39 mts - amended declaration of leee

8/14/2019 39 MTS - Amended Declaration of LeeE

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AMENDED DECLARATION OF EUGENE D. LEE IN SUPPORT OF

MOTION TO STRIKE AND FOR SANCTIONS 1

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Eugene D. Lee SB# 236812LAW OFFICE OF EUGENE LEE555 West Fifth Street, Suite 3100Los Angeles, California 90013Telephone: (213) 992-3299

Facsimile: (213) 596-0487Email: [email protected]

Joan Herrington, SB# 178988BAY AREA EMPLOYMENT LAW OFFICE5032 Woodminster LaneOakland, CA 94602-2614Telephone: (510) 530-4078Facsimile: (510) 530-4725Email: [email protected] Counsel to LAW OFFICE OF EUGENE LEE

Attorneys for PlaintiffDAVID F. JADWIN, D.O.

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

DAVID F. JADWIN, D.O.,

Plaintiff,

v.

COUNTY OF KERN; et al.

Defendants.

Case No. 1:07-cv-00026-OWW-TAG

AMENDED DECLARATION OF EUGENE

D. LEE IN SUPPORT OF PLAINTIFFS

MOTION TO STRIKE AFFIRMATIVE

DEFENSE AND FOR SANCTIONS

[F.R.C.P. RULES 12(f) AND 11(c)]

Date: August 13, 2007Time: 9:30 a.m.Place: U.S. Bankruptcy Courthouse, Bakersfield

Courtroom 8

Date Action Filed: January 6, 2007Date Set for Trial: August 26, 2008

I, the undersigned, declare and say, as follows:

2. I am an attorney at law duly licensed to practice before the Federal and State Courts of

California and admitted to practice before the United States District Court for the Eastern District of

California. I am the attorney representing Plaintiff David F. Jadwin in this matter.

3. I am making this amended declaration in support of Plaintiff Dr. Jadwins Motion to

Case 1:07-cv-00026-OWW-TAG Document 39 Filed 07/16/2007 Page 1 of 34


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Strike the Fifth Affirmative Defense of the Defendants. The facts stated herein are personally known to

me and if called as a witness, I could and would competently testify to the truth of the facts set forth in

this declaration.

4. Plaintiff has met and conferred extensively with Defendants, requesting that Defendants

strike the FAD from the Answer. To date, Defendants have refused

5. On May 11, 2007, I sent a letter to Mark Wasser, attorney of record for all defendants in

this action, both by facsimile and US mail. The letter represented Plaintiffs attempt to meet and confer

at length and in good faith on the legal insufficiency of certain of Defendants affirmative defenses.

Attached as Exhibit 1 is a true and correct copy of that letter.

6. On May 16, Mr. Wasser and I met and conferred by phone. Mr. Wasser specifically

stated that he appreciated our legal brief of May 11, educating him.

7. On May 17, Mr. Wasser sent a letter to me by facsimile and US mail responding to my

letter of May 11. Attached as Exhibit 2 is a true and correct copy of that letter.

8. Later that day, I sent a letter to Mr. Wasser by facsimile and US mail further meeting and

conferring with him. Attached as Exhibit 3 is a true and correct copy of that letter.

9. On June 26, I sent another letter to Mr. Wasser by facsimile and US mail further meeting

and conferring with him in light of Defendants latest Answer. Attached as Exhibit 4 is a true and

correct copy of that letter.

10. On July 3, Mr. Wasser sent a letter to me by facsimile and US mail responding to my

letter of June 26. Attached as Exhibit 5 is a true and correct copy of that letter.

11. Later that day, I sent an email to Mr. Wasser further meeting and conferring with him.

Attached as Exhibit 6 is a true and correct copy of that email.

12. On July 4, Mr. Wasser sent an email to me replying to my email of July 3. Attached as

Exhibit 6 is a true and correct copy of that email.

13. On July 5, I sent an email to Mr. Wasser further meeting and conferring with him.


14. Later that day, Mr. Wasser sent a reply email to me. Attached as Exhibit 7 is a true and

correct copy of that email.



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15. On July 6, I sent an email to Mr. Wasser further meeting and conferring with him.


16. Later that day, Mr. Wasser sent a reply email. Attached as Exhibit 7 is a true and correct

copy of that email.

17. I have spent substantially in excess of 1 hour meeting and conferring with Mr. Wasser by

phone, fax, letter and email, and substantially in excess of 4 hours researching and drafting these moving

papers. My regular rate for such services is $400 per hour.

18. My rate is consistent with those charged in the Los Angeles area by attorneys of similar

skill and experience. I received my B.A. with honors from Harvard University in 1991 and my J.D. with

honors from the University of Michigan Law School in 1995. I was admitted to the New York State Bar

in 1996 and worked as an associate in the New York office of Shearman & Sterling from 1995 to 1996. I

worked as an associate in the New York office of Sullivan & Cromwell from 1996 to 1997. After a brief

leave of absence from practicing law from 1997 to 1999, I returned to active practice as the General

Counsel of Tcom America, Inc., a technology venture in Silicon Valley from 1999 to 2002. From 2002

to 2004, I worked as a senior associate for Kim & Chang, a law firm located in Seoul, Korea. In 2005, I

was admitted to the California Bar. I have been the principal of Law Office of Eugene Lee since 2005.

19. I attempted several times to secure local counsel to prosecute Plaintiffs suit but was

ultimately unsuccessful.

20. On September 18, 2006, I sent an email to over 600 members of the California

Employment Lawyers Association seeking co-counsel. No attorneys from Fresno responded.

21. On February 28, 2007, I called Andrew Jones, Esq. in Fresno, CA, requesting his

involvement as local counsel in this action. Mr. Jones declined.

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EXHIBITS TO DECLARATION OF EUGENE D. LEE

EXHIBIT 1. Meet and confer letter from Plaintiffs attorney to Defendants attorney,dated 5/11/07

EXHIBIT 2. Reply letter from Defendants attorney to Plaintiffs attorney, dated5/17/07




EXHIBIT 6. Meet and confer email correspondence between Plaintiffs attorney andDefendants attorney, dated 7/3/07 to 7/4/07




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(213) 992-3299TELEPHONE L A W O F F I C E O F

E U G E N E L E E

[email protected]

(213) 596-0487FACSIMILE

555 WEST FIFTH STREET, SUITE 3100LOS ANGELES, CALIFORNIA 90013-1010

WWW.LOEL.COMWEBSITE

VIA FACSIMILE & US MAIL

Mark WasserLaw Offices of Mark Wasser

400 Capitol Mall Ste 1100

Sacramento, CA 95814

100011.001

Re: Defendants Affirmative Defenses

Jadwin / County of Kern, et al. (USDC EDCA No. 1:07-cv-00026-OWW/TAG)

Dear Mr. Wasser:

It was a pleasure speaking with you at the 26(f) conference. As you know, at that time, Ms.Herrington and I had only briefly touched upon several concerns we had regarding Defendants

Answer to the First Supplemental Complaint. We would like to take this opportunity to further

meet and confer at length with you on the concerns we have.

Third Affirmative Defense

Defendants allege as their third affirmative defense that Defendants actions as alleged in the

First Supplemental Complaint were privileged and that Defendants and each of them are,therefore, immune from liability. However, this defense is too broadly worded to put Plaintiff on

sufficient notice as it fails to specify which privileges and immunities Defendants are referringto. As you know, the variety of privileges and immunities which exist under law are toonumerous to list here. Please kindly amend the Answer so as to plead this defense with the

particularity reasonably necessary to put Plaintiff on sufficient notice.

Fourth Affirmative Defense

Defendants allege as their fourth affirmative defense that California Civil Code section 47

immunizes Defendants and each of them from liability for the matters alleged in the FirstSupplemental Complaint. However, this defense is too broadly worded to put Plaintiff on

sufficient notice as it fails to specify which Civil Code section 47 (defamation) immunities

Defendants are referring to. As you know, numerous defamation privileges and immunities exist,e.g., pre-litigation investigation, common interest, etc. Please kindly amend the Answer so as to

plead this defense with the particularity reasonably necessary to put Plaintiff on sufficient notice.

Fifth Affirmative Defense

Defendants allege as their fifth affirmative defense that, during Plaintiffs employment at Kern

Medical Center, Plaintiff was arrogant, disagreeable, uncooperative, intimidating, overbearing,

May 11, 2007



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self-righteous and unfriendly and that Plaintiffs behavior contributed to and was the direct andproximate cause of any stresses, disabilities or injuries that Plaintiff believes he sustained. Based

on your explanation in our subsequent discussions, I understand that Defendants are attempting

to assert a comparative fault theory here.

However, we believe there may be insufficient legal basis to allege this defense. First, Plaintiff isnot alleging any negligence theory of recovery, hence a comparative negligence defense isinapposite.

For instance, while failure to provide reasonable accommodation and failure to engage in an

interactive consultation appear at first glance to apply a negligence theory of liability, in fact theLegislature imposed strict liability for these offenses. See Govt Code 12940(m) & (n); StateFarm Fire & Casualty co. v. Superior Ct. (1996) 45 Cal. App. 4th 1093, 1102;Marcano-Rivera

v. Pueblo International, Inc. (1st Cir. 2000) 232 F.3d 245, 256-257;

In a reasonable accommodation case, the discrimination is framed in terms of

the failure to fulfill an affirmative duty the failure to reasonably accommodatethe disabled individual's limitations. The [FEHA] compels employers to modify

their work requirements to enable disabled individuals to have the same

opportunities as their non-disabled counterparts. Kiel v. Select Artificials, Inc.,

169 F.3d 1131, 1136 (8th Cir.1999); 29 C.F.R. S 1630, app. (2003) (Thereasonable accommodation requirement is best understood as a means by which

barriers to the equal employment opportunity of an individual with a disability are

removed or alleviated.). The concern is compelling behavior, not policing anemployer's actions that, when accompanied by an invidious discriminatory intent,

are unlawful. As such, it is not the employer's discriminatory intent in taking

adverse employment action against a disabled individual that matters.

Rather, discrimination occurs when the employer fails to abide by a legally

imposed duty. The known disability triggers the duty to reasonably

accommodate and, if the employer fails to fulfill that duty, we do not care if

he was motivated by the disability. SeeMole v. Buckhorn Rubber Prods., Inc.,

165 F.3d 1212, 1219-20 (8th Cir.1999) (Lay, J., dissenting), cited in Fenney, 327F.3d at 712. To hold otherwise would create an anomaly a wheel-chair bound

employee, properly owed a duty of accommodation, would have to show that the

employer's failure to accommodate the employee's inability to walk was caused

by the employee's inability to walk. The Act and our case law do not impose sucha requirement. [FN5] Thus, we hold McDonnell Douglas does not apply to this

case; therefore, the Postal Service's arguments as to the prima facie case and

pretext are unavailing." [emphasis added].

Peebles v. Potter(8th Cir. 2004) 354 F.3d 761, 767

Similarly, failure to engage in an interactive consultation imposes strict liability where anemployer fails to abide by a legally imposed duty. See, e.g., Claudio v. Regents of the Univ. of

California (2005) 134 Cal.App.4th 224, 244-45.



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Government Code 12940(a) (disability discrimination), Health & Safety Code 1278.5 (healthfacility whistleblowing) and Labor Code 1102.5 (employee whistleblowing) each impose an

intent requirement rather than a negligence standard of proof.

CFRA/FMLA are also strict liability statutes: The FMLA is a strict liability statute in the sense

that an employee need not delve into the employers subjective intent to recover for allegedviolations for interference."Mora v. Chem-Tronics, Inc. (S.D. Cal. 1998) 16 F.Supp.2d 1192,1219; see also King v. Preferred Technical Group (7th Cir. 1999) 166 F.3d 887, 891 (If an

employer interferes with the FMLA-created right to medical leave or to reinstatement following

the leave, a deprivation of this right is a violation regardless of the employers intent.); Kaylor

v. Fannin Regional Hospital, Inc. (N.D. Ga. 1996) 946 F.Supp. 988, 997 (Accordingly, byestablishing a minimum standard for employee leave, Congress apparently intended for FMLA

leave protected by 2612(a)(1) to be strictly enforced with any question of an employer's intent

to violate the FMLA to be considered only when assessing damages.).

On a final note, the fifth affirmative defense as currently worded does not appear to adequately

state a comparative negligence defense; hence, in any case, we believe that defense has beenwaived.

In light of the foregoing, please kindly strike this defense from the Answer.

Seventh Affirmative Defense

Defendants allege as their seventh affirmative defense that Plaintiffs injuries as alleged in theFirst Supplemental Complaint occurred more than two years before Plaintiff commenced this

action and that Plaintiffs claims are, therefore, barred by the statue of limitations established inCalifornia Code of Civil Procedures 335.1. CCP 335.1 states:

Within two years: An action for assault, battery, or injury to, or for the death of,an individual caused by the wrongful act or neglect of another.

Plaintiff is not alleging any assault, battery, injury or wrongful death causes of action. Pleasekindly strike this defense from the Answer.

Ninth Affirmative Defense

Defendants allege as their ninth affirmative defense that the Defendants and each of them have

qualified immunity for each and every claim alleged in the First Supplemental Complaint and

that Plaintiffs claim are, therefore, barred. As we have already discussed, the qualified immunitydefense, needs to be pled with particularity. See Shechter v. Comptroller of City of New York

(2nd Cir. 1996) 79 F3d 265, 270. More specifically, Defendants need to specify the specific acts

alleged to be within the officials scope of duties, among other things.



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Joan and I would be pleased to discuss the foregoing further with you. Please feel free to contactus any time. Of course, we will be happy to finalize the Stipulation & Order regarding leave to

file the Second Supplemental Complaint and Answer thereto once we have ironed out these

issues regarding Defendants affirmative defenses.

Very truly yours,

EUGENE D. LEE

cc: Dr. David F. Jadwin, D.O.Joan Herrington, Esq.



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ay 17 07 03:20p Mark Wasser 916-000-0000 p.1

The Law Offices of Mark A. Wasser400 Capitol Mall, Suite 1100Sacramento, California 95814Office: 916-444-6400Fax: 916-444-6405

FaxTo: Eugene Lee From: Mark WasserFax: (213) 596-0487Phone: (213) 992-3299

Pages: 3 (including fax coversheet)Date: May 17, 2007

Re: Jadwin v. County of Kern, et al. CC:

o Urgent Comments:

o For Review o Please Comment 0 Please Reply o Please Recycle

Pleasesee the attached letter. Thank you.


ay 17 07 03:20p Mark Wasser 916-000-0000 p.1


FaxTo: Eugene Lee From: MarkWasserFax: (213) 596-0487Phone: (213) 992-3299

Pages: 3 (including fax coversheet)Date: May 17, 2007

Re: Jadwin v. County of Kern, et al. CC:

o Urgent Comments:


Please see the attached letter. Thank you.


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ay 17 07 03:20p Mark WasserLawOffices of

N1ARK A. WASSER400 Capitol Mall, Suite 1100Sacramento, California 95814

Office: 916-444-6400 Fax: [email protected]

916-000-0000 p.2

May 17,2007

VIA FACSIMLE & FIRST CLASS MAIL

Eugene LeeLaw Offices ofEugene Lee555 West Fifth Street, Suite 3100Los Angeles, California 90013-1010

Re: Jadwin v. County o fKern, et at.Dear Eugene:

This is in response to your letter ofMay II , 2007.With regard to the seventh affirmative defense, although you state in your letterthat Dr. Jadwin is "not alleging any assault, battery, injury, or wrongful death cause ofaction", the complaint contains a prayer for general and compensatory damages and Ibelieve a fair reading of the body of the complaint suggests that Dr. Jadwin is, in factclaiming injury. If this is not the case then Dr. Jadwin needs to stipulate that he is not

seeking damages for any injuries within the scope of 335.1 of the Code ofCivilProcedure. We will gladly strike the seventh affirmative defense upon a representationby Dr. Jadwin that he is claiming no damages for claims encompassed within that statute.Conversely, in the absence of such a stipulation by Dr. Jadwin, the seventh affirmativedefense will remain in our answer.

With regard to the fifth affirmative defense, we believe the facts in this case maypresent an opportunity to test the application of contributory and comparative faulttheories in the context of the statutory claims you have asserted. Our investigation thusfar has disclosed such egregious conduct by the Plaintiffthat a courtmay decide he needsto bear some of the consequences of his behavior.

Admitted to Practice in California and Nevada


ay 17 07 03:20p Mark WasserLaw Offices of

N1ARK A. WASSER400 Capitol Mall, Suite 1100Sacramento, California 95814


916-000-0000 p.2

May 17,2007

VIA FACSIMLE & FIRST CLASS MAIL

Eugene LeeLawOffices ofEugene Lee555 West Fifth Street, Suite 3100Los Angeles, California 90013-1010

Re: Jadwin v. County o fKern, et at.Dear Eugene:

This is in response to your letter ofMay II , 2007.With regard to the seventh affinnative defense, although you state in your letterthat Dr. Jadwin is "not alleging any assault, battery, injury, or wrongful death cause ofaction", the complaint contains a prayer for general and compensatory damages and Ibelieve a fair reading of the body of the complaint suggests that Dr. Jadwin is, in factclaiming injury. If this is not the case then Dr. Jadwin needs to stipulate that he is not

seeking damages for any injuries within the scope of 335.1 of the Code ofCivilProcedure. We will gladly strike the seventh affirmative defense upon a representationby Dr. Jadwin that he is claiming no damages for claims encompassed within that statute.Conversely, in the absence of such a stipulation by Dr. Jad"'in, the seventh affirmativedefense will remain in our answer.

With regard to the fifth affirmative defense, we believe the facts in this case maypresent an opportunity to test the application of contributory and comparative faulttheories in the context of the statutory claims you have asserted. Our investigation thusfar has disclosed such egregious conduct by the Plaintiffthat a courtmay decide he needsto bear some of the consequences of his behavior.

Admiued m Practice in California and Nevada


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ay 17 07 03:20p Mark Wasser 916-000-0000 p.3

Eugene LeeMay 17,2007Page 2

I have revised our answer in anticipation of your second supplemental complaint.Please forward at your earliest opportunity so that I can complete our revised answers andforward that to you.

Thank you.Very Truly Yours,l Y ~ ~Mark A. Wasser

cc: Mark NationsKaren Barnes


ay 17 07 03:20p Mark Wasser 916-000-0000 p.3

Eugene LeeMay 17,2007Page 2

I have revised our answer in anticipation of your second supplemental complaint.Please forward at your earliest opportunity so that I can complete our revised answers andforward that to you.

Thank you.Very Truly Yours,l Y ~ ~Mark A. Wasser

cc: Mark NationsKaren Bames


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(213) 992-3299TELEPHONE L A W O F F I C E O F

E U G E N E L E E

[email protected]

(213) 596-0487FACSIMILE

555 WEST FIFTH STREET, SUITE 3100LOS ANGELES, CALIFORNIA 90013-1010

WWW.LOEL.COMWEBSITE

VIA FACSIMILE & US MAIL

Mark WasserLaw Offices of Mark Wasser

400 Capitol Mall Ste 1100

Sacramento, CA 95814

100011.001

Re: Defendants Affirmative Defenses

Jadwin / County of Kern, et al. (USDC EDCA No. 1:07-cv-00026-OWW/TAG)

Dear Mr. Wasser:

Thank you for your letter of today.

As you know, the meet and confer process requires parties to engage each other in good faith to

attempt to resolve disputes before motioning the court. InNevada Power Co. v. Monsanto Power

Co., the court offered the following guidelines for the conduct of an informal meet and confer:

[There is a] requirement that parties treat the informal negotiation process as a substitute for,

and not simply a formalistic prerequisite to, judicial resolution of discovery disputes. 151F.R.D. 118, 120 (D. Nev. 1993). The court went on to state:

[T]he parties must present to each other the merits of their respective positions

with the same candor, specificity, and support during informal negotiations asduring the briefing of discovery motions. Only after all the cards have been laidon the table, and a party has meaningfully assessed the relative strengths and

weaknesses of its position in light of all available information, can there be a

'sincere effort' to resolve the matter."

Ibid.

As you will recall from our phone call of yesterday, you had praised my meet and confer letter to

you of last Friday, stating that you appreciated our legal briefs educating you and wonderedwhy we would even go through the trouble. Hopefully you will agree that we have done our best

to lay all our cards on the table as part of the meet and confer process.

Now I ask you do the same.

Regarding the seventh affirmative defense (Plaintiffs claims are barred by the statute of

limitations established in Cal. Civ. Proc. Code 335.1 (assault, battery, injury, wrongful death)),your letter stated I believe a fair reading of the body of the complaint suggests that Dr. Jadwin

is, in fact claiming injury. Please state which specific allegations, averments and/or counts lead

you to believe this so that we may more effectively meet and confer on this issue. If you were

May 17, 2007



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referring to intentional and/or negligent infliction of emotional distress, Plaintiff has no intentionof bringing such claims and will happily provide a representation to that effect. However,

without more specific guidance from you, we are still of the position that the seventh affirmative

defense should be stricken from the Answer as having insufficient legal basis, and will move tostrike it if necessary.

Regarding the fifth affirmative defense (Plaintiff was arrogant, disagreeable, uncooperative,intimidating, overbearing, self-righteous and unfriendly and that Plaintiffs behavior contributed

to and was the direct and proximate cause of any stresses, disabilities or injuries that Plaintiff

believes he sustained), your letter stated we believe the facts in this case may present an

opportunity to test the application of contributory and comparative fault theories in the context ofthe statutory claims you have asserted. Please provide citations to legal authorities which

support your assertion so that we may more effectively meet and confer on this issue. As we

stated in our meet and confer letter of last Friday, comparative fault is a defense to negligencetheories of recovery, but courts have already decided that negligence does not apply to Plaintiffs

claims. Again, without more specific guidance from you, we are still of the position that the fifth

affirmative defense should be stricken from the Answer as having insufficient legal basis, andwill move to strike it if necessary.

Please provide the foregoing information to us at your earliest convenience. As you know, the

parties will not be able to present any dates, including the dates discussed at the Rule 26(f)conference, to the Court unless and until the parties first agree on the claims and defenses at

issue.

Lastly, enclosed herewith is the draft Second Supplemental Complaint in the form in which

Plaintiff intends to file it, as well as a blacklined version marked to show the proposedsupplements. We look forward to receiving Defendants Amended Answer, as we had previously

discussed at your earliest convenience, and look forward to hearing from you soon.

Very truly yours,

EUGENE D. LEE

cc: Dr. David F. Jadwin, D.O.

Joan Herrington, Esq.

Encl: Second Supplemental Complaint

Second Supplemental Complaint - BLACKLINE



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- - g : pm

(213) 992 -3299TELEPHONE LAWE U G

OFFICEENE L OFE [email protected]

EMAIL

(213) 596 -0487FACSIMILE

FAX5 5 5 WEST F IFTH STREET SUITE 3 1 0 0Los ANGELES, CALIFORNIA 9001 3-1 01 0 WWW.LOEL.COMWEBSITE

To:Fax Number: 2135960487

From: Law Office of Eugene LeeDate: 06/26/2007

Pages: 6 (including cover page)Re: Jadwin/County of Kern et al. - Meet & Confer re: Aff Defense

Comments:Dear Mr. Wasser:Tran sm it ted he rew it h i s ano ther meet and confer l e t t e r regard ingDefendants ' a f f i rma t ive defenses and proposed s t i pu l a t i on & order .We would apprec ia te your response by no l a t e r than Ju ly 1 , 2007. Pleasef ee l f ree to con t ac t us if you have any ques t ions .


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( 2 1 3 ) 992-3299TELEPH ON E

(Z 1 3 ) 596-0487FACS IM I LE

LAW OFFICE OFEUGENE LEE555 W E ST F IF TH S T R E E T , SUITE 3100L O S A N GE LE S , CAL I FORN IA 90013-1010

June 26, 2007

E LE [email protected]

WWW.LOEL .COMWEBS I TE

VIA FACSIMILE & US MAILMarkWasserLaw Offices ofMarkWasser400 Capitol Mall Ste 1100Sacramento, CA 95814

100011.001

Re: Defendants' Affirmative DefensesJadwin / County ofKern, et al. (USDC EDCANo. 1:07-cv-00026-0WW/TAG)

Dear Mr. WasserThis is an effort to meet and confer regarding regarding Defendant's Fifth and EighthAffirmative Defenses set forth in the Answer to the Second Supplemental Complaint. DespitePlaintiffs legally supported objections set forth in our letters to you ofMay 11,2007 and May,17, 2007, Defendants have persisted in asserting the same impermissibly vague and/or speciousaffirmative defenses in their Answer to the Second Supplemental Complaint. Further, Plaintiffcontends that because you certified these affirmative defenses over our valid objections, you aresubject to sanctions for violating FRCP Rule 11. To avoid incurring further legal feesnecessitated by filing a Rule 12(f) motion to strike, we ask that Defendants sign the enclosedproposed stipulation requesting that the Fifth and Eighth Affirmative Defenses be stricken fromthe Answer to the Second Supplemental Complaint.

Fifth Affinnative DefenseDefendants allege as their fifth affirmative defense that, during Plaintiff's employment at KernMedical Center, Plaintiffwas arrogant, disagreeable, uncooperative, intimidating, overbearing,self-righteous and unfriendly and that Plaintiff's behavior contributed to and was the direct andproximate cause of any stresses, disabilities or injuries that Plaintiffbelieves he sustained. Basedon your explanation in our subsequent discussions, we understand that Defendants are attemptingto assert a comparative fault theory here. Again, please clarify ifDefendants are, in fact,attempting to raise some affirmative defense other than contributory negligence.First, contributory negligence is only a defense to a claim based on a negligence theory ofrecovery. A plaintiffs contributory negligence is not a defense to an intentional tort. Godfrey v.Steinpress (1982) 128 Ca1.App.3d 154; Weidenfeller v. Star & Garter (1991) 1 Ca1.AppAth 1.However, none of Plaintiffs claims are grounded in a negligence theory of recovery; so acomparative negligence defense does not apply.


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Plaintiff's statutory claims are clearly grounded in intentional tort or strict liability. For example,Government Code 12940(a) (disability discrimination), Health & Safety Code 1278.5 (healthfacility whistleblowing) and Labor Code 1102.5 (employee whistleblowing) each impose an"intent" requirement rather than a negligence standard ofproof. The Legislature did not engagein the futility of providing employees with an individual right of action in civil court in thestatutes that form the basis ofPlaintiff's claims only to have them preempted by the exclusiveremedy provisions of the Workers' Compensation Act for injuries arising from negligence in theworkplace.Although "failure to provide reasonable accommodation" and "failure to engage in an interactiveconsultation" may appear at first glance to apply a negligence theory of liability, in fact theLegislature imposed strict liability on the employer for these offenses. See Gov't Code 12940(m) & (n); State Farm Fire & Casualty co. v. Superior Ct. (1996) 45 Cal. App. 4th 1093,1102; Marcano-Rivera v. Pueblo International, Inc. (1st Cir. 2000) 232 F.3d 245, 256-257 (anemployer is strictly liable for failure to provide reasonable accommodation). A failure to engagein an interactive consultation imposes strict liability where an employer fails to abide by a legallyimposed duty. See, e.g., Claudio v. Regents ofthe Univ. ofCalifornia (2005) 134 Cal.App.4th224, 244-45.CFRA and FMLA are also strict liability statutes: The FMLA is a strict liability statute in thesense that an employee need not delve into the employer's subjective intent to recover foralleged violations for interference."Mora v. Chem-Tronics, Inc. (S.D. Cal. 1998) 16 F.Supp.2d1192, 1219; see alsoKing v. Preferred Technical Group (7th Cir. 1999) 166 F.3d 887,891 ("Ifan employer interferes with the FMLA-created right to medical leave or to reinstatementfollowing the leave, a deprivation of this right is a violation regardless of the employer'sintent."); Kaylor v. Fannin RegionalHospital, Inc. (N.D. Ga. 1996) 946 F.Supp. 988,997("Accordingly, by establishing a 'minimum standard' for employee leave, Congress apparentlyintended for FMLA leave protected by 2612(a)(I) to be strictly enforced with any question ofan employer's intent to violate the FMLA to be considered only when assessing damages.").CFRA incorporates all of FMLA's protections to the extent they are consistent and in certaininstances, widens them. [See 2 Cal. Code of Regs. 7297.10].Second, the Fifth Affirmative Defense should be stricken as "scandalous". Rule 12(f).Defendants are attempting to raise this Fifth Affirmative Defense by manufacturing 'scandalous'alternative reasons for Dr. Jadwin's denial ofmedical! recuperative leave or for his demotionafter-the-fact to excuse their wrongdoing. Defendants have already admitted, by and throughCEO Bryan's letter of April 17, 2006, that the Pathology Department was functioning welldespite Dr. Jadwin's absences on approved reduced work load medical leave, and that the"dysfunctional relationship you have with some key members of staff" was due to Plaintiff'swhistleblowing activity. Second Supplemental Complaint at '\1 82. Defendants have furtheradmitted, by and through, CEO Bryan's letter ofApril 28, 2006 that they converted Dr. Jadwin'sreduced work load medical leave to full time medical leave, then required him to either return towork full-time or resign by June 17, 2006 "because the hospital needs you here full-time."Second Supplemental Complaint at '\186. Thus, the contemporaneous reasons given for theadverse employment actions that Plaintiff suffered are incontestable, and expose the false and'scandalous' nature of the accusations alleged in the Fifth Affirmative Defense.

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Finally, in any case, the Fifth Affinnative Defense as alleged is too vague and ambiguous toadequately state a comparative negligence defense; hence, Defendants have waived anycomparative negligence defense.For each of the foregoing reasons, the Fifth Affinnative Defense should be stricken.

Eighth Affinnative DefenseDefendants allege as their eighth affinnative defense that Plaintiff had adequate administrativeremedies which he failed to exhaust. Plaintiff pleaded a plethora of facts in his SecondSupplemental Complaint and incorporated proofof his administrative exhaustion of his FEHAand CFRA claims through the Department of Fair Employment and Housing, his section 1102.5ofthe Labor Code through the Labor Workforce Development Agency, and his Tort Claims Actexhaustion through Kern County into the Second Supplemental Complaint to expedite litigationand avoid specious challenges. Again, please clarify Defendants' basis, if any, for the eighthaffirmative defense so Plaintiffcan determine whether it should also be stricken.Please either sign the enclosed stipulation and return it to us by July 1,2007 or fulfill your dutyto meet and confer in good faith by clarifying Defendant's vague and ambiguous allegationsand/or rebutting Plaintiffs contentions with the candor, specificity, and legal support required byNevada Power Co. v. Monsanto Power Co., 151 F.R.D. 118, 120 (D. Nev. 1993).

Yours truly,(/lP (/ ~

(J:ugene D. LeeAttorney at Law

cc: Dr. David F. Jadwin, D.O.Joan Herrington, Esq.

enc: Stipulation & Order

3


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12345678910111213

Eugene D. Lee SB# 236812LAW OFFICE OF EUGENE LEE555 West Fifth Street, Suite 3100Los Angeles, California 90013Telephone: (213) 992-3299Facsimile: (213) 596-0487Email: [email protected]

Joan Herrington, SB# 178988BAY AREA EMPLOYMENT LAW OFFICE5032 Woodminster LaneOakland, CA 94602-2614Telephone: (510) 530-4078Facsimile: (510) 530-4725Email: [email protected] Counsel to LAW OFFICE OF EUGENE LEEAttorneys for PlaintiffDAVID F. JADWIN, D.O.

UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF CALIFORNIA

1415 DAVID F. JADWIN, D.O., Civil Action No. 1:07-cv-00026-0WW-TAG

18 COUNTY OF KERN; et al.

1617

1920

v.

Plaintiff,

Defendants.

STIPULATION TO STRIKEDEFENDANTS' FIFTH & EIGHTHAFFIRMATIVE DEFENSES & ORDERTHEREON.

Date Action Filed: January 6, 2007Date Set for Trial: August 26, 2008

21

22

Parties hereby stipulate that Defendants' Fifth and Eighth Affirmative Defenses alleged in theAnswer to the Second Supplemental Complaint should be stricken; and request this Court to so order.

232425262728

Date: June ,2007

By: ~ - ~ - - - - -Eugene LeeAttorney for PlaintiffDavid F. Jadwin, D.O.

USDC-ED Case No. 107-cv 00026-0WW-TAGSTIPULATION & ORDER STRIKING THE 5TH & 8TH AFFIRMATIVE DEFENSES


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1 Date: June _ ,20072345

By: ~ ~ ~ - - - - - - -Mark WasserAttorney for Defendants

67 IT IS SO ORDERED.8 Date: July __,20079

The Honorable Oliver W. WangerJudge ofthe United States District CourtEastern District of California

By: --"'----,c,-----,,--O,vp-----,,"''''----1112

10

131415161718192021

22232425262728

USDC-ED Case No. 107-cv 00026-0WW-TAGSTIPULATION & ORDER STRIKING THE 5TH & 8TH AFFIRMATIVE DEFENSES 2


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: a ar asser 916-444-6405 p.1


FaxTo: EugeneLe From: MarkWasserFaK: (213) 596-0487Phone: (213) 992-3299

Pages: 3 (including cover page)Date: July 3, 2007

Re: Jadwin v. County ofKern cc:

o Urgent Comments:


Please see the enclosed letter. Thank you.


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: a ar asserLaw Offices ofMARKA. WASSER

400 CapitoL\!all, Suite 1100Sacramento, California 95814


916-444-6405 p.2

July 3, 2007

VIA FACSIMILE & FIRST CLASSMAIL

Eugene LeeLaw Offices of Eugene Lee555 West Fifth Street, Suite 3100Los Angeles, California 90013-1010

Re: Jadwin v. County ofKern, et al.Dear Ylr. Lee:

This is in reply to your letter of June 26, 2007 about the fifth and eighthaffinnative defenses.Despite the 20-day period specified in Rule 12(f), there is authority that a plaintiff

may challenge the legal sufficiency of a defense at any time. It is not necessary that youbring a motion now.In order to prevail, you must convince the Court that there are no possible factsthat could support the defenses. Depending upon the view that the Court takes, youmight also be required to show that Dr. Jadv"in \\,111 be prejudiced if the defendants areallowed to maintain the defenses. Because there has been no discovery and no facts haveyet been developed, we believe that a motion a strike, brought now, will be premature.

We believe you ~ l have a hard time making the requisite s h o ~ n g .As I told you several weeks ago, we believe the appropriate time to address yourconcerns about the affirmative defenses will be at the pre-trial conference. If factssufficient to support the defenses have not been developed by the time of the pre-trialconference, the defendants will entertain your request that they be stricken then. We willstipulate that youmay bring your motion then.

Admined to Practice in California and Nevada


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: a ar asser 91 -444- 40 p.3

Eugene LeeJuly 3, 2007Page 2

We are not prepared to stipulate that they be stricken now.

Very Truly Yours,V d # 4 ~Mark A. Wassercc: Mark Nations (via first class mail)Karen Barnes (via first class mail)Joan Herrington (via first class mail)


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Eugene D. Lee

From: Mark Wasser [[email protected]]

Sent: Wednesday, July 04, 2007 9:26 AM

To: [email protected]

Cc: 'Joan Herrington'Subject: RE: 070703 Reply to MNC re Affirmative Defenses

Page 1 of 1

7/8/2007

Gene,

Based upon your letters, I assumed you were contending that the defenses are legally insufficient. That is whatyour letters say. If your concern is vagueness, what is it about the defenses that is vague or fails to put you onsufficient notice? We are willing to address that concern if you can explain it for me. We certainly intend for thepleadings to be clear. I will revise them if you can help me understand your concern.

Mark

From: Eugene D. Lee [mailto:[email protected]]Sent: Tuesday, July 03, 2007 6:11 PMTo: [email protected]: 'Joan Herrington'Subject: 070703 Reply to MNC re Affirmative Defenses

Mark,

Thank you for your email of June 29 and your fax of today. We appreciate your point of view that Plaintiff mustconvince the Court that there are no possible facts that could support the defenses, but do not agree with it. AsJudge Wanger said at the Mandatory Scheduling Conference, the issue is whether Defendants affirmativedefenses are legally insufficient. We agree with Judge Wanger: our position is not that Defendants currentlylacks the factual basis to aver the Fifth and Eighth Affirmative Defenses, but rather that they fail to fully comply

with the FRCP in that, among other things, they are impermissibly vague and fail to put Plaintiff on sufficientnotice of the nature of Defendants defenses.

As you might have guessed, we believe the issue is important enough to raise to Judge Wanger via Motion toStrike, which we intend to file shortly. If you wish to reconsider your position or discuss this further, please do nothesitate to contact us.

Sincerely,

Gene Lee

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~LAW O FFICE OF E UGENE L EE

EMPLOYMENT LAW5 5 5 WEST F IFTH S T . , S TE . 3 1 0 0

L OS ANGELES , C A 9 0 0 1 3T e l : ( 2 1 3 ) 9 9 2 - 3 2 9 9F a x : ( 2 1 3 ) 5 9 6 - 0 4 8 7E - m a i l : [email protected]

W e b s i t e : www.LOEL.com

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Eugene D. Lee

From: Mark Wasser [[email protected]]

Sent: Friday, July 06, 2007 2:28 PM

To: [email protected]

Subject: {Spam?} RE: Jadwin/KMC: MNC re Affirmative Defenses

Page 1 of 4

7/8/2007

Gene,

The Fifth Affirmative Defense alleges that Plaintiffs behavior contributed to and was the direct andproximate cause of any stresses, disabilities or injuries that Plaintiff believes he sustained. That is theessence of the defense: Dr. Jadwins behavior contributed to the problems he alleges. We do notcontend that his behavior bars his claims in the way common law contributory negligence barred aclaim. We only contend his behavior contributed to the problems he has alleged. We hope to flesh thatout as discovery proceeds. If, as I have written to you before, there are insufficient facts to support thedefense, we will drop it. The defense is in the answer to put you on notice, as it clearly has given thevolume of writings you have generated about it.

The Eighth Affirmative Defense alleges that Dr. Jadwin had available adequate administrativeremedies which he failed to exhaust. As I wrote yesterday, we believe he did not exhaust a remedy hemay have had to challenge his removal as chair. I am not sure about this, however, because I have notbeen able to discuss this with former employees and have not been able to collect or review all theinternal policies at KMC. There may be other administrative remedies, as well, that pertain to otheraspects of his claims. You have alleged exhaustion, as you point out. If we cannot establish theexistence of an administrative remedy, we will drop this defense.

Again, now is not the time to challenge these defenses but I have already written you about that.

Mark

From: Eugene D. Lee [mailto:[email protected]]Sent: Friday, July 06, 2007 1:27 PMTo: [email protected]: 'Joan Herrington'Subject: RE: Jadwin/KMC: MNC re Affirmative Defenses

Mark,

Thank you for your email.

As you know, Plaintiff has repeatedly objected to the vagueness of Defendants affirmative defenses and soughtclarification as to whether Defendants Fifth Affirmative Defense is an attempt to allege Contributory Negligenceas an affirmative defense (even though those words are not expressly stated anywhere in the allegation). Pleaseconfirm or deny that Defendants Fifth Affirmative Defense is an attempt to allege Contributory Negligence as anaffirmative defense to Plaintiffs claims. If Defendants deny, then please clarify what exact legal theory the FifthAffirmative Defense is proposing.

Plaintiff has also repeatedly sought clarification as to what administrative remedy Defendants refer to inDefendants Eighth Affirmative Defense. Plaintiff has alleged and incorporated evidence showing his exhaustionof administrative remedies with Kern County, the DFEH, and the LWDA in the Second Supplemental Complaint.Are Defendants alleging that (1) Plaintiffs exhaustion was defective in some way; OR (2) are Defendants allegingthat administrative exhaustion with some other agency was required, OR (3) both?



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We look forward to Defendants clarification of the above.

Sincerely,

Gene Lee / Joan Herrington

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW O FFICE OF E UGENE L EEEMPLOYMENT LAW

5 5 5 WEST F IFTH S T . , S TE . 3 1 0 0L OS ANGELES , C A 9 0 0 1 3

T e l : ( 2 1 3 ) 9 9 2 - 3 2 9 9F a x : ( 2 1 3 ) 5 9 6 - 0 4 8 7E - m a i l : [email protected]


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~This message is sent by a law firm and may contain information that is privileged or confidential. If you receivedthis transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.

From: Mark Wasser [mailto:[email protected]]

Sent: Thursday, July 05, 2007 1:18 PMTo: [email protected]: Joan Herrington; Karen Barnes; MARK NATIONSSubject: RE: Jadwin/KMC: MNC re Affirmative Defenses

Gene,

With regard to the eighth affirmative defense, we understand that the complaint pleads a plethora of facts aboutFEHA and CFRA remedies. Those are not our main concern. Our concern is with the Pathology DepartmentChairmanship. Not having had an opportunity to interview former employees, review your initial disclosures orgather all the relevant facts, we are unsure about the administrative remedies that Dr. Jadwin may have hadregarding his chairmanship. So, to preserve the defense pending discovery and investigation, we included it. AsI have written, if we cannot develop facts to support it, we will drop it. But, we are not in a position to do so now.

Regarding the fifth affirmative defense. We do not regard it as cruelly derogatory. It is factual. It does notdemean Dr. Jadwins character nor do we intend it to. It describes behaviors that are at least partly responsiblefor the stressful work environment Dr. Jadwin complains about. Since Dr. Jadwin is complaining about his workenvironment, it is relevant to suggest, via defense, his own contribution to it. Numerous witnesses will testify thatthe behaviors described in the fifth affirmative defense caused a variety of problems. Because the scope of yourclaims and the evidence you intend to rely on is not known, we do not know how the defense will fit into theoverall strategy of the case but, again, to preserve it, we included it. If it proves to be unsupported by facts orirrelevant to the claims Dr. Jadwin pursues, we will drop it. But, we cannot make that determination now.

Mark

m: Eugene D. Lee [mailto:[email protected]]Sent: Thursday, July 05, 2007 11:49 AMTo: [email protected]: 'Joan Herrington'Subject: Jadwin/KMC: MNC re Affirmative Defenses

Mark,

We are having to spend a not insignificant number of billable attorney hours explaining and re-explaining thisissue to you, which Defendants will ultimately be responsible for. But since you request it, Im more than happy toreiterate some of the highlights of our last meet and confer letter to you.

Regarding the Fifth Affirmative Defense, as clearly stated in our last meet and confer letter:

Page 2 of 4

7/8/2007



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Based on your explanation in our subsequent discussions, we understand that Defendants are attempting toassert a comparative fault theory here. Again, please clarify if Defendants are, in fact, attempting to raise someaffirmative defense other than contributory negligence. First, contributory negligence is only a defense to a claimbased on a negligence theory of recovery. A plaintiff's contributory negligence is not a defense to an intentionaltort. [citation omitted]. However, none of Plaintiff's claims are grounded in a negligence theory of recovery; so acomparative negligence defense does not apply. . . . Second, the Fifth Affirmative Defense should be stricken as"scandalous . . . . Finally, in any case, the Fifth Affirmative Defense as alleged is too vague and ambiguous to

adequately state a comparative negligence defense; hence, Defendants have waived any comparative negligencedefense.

Regarding the Eighth Affirmative Defense, as clearly stated in our last meet and confer letter:

Again, please clarify Defendants' basis, if any, for the eighth affirmative defense so Plaintiff can determinewhether it should also be stricken.

Among other things, the vagueness of the affirmative defenses makes them legally insufficient to the extent theyfail to put Plaintiff on fair notice as to what the defenses are. The underlying requirement is that a pleading givefair notice. Conley v. Gibson (1957) 355 US 41, 4748; Swierkiewicz v. Sorema N.A. (2002) 534 US 506, 513.

As noted above, the Fifth Affirmative Defense is also scandalousin that it contains allegations that cast acruelly derogatory light on a party or other person. [Skadegaard v. Farrell (D NJ 1984) 578 F.Supp. 1209, 1221;

Talbot v. Robert Matthews Distributing Co. (7th Cir. 1992) 961 F2d 654, 665 (allegations that milk distributorintentionally caused outbreak of salmonella in order to consummate fraudulent scheme against route drivers heldsubject to motion to strike as scandalous)].

Please refer to the letter for a detailed explanation of the various legal insufficiencies of the affirmativedefenses.

The foregoing flaws in Defendants Answer demonstrate that they should be stricken. Failure to strike them willprejudice Plaintiff in that Plaintiff will otherwise be required to make burdensome additional disclosures indiscovery/Initial Disclosures that respond to these broad, impermissibly vague defenses. Likewise, their breadthand vagueness will permit Defendants to engage in a broader scope of discovery than they would otherwise havebeen entitled to. For example, the Fifth Affirmative Defenses accuses Plaintiff of a broad range of conduct:Plaintiff was arrogant, disagreeable, uncooperative, intimidating, overbearing, self-righteous and unfriendly andthat Plaintiffs behavior contributed to and was the direct and proximate cause of any stresses, disabilities orinjuries that Plaintiff believes he sustained. The excessive breadth of (irrelevant) discovery this vague defense(apparently contributory negligence, which is legally insufficient for all the reasons stated in our letter) willengender is self-evident.

We will proceed with filing the Motion to Strike within the requisite 20-day period. If you wish to reconsiderDefendants position, please let us know.

Sincerely,

Gene Lee

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LAW O FFICE OF E UGENE L EEEMPLOYMENT LAW

5 5 5 WEST F IFTH S T . , S TE . 3 1 0 0L OS ANGELES , C A 9 0 0 1 3

T e l : ( 2 1 3 ) 9 9 2 - 3 2 9 9F a x : ( 2 1 3 ) 5 9 6 - 0 4 8 7E - m a i l : [email protected]


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39 mts - amended declaration of leee

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