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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]

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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 19 20

COUNTY OF KERN; et al. Defendants.

PLAINTIFF’S REPLY TO OPPOSITION TO REQUEST FOR RECONSIDERATION BY THE DISTRICT COURT OF MAGISTRATE JUDGE’S RULING ON PLAINTIFF’S MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE [28 U.S.C. § 636(b)(1)(A); Local Rule 72-303] Date Action Filed: Date Set for Trial:

January 6, 2007 August 26, 2008

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Plaintiff DAVID F. JADWIN, D.O. (“Plaintiff”) respectfully submits the following points and authorities in reply to defendants’ opposition to plaintiff’s request for reconsideration of Magistrate Judge Theresa A. Goldner’s October 23, 2007 order denying plaintiff’s motion to strike defendants’ fifth affirmative defense. (Order). Plaintiff submits this reply pursuant to the minute order of the Court, dated November 1, 2007, providing that plaintiff shall submit his reply by November 8, 2007.

PLAINTIFF’S REPLY TO OPPOSITION TO REQUEST FOR RECONSIDERATION OF COURT’S ORDER DENYING MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE

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I. THE PARTIES AGREED IN MEET AND CONFER THAT THE FIFTH AFFIRMATIVE DEFENSE WAS COMPARATIVE FAULT, DEFENDANTS’ POST-MOTION CHANGE IN STANCE NOTWITHSTANDING Defendants’ Opposition contends that plaintiff’s request for reconsideration misrepresents the

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record. The Opposition states: “[p]laintiff asserts that ‘the parties narrowed and resolved the [fifth

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affirmative defense] to a mutual understanding’ that it was based on a theory of ‘comparative fault’

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[during meet and confer]”. (Doc. 70, p. 2:2-5). Defendants contend that this is not true, that parties had

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polarized positions throughout the meet and confer.

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However, in support of this contention, defendants cite only to “Defendants’ Memorandum of

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Points and Authorities in Opposition to Motion to Strike”, where defendants assumed the exact opposite

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tack that the defendants “specifically and expressly disclaimed any theory of ‘contributory negligence’”.

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(Doc. 70, p. 2:8-15). Nowhere in the Opposition do defendants cite actual meet and confer

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correspondence. Ultimately, the Opposition does nothing to rebut plaintiff’s observation in his request

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for reconsideration that, on May 9, 2007, in the midst of meet and confer, Mark Wasser, counsel of

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record for defendants, stated:

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The legal basis for the fifth affirmative defense is comparative fault. Plaintiff’s behavior was a contributing factor to the injuries for which he is seeking general damages. Comparative fault is accepted. (Doc. 68, p. 4:13-23)(citation omitted).

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Nor does the Opposition rebut plaintiff’s observation that on May 17, 2007, Mr. Wasser, still in the

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midst of meet and confer with plaintiff, stated: 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. 68, p. 4:13-23)(citation omitted).

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Defendants took one stance during meet and confer that “[t]he legal basis for the fifth affirmative 22 defense is comparative fault”; then in their motion brief, defendants took the exact opposite tack and 23 “specifically and expressly disclaimed any theory of ‘contributory negligence’” with respect to the fifth 24 affirmative defense. Plaintiff fails to grasp how defendants’ post-motion change aboutface disproves 25 plaintiff’s contention that, during the preceding meet and confer, ‘the parties narrowed and resolved the 26 [fifth affirmative defense] to a mutual understanding’ that it was based on a theory of ‘comparative 27 fault’. 28

PLAINTIFF’S REPLY TO OPPOSITION TO REQUEST FOR RECONSIDERATION OF COURT’S ORDER DENYING MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE

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II. PURPORTED RELEVANCE IS NOT THE STANDARD FOR AN AFFIRMATIVE DEFENSE

2 Defendants’ Opposition states that the fifth affirmative defense “puts [p]laintiff on notice that his 3 own behavior is at issue. It is not complicated.” (Doc. 70, p. 2:25-26). 4 An affirmative defense must do more than be “at issue”. Defendants’ contention echoes the 5 Court’s erroneous analysis that the “fifth affirmative defense is relevant to plaintiff’s claims”. (Order, p. 6 4:24). An affirmative defense must do more than be “relevant”. An affirmative defense must, if deemed 7 true, dispose of plaintiff’s claims. Black’s Law Dictionary defines an affirmative defense as: “A 8 defendant’s assertion raising new facts and arguments that, if true, will defeat the plaintiff’s or 9 prosecution’s claim, even if all allegations in the complaint are true.” Black’s Law Dict. (7th ed. 1999) p. 10 430, col. 1-2, italics added. The fifth affirmative defense does not do this. A generalized assertion that 11 plaintiff’s behavior is “at issue” or is “relevant” does not suffice. 12 13 14

III. EVEN IF THE MEET AND CONFER IS GIVEN NO EFFECT, THE FIFTH AFFIRMATIVE DEFENSE IS IN ESSENCE A CONTRIBUTORY NEGLIGENCE DEFENSE WHICH IS LEGALLY INSUFFICIENT

15 The Court, in finding the fifth affirmative defense “relevant”, misapplied the “totality of the 16 circumstances” test. The Court states that “[p]laintiff’s hostile work environment allegations bring into 17 issue the totality of the circumstances of his work environment . . . Each of these issues concerns 18 defendants’ and plaintiff’s behavior at KMC. The fifth affirmative defense alleges that plaintiff’s own 19 behavior caused the problems he encountered at KMC.” Order, p. 5:5-11. However, the “totality of the 20 circumstances” test is used to measure the objective hostility of the victim’s working environment. 21 Harris v. Forklift Sys., Inc., 510 U.S. 17, 20-21, 23 (1993); Fuller v. City of Oakland, 47 F.3d 1522, 22 1527 (9th Cir. 1995). Whether “plaintiff’s own behavior “caused” the problems he encountered at 23 KMC” is irrelevant to the “totality of the circumstances” test (Order, p. 5:10-11)(emphasis added). 24 The Court states that it is concerned with whether plaintiff “caused” any of the hostility; in so 25 doing, the Court is in essence restating the contributory negligence defense. Plaintiff has already 26 extensively briefed why the concept of comparative fault is irrelevant to plaintiff’s claims and therefore 27 legally insufficient. (Doc. 37). 28

PLAINTIFF’S REPLY TO OPPOSITION TO REQUEST FOR RECONSIDERATION OF COURT’S ORDER DENYING MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE

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Likewise, although “[d]efendants specifically and expressly disclaimed any theory of

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contributory negligence.” (Doc. 70, p. 2:13-14), defendants essentially resurrect this same theory when

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they contend that they are “entitled to develop a defense by, among other things, showing how

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Plaintiff‘s behavior eroded the work environment at Kern Medical Center.” (Doc. 70, p. 3:2-4). In other

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words, defendants are contending that the fifth affirmative defense relates to whether plaintiff

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negligently contributed to the hostility of his work environment.

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Defendants have yet to make any showing as to what the exact relevance of the fifth affirmative

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defense is, aside from defendants’ bald assertions that it is relevant. If anything, it is apparent that

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defendants’ strategy in this action will be to attempt to smear plaintiff and prejudice the fact-finders.

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Even more apparent is that defendants are unable to cite any actual misconduct, unlawful, negligent or

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otherwise, by Plaintiff, and so they relegate themselves to focusing only on Plaintiff’s “behavior” as

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their defense.

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IV. THE MAGISTRATE JUDGE SUA SPONTE RAISED NEW AFFIRMATIVE DEFENSES Defendants assert plaintiff “misstates the Magistrate Judge’s Order”, and that the “Magistrate

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Judge discussed the concepts of ‘unclean hands’ and ‘equitable estoppel’ merely as examples of theories

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that subject a plaintiff’s behavior to scrutiny.” (Doc. 70, p. 3:13-15).

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A review of the Order suggests otherwise. The Order states: “An allegation that a party has acted

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

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

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apparent in the fifth affirmative defense.” (Order, p. 5:23-26)(emphasis added). The Order also states:

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“The problem with plaintiff’s premise is that it characterizes the fifth affirmative defense as exclusively

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contributory negligence and ignores the fact that it concerns other defenses as well.” (Order, p. 5:20-

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22). The Court was going beyond mere hypothetical speculation. The Court was concluding that the fifth

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affirmative defense “concerns” unclean hands and equitable estoppel, and that these defenses are

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“apparent” in the fifth affirmative defense. In short, the Court was sua sponte raising new defenses

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which had not been previously raised by defendants.

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V. THE MAGISTRATE JUDGE MIS-APPLIED THE LIBERAL REVIEW STANDARD ON A MOTION TO STRIKE

2 It should be further pointed out that, in liberally construing the fifth affirmative defense in the 3 light most favorable to defendants, the Court did not engage in the analysis of examining a single 4 defense and determining whether “under no set of circumstances could the defense succeed”, as would 5 have been proper (Order, p. 7:1). Rather, the Court mis-applied the liberal review standard on a motion 6 to strike to determine that the vaguely-worded fifth affirmative defense could advance a multiplicity of 7 separate defenses which were either “relevant” (“hostile work environment causation”, Order, p. 4:248 5:16), or could conceivably succeed (unclean hands and equitable estoppel, Order, p. 6:4-7:5). In so 9 doing, the Court disregarded the fundamental requirement that an affirmative defense must first place 10 plaintiff on fair notice as to what the defense is. The Court denied plaintiff’s motion to strike based on 11 this erroneous analysis. 12 If the parties’ meet and confer (establishing that the fifth affirmative defense is contributory 13 negligence) is given no effect, then the fifth affirmative defense fails to give plaintiff fair notice as to 14 what exactly the defense is. The Court itself suggested no less than four possibilities: (i) contributory 15 negligence, (ii) unclean hands, (iii) equitable estoppel, and (iv) an erstwhile defense that can loosely be 16 described as “hostile work environment causation” (essentially a contributory negligence defense). The 17 Court does not foreclose the possibility that the fifth affirmative defense could stand for yet additional 18 defenses. 19 Likewise, defendants’ statement in their Opposition brief that they are “entitled to develop a 20 defense by, among other things, showing how Plaintiff‘s behavior eroded the work environment at 21 Kern Medical Center” confirms that defendants are intending to leverage the fifth affirmative defense as 22 a placeholder for a multiplicity of affirmative defenses of Defendants’ later choosing. (Doc. 70, p. 3:223 4)(emphasis added). 24 To date, plaintiff continues to have no idea what defense(s) the fifth affirmative defense is 25 advancing. This confusion prejudices plaintiff’s discovery and trial planning. Plaintiff is forced to 26 consider the entire universe of defenses for which the fifth affirmative defense could conceivably stand 27 and plan accordingly. Defendants assert “[t]here is no lack of notice regarding the meaning of the fifth 28

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affirmative defense.” (Doc. 70, p. 3:9). Plaintiff disagrees. In fact, the Court’s disregard of the fair notice requirement has the perverse result of rewarding

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defendants for stating an affirmative defense in terms so vague that under a liberal review standard it

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could stand for an infinity of defenses and thus always survive a motion to strike. In short, the vaguer

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the defense, the better. This has proven to be precisely the case with respect to the fifth affirmative

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defense.

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VI. CONCLUSION The parties had met and conferred and reached a mutual understanding that the fifth affirmative

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defense advanced a contributory negligence defense. Defendant’s own meet and confer communications

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establish this. Plaintiff relied on this narrowing of the issues in briefing its motion to strike. The fact that

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defendants chose to make the exact opposite contention in their opposition brief does not obviate the

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narrowing of the issues that occurred during the meet and confer process. If such were the case, the meet

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and confer process would have no value or legitimacy and would be an exercise in futility.

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However, if the meet and confer is given no effect, then the fifth affirmative defense fails to give

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plaintiff fair notice as to what the defense being advanced is. The Court erred in disregarding this

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fundamental requirement and then applying a liberal review standard to conclude that the fifth

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affirmative defense advanced no less than four separate defenses, and possibly more. The fact that the

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Court identified a multiplicity of defenses being advanced by the fifth affirmative defense only

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underscores plaintiff’s contention that the fifth affirmative defense does not give fair notice as to the

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substance of the defense being advanced. Moreover, the Court’s disregard of this fair notice requirement

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has the perverse result of rewarding defendants for stating an affirmative defense as vaguely as possible

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so as to maximize its chances of surviving a motion to strike under the liberal review standard. The less

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notice an affirmative defense gives plaintiff as to what exact defense it is advancing, the greater the

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likelihood the Court can apply a liberal review standard to identify a multiplicity of defenses being

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advanced by such affirmative defense, assuring its survival of any motion to strike brought by plaintiff.

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To date, plaintiff continues to have no notice as to what defense the fifth affirmative defense is

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advancing.

PLAINTIFF’S REPLY TO OPPOSITION TO REQUEST FOR RECONSIDERATION OF COURT’S ORDER DENYING MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE

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Plaintiff respectfully requests the District Court reconsider the Order of the Magistrate Judge denying plaintiff’s motion to strike the fifth affirmative defense.

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Respectfully submitted on November 8, 2007.

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/s/ Eugene D. Lee SB# 236812 LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, California 90013 Telephone: (213) 992-3299 Facsimile: (213) 596-0487 Email: [email protected] /s/ Joan Herrington, SB# 178988 (as authorized on 11/8/07) 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

14 Attorneys for Plaintiff DAVID F. JADWIN, D.O. 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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