.
17 18 19 20
72.
Defendants deny all the allegations contained in paragraphs 162, 163, 164 and
165 and further deny that Plaintiff made any “whistleblowing reports”. 73.
Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 166.
21
74.
Defendants incorporate herein, their responses to 1 through 166, inclusive.
22
75.
In response to the allegations contained in paragraphs 168, 169 and 170,
23
Defendants admit that interpretation of Government Code §12945.2(a)(1) and Title 2 of
24
California Code of Regulations §7297.7(a) and §7297.2(c) is a matter of law. Defendants deny
25
all remaining allegations contained in those paragraphs.
26
76.
Defendants deny all the allegations contained in paragraphs 171 and 172.
27
77.
Defendants are without knowledge or information sufficient to form a belief as to
28
the truth of the averments contained in paragraph 173. ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
9
Case 1:07-cv-00026-OWW-TAG
1 2 3
78.
Document 68
Filed 10/29/2007
Page 21 of 42
Defendants incorporate herein, their responses to paragraphs 1 through 173,
inclusive. 79.
In response to the allegations contained in paragraph 175, Defendants admit that
4
interpretation of 29 U.S.C. §2611(4)(A)(ii)(I) and 29 U.S.C. §2615(a) is a matter of law.
5
Defendants deny all remaining allegations contained in paragraph 175.
6
80.
Defendants deny all the allegations contained in paragraphs 176, 177 and 178.
7
81.
Defendants are without knowledge or information sufficient to form a belief as to
8 9 10 11
the truth of the averments contained in paragraph 179. 82.
Defendants incorporate herein, their answers to paragraphs 1 through 179,
inclusive. 83.
In response to the allegations contained in paragraphs 181, 182, 183, 184, 185,
12
186, 187 and 188, Defendants admit that interpretation of the California Family Rights Act is a
13
question of law. Defendants deny all remaining allegations contained in those paragraphs.
14
84.
Defendants deny all the allegations contained in paragraphs 189, 190 and 191.
15
85.
Defendants are without knowledge or information sufficient to form a belief as to
16 17 18 19
the truth of the averments contained in paragraph 192. 86.
Defendants incorporate herein, their responses to paragraphs 1 through 192,
inclusive. 87.
In response to the allegations contained in paragraph 194, Defendants admit that
20
interpretation of the California Fair Employment and Housing Act is a question law. Defendants
21
deny all remaining allegations remaining in paragraph 194.
22
88.
Defendants deny all the allegations contained in paragraphs 195 and 196.
23
89.
Defendants are without knowledge or information sufficient to form a belief as to
24 25 26 27
the truth of the averments contained in paragraph 197. 90.
Defendants incorporate herein, their responses to paragraphs 1 through 197,
inclusive. 91.
Defendants deny all the allegations contained in paragraph 199.
28 ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
10
Case 1:07-cv-00026-OWW-TAG
1 2 3 4
92.
Document 68
Filed 10/29/2007
Page 22 of 42
Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 200. 93.
Defendants incorporate herein, their responses to paragraphs 1 through 200,
inclusive.
5
94.
Defendants deny all the allegations contained in paragraph 202.
6
95.
Defendants are without knowledge or information sufficient to form a belief as to
7 8 9 10
the truth of the averments contained in paragraph 203. 96.
Defendants incorporate herein, their responses to paragraphs 1 through 204,
inclusive. 97.
In response to the allegations contained in paragraph 205, Defendants admit that
11
interpretation of the Fourteenth Amendment to the United States Constitution is a question of
12
law. Defendants deny all remaining allegations contained in paragraph 205.
13 14 15 16 17 18 19 20 21 22 23 24 25
98.
Defendants deny all the allegations contained in paragraphs 206, 207, 208, 209,
210, 211, 212, 213 and 214. 99.
Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 215. 100.
Defendants incorporate herein, their responses to paragraphs 1 through 215,
inclusive. 101.
Defendants deny all the allegations contained in paragraphs 217, 218, 219, 220,
221, 222, 223, 224 and 225. 102.
Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 226. 103.
Defendants incorporate herein, their responses to paragraphs 1 through 226,
inclusive. 104.
In response to the allegations contained in paragraphs 228 and 229, Defendants
26
admit that interpretation of the Code of Federal Regulations, including 20C.F.R. §541.118(1) and
27
§541.18(6), is a question of law. Defendants deny all remaining allegations contained in those
28
paragraphs. ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
11
Case 1:07-cv-00026-OWW-TAG
Document 68
Filed 10/29/2007
Page 23 of 42
1
105.
2
As and for a first affirmative defense, Defendants allege that Plaintiff’s Second
3
Supplemental Complaint and each and every purported claim contained therein fails to state a
4
claim upon relief can be granted.
5
Defendants deny all the allegations contained in paragraphs 230, 231 and 232.
As and for a second affirmative defense, Defendants allege that this Court lacks subject
6
matter jurisdiction over Plaintiff’s alleged claims and should refuse to exercise jurisdiction over
7
Plaintiff’s state claims because they predominate and the alleged federal claims are insubstantial.
8 9
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
10
sections 1157, 1157.5, 1157.6 and 1157.7, California Business and Professions Code sections
11
800 through 809.9 and California Civil Code section 47(a) and (b) in that Defendants’ actions
12
were in furtherance of medical peer review, maintenance of quality-of-care standards, discharge
13
of official duties and performed in the course of official proceedings authorized by law and that
14
Defendants and each of them are, therefore, immune from liability.
15
As and for a fourth affirmative defense, Defendants allege that California Civil Code
16
section 47(a) and (b) immunizes Defendants and each of them from liability for the matters
17
alleged in the Second Supplemental Complaint.
18
As and for a fifth affirmative defense, Defendants allege that, during Plaintiff’s
19
employment at Kern Medical Center, Plaintiff was arrogant, disagreeable, uncooperative,
20
intimidating, overbearing, self-righteous and unfriendly and that Plaintiff’s behavior contributed
21
to and was the direct and proximate cause of any stresses, disabilities or injuries that Plaintiff
22
believes he sustained.
23
As and for a sixth affirmative defense, Defendants allege that Plaintiff’s injuries, as
24
alleged in the Second Supplemental Complaint occurred more than one year before Plaintiff
25
commenced this action and that Plaintiff’s claims are, therefore, barred by the statue of
26
limitations established in California Code of Civil Procedures §340.
27
As and for a seventh affirmative defense, Defendants allege that Plaintiff’s injuries, as
28
alleged in the Second Supplemental Complaint occurred more than two years before Plaintiff ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
12
Case 1:07-cv-00026-OWW-TAG
Document 68
Filed 10/29/2007
Page 24 of 42
1
commenced this action and that Plaintiff’s claims are, therefore, barred by the statue of
2
limitations established in California Code of Civil Procedures §335.1.
3
As and for an eighth affirmative defense, Defendants allege that Plaintiff has available
4
adequate administrative remedies which he failed to exhaust and that his claims are, therefore,
5
barred.
6
As and for a ninth affirmative defense, Defendants allege that the Defendants and each of
7
them have qualified immunity for each and every claim alleged in the Second Supplemental
8
Complaint because, in doing the things alleged, they were each acting within the course and
9
scope of their duties as public officials and did not violate any of Plaintiff’s constitutional rights
10 11
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
12
Supplemental Complaint and that judgment thereon be entered in favor of Defendants and
13
against Plaintiff and that Defendants be awarded their reasonable costs of suit and attorneys fees
14
together with such other and further relief as the Court deems just.
15 16 17 18 19
Dated: June 20, 2007
LAW OFFICES OF MARK A. WASSER By: /s/ Mark A. Wasser Mark A. Wasser Attorney for Defendants, County of Kern, et al.
20 21 22 23 24 25 26 27 28 ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
13
Case 1:07-cv-00026-OWW-TAG
Document 68
Filed 10/29/2007
EXHIBIT 2. Order Denying Motion to Strike (Doc. 64).
Page 25 of 42
Case Case1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document68 64
Filed Filed10/29/2007 10/23/2007 Page Page26 1 of 8 42
1 2 3 4 5
IN THE UNITED STATES DISTRICT COURT
6
FOR THE EASTERN DISTRICT OF CALIFORNIA
7 8 9 10
DAVID F. JADWIN, D.O., Plaintiff,
ORDER DENYING MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE AND REQUEST FOR SANCTIONS
vs.
11
COUNTY OF KERN, et al.,
12
Defendants.
13
Case No. 1:07-cv-0026-OWW-TAG
(Doc. 32)
___________________________________/
14 15 16
Plaintiff David F. Jadwin, D.O. has moved to strike the fifth affirmative defense in the
17
answer to second supplemental complaint filed by defendants County of Kern, Peter Bryan, Irwin
18
Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith, and William Roy
19
(collectively, "defendants"), and for sanctions against defendants’ counsel. (Docs. 31, 32). The
20
court has read and considered the pleadings, considered the arguments of counsel made at the
21
motion hearing in this matter, and makes the following ruling.
22
1. Legal standards.
23
A party may move to strike any “insufficient defense or any redundant, immaterial,
24
impertinent or scandalous matter.” Fed. R. Civ. P. 12(f). For a defense to be deemed
25
insufficient as a matter of law, “the court must be convinced that there are no questions of fact,
26
that any questions of law are clear and not in dispute, and that under no set of circumstances
27 28
-1-
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1
could the defense succeed.” Galley v. County of San Mateo, 2007 WL 902551, at *1 (N.D.Cal.
2
March 22, 2007) (citations omitted). Matters are redundant when they are needlessly repetitive
3
or unrelated to the issues involved in the action. Gilbert v. Eli Lilly & Co., Inc., 56 F.R.D. 166,
4
120 n. 4 (D.Puerto Rico 1972)(citations omitted). Immaterial allegations are those that have “no
5
essential or important relationship to the claim for relief or the defense being pleaded.” Fantasy,
6
Inc. v. Fogerty, 984 F. 2d 1524, 1527 (9th Cir. 1993), reversed on other grounds, Fogerty v.
7
Fantasy, Inc. , 510 U.S. 517, 534-535 (1994). Allegations are impertinent when they are
8
irrelevant to the issues in the case or are otherwise inadmissible. Id. Scandalous matters are
9
those that reflect cruelly upon a person’s moral character, use repulsive language, or detract from
10
the dignity of the court. Skadegaard v. Farrell, 578 F. Supp. 1209, 1221 (D. New Jersey 1984),
11
overruled on other grounds, Aitchison v. Raffiani, 708 F.2d 96 (3rd Cir. 1983).
12
The purpose of a motion to strike is to avoid litigating spurious issues, and it can operate
13
as an early challenge to the legal sufficiency of a defense. Fantasy, Inc. v. Fogerty, 984 F. 2d at
14
1527; California v. United States, 512 F.Supp. 36, 38 (N.D. Cal. 1981). Nevertheless, motions
15
to strike are “generally disfavored and not frequently granted,” for three reasons: (1) the liberal
16
pleading standard in federal practice; (2) they are often deployed as a delay tactic; and (3) the
17
prevailing view that “a case should be tried on the proofs rather than the pleadings.” Kaiser
18
Aluminum & Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir.
19
1982); Bassiri v. Xerox Corp., 292 F.Supp.2d 1212, 1220 (C.D. Cal. 2003); Lazar v. Trans
20
Union, L.L.C., 195 F.R.D. 665, 669 (C.D. Cal. 2000); see Rennie & Laughlin, Inc. v. Chrysler
21
Corp., 242 F.2d 208, 213 (9th Cir. 1958).
22
When considering a motion to strike a defense, the court must view the defense in the
23
light most favorable to the defendants and resolve any doubt regarding the sufficiency or
24
relevancy of the challenged defense in the defendant’s favor. Lazar v. Trans Union LLC , 195
25
F.R.D. at 669; ); In re TheMart.com, Inc. Securities Litigation, 114 F.Supp.2d 955, 965 (C.D.
26
Cal. 2000)(citing California v. United States, 512 F.Supp. at 36). Accordingly, a motion to strike
27 28
-2-
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1
a defense should not be granted unless it can be shown that no evidence in support of the defense
2
would be admissible or that the defense could have no possible bearing on the issues in the
3
action. See Gay-Straight Alliance Network v. Visalia Unified School Dist., 262 F. Supp.2d
4
1088, 1099 (E.D. Cal. 2001)
5
2. Motion to strike fifth affirmative defense.
6
Plaintiff's second supplemental complaint alleges eleven state and federal claims against
7
eight defendants, arising out of plaintiff's employment as a pathologist at Kern Medical Center
8
(“KMC”) in Bakersfield, California. (Doc. 30). Defendants’ answer to the second supplemental
9
complaint contains nine affirmative defenses. (Doc. 31). The fifth affirmative defense alleges:
10
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. (Doc. 31, 12:18-22).
11 12 13 14
Plaintiff has moved for an order striking the fifth affirmative defense from the answer and
15
awarding sanctions against defendants’ counsel. (Doc. 32). Plaintiff contends the fifth
16
affirmative defense is an “insufficient defense” and a “scandalous matter” under Rule 12(f) and
17
should therefore be stricken.
18
A. Fifth affirmative defense.
19
Plaintiff characterizes the fifth affirmative defense as contributory negligence and argues
20
that it is insufficient because contributory negligence is not a defense to any of plaintiff’s claims.
21
Defendants assert that the fifth affirmative defense merely describes plaintiff’s behavior at KMC
22
and alleges that plaintiff’s own behavior caused at least some of the hostility in the work
23
environment that plaintiff complains about.
24
(a). Hostile work environment allegations.
25
Plaintiff’s complaint alleges that plaintiff worked in a “deteriorating” pathology
26
department at KMC for nearly seven years, and that when he complained about it and other
27 28
-3-
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1
issues, he was defamed, harassed, retaliated and discriminated against, demoted, and subjected to
2
a hostile work environment. The complaint contains several allegations that plaintiff was
3
damaged by a “hostile work environment” and “work hostility.” These allegations are contained
4
primarily in the first 152 paragraphs of the complaint, and are incorporated by reference into all
5
of plaintiff's claims.
6
Plaintiff’s complaint includes state law retaliation and discrimination claims wherein he
7
alleges that he suffered a hostile work environment at KMC. For example, plaintiff alleges that
8
after he was demoted from head of the pathology department to staff pathologist, he “continued
9
to suffer a hostile work environment and retaliation.” (Doc. 30, 9:13-14)(italics added).
10
Plaintiff’s whistleblower claim alleges that in February 2006, he reported his “various
11
[c]oncerns, as well as the retaliation, defamation and hostile work environment [p]laintiff was
12
experiencing at KMC.” (Doc. 30, 13:13-15)(italics added). Plaintiff’s discrimination claims
13
alleges that he notified KMC in 2003 that “he suffered from depression due to work-related
14
hostility and KMC’s failure to resolve [p]laintiff's compliance and patient care issues” (Doc. 30,
15
28:18-19), and that by 2005, he “was suffering extreme stress from the hostile work environment
16
created by the harassment, defamation, discrimination, and retaliatory actions of [d]efendants.”
17
(Doc. 30, 28:22-23. 29:1-2)(italics added). Plaintiff also alleges that defendants “willfully and
18
intentionally creat[ed] a hostile work environment, subjecting him to acts of defamation and
19
ratification thereof, demotion and excessive reduction in pay, disparate treatment, unwarranted
20
criticism and reprimands, threats, requests for his resignation, interference with and denial of his
21
right to medical leave, refusing to engage in good faith in an interactive process and denying him
22
reasonable accommodations and procedural due process because of his protected characteristics
23
and/or activities alleged herein.” (Doc. 30, 33:5-11)(italics added).
24
(b). The fifth affirmative defense is relevant to plaintiff’s claims.
25
Plaintiff’s complaint alleges that he suffered a hostile work environment and seeks
26
damages as a result under a variety of legal theories, including under FEHA. Non-sexual
27 28
-4-
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1
harassment hostile environment claims are subject to the same hostile environment analysis
2
applied to sexual harassment cases, i.e., whether the conduct was so severe and pervasive as to
3
constitute a hostile work environment. See e.g., Muller v. Automotive Club of Southern
4
California, 61 Cal. App. 4th 431, 446 (1998), disapproved on other grounds, Colmenares v.
5
Braemar Country Club, Inc., 29 Cal. 4th 1019, 1031 (2003). Plaintiff’s hostile work environment
6
allegations bring into issue the totality of the circumstances of his work environment, which
7
includes matters such as the conditions of plaintiff's work at KMC, the quality of his work
8
relationships at KMC, his management of the pathology department, and the link between those
9
matters and plaintiff's injuries. Each of these issues concerns defendants’ and plaintiff’s behavior
10
at KMC. The fifth affirmative defense alleges that plaintiff's own behavior caused the problems
11
he encountered at KMC.
12
The possibility that plaintiff's own behavior may have been the source of his problems at
13
KMC is also illustrated by allegations in plaintiff's own complaint. For example, the complaint
14
alleges that in February 2006, defendant Bryan sent a letter advising plaintiff that “your decision
15
to confront the issues this way is not a good one....It is not your message that people react to but
16
rather how you deliver it....” (Doc. 30, 21:10-19)(italics added).
17
(c). Characterization of the fifth affirmative defense.
18
Plaintiff reads the fifth affirmative defense narrowly and argues that it asserts only
19
contributory negligence. The court is not persuaded by plaintiff's argument, because it is based on
20
a faulty premise. The problem with plaintiff’s premise is that it characterizes the fifth affirmative
21
defense as exclusively contributory negligence and ignores the fact that it concerns other
22
defenses as well. The substance of the fifth affirmative defense is that plaintiff's own misconduct
23
created the situation that resulted in his injuries. An allegation that a party has acted inequitably
24
or asserted a claim in bad faith gives rise to an unclean hands defense. An allegation that a party
25
has sought to benefit from his own wrongdoing gives rise to an equitable estoppel. Both are
26
apparent in the fifth affirmative defense. Given that the court is obliged to view the fifth
27 28
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1
affirmative defense in the light most favorable to defendants and to resolve any doubt regarding
2
the sufficiency or relevancy of the defense in defendants’ favor, the court does not subscribe to
3
plaintiff’s narrow interpretation of the defense.
4
The fifth affirmative defense can be characterized as an assertion of an unclean hands
5
defense which if proven, “closes the doors of a court of equity to one tainted with inequitableness
6
or bad faith relative to the matter in which he seeks relief, however inappropriate may have been
7
the behavior of the defendant.” Precision Instrument Manufacturing Co. v. Automotive
8
Maintenance Machinery Co., 324 U.S. 806, 814, 65 S.Ct. 993, 997 (1945). The fifth affirmative
9
defense can also be characterized as an assertion of an equitable estoppel defense, which
10
“precludes a party from asserting rights he otherwise would have had against another when his
11
own conduct renders assertions of those rights contrary to equity.” Aetna Casualty and Surety
12
Company v. Jeppeson & Company, 440 F. Supp. 394, 403-404 (D. Nev. 1977)(internal
13
quotation omitted); Metalclad Corp. v. Ventana Environmental Organizational Partnership, 109
14
Cal.App. 4th 1705, 1713 (2003)(citation omitted) .
15
Unclean hands and equitable estoppel are affirmative defenses under federal and state
16
law, and their application is primarily a question of fact in each case. See Hass v. Darigold Dairy
17
Products Co., 751 F.2d 1096, 1099 (9th Cir. 1985); Kendall-Jackson Winery, Ltd. v. Superior
18
Court, 76 Cal.App. 4th 970, 978 (1999); City of Culver City v. State Board of Equalization, 29
19
Cal. App. 3d 404, 411(1972. The court has found no case law to suggest that the defenses of
20
unclean hands and equitable estoppel are inapplicable in the context of at least some of plaintiff's
21
claims, including the § 1983 claim.
22
Moreover, this action is in the early stages of discovery. It is possible that defendants
23
may prove a set of facts in which plaintiff’s behavior created the hostile work environment from
24
which at least some of his damages arise. After viewing the fifth affirmative defense in the light
25
most favorable to defendants and resolving any doubt regarding the sufficiency or relevancy of
26
the defense in defendants’ favor, the court is not convinced that there are no facts to support the
27 28
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1
fifth affirmative defense or that under no set of circumstances could the defense succeed.
2
Accordingly, the court concludes that the fifth affirmative defense is legally sufficient and that an
3
order striking the defense is not warranted at this time. The motion to strike the defense on the
4
ground that it is legally insufficient is denied without prejudice to plaintiff's right to seek the
5
same relief after discovery and development of the evidence.
6
B. Scandalous matter.
7
Plaintiff contends the fifth affirmative defense is a scandalous matter and should be
8
stricken because it alleges that plaintiff “was arrogant, disagreeable, uncooperative, intimidating,
9
overbearing, self-righteous and unfriendly.” Plaintiff contends these contentions assert offensive
10
character defects and are a pretextual reason for defendants' wrongful conduct towards plaintiff.
11
The court has considered the content, nature, and context of the fifth affirmative defense.
12
The defense describes plaintiff’s alleged behavior during his employment at KMC, which if
13
proven, is neither admirable nor cruelly derogatory. Plaintiff makes similar, if not harsher,
14
statements regarding the behavior of defendant Roy, who is also KMC physician. For example,
15
plaintiff alleges that in March 2006, he reported to KMC’s chief executive officer that defendant
16
Roy “has made outrageous false statements about the pathology department and myself, which
17
cause great concern about his ethical integrity....I think it is outrageous that the medical staff sits
18
by and lets this individual act in such a pompous, destructive manner. I feel a personal duty to
19
the pathology department (and the hospital) to push the issue of his bad conduct in whatever
20
venue may be needed to control the actions of this individual.” (Doc. 30, 22:1-5)(italics added).
21
Pompous is synonymous with overbearing. Thus, at least one of the words that plaintiff uses to
22
describe a defendant’s behavior is nearly identical to the word that plaintiff considers
23
“scandalous” when it is used to describe his own behavior.
24
The court is not persuaded by plaintiff’s argument. The fifth affirmative defense does not
25
reflect cruelly on plaintiff’s character, does not use repulsive language, and is not sufficiently
26
derogatory or degrading to constitute a scandalous matter within the meaning of Rule 12 of the
27 28
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1
Federal Rules of Civil Procedure. The motion to strike the defense as a scandalous matter is
2
denied.
3
3. Motion for Sanctions.
4
Plaintiff requests that the court award sanctions against defendants’ attorney because,
5
according to plaintiff, there is no basis in law or fact to support the fifth affirmative defense. Fed.
6
R. Civ. P. 11 (c ). As discussed above, the fifth affirmative defense is legally sufficient and will
7
not be stricken at this time. The court concludes that defendants’ attorney has not asserted a
8
frivolous defense or falsely certified defendants’ answer to the complaint, and the court is
9
persuaded by Attorney Wasser’s declaration that defendants have a good faith belief in the
10
factual basis for the fifth affirmative defense. Sanctions are not warranted and plaintiff’s request
11
for sanctions is denied.
12
ORDERS
13
Based on the foregoing, IT IS HEREBY ORDERED that:
14
1. Plaintiff's motion to strike the fifth affirmative defense is DENIED without prejudice,
15
and plaintiff’s request for sanctions is DENIED. (Doc. 32).
16 17
IT IS SO ORDERED.
18
Dated: October 23, 2007 j6eb3d
/s/ Theresa A. Goldner UNITED STATES MAGISTRATE JUDGE
19 20 21 22 23 24 25 26 27 28
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Case 1:07-cv-00026-OWW-TAG
Document 68
Filed 10/29/2007
Page 34 of 42
EXHIBIT 3. Plaintiff’s Reply to Opposition to Motion to Strike (Doc. 45).
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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.
11
UNITED STATES DISTRICT COURT
12
EASTERN DISTRICT OF CALIFORNIA
13 14
DAVID F. JADWIN, D.O.,
15 16 17 18
Plaintiff, v. COUNTY OF KERN; et al. Defendants.
19
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:
20
January 6, 2007 August , 2008
21 22 23 24 25 26 27 28
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
1
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1
(1982) 128 Cal.App.3d 154; Weidenfeller v. Star & Garter (1991) 1 Cal.App.4th 1. Nor is it a defense to
2
strict liability causes of action.
3
1. Defendants Concede that Contributory Negligence is Irrelevant Here.
4
Defendants have expressly admitted in the Opposition that “[this action] is not a traditional
5
negligence case and contributory negligence is not a relevant concept.” Opposition, 4:24-25
6
(emphasis added). Nonetheless, Defendants still argue in the Opposition that this Court should not strike
7
their Fifth Affirmative Defense (“FAD”) because “Plaintiff’s behavior contributed to hostility in the
8
work environment.” Opposition, 6:11-12 (emphasis in original). In their Answer, Defendants avoid
9
labeling their Fifth Affirmative Defense as one of ‘Comparative Negligence’, but a plain reading of
10
Defendants’ arguments reveals it as such. In fact, Defendants have expressly admitted that the FAD articulates a comparative negligence1
11 12
defense. In an email to Plaintiff’s counsel dated May 9, 2007, Mr. Mark Wasser, counsel of record for
13
Defendants, stated as follows:
14
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).
15 16
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
21
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
1
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.
REPLY TO OPPOSITION TO MOTION TO STRIKE 5TH AFFIRMATIVE DEFENSE
2
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This is incorrect – Plaintiff’s allegations of general damages are directly related to the remedies
2
provided by the statutes that he alleges Defendants violated. In fact, the FEHA and CFRA2 specifically
3
permit recovery for general damages. The California Supreme Court held in State Personnel Bd. v. Fair Employment & Housing Com.,
4 5
that these “same remedies [authorized under Cal. Gov’t. C. § 12970 (damages for emotional pain,
6
suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses)]
7
along with compensatory and punitive damages, may be awarded by a superior court in a private
8
enforcement action under the FEHA.” 39 Cal. 3d 422, 433-434 (Cal. 1985).
9
Similarly, the California Court of Appeal has held:
10
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).
11 12 13 14
3. Contrary to Defendants’ Contention, Contributory/Comparative Negligence Is Not A Defense in Strict Liability Cases
15
Defendants further contend that Safeway Stores, Inc. v. Nest-Kart, 21 Cal.3d 322 (1978) stands
16 17
for the proposition that “evidence of a party’s own behavior is relevant even in strict liability cases.”
18
Opposition, 8:12-13. The case is utterly inapposite. There, the California Supreme Court considered the
19
issue of how to apportion liability between co-defendant joint tortfeasors, one of which had been
20
found strictly liable and the other both negligent and strictly liable. The court concluded that it was
21
appropriate to apply comparative fault apportionment of liability between the co-defendants according to
22
the jury’s determination. Id. at 331-32. Safeway Stores in no way stands for the proposition that a
23
plaintiff’s contributory or comparative negligence is “relevant even in strict liability cases”. Id.
24
Not only have Defendants insisted on re-litigating the well-settled proposition that a plaintiff’s
25
contributory negligence is not an affirmative defense to an intentional tort or strict liability actions, in
26
doing so they have made incorrect and misleading representations about the law to this Court.
27 28
2
CFRA is a part of the FEHA and subject to the same remedies.
REPLY TO OPPOSITION TO MOTION TO STRIKE 5TH AFFIRMATIVE DEFENSE
3
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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”
3
Under Rule 26, affirmative defenses which are legally sufficient may still be stricken if they are
4
“redundant, immaterial, impertinent, or scandalous.” SEC v. Gulf & Western Industries, Inc. 502 F.Supp.
5
343, 345 (D.D.C. 1980).
6
Plaintiff’s Motion contends that the FAD is “scandalous” and cites Skadegaard v. Farrell 578
7
F.Supp. 1209, 1221 (D.N.J. 1984) for its holding that “scandalous” allegations are those that cast a
8
“cruelly” derogatory light on a party or other person. Motion, 7:8.5-8.5.3 Skadegaard further established
9
that allegations must be neither (1) “unnecessarily derogatory” nor (2) “irrelevant”. Id. at 1221.
10
1. The Fifth Affirmative Defense Is “Unnecessarily Derogatory”
11
The Opposition states “Nothing in the defense attacks Plaintiff’s character or competence.”
12
Opposition, 6:10; see also Id. at 7:10. Defendants further argue that the FAD’s allegations that “Plaintiff
13
was arrogant, disagreeable, uncooperative, intimidating, overbearing, self-righteous, and unfriendly”
14
describe Plaintiff’s “behavior” and not his “character”. Opposition, 6:11-15. This erstwhile distinction is
15
belied by the syntax of the FAD: “[. . . ] Defendants allege that [. . .] Plaintiff was arrogant,
16
disagreeable, uncooperative, intimidating, overbearing, self-righteous, and unfriendly and that
17
Plaintiff’s behavior…”) (emphasis added). The FAD itself contradicts Defendants’ assertion that the
18
mal-adjectives at issue in the first clause relate to behavior rather than character.
19 20
The first clause of the FAD constitutes a purely gratuitous attack on Plaintiff’s character. It is “unnecessarily derogatory” and is therefore scandalous.
21 2. The Fifth Affirmative Defense Is “Irrelevant”4
22
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
3
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).
REPLY TO OPPOSITION TO MOTION TO STRIKE 5TH AFFIRMATIVE DEFENSE
4
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1
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Defendants cite RDF Media Ltd. v. Fox Broadcasting Co.as an example where the court struck
2
scandalous allegations from a complaint. There, the court reasoned that the plaintiff had quoted “sharp”
3
words from newspaper articles to “lend credence to the opinions” of commentators and give the
4
“appearance that such opinions are legally relevant to the dispute”. Opposition, 7:12-19, citing RDF
5
Media Ltd. v. Fox Broadcasting Co., 372 F. Supp. 2d 556.
6
Here, the converse applies. In alleging the FAD, Defendants omitted quotations from any
7
contemporaneous employee performance reviews that might substantiate their derogatory attack on
8
Plaintiff’s character. Opposition, 7:12-19, citing RDF Media Ltd. v. Fox Broadcasting Co., 372 F. Supp.
9
2d 566 (C.D. Cal. 2005). This is because, as the Motion discussed at length, the documented
10
explanations Defendants provided at the time they took adverse employment actions against Plaintiff
11
make no reference to Plaintiff’s character. Now after the fact, the FAD alleges Plaintiff has a bad
12
character and offers this as the explanation for the adverse actions. Motion, 7:16.5 – 8:8.
13
The FAD is nothing more than pretext and is irrelevant to this action.
14
Moreover, as discussed in Section A, supra, whether or not Plaintiff “contributed” to the hostility
15
of the work environment is by Defendants’ own admissions “not relevant”. Opposition, 4:24-25.
16 17
For the foregoing reasons, the FAD is scandalous because it is unnecessarily derogatory and
18
irrelevant and should be stricken.
19
C. PLAINTIFF WILL BE PREJUDICED BY THE FIFTH AFFIRMATIVE DEFENSE
20
1. Defendants Concede That Plaintiff Need Not Show Prejudice under Rule 12
21
Defendants’ Opposition does not challenge Plaintiff’s assertion in the Motion that Plaintiff is not
22
required to show prejudice in bringing a motion to strike. Motion, 8:21.5 – 9:3 (citing Atlantic Richfield
23
Co. v. Ramirez, 176 F.3d 481 (9th Cir. 1999)). Defendants have therefore conceded this point.
24
2. Defendants Concede That Plaintiff Will Be Prejudiced by the Fifth Affirmative Defense
25
Nevertheless, Plaintiff contends that, if the FAD is not stricken, Plaintiff will be prejudiced.
26
Motion, 8:21.5 – 9:16.5. Such prejudice would include “unnecessary additional expense in terms of time
27
and money”. Motion, 9:12.5-16.5.
28
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
5
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1
time and money that must arise from litigating spurious issues by dispensing them before trial.”
2
Opposition, 4:5-7 (emphasis added). In other words, Defendants concede that prejudice flows
3
inevitably from the need to litigate “spurious issues”. As Plaintiff has already shown that the FAD
4
raises “spurious issues”, Defendants have conceded that Plaintiff will be prejudiced unless the FAD is
5
stricken. Given the foregoing, Plaintiff has met any showing of prejudice that this Court might require.
6 7
Thus, the Court should strike the FAD without delay.
8
D. DELAYING PLAINTIFF’S MOTION TO STRIKE UNTIL AFTER DISCOVERY WOULD ONLY COMPOUND PLAINTIFF’S PREJUDICE
9
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
24 25 26 27 28
5
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.
REPLY TO OPPOSITION TO MOTION TO STRIKE 5TH AFFIRMATIVE DEFENSE
6
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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
17
Rule 11 sanctions against Defendants’ counsel are warranted.
18
Defendants’ counsel has delayed this litigation by refusing to withdraw a scandalous affirmative
19
defense that he already knew from Plaintiff’s briefing during extensive meet and confers to be legally
20
insufficient. This refusal has forced Plaintiff to motion this Court to seek the only remedy available to
21
him against the FAD’s scandalous allegations.
22
In addition, given Defendants’ counsel’s Rule 11 certification of the facts on which his argument
23
is based, Plaintiff respectfully requests that Defendants stipulate to, and/or the Court order, that the list
24
of “undisputed facts” set forth in the Scheduling Conference Order, entered on June 6, 2007, be
25
supplemented to include the following undisputed facts which the FAD implicitly admits to: (1)
26
Plaintiff’s work environment at KMC was hostile; and (2) persons other than Plaintiff contributed to the
27
hostility of his work environment. The doctrine of judicial estoppel should preclude Defendants from
28
maintaining otherwise later in this litigation. REPLY TO OPPOSITION TO MOTION TO STRIKE 5TH AFFIRMATIVE DEFENSE
7
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1 2
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F. CONCLUSION For the foregoing reasons, we respectfully request this Court to strike Defendants’ Fifth
3
Affirmative Defense pursuant to Rule 12(f); and to award Plaintiff sanctions against Defendants’
4
counsel in the amount of at least $4,500.00 pursuant to Rule 11(B)(2).
5
In addition, Plaintiff respectfully request that the Court order that the list of “undisputed facts”
6
set forth in the Scheduling Conference Order be supplemented to include the following undisputed facts
7
which the FAD as currently alleged implicitly admits to: (1) Plaintiff’s work environment at KMC was
8
hostile; and (2) persons other than Plaintiff contributed to the hostility of his work environment.
9 10
RESPECTFULLY SUBMITTED on August 6, 2007.
11 12 13 14 15
/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]
19
/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
20
Attorneys for Plaintiff DAVID F. JADWIN, D.O.
16 17 18
21 22 23 24 25 26 27 28 REPLY TO OPPOSITION TO MOTION TO STRIKE 5TH AFFIRMATIVE DEFENSE
8
1 2 3 4
Document 68
Filed 10/29/2007
Page 1 of 42
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]
5 6 7 8 9 10
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.
11 UNITED STATES DISTRICT COURT 12 FOR THE EASTERN DISTRICT OF CALIFORNIA 13 14 DAVID F. JADWIN, D.O.,
Case No. 1:07-cv-00026-OWW-TAG
15 Plaintiff, 16 v. 17 18
PLAINTIFF’S REQUEST FOR RECONSIDERATION BY THE DISTRICT COURT OF MAGISTRATE JUDGE’S RULING ON PLAINTIFF’S MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE
COUNTY OF KERN; et al. [28 U.S.C. § 636(b)(1)(A); Local Rule 72-303] Defendants.
19
Date Action Filed: Date Set for Trial:
20
January 6, 2007 August 26, 2008
21 22 23 Plaintiff DAVID F. JADWIN, D.O. (“Plaintiff”) respectfully submits the following points and
24 25 26 27 28
authorities in support of his request for reconsideration of Magistrate Judge Theresa A. Goldner’s October 23, 2007 order denying plaintiff’s motion to strike defendants’ fifth affirmative defense. (Doc. 64). Plaintiff contends that the order denying plaintiff’s motion to strike is clearly erroneous and
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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
3
regarding the defendants’ fifth affirmative defense (“FAD”). During meet and confers, the parties
4
narrowed and resolved the FAD to a mutual understanding that, as defendants stated, “[t]he legal basis
5
for the fifth affirmative defense is comparative fault. Plaintiff’s behavior was a contributing factor to the
6
injuries for which he is seeking general damages. Comparative fault is accepted.” (Doc. 46, ¶ 4).
7
Plaintiff relied on this understanding, focusing exclusively on contributory/comparative negligence in
8
his motion briefing. The Court ruled plaintiff had assumed a “faulty premise” that contributory
9
negligence was the only defense exclusively advanced by the FAD, then proceeded to suggest other
10
defenses for which the FAD could stand.
11
2.
The FAD fails to provide fair notice to plaintiff, in sufficient particularity, of the defense
12
being advanced. The Court suggested that the FAD could stand for no less than four separate defenses:
13
(i) contributory negligence, (ii) unclean hands, (iii) equitable estoppel, and (iv) an erstwhile defense that
14
can loosely be described as “hostile work environment causation” (essentially a contributory negligence
15
defense). The Court does not say whether the FAD could stand for other possible defenses. The FAD
16
has become a placeholder for a defense of defendants’ choosing. Plaintiff remains at a loss as to which
17
specific defense the FAD advances.
18
3.
The Court sua sponte raised the affirmative defenses of unclean hands, equitable estoppel
19
and an erstwhile defense that can loosely be described as “hostile work environment causation”.
20
Defendants had raised these defenses not once during the meet and confer process, nor even in their
21
motion briefing.
22 23
I. INTRODUCTION Plaintiff David F. Jadwin, D.O., F.C.A.P., former Chair of Pathology at Kern Medical Center
24
(“KMC”) and senior pathologist since 2000, filed a complaint on January 6, 2007. The complaint
25
alleges, among other things, that defendants engaged in the following illegal acts: whistleblower
26
retaliation, disability discrimination, medical leave interference and retaliation, demotion and pay
27
reduction without due process, and Fair Labor Standard Act violations. When plaintiff began reporting
28
several patient care quality issues at KMC starting in 2001, defendants responded by singling out and
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1
targeting plaintiff for harassment, retaliation and humiliation over the course of the next six years. In
2
2005, defendants’ conduct finally caused plaintiff to suffer clinical depression. When plaintiff began
3
reduced work schedule sick leave in 2006 to treat his depression, defendants responded by demoting him
4
and retaliating against him further, effectively ending plaintiff’s pathology career.
5 6
II.
PROCEDURAL HISTORY
On January 6, 2007, plaintiff filed his complaint (Doc. 1). Plaintiff subsequently filed two
7
supplemental complaints on April 24 (Doc. 24) and June 13, 2007 (Doc. 30), respectively. Defendants
8
filed their answer on April 30, 2007 (Doc. 25), and their answer to the second supplemental complaint
9
on June 21, 2007 (Doc. 31, a true and correct copy of which is attached as Exhibit 1).
10
In their answer, Defendants asserted the fifth affirmative defense as follows:
11
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.
12 13
The parties met and conferred extensively regarding the FAD starting on May 11, 2007. On July 14 11, 2007, Plaintiff filed the motion to strike the FAD (Doc. 32). Magistrate Judge Theresa A. Goldner 15 heard oral arguments on August 13, 2007. 16 On October 23, 2007, the Court issued an order denying plaintiff’s motion to strike (Doc. 64, a 17 true and correct copy of which is attached as Exhibit 2). The Court found that the FAD was “legally 18 sufficient and that an order striking the defense is not warranted at this time”. See Order at p. 7:2-3. The 19 Court also found that the FAD “does not reflect cruelly on plaintiff’s character, does not use repulsive 20 language, and is not sufficiently derogatory or degrading to constitute a scandalous matter within the 21 meaning of Rule 12 of the Federal Rules of Civil Procedure”. See Order at pp. 7:24 – 8:1. 22 III. AUTHORITY FOR MOTION 23 A District Court judge may reconsider pre-trial matters where it has been shown that the 24 magistrate judge’s order is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); Local Rule 25 72-303. A motion to reconsider is appropriate if the court committed clear error or the initial decision 26 was manifestly unjust. School District No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 27 (9th Cir. 1993). 28
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IV. LEGAL ANALYSIS & ARGUMENT
2
A. The Court Disregarded the Parties’ Meet and Confer
3
The purpose of meet and confer is to resolve and narrow disputes between parties prior to
4
resorting to court intervention. Dondi Prop. Corp. v. Commerce Sav. and Loan Ass'n (N.D.Tex. 1988)
5
121 F.R.D. 284, 289 (“[t]he purpose of the conference requirement is to promote a frank exchange
6
between counsel to resolve issues by agreement or to at least narrow and focus the matters in
7
controversy before judicial resolution is sought.”); El Dorado Irrigation Dist. v. Traylor Bros., Inc.,
8
2005 U.S. Dist. LEXIS 26011 (D. Cal. 2005) (“The meet and confer process, critical to narrow
9
discovery disputes, and which are required by the rules, should not be interpreted as an invitation to be
10
initially stubborn or careless, nor used as a means by which discovery timeliness can be unilaterally
11
extended”).
12
Plaintiff and defendants had been meeting and conferring extensively regarding the FAD from
13
May 11, 2007 to July 6, 2007. (Doc. 33). During the course of that process, the parties mutually
14
narrowed the many defenses potentially advanced by the vaguely-worded FAD to a single defense:
15
contributory/comparative fault. On May 9, 2007, Mark Wasser, counsel of record for defendants, stated:
16 17
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. (Doc. 46, p. 7)(Emphasis added).
18
Once the parties had reached an understanding that the FAD was advancing the defense of
19
contributory/comparative fault, plaintiff proceeded to brief defendants on the inapplicability of that
20
defense to the claims alleged in plaintiff’s complaint. In response, on May 17, 2007, Mr. Wasser stated:
21
With regard to the fifth affirmative defense, we believe the facts in this case may present an opportunity to test the application of contributory and comparative fault theories in the context of the statutory claims you have asserted.” (Doc. 33, p. 12)(Emphasis added).
22 23
In briefing the motion to strike, Plaintiff detrimentally relied on this narrowing of the issues 24 which the parties had achieved through meet and confer. As Plaintiff noted in his reply brief, “In fact, 25 Defendants have expressly admitted that the FAD articulates a comparative negligence defense.” (Doc. 26 45, p. 2:11-16, a true and correct copy of which is attached as Exhibit 3). Plaintiff’s motion to strike and 27 reply focused exclusively on the inapplicability of a contributory/comparative fault defense to plaintiff’s 28
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claims (Docs. 37 and 45, respectively). Plaintiff did not brief the other possible defenses which might
2
arguably be advanced by the FAD, such as unclean hands, equitable estoppel, etc., nor did plaintiff
3
argue that the FAD was insufficient for failing to give plaintiff fair notice of the defense advanced
4
thereby. Plaintiff did not think this was necessary.
5 6 7 8 9
The Court disregarded this mutual understanding that had been reached through meet and confer, suggesting that 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 plaintiff’s premise is that it characterizes the fifth affirmative defense as exclusively contributory negligence and ignores the fact that it concerns other defenses as well.
10
The Court then proceeded to consider the FAD anew, as if the meet and confer process had never
11
occurred. Ultimately, the Court sua sponte raised other defenses for which the FAD could conceivably
12
stand, such as unclean hands (Order, p. 6:4-8), equitable estoppel (Order, p. 6:8-14), and an erstwhile
13
defense that can loosely be described as “hostile work environment causation” (essentially a
14
contributory negligence defense) (Order, p. 5:5-16). None of these other defenses had been discussed by
15
the parties during meet and confer, nor were they raised in the motion briefing by either party.
16
Disregard of the parties’ mutual understanding reached through meet and confer undermines the
17
meet and confer process and brings into question its usefulness and validity. Doing so constitutes clear
18
error and leads to an unjust result.
19
B. The Fifth Affirmative Defense Does Not Put Plaintiff on “Fair Notice”
20
Fed. R. Civ. P. 8(b) requires that “A party shall state in short and plain terms the party's defenses
21
to each claim asserted . . . .”. Courts have interpreted this to mean that affirmative defenses must give a
22
plaintiff “fair notice”, with sufficient specificity or particularity, of the defense being advanced.
23
Qarbon.com, Inc. v. eHelp Corp., 315 F. Supp. 2d 1046, 1049 (D. Cal. 2004) (“Like complaints,
24
affirmative defenses must give plaintiff ‘fair notice’ of the defense being advanced. In the present case,
25
eHelp's affirmative defenses fail to provide ‘fair notice’ of what the defense is and the grounds upon
26
which it rests.”)(citation omitted)(emphasis added); Woodfield v. Bowman (5th Cir. 1999) 193 F3d 354,
27
362 (“a defendant nevertheless must plead an affirmative defense with enough specificity or factual
28
particularity to give the plaintiff ‘fair notice’ of the defense that is being advanced.”)(footnote omitted);
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Sec. People, Inc. v. Classic Woodworking, LLC, 2005 U.S. Dist. LEXIS 44641 (D. Cal. 2005) (“With
2
respect to the former, the Ninth Circuit, citing Conley v. Gibson, has held that ‘[t]he key to determining
3
the sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of the
4
defense.’”)(citations omitted); Ganley v. County of San Mateo, 2007 U.S. Dist. LEXIS 26467 (D. Cal.
5
2007) (“However, the mere assertion of a broad category of legal theories, such as estoppel, with
6
numerous possible applications requires additional specificity to satisfy the notice pleading standard.”).
7
If the parties’ meet and confer process is given no effect, then the FAD as currently worded fails
8
to provide fair notice to plaintiff of the defense being advanced. The FAD contains only loosely
9
generalized indictments on Plaintiff’s character and behavior, accusing him of being “arrogant,
10
disagreeable, uncooperative, intimidating, overbearing, self-righteous and unfriendly.”
11
The Court itself suggested that the FAD could stand for no less than four separate defenses:
12
contributory negligence, unclean hands, equitable estoppel, and “hostile work environment causation”
13
(essentially a contributory negligence defense). The Court does not say whether there are even more
14
possible defenses advanced by the FAD. The question remains, which defense does the FAD stand
15
for? Plaintiff is not on fair notice as to what that defense is. The FAD has essentially become a
16
placeholder for defendants; defendants have the option to ascribe whatever affirmative defense they
17
wish to the FAD without so much as having to request the Court’s leave to amend their answer.
18
Meanwhile, plaintiff must surmise every possible defense for which the FAD might stand and litigate
19
accordingly so as to account for them all.
20
C. The Court Sua Sponte Raised Affirmative Defenses
21
If defendant waives a matter by failing to plead it as an affirmative defense, the court usually
22
cannot thereafter raise the issue on its own. Hittner, Schwarzer, Tashima & Wagstaffe, Federal Civil
23
Procedure Before Trial (2007) § 8:229.1; see also State of Nevada Employees Assoc., Inc. v. Keating
24
(9th Cir. 1990) 903 F2d 1223, 1225 (where D had not pleaded res judicata as defense, court could not
25
decide sua sponte that P's claims were barred by res judicata); Eriline Co. S.A. v. Johnson (4th Cir.
26
2006) 440 F3d 648653 (court precluded from sua sponte raising statute of limitations defense).
27 28
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
3
dictates otherwise. For instance, nowhere does the FAD reference “unclean hands” or inequitable
4
misconduct by plaintiff.
5
The wording of the FAD most immediately suggests a contributory negligence defense:
6
“[Plaintiff’s behavior] was the direct and proximate cause of any [damages] that Plaintiff believes he
7
sustained”. In fact, the parties mutually arrived at exactly this conclusion during meet and confer.
8
Plaintiff has already submitted extensive briefing why this defense is utterly inapplicable to plaintiff’s
9
strict liability/intentional claims. (Doc. 32). The Court chose not to address plaintiff’s arguments.
10
The Court states that the FAD advances an equitable estoppel defense. However, legal authority
11
establishes that defendants must allege all of the elements of equitable estoppel in their pleadings.
12
Advanced Cardiovascular Sys., Inc. v. Medtronic, Inc., 1996 U.S. Dist. LEXIS 11696 (D. Cal. 1996)
13
(“To plead equitable estoppel, a party must allege three essential elements: (1) the party to be estopped,
14
who usually must have had knowledge of the true facts, communicated something in a misleading way,
15
either by words, conduct or silence; (2) the pleading party relied upon that communication; and (3) the
16
pleading party would be harmed materially if the other party is permitted to assert any claim inconsistent
17
with his earlier conduct.”); Ganley v. County of San Mateo, 2007 U.S. Dist. LEXIS 26467 (D. Cal.
18
2007) (“While in some cases, merely naming a particular defense will be sufficient to satisfy the notice
19
pleading standard, other affirmative defenses require greater specificity, including additional factual
20
allegations, in order to be properly pleaded” (citing Sun Microsystems v. Dataram Corp., No. CIV. 96-
21
20708 SW, 1997 U.S. Dist. LEXIS 4557, 1997 WL 50272, at *4 (N.D. Cal. Feb. 4, 1997 for the holding
22
that “a plaintiff must plead each element of estoppel to survive a motion to strike.”).
23
The Court further states that “[p]laintiff’s hostile work environment allegations bring into issue
24
the totality of the circumstances of his work environment . . . Each of these issues concerns defendants’
25
and plaintiff’s behavior at KMC. The fifth affirmative defense alleges that plaintiff’s own behavior
26
caused the problems he encountered at KMC.” Order, p. 5:5-11. The Court concludes this constitutes an
27
affirmative defense. But an affirmative defense requires more than mere relevance; it must dispose of
28
plaintiff’s claims even after assuming plaintiff’s 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
2
an affirmative defense, and citing Black's Law Dictionary 451 (8th ed. 2004) for the proposition “that an
3
‘affirmative defense’ assumes the truth of the opposing parties' allegations”). If plaintiff’s allegations are
4
deemed true that defendants created a hostile working environment with retaliatory intent, then the fact
5
that plaintiff’s own behavior allegedly “contributed to and directly and proximately caused” the hostile
6
working environment, even if deemed to be true, does not dispose of plaintiff’s claim. It is not an
7
affirmative defense. This represents just another variation of the contributory negligence defense, which
8
plaintiff’s briefing already extensively establishes is in no way applicable to plaintiff’s strict
9
liability/retaliatory intent claims. (Doc. 32).
10
In light of the fact that the FAD did not sufficiently advance the above defenses, defendants have
11
waived them. See Hittner, Schwarzer, Tashima & Wagstaffe, Federal Civil Procedure Before Trial
12
(2007) § 8: 229 (“Generally, if not asserted in a responsive pleading, the affirmative defense is waived,
13
and evidence of such defense is inadmissible at trial”)(citing Arizona v. California (2000) 530 US 392,
14
410, 120 S.Ct. 2304, 2316–2317; Carroll v. Acme–Cleveland Corp. (7th Cir. 1992) 955 F2d 1107, 1115;
15
Ingraham v. United States (5th Cir. 1987) 808 F2d 1075, 1079).
16 17
The Court is therefore sua sponte raising the defenses after defendants have already waived them. This is clearly erroneous and contrary to law.
18
V. CONCLUSION
19
Plaintiff does not make this request lightly. It is always a daunting decision to request
20
reconsideration of an esteemed Magistrate Judge’s order. However, plaintiff must respectfully object
21
that the Court’s order is clearly erroneous and contrary to law for the foregoing reasons. Plaintiff
22
respectfully requests that the Court reconsider Magistrate Judge Goldner’s order and grant Plaintiff’s
23
motion to strike.
24
//
25
//
26
//
27
//
28
///
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Respectfully submitted on October 29, 2007.
2 3 4 5 6
/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]
11
/s/ Joan Herrington, SB# 178988 (as authorized on 10/29/07) 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
12
Attorneys for Plaintiff DAVID F. JADWIN, D.O.
7 8 9 10
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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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. Plaintiff’s 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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Mark A. Wasser CA SB #060160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 1100 Sacramento, CA 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 E-mail: [email protected] Bernard C. Barmann, Sr. KERN COUNTY COUNSEL Mark Nations, Chief Deputy 1115 Truxton Avenue, Fourth Floor Bakersfield, CA 93301 Phone: (661) 868-3800 Fax: (661) 868-3805 E-mail: [email protected]
9 10 11
Attorneys for Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith and William Roy
12 13
UNITED STATES DISTRICT COURT
14
EASTERN DISTRICT OF CALIFORNIA
15 16
DAVID F. JADWIN, D.O. Plaintiff,
17 18 19
vs. COUNTY OF KERN, et al., Defendants.
20
) Case No.: 1:07-cv-26 ) ) ANSWER TO SECOND ) SUPPLEMENTAL COMPLAINT ) ) ) ) ) )
21 22 23
Defendants County of Kern, Peter Bryan, Irwin Harris, Eugene Kercher, Jennifer
24
Abraham, Scott Ragland, Toni Smith and William Roy answer the Second Supplemental
25
Complaint as follows:
26
1.
Defendants deny the allegations contained in paragraphs 1, 2 and 3.
27
2.
Defendants admit the allegations contained in paragraph 4.
28
3.
Defendants deny the allegations contained in paragraph 5. ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
1
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1
4.
Defendants admit the allegations contained in paragraphs 6 and 7.
2
5.
In response to the allegations contained in paragraph 8, Defendants admit that
3
Peter Bryan was Chief Executive Officer of Kern Medical Center and a resident of California
4
during most of the time alleged in the Complaint. Defendants deny the remaining allegations
5
contained in paragraph 8.
6
6.
Defendants admit the allegations contained in paragraphs 9, 10, 11, 12, 13 and 14.
7
7.
Defendants deny all the allegations contained in paragraph 15.
8
8.
In response to the allegations contained in paragraph 16, Defendants admit that
9 10 11
Plaintiff 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. 9.
In response to the allegations contained in paragraph 17, Defendants admit that
12
Plaintiff was hired as a pathologist at Kern Medical Center and was appointed to the position of
13
Chair of the Pathology Department. Defendants deny all remaining allegations contained in
14
paragraph 17.
15
10.
In response to the allegations contained in paragraph 18, Defendants admit that
16
Plaintiff complained about departmental procedures and policies at Kern Medical Center and
17
interfered with patient care provided by Kern Medical Center and its physicians. Defendants
18
deny all remaining allegations contained in paragraph 18.
19
11.
Defendants deny all the allegations contained in paragraphs 19 and 20.
20
12.
In response to the allegations contained in paragraph 21, Defendants admit that
21
Plaintiff requested and received multiple leaves of absence and that the terms and conditions of
22
the leaves Plaintiff received are memorialized in writings. Defendants deny all remaining
23
allegations contained in paragraph 21.
24
13.
In response to the allegations contained in paragraphs 22, 23 and 24, Defendants
25
admit that Plaintiff requested and received multiple leaves of absence for multiple reasons, was
26
removed from his position as Chair of the Pathology Department because he was neither working
27
full-time nor present in the hospital and that his compensation was reduced. Defendants also
28
admit that Plaintiff complained about the policies and procedures at Kern Medical Center, wrote ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
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1
letters to several physicians and administrators at Kern Medical Center and other health care
2
organizations and was placed on administrative leave. Defendants deny all remaining allegations
3
in those paragraphs.
4
14.
In response to the allegations contained in paragraph 25, Defendants admit that
5
Plaintiff has been provided with the information he requested from the computer that was
6
previously assigned to him. Defendants deny all remaining allegations contained in paragraph
7
25.
8
15.
Defendants deny all the allegations contained in paragraph 26.
9
16.
In answer to the allegations contained in paragraph 27, Defendants admit that
10
Plaintiff is on paid administrative leave. Defendants deny all remaining allegations contained in
11
paragraph 27.
12
17.
In answer to the allegations contained in paragraphs 28 and 29, Defendants admit
13
that Plaintiff was employed as a pathologist in Kern Medical Center and assigned to the position
14
of Chair of the Pathology Department and that he was compensated and provided with certain
15
benefits pursuant to a written employment agreement. Defendants deny all remaining allegations
16
contained in paragraphs 28 and 29.
17
18.
In response to the allegations contained in paragraph 30, Defendants admit that
18
Plaintiff was expected to be an effective member of the physicians’ staff at Kern Medical Center
19
and to contribute to the overall improvement of the hospital. Defendants deny all remaining
20
allegations contained in paragraph 30.
21
19.
In response to the allegations contained in paragraphs 31, 32 and 33, Defendants
22
admit that interpretation of the referenced documents is a question of law. Defendants deny all
23
remaining allegations contained in those paragraphs.
24
20.
Defendants admit the allegations contained in paragraph 34.
25
21.
In response to the allegations contained in paragraphs 35, 36 and 37, Defendants
26
admit that interpretation of the referenced documents is a question of law. Defendants deny all
27
remaining allegations contained in those paragraphs.
28 ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
3
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22.
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Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 38.
3
23.
In response to the allegations contained in paragraph 39, Defendants admit that
4
Plaintiff complained about policies and procedures at Kern Medical Center and that his actions
5
interfered with patient care. Defendants deny all remaining allegations contained in paragraph
6
39.
7
24.
In response to the allegations contained in paragraphs 40 and 41, Defendants
8
admit that Plaintiff’s former attorney sent a letter to Bernard Barmann and that Plaintiff met with
9
Mr. Barmann on or about February 9, 2006. Defendants deny all remaining allegations
10 11
contained in those paragraphs. 25.
In response to the allegations contained in paragraphs 42 and 43, Defendants
12
admit that Plaintiff complained about policies and procedures at Kern Medical Center, disagreed
13
with other staff physicians about patient care and wrote letters expressing his disagreement.
14
Defendants deny all remaining allegations contained in those paragraphs.
15
26.
In response to the allegations contained in paragraphs 44, 45, 46 and 47,
16
Defendants admit that disagreements arose between Plaintiff and William Roy regarding the
17
review of pathology reports, the timeliness and accuracy of Plaintiff’s pathology reports and
18
Plaintiff’s management of the Pathology Department and that letters were written by the Plaintiff
19
and others regarding these issues. Defendants deny all remaining allegations contained in those
20
paragraphs.
21
27.
In response to the allegations contained in paragraphs 48, 49, 50, 51, 52, 53 and
22
54, Defendants admit that disagreements arose between Plaintiff and other physicians at Kern
23
Medical Center, including some of the Defendants, regarding the review of pathology reports,
24
the timeliness and accuracy of Plaintiff’s pathology reports, Plaintiff’s management of the
25
Pathology Department, hospital policies and procedures and patient care. Defendants further
26
admit that letters were written by the Plaintiff and others regarding these issues. Defendants
27
deny all remaining allegations contained in those paragraphs.
28 ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
4
Case 1:07-cv-00026-OWW-TAG
1
28.
Document 68
Filed 10/29/2007
Page 16 of 42
In response to the allegations contained in paragraphs 55, 56, 57, 58 and 59,
2
Defendants admit that Plaintiff disrupted the October, 2005, Monthly Oncology Conference and
3
prevented appropriate discussion of case management and that other physicians at Kern Medical
4
Center, including some of the Defendants, were concerned about Plaintiff’s conduct and with his
5
interference with patient care. Defendants further admit that letters were written by Plaintiff,
6
William Roy and others about the incident. Defendants deny all remaining allegations in those
7
paragraphs.
8
29.
Defendants deny all the allegations contained in paragraphs 60, 61, 62 and 63.
9
30.
In response to the allegations contained in paragraph 64, Defendants are without
10
knowledge or information sufficient to form a belief as to the truth of the averments contained in
11
paragraph 64.
12
31.
In response to the allegations contained in paragraphs 65, 66, 67, 68, 69, 70, 71
13
and 72, Defendants admit that letters were sent and received by Plaintiff and some of the
14
Defendants regarding Plaintiff’s conduct and criticism of Kern Medical Center’s policies and
15
procedures. Defendants deny all remaining allegations contained in those paragraphs.
16
32.
Defendants deny all the allegations contained in paragraph 73.
17
33.
In response to the allegations contained in paragraph 74 and 75, Defendants admit
18
that Plaintiff’s entitlement to leave under FMLA and CFRA is a question of law. Defendants
19
deny all remaining allegations contained in those paragraphs.
20
34.
In response to the allegations contained in paragraph 76, 77, 78, 79 and 80,
21
Defendants admit that Plaintiff requested and received leaves of absence on multiple occasions
22
for multiple reasons and that there are several documents authored by Plaintiff and others
23
regarding the reasons for his leaves of absence and the terms of the leaves. Defendants deny all
24
remaining allegations in those paragraphs.
25
35.
In response to the allegations contained in paragraph 81, 82, 83, 84, 85 and 86,
26
Defendants admit that Plaintiff exchanged written correspondence with Peter Bryan and others
27
regarding leaves of absence. Defendants deny that Plaintiff engaged in any “whistleblowing
28 ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
5
Case 1:07-cv-00026-OWW-TAG
Document 68
Filed 10/29/2007
Page 17 of 42
1
activity” and that Plaintiff is or ever was a “whistleblower”. Defendants deny all remaining
2
allegations in those paragraphs.
3 4 5
36.
Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraphs 87 and 88. 37.
In response to the allegations contained in paragraphs 89, 90, 91 and 92,
6
Defendants admit that Plaintiff and Peter Bryan exchanged written correspondence regarding
7
leaves of absence that Plaintiff requested and Plaintiff’s tenure as Chair of the Pathology
8
Department at Kern Medical Center. Defendants also admit that on or about July 10, 2006, the
9
Joint Conference Committee voted to remove Plaintiff from his position as Chair of the
10
Pathology Department at Kern Medical Center. Defendants deny all remaining allegations
11
contained in those paragraphs.
12
38.
Defendants deny all the allegations contained in paragraph 93.
13
39.
In response to the allegations contained in paragraphs 94, 95, 96, 97 and 98,
14
Defendants admit that Plaintiff’s employment agreement was amended to reduce Plaintiff’s base
15
compensation and that Plaintiff continued to send and receive written communications to others
16
regarding his leaves of absence. Defendants deny all remaining allegations contained in those
17
paragraphs.
18
40.
In response to the allegations contained in paragraph 99, Defendants admit that
19
Plaintiff returned to work as a staff pathologist at Kern Medical Center in October, 2006 and that
20
Phillip Dutt was appointed Acting Chair of the Pathology Department. Defendants deny all
21
remaining allegations contained in paragraph 99.
22
41.
Defendants deny all the allegations contained in paragraph 100.
23
42.
In response to the allegations contained in paragraphs 101 and 102, Defendants
24
admit that Plaintiff exchanged written correspondence with David Culberson. Defendants deny
25
all remaining allegations contained in those paragraphs.
26 27
43.
In response to the allegations contained in paragraph 103, Defendants admit that
Plaintiff has been provided with the information he requested from the County-owned computer
28 ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
6
Case 1:07-cv-00026-OWW-TAG
Document 68
Filed 10/29/2007
Page 18 of 42
1
that was previously assigned to him. Defendants deny all remaining allegations contained in
2
paragraph 103.
3 4 5
44.
Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 104. 45.
In answer to the allegations contained in paragraph 105, Defendants admit that
6
Plaintiff is on paid administrative leave. Defendants deny all remaining allegations contained in
7
paragraph 105.
8 9 10 11 12 13
46.
In response to the allegations contained in paragraph 106, Defendants admit that
Plaintiff requested and received a reduced work schedule. Defendants deny all remaining allegations contained in paragraph 106. 47.
Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 107. 48.
In response to the allegations contained in paragraphs 108, 109 and 110,
14
Defendants admit that Plaintiff and Peter Bryan exchanged written communications regarding
15
Plaintiff’s request for leaves of absence. Defendants deny all remaining allegations contained in
16
those paragraphs.
17
49.
Defendants deny all the allegations contained in paragraph 111.
18
50.
In answer to the allegations contained in paragraphs 112, 113, 114, 115, 116 and
19
117, Defendants admit that Plaintiff exchanged written communications with Peter Bryan
20
regarding his work schedule and requests for leaves of absence and met with Peter Bryan and
21
others to discuss those subjects. Defendants deny all remaining allegations contained in those
22
paragraphs.
23 24 25
51.
Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraphs 118 and 119. 52.
In response to the allegations contained in paragraphs 120, 121 and 122,
26
Defendants admit that plaintiff and Peter Bryan exchanged written communications regarding
27
Plaintiff’s leaves of absence and performance as Chair of the Pathology Department. Defendants
28
deny all remaining allegations contained in those paragraphs. ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
7
Case 1:07-cv-00026-OWW-TAG
53.
1 2
Document 68
Filed 10/29/2007
Page 19 of 42
Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 123. 54.
3
In answer to the allegations contained in paragraph 124, Defendants admit that
4
Plaintiff is on paid administrative leave. Defendants deny all remaining allegations contained in
5
paragraph 124.
6 7 8 9
55.
Defendants deny all the allegations contained in paragraphs 125, 126, 127 and
56.
Defendants deny all the allegations contained in paragraphs 129, 130, 131, 132,
128.
133 and 134.
10
57.
Defendants deny all the allegations contained in paragraph 135.
11
58.
In response to the allegations contained in paragraph 136, Defendants admit that
12
Plaintiff is on paid, unrestricted, administrative leave and is free to pursue whatever other career
13
or business opportunities he desires. Defendants deny all remaining allegations contained in
14
paragraph 136.
15
59.
Defendants deny all the allegations contained in paragraph 137.
16
60.
In response to the allegations contained in paragraph 138, Defendants admit that
17
Plaintiff’s base compensation as a staff pathologist is less than it was when he was Chair of the
18
Pathology Department. Defendants deny all remaining allegations contained in paragraph 138.
19 20 21
61.
Defendants deny all the allegations contained in paragraphs 139, 140, 141, 142,
143 and 144. 62.
In response to the allegations contained in paragraph 145, Defendants admit that
22
Plaintiff filed a claim with Defendant, County of Kern, and that the claim has been rejected.
23
Defendants deny all remaining allegations contained in paragraph 145.
24 25 26 27
63.
Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraphs 146 and 147. 64.
Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraphs 148, 149, 150, 151 and 152.
28 ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
8
Case 1:07-cv-00026-OWW-TAG
1 2 3 4 5
65.
Document 68
Filed 10/29/2007
Page 20 of 42
Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 153. 66.
Defendants incorporate herein, all of their responses to paragraphs 1 through 153,
inclusive. 67.
In response to the allegations contained in paragraph 155, Defendants admit that
6
interpretation of Health and Safety Code §1278.5 is a matter of law. Defendants deny all
7
remaining allegations contained in paragraph 155.
8 9 10 11 12 13 14
68.
Defendants deny all the allegations contained in paragraphs 156, 157 and 158 and
further deny that Plaintiff has engaged in any “whistleblowing activity” or is a “whistleblower”. 69.
Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 159. 70.
Defendants incorporate herein, their responses to paragraphs 1 through 159,
inclusive. 71.
In response to the allegations contained in paragraph 161, Defendants admit that
15
interpretation of Labor Code §1102.5 is a matter of law. Defendants deny all remaining
16
allegations contained in paragraph 161.
17 18 19 20
72.
Defendants deny all the allegations contained in paragraphs 162, 163, 164 and
165 and further deny that Plaintiff made any “whistleblowing reports”. 73.
Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 166.
21
74.
Defendants incorporate herein, their responses to 1 through 166, inclusive.
22
75.
In response to the allegations contained in paragraphs 168, 169 and 170,
23
Defendants admit that interpretation of Government Code §12945.2(a)(1) and Title 2 of
24
California Code of Regulations §7297.7(a) and §7297.2(c) is a matter of law. Defendants deny
25
all remaining allegations contained in those paragraphs.
26
76.
Defendants deny all the allegations contained in paragraphs 171 and 172.
27
77.
Defendants are without knowledge or information sufficient to form a belief as to
28
the truth of the averments contained in paragraph 173. ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
9
Case 1:07-cv-00026-OWW-TAG
1 2 3
78.
Document 68
Filed 10/29/2007
Page 21 of 42
Defendants incorporate herein, their responses to paragraphs 1 through 173,
inclusive. 79.
In response to the allegations contained in paragraph 175, Defendants admit that
4
interpretation of 29 U.S.C. §2611(4)(A)(ii)(I) and 29 U.S.C. §2615(a) is a matter of law.
5
Defendants deny all remaining allegations contained in paragraph 175.
6
80.
Defendants deny all the allegations contained in paragraphs 176, 177 and 178.
7
81.
Defendants are without knowledge or information sufficient to form a belief as to
8 9 10 11
the truth of the averments contained in paragraph 179. 82.
Defendants incorporate herein, their answers to paragraphs 1 through 179,
inclusive. 83.
In response to the allegations contained in paragraphs 181, 182, 183, 184, 185,
12
186, 187 and 188, Defendants admit that interpretation of the California Family Rights Act is a
13
question of law. Defendants deny all remaining allegations contained in those paragraphs.
14
84.
Defendants deny all the allegations contained in paragraphs 189, 190 and 191.
15
85.
Defendants are without knowledge or information sufficient to form a belief as to
16 17 18 19
the truth of the averments contained in paragraph 192. 86.
Defendants incorporate herein, their responses to paragraphs 1 through 192,
inclusive. 87.
In response to the allegations contained in paragraph 194, Defendants admit that
20
interpretation of the California Fair Employment and Housing Act is a question law. Defendants
21
deny all remaining allegations remaining in paragraph 194.
22
88.
Defendants deny all the allegations contained in paragraphs 195 and 196.
23
89.
Defendants are without knowledge or information sufficient to form a belief as to
24 25 26 27
the truth of the averments contained in paragraph 197. 90.
Defendants incorporate herein, their responses to paragraphs 1 through 197,
inclusive. 91.
Defendants deny all the allegations contained in paragraph 199.
28 ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
10
Case 1:07-cv-00026-OWW-TAG
1 2 3 4
92.
Document 68
Filed 10/29/2007
Page 22 of 42
Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 200. 93.
Defendants incorporate herein, their responses to paragraphs 1 through 200,
inclusive.
5
94.
Defendants deny all the allegations contained in paragraph 202.
6
95.
Defendants are without knowledge or information sufficient to form a belief as to
7 8 9 10
the truth of the averments contained in paragraph 203. 96.
Defendants incorporate herein, their responses to paragraphs 1 through 204,
inclusive. 97.
In response to the allegations contained in paragraph 205, Defendants admit that
11
interpretation of the Fourteenth Amendment to the United States Constitution is a question of
12
law. Defendants deny all remaining allegations contained in paragraph 205.
13 14 15 16 17 18 19 20 21 22 23 24 25
98.
Defendants deny all the allegations contained in paragraphs 206, 207, 208, 209,
210, 211, 212, 213 and 214. 99.
Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 215. 100.
Defendants incorporate herein, their responses to paragraphs 1 through 215,
inclusive. 101.
Defendants deny all the allegations contained in paragraphs 217, 218, 219, 220,
221, 222, 223, 224 and 225. 102.
Defendants are without knowledge or information sufficient to form a belief as to
the truth of the averments contained in paragraph 226. 103.
Defendants incorporate herein, their responses to paragraphs 1 through 226,
inclusive. 104.
In response to the allegations contained in paragraphs 228 and 229, Defendants
26
admit that interpretation of the Code of Federal Regulations, including 20C.F.R. §541.118(1) and
27
§541.18(6), is a question of law. Defendants deny all remaining allegations contained in those
28
paragraphs. ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
11
Case 1:07-cv-00026-OWW-TAG
Document 68
Filed 10/29/2007
Page 23 of 42
1
105.
2
As and for a first affirmative defense, Defendants allege that Plaintiff’s Second
3
Supplemental Complaint and each and every purported claim contained therein fails to state a
4
claim upon relief can be granted.
5
Defendants deny all the allegations contained in paragraphs 230, 231 and 232.
As and for a second affirmative defense, Defendants allege that this Court lacks subject
6
matter jurisdiction over Plaintiff’s alleged claims and should refuse to exercise jurisdiction over
7
Plaintiff’s state claims because they predominate and the alleged federal claims are insubstantial.
8 9
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
10
sections 1157, 1157.5, 1157.6 and 1157.7, California Business and Professions Code sections
11
800 through 809.9 and California Civil Code section 47(a) and (b) in that Defendants’ actions
12
were in furtherance of medical peer review, maintenance of quality-of-care standards, discharge
13
of official duties and performed in the course of official proceedings authorized by law and that
14
Defendants and each of them are, therefore, immune from liability.
15
As and for a fourth affirmative defense, Defendants allege that California Civil Code
16
section 47(a) and (b) immunizes Defendants and each of them from liability for the matters
17
alleged in the Second Supplemental Complaint.
18
As and for a fifth affirmative defense, Defendants allege that, during Plaintiff’s
19
employment at Kern Medical Center, Plaintiff was arrogant, disagreeable, uncooperative,
20
intimidating, overbearing, self-righteous and unfriendly and that Plaintiff’s behavior contributed
21
to and was the direct and proximate cause of any stresses, disabilities or injuries that Plaintiff
22
believes he sustained.
23
As and for a sixth affirmative defense, Defendants allege that Plaintiff’s injuries, as
24
alleged in the Second Supplemental Complaint occurred more than one year before Plaintiff
25
commenced this action and that Plaintiff’s claims are, therefore, barred by the statue of
26
limitations established in California Code of Civil Procedures §340.
27
As and for a seventh affirmative defense, Defendants allege that Plaintiff’s injuries, as
28
alleged in the Second Supplemental Complaint occurred more than two years before Plaintiff ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
12
Case 1:07-cv-00026-OWW-TAG
Document 68
Filed 10/29/2007
Page 24 of 42
1
commenced this action and that Plaintiff’s claims are, therefore, barred by the statue of
2
limitations established in California Code of Civil Procedures §335.1.
3
As and for an eighth affirmative defense, Defendants allege that Plaintiff has available
4
adequate administrative remedies which he failed to exhaust and that his claims are, therefore,
5
barred.
6
As and for a ninth affirmative defense, Defendants allege that the Defendants and each of
7
them have qualified immunity for each and every claim alleged in the Second Supplemental
8
Complaint because, in doing the things alleged, they were each acting within the course and
9
scope of their duties as public officials and did not violate any of Plaintiff’s constitutional rights
10 11
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
12
Supplemental Complaint and that judgment thereon be entered in favor of Defendants and
13
against Plaintiff and that Defendants be awarded their reasonable costs of suit and attorneys fees
14
together with such other and further relief as the Court deems just.
15 16 17 18 19
Dated: June 20, 2007
LAW OFFICES OF MARK A. WASSER By: /s/ Mark A. Wasser Mark A. Wasser Attorney for Defendants, County of Kern, et al.
20 21 22 23 24 25 26 27 28 ANSWER TO SECOND SUPPLEMENTAL COMPLAINT
13
Case 1:07-cv-00026-OWW-TAG
Document 68
Filed 10/29/2007
EXHIBIT 2. Order Denying Motion to Strike (Doc. 64).
Page 25 of 42
Case Case1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document68 64
Filed Filed10/29/2007 10/23/2007 Page Page26 1 of 8 42
1 2 3 4 5
IN THE UNITED STATES DISTRICT COURT
6
FOR THE EASTERN DISTRICT OF CALIFORNIA
7 8 9 10
DAVID F. JADWIN, D.O., Plaintiff,
ORDER DENYING MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE AND REQUEST FOR SANCTIONS
vs.
11
COUNTY OF KERN, et al.,
12
Defendants.
13
Case No. 1:07-cv-0026-OWW-TAG
(Doc. 32)
___________________________________/
14 15 16
Plaintiff David F. Jadwin, D.O. has moved to strike the fifth affirmative defense in the
17
answer to second supplemental complaint filed by defendants County of Kern, Peter Bryan, Irwin
18
Harris, Eugene Kercher, Jennifer Abraham, Scott Ragland, Toni Smith, and William Roy
19
(collectively, "defendants"), and for sanctions against defendants’ counsel. (Docs. 31, 32). The
20
court has read and considered the pleadings, considered the arguments of counsel made at the
21
motion hearing in this matter, and makes the following ruling.
22
1. Legal standards.
23
A party may move to strike any “insufficient defense or any redundant, immaterial,
24
impertinent or scandalous matter.” Fed. R. Civ. P. 12(f). For a defense to be deemed
25
insufficient as a matter of law, “the court must be convinced that there are no questions of fact,
26
that any questions of law are clear and not in dispute, and that under no set of circumstances
27 28
-1-
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Filed Filed10/29/2007 10/23/2007 Page Page27 2 of 8 42
1
could the defense succeed.” Galley v. County of San Mateo, 2007 WL 902551, at *1 (N.D.Cal.
2
March 22, 2007) (citations omitted). Matters are redundant when they are needlessly repetitive
3
or unrelated to the issues involved in the action. Gilbert v. Eli Lilly & Co., Inc., 56 F.R.D. 166,
4
120 n. 4 (D.Puerto Rico 1972)(citations omitted). Immaterial allegations are those that have “no
5
essential or important relationship to the claim for relief or the defense being pleaded.” Fantasy,
6
Inc. v. Fogerty, 984 F. 2d 1524, 1527 (9th Cir. 1993), reversed on other grounds, Fogerty v.
7
Fantasy, Inc. , 510 U.S. 517, 534-535 (1994). Allegations are impertinent when they are
8
irrelevant to the issues in the case or are otherwise inadmissible. Id. Scandalous matters are
9
those that reflect cruelly upon a person’s moral character, use repulsive language, or detract from
10
the dignity of the court. Skadegaard v. Farrell, 578 F. Supp. 1209, 1221 (D. New Jersey 1984),
11
overruled on other grounds, Aitchison v. Raffiani, 708 F.2d 96 (3rd Cir. 1983).
12
The purpose of a motion to strike is to avoid litigating spurious issues, and it can operate
13
as an early challenge to the legal sufficiency of a defense. Fantasy, Inc. v. Fogerty, 984 F. 2d at
14
1527; California v. United States, 512 F.Supp. 36, 38 (N.D. Cal. 1981). Nevertheless, motions
15
to strike are “generally disfavored and not frequently granted,” for three reasons: (1) the liberal
16
pleading standard in federal practice; (2) they are often deployed as a delay tactic; and (3) the
17
prevailing view that “a case should be tried on the proofs rather than the pleadings.” Kaiser
18
Aluminum & Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir.
19
1982); Bassiri v. Xerox Corp., 292 F.Supp.2d 1212, 1220 (C.D. Cal. 2003); Lazar v. Trans
20
Union, L.L.C., 195 F.R.D. 665, 669 (C.D. Cal. 2000); see Rennie & Laughlin, Inc. v. Chrysler
21
Corp., 242 F.2d 208, 213 (9th Cir. 1958).
22
When considering a motion to strike a defense, the court must view the defense in the
23
light most favorable to the defendants and resolve any doubt regarding the sufficiency or
24
relevancy of the challenged defense in the defendant’s favor. Lazar v. Trans Union LLC , 195
25
F.R.D. at 669; ); In re TheMart.com, Inc. Securities Litigation, 114 F.Supp.2d 955, 965 (C.D.
26
Cal. 2000)(citing California v. United States, 512 F.Supp. at 36). Accordingly, a motion to strike
27 28
-2-
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1
a defense should not be granted unless it can be shown that no evidence in support of the defense
2
would be admissible or that the defense could have no possible bearing on the issues in the
3
action. See Gay-Straight Alliance Network v. Visalia Unified School Dist., 262 F. Supp.2d
4
1088, 1099 (E.D. Cal. 2001)
5
2. Motion to strike fifth affirmative defense.
6
Plaintiff's second supplemental complaint alleges eleven state and federal claims against
7
eight defendants, arising out of plaintiff's employment as a pathologist at Kern Medical Center
8
(“KMC”) in Bakersfield, California. (Doc. 30). Defendants’ answer to the second supplemental
9
complaint contains nine affirmative defenses. (Doc. 31). The fifth affirmative defense alleges:
10
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. (Doc. 31, 12:18-22).
11 12 13 14
Plaintiff has moved for an order striking the fifth affirmative defense from the answer and
15
awarding sanctions against defendants’ counsel. (Doc. 32). Plaintiff contends the fifth
16
affirmative defense is an “insufficient defense” and a “scandalous matter” under Rule 12(f) and
17
should therefore be stricken.
18
A. Fifth affirmative defense.
19
Plaintiff characterizes the fifth affirmative defense as contributory negligence and argues
20
that it is insufficient because contributory negligence is not a defense to any of plaintiff’s claims.
21
Defendants assert that the fifth affirmative defense merely describes plaintiff’s behavior at KMC
22
and alleges that plaintiff’s own behavior caused at least some of the hostility in the work
23
environment that plaintiff complains about.
24
(a). Hostile work environment allegations.
25
Plaintiff’s complaint alleges that plaintiff worked in a “deteriorating” pathology
26
department at KMC for nearly seven years, and that when he complained about it and other
27 28
-3-
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1
issues, he was defamed, harassed, retaliated and discriminated against, demoted, and subjected to
2
a hostile work environment. The complaint contains several allegations that plaintiff was
3
damaged by a “hostile work environment” and “work hostility.” These allegations are contained
4
primarily in the first 152 paragraphs of the complaint, and are incorporated by reference into all
5
of plaintiff's claims.
6
Plaintiff’s complaint includes state law retaliation and discrimination claims wherein he
7
alleges that he suffered a hostile work environment at KMC. For example, plaintiff alleges that
8
after he was demoted from head of the pathology department to staff pathologist, he “continued
9
to suffer a hostile work environment and retaliation.” (Doc. 30, 9:13-14)(italics added).
10
Plaintiff’s whistleblower claim alleges that in February 2006, he reported his “various
11
[c]oncerns, as well as the retaliation, defamation and hostile work environment [p]laintiff was
12
experiencing at KMC.” (Doc. 30, 13:13-15)(italics added). Plaintiff’s discrimination claims
13
alleges that he notified KMC in 2003 that “he suffered from depression due to work-related
14
hostility and KMC’s failure to resolve [p]laintiff's compliance and patient care issues” (Doc. 30,
15
28:18-19), and that by 2005, he “was suffering extreme stress from the hostile work environment
16
created by the harassment, defamation, discrimination, and retaliatory actions of [d]efendants.”
17
(Doc. 30, 28:22-23. 29:1-2)(italics added). Plaintiff also alleges that defendants “willfully and
18
intentionally creat[ed] a hostile work environment, subjecting him to acts of defamation and
19
ratification thereof, demotion and excessive reduction in pay, disparate treatment, unwarranted
20
criticism and reprimands, threats, requests for his resignation, interference with and denial of his
21
right to medical leave, refusing to engage in good faith in an interactive process and denying him
22
reasonable accommodations and procedural due process because of his protected characteristics
23
and/or activities alleged herein.” (Doc. 30, 33:5-11)(italics added).
24
(b). The fifth affirmative defense is relevant to plaintiff’s claims.
25
Plaintiff’s complaint alleges that he suffered a hostile work environment and seeks
26
damages as a result under a variety of legal theories, including under FEHA. Non-sexual
27 28
-4-
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1
harassment hostile environment claims are subject to the same hostile environment analysis
2
applied to sexual harassment cases, i.e., whether the conduct was so severe and pervasive as to
3
constitute a hostile work environment. See e.g., Muller v. Automotive Club of Southern
4
California, 61 Cal. App. 4th 431, 446 (1998), disapproved on other grounds, Colmenares v.
5
Braemar Country Club, Inc., 29 Cal. 4th 1019, 1031 (2003). Plaintiff’s hostile work environment
6
allegations bring into issue the totality of the circumstances of his work environment, which
7
includes matters such as the conditions of plaintiff's work at KMC, the quality of his work
8
relationships at KMC, his management of the pathology department, and the link between those
9
matters and plaintiff's injuries. Each of these issues concerns defendants’ and plaintiff’s behavior
10
at KMC. The fifth affirmative defense alleges that plaintiff's own behavior caused the problems
11
he encountered at KMC.
12
The possibility that plaintiff's own behavior may have been the source of his problems at
13
KMC is also illustrated by allegations in plaintiff's own complaint. For example, the complaint
14
alleges that in February 2006, defendant Bryan sent a letter advising plaintiff that “your decision
15
to confront the issues this way is not a good one....It is not your message that people react to but
16
rather how you deliver it....” (Doc. 30, 21:10-19)(italics added).
17
(c). Characterization of the fifth affirmative defense.
18
Plaintiff reads the fifth affirmative defense narrowly and argues that it asserts only
19
contributory negligence. The court is not persuaded by plaintiff's argument, because it is based on
20
a faulty premise. The problem with plaintiff’s premise is that it characterizes the fifth affirmative
21
defense as exclusively contributory negligence and ignores the fact that it concerns other
22
defenses as well. The substance of the fifth affirmative defense is that plaintiff's own misconduct
23
created the situation that resulted in his injuries. An allegation that a party has acted inequitably
24
or asserted a claim in bad faith gives rise to an unclean hands defense. An allegation that a party
25
has sought to benefit from his own wrongdoing gives rise to an equitable estoppel. Both are
26
apparent in the fifth affirmative defense. Given that the court is obliged to view the fifth
27 28
-5-
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Filed Filed10/29/2007 10/23/2007 Page Page31 6 of 8 42
1
affirmative defense in the light most favorable to defendants and to resolve any doubt regarding
2
the sufficiency or relevancy of the defense in defendants’ favor, the court does not subscribe to
3
plaintiff’s narrow interpretation of the defense.
4
The fifth affirmative defense can be characterized as an assertion of an unclean hands
5
defense which if proven, “closes the doors of a court of equity to one tainted with inequitableness
6
or bad faith relative to the matter in which he seeks relief, however inappropriate may have been
7
the behavior of the defendant.” Precision Instrument Manufacturing Co. v. Automotive
8
Maintenance Machinery Co., 324 U.S. 806, 814, 65 S.Ct. 993, 997 (1945). The fifth affirmative
9
defense can also be characterized as an assertion of an equitable estoppel defense, which
10
“precludes a party from asserting rights he otherwise would have had against another when his
11
own conduct renders assertions of those rights contrary to equity.” Aetna Casualty and Surety
12
Company v. Jeppeson & Company, 440 F. Supp. 394, 403-404 (D. Nev. 1977)(internal
13
quotation omitted); Metalclad Corp. v. Ventana Environmental Organizational Partnership, 109
14
Cal.App. 4th 1705, 1713 (2003)(citation omitted) .
15
Unclean hands and equitable estoppel are affirmative defenses under federal and state
16
law, and their application is primarily a question of fact in each case. See Hass v. Darigold Dairy
17
Products Co., 751 F.2d 1096, 1099 (9th Cir. 1985); Kendall-Jackson Winery, Ltd. v. Superior
18
Court, 76 Cal.App. 4th 970, 978 (1999); City of Culver City v. State Board of Equalization, 29
19
Cal. App. 3d 404, 411(1972. The court has found no case law to suggest that the defenses of
20
unclean hands and equitable estoppel are inapplicable in the context of at least some of plaintiff's
21
claims, including the § 1983 claim.
22
Moreover, this action is in the early stages of discovery. It is possible that defendants
23
may prove a set of facts in which plaintiff’s behavior created the hostile work environment from
24
which at least some of his damages arise. After viewing the fifth affirmative defense in the light
25
most favorable to defendants and resolving any doubt regarding the sufficiency or relevancy of
26
the defense in defendants’ favor, the court is not convinced that there are no facts to support the
27 28
-6-
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1
fifth affirmative defense or that under no set of circumstances could the defense succeed.
2
Accordingly, the court concludes that the fifth affirmative defense is legally sufficient and that an
3
order striking the defense is not warranted at this time. The motion to strike the defense on the
4
ground that it is legally insufficient is denied without prejudice to plaintiff's right to seek the
5
same relief after discovery and development of the evidence.
6
B. Scandalous matter.
7
Plaintiff contends the fifth affirmative defense is a scandalous matter and should be
8
stricken because it alleges that plaintiff “was arrogant, disagreeable, uncooperative, intimidating,
9
overbearing, self-righteous and unfriendly.” Plaintiff contends these contentions assert offensive
10
character defects and are a pretextual reason for defendants' wrongful conduct towards plaintiff.
11
The court has considered the content, nature, and context of the fifth affirmative defense.
12
The defense describes plaintiff’s alleged behavior during his employment at KMC, which if
13
proven, is neither admirable nor cruelly derogatory. Plaintiff makes similar, if not harsher,
14
statements regarding the behavior of defendant Roy, who is also KMC physician. For example,
15
plaintiff alleges that in March 2006, he reported to KMC’s chief executive officer that defendant
16
Roy “has made outrageous false statements about the pathology department and myself, which
17
cause great concern about his ethical integrity....I think it is outrageous that the medical staff sits
18
by and lets this individual act in such a pompous, destructive manner. I feel a personal duty to
19
the pathology department (and the hospital) to push the issue of his bad conduct in whatever
20
venue may be needed to control the actions of this individual.” (Doc. 30, 22:1-5)(italics added).
21
Pompous is synonymous with overbearing. Thus, at least one of the words that plaintiff uses to
22
describe a defendant’s behavior is nearly identical to the word that plaintiff considers
23
“scandalous” when it is used to describe his own behavior.
24
The court is not persuaded by plaintiff’s argument. The fifth affirmative defense does not
25
reflect cruelly on plaintiff’s character, does not use repulsive language, and is not sufficiently
26
derogatory or degrading to constitute a scandalous matter within the meaning of Rule 12 of the
27 28
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1
Federal Rules of Civil Procedure. The motion to strike the defense as a scandalous matter is
2
denied.
3
3. Motion for Sanctions.
4
Plaintiff requests that the court award sanctions against defendants’ attorney because,
5
according to plaintiff, there is no basis in law or fact to support the fifth affirmative defense. Fed.
6
R. Civ. P. 11 (c ). As discussed above, the fifth affirmative defense is legally sufficient and will
7
not be stricken at this time. The court concludes that defendants’ attorney has not asserted a
8
frivolous defense or falsely certified defendants’ answer to the complaint, and the court is
9
persuaded by Attorney Wasser’s declaration that defendants have a good faith belief in the
10
factual basis for the fifth affirmative defense. Sanctions are not warranted and plaintiff’s request
11
for sanctions is denied.
12
ORDERS
13
Based on the foregoing, IT IS HEREBY ORDERED that:
14
1. Plaintiff's motion to strike the fifth affirmative defense is DENIED without prejudice,
15
and plaintiff’s request for sanctions is DENIED. (Doc. 32).
16 17
IT IS SO ORDERED.
18
Dated: October 23, 2007 j6eb3d
/s/ Theresa A. Goldner UNITED STATES MAGISTRATE JUDGE
19 20 21 22 23 24 25 26 27 28
-8-
Case 1:07-cv-00026-OWW-TAG
Document 68
Filed 10/29/2007
Page 34 of 42
EXHIBIT 3. Plaintiff’s Reply to Opposition to Motion to Strike (Doc. 45).
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1 2 3 4 5 6 7 8 9 10
Filed Filed10/29/2007 08/06/2007 Page Page35 1 of 8 42
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.
11
UNITED STATES DISTRICT COURT
12
EASTERN DISTRICT OF CALIFORNIA
13 14
DAVID F. JADWIN, D.O.,
15 16 17 18
Plaintiff, v. COUNTY OF KERN; et al. Defendants.
19
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:
20
January 6, 2007 August , 2008
21 22 23 24 25 26 27 28
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
1
Case Case1:07-cv-00026-OWW-TAG 1:07-cv-00026-OWW-TAG Document Document68 45
Filed Filed10/29/2007 08/06/2007 Page Page36 2 of 8 42
1
(1982) 128 Cal.App.3d 154; Weidenfeller v. Star & Garter (1991) 1 Cal.App.4th 1. Nor is it a defense to
2
strict liability causes of action.
3
1. Defendants Concede that Contributory Negligence is Irrelevant Here.
4
Defendants have expressly admitted in the Opposition that “[this action] is not a traditional
5
negligence case and contributory negligence is not a relevant concept.” Opposition, 4:24-25
6
(emphasis added). Nonetheless, Defendants still argue in the Opposition that this Court should not strike
7
their Fifth Affirmative Defense (“FAD”) because “Plaintiff’s behavior contributed to hostility in the
8
work environment.” Opposition, 6:11-12 (emphasis in original). In their Answer, Defendants avoid
9
labeling their Fifth Affirmative Defense as one of ‘Comparative Negligence’, but a plain reading of
10
Defendants’ arguments reveals it as such. In fact, Defendants have expressly admitted that the FAD articulates a comparative negligence1
11 12
defense. In an email to Plaintiff’s counsel dated May 9, 2007, Mr. Mark Wasser, counsel of record for
13
Defendants, stated as follows:
14
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).
15 16
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
21
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
1
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.
REPLY TO OPPOSITION TO MOTION TO STRIKE 5TH AFFIRMATIVE DEFENSE
2
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1
Filed Filed10/29/2007 08/06/2007 Page Page37 3 of 8 42
This is incorrect – Plaintiff’s allegations of general damages are directly related to the remedies
2
provided by the statutes that he alleges Defendants violated. In fact, the FEHA and CFRA2 specifically
3
permit recovery for general damages. The California Supreme Court held in State Personnel Bd. v. Fair Employment & Housing Com.,
4 5
that these “same remedies [authorized under Cal. Gov’t. C. § 12970 (damages for emotional pain,
6
suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses)]
7
along with compensatory and punitive damages, may be awarded by a superior court in a private
8
enforcement action under the FEHA.” 39 Cal. 3d 422, 433-434 (Cal. 1985).
9
Similarly, the California Court of Appeal has held:
10
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).
11 12 13 14
3. Contrary to Defendants’ Contention, Contributory/Comparative Negligence Is Not A Defense in Strict Liability Cases
15
Defendants further contend that Safeway Stores, Inc. v. Nest-Kart, 21 Cal.3d 322 (1978) stands
16 17
for the proposition that “evidence of a party’s own behavior is relevant even in strict liability cases.”
18
Opposition, 8:12-13. The case is utterly inapposite. There, the California Supreme Court considered the
19
issue of how to apportion liability between co-defendant joint tortfeasors, one of which had been
20
found strictly liable and the other both negligent and strictly liable. The court concluded that it was
21
appropriate to apply comparative fault apportionment of liability between the co-defendants according to
22
the jury’s determination. Id. at 331-32. Safeway Stores in no way stands for the proposition that a
23
plaintiff’s contributory or comparative negligence is “relevant even in strict liability cases”. Id.
24
Not only have Defendants insisted on re-litigating the well-settled proposition that a plaintiff’s
25
contributory negligence is not an affirmative defense to an intentional tort or strict liability actions, in
26
doing so they have made incorrect and misleading representations about the law to this Court.
27 28
2
CFRA is a part of the FEHA and subject to the same remedies.
REPLY TO OPPOSITION TO MOTION TO STRIKE 5TH AFFIRMATIVE DEFENSE
3
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1 2
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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”
3
Under Rule 26, affirmative defenses which are legally sufficient may still be stricken if they are
4
“redundant, immaterial, impertinent, or scandalous.” SEC v. Gulf & Western Industries, Inc. 502 F.Supp.
5
343, 345 (D.D.C. 1980).
6
Plaintiff’s Motion contends that the FAD is “scandalous” and cites Skadegaard v. Farrell 578
7
F.Supp. 1209, 1221 (D.N.J. 1984) for its holding that “scandalous” allegations are those that cast a
8
“cruelly” derogatory light on a party or other person. Motion, 7:8.5-8.5.3 Skadegaard further established
9
that allegations must be neither (1) “unnecessarily derogatory” nor (2) “irrelevant”. Id. at 1221.
10
1. The Fifth Affirmative Defense Is “Unnecessarily Derogatory”
11
The Opposition states “Nothing in the defense attacks Plaintiff’s character or competence.”
12
Opposition, 6:10; see also Id. at 7:10. Defendants further argue that the FAD’s allegations that “Plaintiff
13
was arrogant, disagreeable, uncooperative, intimidating, overbearing, self-righteous, and unfriendly”
14
describe Plaintiff’s “behavior” and not his “character”. Opposition, 6:11-15. This erstwhile distinction is
15
belied by the syntax of the FAD: “[. . . ] Defendants allege that [. . .] Plaintiff was arrogant,
16
disagreeable, uncooperative, intimidating, overbearing, self-righteous, and unfriendly and that
17
Plaintiff’s behavior…”) (emphasis added). The FAD itself contradicts Defendants’ assertion that the
18
mal-adjectives at issue in the first clause relate to behavior rather than character.
19 20
The first clause of the FAD constitutes a purely gratuitous attack on Plaintiff’s character. It is “unnecessarily derogatory” and is therefore scandalous.
21 2. The Fifth Affirmative Defense Is “Irrelevant”4
22
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
3
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).
REPLY TO OPPOSITION TO MOTION TO STRIKE 5TH AFFIRMATIVE DEFENSE
4
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1
Filed Filed10/29/2007 08/06/2007 Page Page39 5 of 8 42
Defendants cite RDF Media Ltd. v. Fox Broadcasting Co.as an example where the court struck
2
scandalous allegations from a complaint. There, the court reasoned that the plaintiff had quoted “sharp”
3
words from newspaper articles to “lend credence to the opinions” of commentators and give the
4
“appearance that such opinions are legally relevant to the dispute”. Opposition, 7:12-19, citing RDF
5
Media Ltd. v. Fox Broadcasting Co., 372 F. Supp. 2d 556.
6
Here, the converse applies. In alleging the FAD, Defendants omitted quotations from any
7
contemporaneous employee performance reviews that might substantiate their derogatory attack on
8
Plaintiff’s character. Opposition, 7:12-19, citing RDF Media Ltd. v. Fox Broadcasting Co., 372 F. Supp.
9
2d 566 (C.D. Cal. 2005). This is because, as the Motion discussed at length, the documented
10
explanations Defendants provided at the time they took adverse employment actions against Plaintiff
11
make no reference to Plaintiff’s character. Now after the fact, the FAD alleges Plaintiff has a bad
12
character and offers this as the explanation for the adverse actions. Motion, 7:16.5 – 8:8.
13
The FAD is nothing more than pretext and is irrelevant to this action.
14
Moreover, as discussed in Section A, supra, whether or not Plaintiff “contributed” to the hostility
15
of the work environment is by Defendants’ own admissions “not relevant”. Opposition, 4:24-25.
16 17
For the foregoing reasons, the FAD is scandalous because it is unnecessarily derogatory and
18
irrelevant and should be stricken.
19
C. PLAINTIFF WILL BE PREJUDICED BY THE FIFTH AFFIRMATIVE DEFENSE
20
1. Defendants Concede That Plaintiff Need Not Show Prejudice under Rule 12
21
Defendants’ Opposition does not challenge Plaintiff’s assertion in the Motion that Plaintiff is not
22
required to show prejudice in bringing a motion to strike. Motion, 8:21.5 – 9:3 (citing Atlantic Richfield
23
Co. v. Ramirez, 176 F.3d 481 (9th Cir. 1999)). Defendants have therefore conceded this point.
24
2. Defendants Concede That Plaintiff Will Be Prejudiced by the Fifth Affirmative Defense
25
Nevertheless, Plaintiff contends that, if the FAD is not stricken, Plaintiff will be prejudiced.
26
Motion, 8:21.5 – 9:16.5. Such prejudice would include “unnecessary additional expense in terms of time
27
and money”. Motion, 9:12.5-16.5.
28
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
5
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1
time and money that must arise from litigating spurious issues by dispensing them before trial.”
2
Opposition, 4:5-7 (emphasis added). In other words, Defendants concede that prejudice flows
3
inevitably from the need to litigate “spurious issues”. As Plaintiff has already shown that the FAD
4
raises “spurious issues”, Defendants have conceded that Plaintiff will be prejudiced unless the FAD is
5
stricken. Given the foregoing, Plaintiff has met any showing of prejudice that this Court might require.
6 7
Thus, the Court should strike the FAD without delay.
8
D. DELAYING PLAINTIFF’S MOTION TO STRIKE UNTIL AFTER DISCOVERY WOULD ONLY COMPOUND PLAINTIFF’S PREJUDICE
9
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
24 25 26 27 28
5
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.
REPLY TO OPPOSITION TO MOTION TO STRIKE 5TH AFFIRMATIVE DEFENSE
6
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1 2 3 4
Filed Filed10/29/2007 08/06/2007 Page Page41 7 of 8 42
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
17
Rule 11 sanctions against Defendants’ counsel are warranted.
18
Defendants’ counsel has delayed this litigation by refusing to withdraw a scandalous affirmative
19
defense that he already knew from Plaintiff’s briefing during extensive meet and confers to be legally
20
insufficient. This refusal has forced Plaintiff to motion this Court to seek the only remedy available to
21
him against the FAD’s scandalous allegations.
22
In addition, given Defendants’ counsel’s Rule 11 certification of the facts on which his argument
23
is based, Plaintiff respectfully requests that Defendants stipulate to, and/or the Court order, that the list
24
of “undisputed facts” set forth in the Scheduling Conference Order, entered on June 6, 2007, be
25
supplemented to include the following undisputed facts which the FAD implicitly admits to: (1)
26
Plaintiff’s work environment at KMC was hostile; and (2) persons other than Plaintiff contributed to the
27
hostility of his work environment. The doctrine of judicial estoppel should preclude Defendants from
28
maintaining otherwise later in this litigation. REPLY TO OPPOSITION TO MOTION TO STRIKE 5TH AFFIRMATIVE DEFENSE
7
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1 2
Filed Filed10/29/2007 08/06/2007 Page Page42 8 of 8 42
F. CONCLUSION For the foregoing reasons, we respectfully request this Court to strike Defendants’ Fifth
3
Affirmative Defense pursuant to Rule 12(f); and to award Plaintiff sanctions against Defendants’
4
counsel in the amount of at least $4,500.00 pursuant to Rule 11(B)(2).
5
In addition, Plaintiff respectfully request that the Court order that the list of “undisputed facts”
6
set forth in the Scheduling Conference Order be supplemented to include the following undisputed facts
7
which the FAD as currently alleged implicitly admits to: (1) Plaintiff’s work environment at KMC was
8
hostile; and (2) persons other than Plaintiff contributed to the hostility of his work environment.
9 10
RESPECTFULLY SUBMITTED on August 6, 2007.
11 12 13 14 15
/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]
19
/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
20
Attorneys for Plaintiff DAVID F. JADWIN, D.O.
16 17 18
21 22 23 24 25 26 27 28 REPLY TO OPPOSITION TO MOTION TO STRIKE 5TH AFFIRMATIVE DEFENSE
8
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