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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: elee@LOEL.com 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: jh@baelo.com Of Counsel to LAW OFFICE OF EUGENE LEE Attorneys for Plaintiff DAVID 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.

Case No. 1:07-cv-00026-OWW-TAG AMENDED DECLARATION OF EUGENE D. LEE IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE AFFIRMATIVE DEFENSE AND FOR SANCTIONS [F.R.C.P. RULES 12(f) AND 11(c)] Date: August 13, 2007 Time: 9:30 a.m. Place: U.S. Bankruptcy Courthouse, Bakersfield Courtroom 8 Date Action Filed: Date Set for Trial: January 6, 2007 August 26, 2008

18 Defendants. 19 20 21 22 23 I, the undersigned, declare and say, as follows: 24 2. 25 California and admitted to practice before the United States District Court for the Eastern District of 26 California. I am the attorney representing Plaintiff David F. Jadwin in this matter. 27 3. 28
AMENDED DECLARATION OF EUGENE D. LEE IN SUPPORT OF MOTION TO STRIKE AND FOR SANCTIONS

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

I am making this amended declaration in support of Plaintiff Dr. Jadwin’s Motion to

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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 Plaintiff’s 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.

Attached as Exhibit 7 is a true and correct copy of that email. 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.
AMENDED DECLARATION OF EUGENE D. LEE IN SUPPORT OF MOTION TO STRIKE AND FOR SANCTIONS

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15.

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

Attached as Exhibit 7 is a true and correct copy of that email. 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 Plaintiff’s 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. // // // // // ///
AMENDED DECLARATION OF EUGENE D. LEE IN SUPPORT OF MOTION TO STRIKE AND FOR SANCTIONS

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I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

Executed on July 16, 2007, at Los Angeles, California.

________________________________________ Eugene D. Lee

AMENDED DECLARATION OF EUGENE D. LEE IN SUPPORT OF MOTION TO STRIKE AND FOR SANCTIONS

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EXHIBITS TO DECLARATION OF EUGENE D. LEE

EXHIBIT 1. Meet and confer letter from Plaintiff’s attorney to Defendants’ attorney, dated 5/11/07 EXHIBIT 2. Reply letter from Defendants’ attorney to Plaintiff’s attorney, dated 5/17/07 EXHIBIT 3. Meet and confer letter from Plaintiff’s attorney to Defendants’ attorney, dated 5/17/07 EXHIBIT 4. Meet and confer letter from Plaintiff’s attorney to Defendants’ attorney, dated 6/26/07 EXHIBIT 5. Reply letter from Defendants’ attorney to Plaintiff’s attorney, dated 7/3/07 EXHIBIT 6. Meet and confer email correspondence between Plaintiff’s attorney and Defendants’ attorney, dated 7/3/07 to 7/4/07 EXHIBIT 7. Meet and confer email correspondence between Plaintiff’s attorney and Defendants’ attorney, dated 7/5/07 to 7/6/07

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT 1. Meet and confer letter from Plaintiff’s attorney to Defendants’ attorney, dated 5/11/07

Case 1:07-cv-00026-OWW-TAG
(213) 992-3299 TELEPHONE (213) 596-0487 FACSIMILE

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ELEE@LOEL.COM E-MAIL WWW.LOEL.COM WEBSITE

L A W

E U G E N E

O F F I C E

L E E

O F

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

May 11, 2007 VIA FACSIMILE & US MAIL Mark Wasser Law Offices of Mark Wasser 400 Capitol Mall Ste 1100 Sacramento, CA 95814 Re: 100011.001

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 referring to. As you know, the variety of privileges and immunities which exist under law are too numerous 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 First Supplemental 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 Plaintiff’s employment at Kern Medical Center, Plaintiff was arrogant, disagreeable, uncooperative, intimidating, overbearing,

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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. 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 is not alleging any negligence theory of recovery, hence a comparative negligence defense is inapposite. 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 the Legislature imposed strict liability 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; In a reasonable accommodation case, the ‘discrimination’ is framed in terms of the failure to fulfill an affirmative duty – the failure to reasonably accommodate the 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) (“The reasonable 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 an employer'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. See Mole v. Buckhorn Rubber Prods., Inc., 165 F.3d 1212, 1219-20 (8th Cir.1999) (Lay, J., dissenting), cited in Fenney, 327 F.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 such a 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 an employer 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 (health facility 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 employer’s subjective intent to recover for alleged violations 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 employer’s intent.”); Kaylor v. Fannin Regional Hospital, Inc. (N.D. Ga. 1996) 946 F.Supp. 988, 997 (“Accordingly, by establishing 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 been waived. In light of the foregoing, please kindly strike this defense from the Answer. Seventh Affirmative Defense Defendants allege as their seventh affirmative defense that Plaintiff’s injuries as alleged in the First Supplemental Complaint occurred more than two years before Plaintiff commenced this action and that Plaintiff’s claims are, therefore, barred by the statue of limitations established in California 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. Please kindly 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 Plaintiff’s claim are, therefore, barred. As we have already discussed, the qualified immunity defense, 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 contact us 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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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT 2. Reply letter from Defendants’ attorney to Plaintiff’s attorney, dated 5/17/07

May 17 07 03:20p

Mark Wasser

916-000-0000

p.1

Case 1:07-cv-00026-OWW-TAG
400 Capitol Mall, Suite 1100 Sacramento, California 95814 Office: 916-444-6400 Fax: 916-444-6405

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The Law Offices of Mark A. Wasser A.

Fax
To:
Eugene Lee From: Mark Wasser

Fax:

(213) 596-0487

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

Phone: (213) 992-3299 Re: Jadwin v. County of Kern, et al.

o Urgent
• Comments:

o

For Review

o Please Comment

0 Please Reply

o Please Recycle

letter. Please see the attached letter. Thank you.

May 17 07 03:20p

Mark Wasser

916-000-0000

p.2 p.2

Case 1:07-cv-00026-OWW-TAG

N1ARK A. WASSER
400 Capitol Mall, Suite 1100 Mall,
Sacramento, California 95814 mwasser@markwasser.com

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Office: 916-444-6400 Fax: 916-444-6405 916-444-6405

May 17,2007

VIA FACSIMLE & FIRST CLASS MAIL

Eugene Lee Law Offices of Eugene Lee 555 West Fifth Street, Suite 3100 Los Angeles, California 90013-1010
Re: Jadwin v. County ofKern, et at.

Dear Eugene: This is in response to your letter of May II, 2007. With regard to the seventh affirmative defense, although you state in your letter affinnative that Dr. Jadwin is "not alleging any assault, battery, injury, or wrongful death cause of action", the complaint contains a prayer for general and compensatory damages and I believe a fair reading of the body of the complaint suggests that Dr. Jadwin is, in fact claiming 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 of Civil Procedure. We will gladly strike the seventh affirmative defense upon a representation by 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 affirmative Jadwin, defense will remain in our answer. 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. Our investigation thus far has disclosed such egregious conduct by the Plaintiff that a court may decide he needs to bear some of the consequences of his behavior.

Admitted m Admiued to Practice in California and Nevada

May 17 07 03:20p

Mark Wasser

916-000-0000

p.3 p.3

Case 1:07-cv-00026-OWW-TAG Eugene Lee May 17,2007 Page 2

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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 and forward that to you.

Thank you.
Very Truly Yours,

lY~£~
Mark A. Wasser
cc:

Mark Nations Barnes Karen Bames

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT 3. Meet and confer letter from Plaintiff’s attorney to Defendants’ attorney, dated 5/17/07

Case 1:07-cv-00026-OWW-TAG
(213) 992-3299 TELEPHONE (213) 596-0487 FACSIMILE

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ELEE@LOEL.COM E-MAIL WWW.LOEL.COM WEBSITE

L A W

E U G E N E

O F F I C E

L E E

O F

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

May 17, 2007 VIA FACSIMILE & US MAIL Mark Wasser Law Offices of Mark Wasser 400 Capitol Mall Ste 1100 Sacramento, CA 95814 Re: 100011.001

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. In Nevada 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.” 151 F.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 as during the briefing of discovery motions. Only after all the cards have been laid on 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 wondered why 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 (Plaintiff’s 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

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referring to intentional and/or negligent infliction of emotional distress, Plaintiff has no intention of 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 to strike it if necessary. Regarding the fifth affirmative defense (“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”), 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 of the 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 negligence theories of recovery, but courts have already decided that negligence does not apply to Plaintiff’s 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, and will 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 proposed supplements. 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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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT 4. Meet and confer letter from Plaintiff’s attorney to Defendants’ attorney, dated 6/26/07

To: 213-596-0487

From: Law OFFice of Eugene Lee

Pg 1/ 6 06/26/07 4:08 pm

Case 1:07-cv-00026-OWW-TAG (213) 992-3299
TELEPHONE

LAW
555

OFFICE

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OF

Page 19 of 34 ELEE@LOEL.COM
EMAIL

E U G ENE
(213) 596-0487
FACSIMILE

L E E
WWW.LOEL.COM WEBSITE

Los

WEST FIFTH STREET SUITE 3100 ANGELES, CALIFORNIA 9001 3-1 01 0

FAX
To: Fax Number: 2135960487
Pages: 6 (including cover page)

From: Law Office of Eugene Lee Date: 06/26/2007

Re: Jadwin/County of Kern et al. - Meet & Confer re: Aff Defense

Comments:

Dear Mr. Wasser: Transmitted herewith is another meet and confer letter regarding Defendants' affirmative defenses and proposed stipulation & order. We would appreciate your response by no later than July 1, 2007. Please feel free to contact us if you have any questions.

To: 213-596-0487

From: Law OFFice of Eugene Lee
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E LE E@LOEL.COM E-MAIL

TELEPH ON E

LAW
555

OFFICE
STREET,

OF

EUGENE
(Z 1 3) 596-0487 WEST FIFTH

LEE
SUITE 3 1 0 0 90013-1010

WWW.LOEL.COM
WEBSITE

FACSIMILE

LOS ANGELES, CALIFORNIA

June 26, 2007 VIA FACSIMILE & US MAIL Mark Wasser Law Offices of Mark Wasser 400 Capitol Mall Ste 1100 Sacramento, CA 95814 Re: 100011.001

Defendants' Affirmative Defenses Jadwin / County ofKern, et al. (USDC EDCA No. 1:07-cv-00026-0WW/TAG)

Dear Mr. Wasser This is an effort to meet and confer regarding regarding Defendant's Fifth and Eighth Affirmative Defenses set forth in the Answer to the Second Supplemental Complaint. Despite Plaintiffs legally supported objections set forth in our letters to you of May 11,2007 and May, 17, 2007, Defendants have persisted in asserting the same impermissibly vague and/or specious affirmative defenses in their Answer to the Second Supplemental Complaint. Further, Plaintiff contends that because you certified these affirmative defenses over our valid objections, you are subject to sanctions for violating FRCP Rule 11. To avoid incurring further legal fees necessitated by filing a Rule 12(f) motion to strike, we ask that Defendants sign the enclosed proposed stipulation requesting that the Fifth and Eighth Affirmative Defenses be stricken from the Answer to the Second Supplemental Complaint.

Fifth Affinnative Defense
Defendants allege as their fifth affirmative defense 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. Based on your explanation in our subsequent discussions, we understand that Defendants are attempting to assert a comparative fault theory here. Again, please clarify if Defendants 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 of recovery. 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 a comparative negligence defense does not apply.

To: 213-596-0487

From: Law OFFice of Eugene Lee
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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 (health facility whistleblowing) and Labor Code § 1102.5 (employee whistleblowing) each impose an "intent" requirement rather than a negligence standard of proof. The Legislature did not engage in the futility of providing employees with an individual right of action in civil court in the statutes that form the basis of Plaintiff's claims only to have them preempted by the exclusive remedy provisions of the Workers' Compensation Act for injuries arising from negligence in the workplace. Although "failure to provide reasonable accommodation" and "failure to engage in an interactive consultation" may appear at first glance to apply a negligence theory of liability, in fact the Legislature 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 (an employer is strictly liable for failure to provide reasonable accommodation). A failure to engage in an interactive consultation imposes strict liability where an employer fails to abide by a legally imposed duty. See, e.g., Claudio v. Regents ofthe Univ. ofCalifornia (2005) 134 Cal.App.4th 224, 244-45. CFRA and FMLA are also strict liability statutes: The FMLA is a strict liability statute in the sense that an employee need not delve into the employer's subjective intent to recover for alleged violations 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 employer's intent."); Kaylor v. Fannin Regional Hospital, Inc. (N.D. Ga. 1996) 946 F.Supp. 988,997 ("Accordingly, by establishing a 'minimum standard' for employee leave, Congress apparently intended for FMLA leave protected by §2612(a)(I) to be strictly enforced with any question of an 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 certain instances, 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 of medical! recuperative leave or for his demotion after-the-fact to excuse their wrongdoing. Defendants have already admitted, by and through CEO Bryan's letter of April 17, 2006, that the Pathology Department was functioning well despite 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's whistleblowing activity. Second Supplemental Complaint at '\1 82. Defendants have further admitted, by and through, CEO Bryan's letter of April 28, 2006 that they converted Dr. Jadwin's reduced work load medical leave to full time medical leave, then required him to either return to work 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 the adverse employment actions that Plaintiff suffered are incontestable, and expose the false and 'scandalous' nature of the accusations alleged in the Fifth Affirmative Defense.

2

To: 213-596-0487

From: Law OFFice of Eugene Lee
Document 39

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Case 1:07-cv-00026-OWW-TAG

Filed 07/16/2007

Page 22 of 34

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

Defendants allege as their eighth affinnative defense that Plaintiff had adequate administrative remedies which he failed to exhaust. Plaintiff pleaded a plethora of facts in his Second Supplemental Complaint and incorporated proof of his administrative exhaustion of his FEHA and CFRA claims through the Department of Fair Employment and Housing, his section 1102.5 ofthe Labor Code through the Labor Workforce Development Agency, and his Tort Claims Act exhaustion through Kern County into the Second Supplemental Complaint to expedite litigation and avoid specious challenges. Again, please clarify Defendants' basis, if any, for the eighth affirmative defense so Plaintiff can 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 duty to meet and confer in good faith by clarifying Defendant's vague and ambiguous allegations and/or rebutting Plaintiffs contentions with the candor, specificity, and legal support required by Nevada Power Co. v. Monsanto Power Co., 151 F.R.D. 118, 120 (D. Nev. 1993). Yours truly,

(

/lP (/ ~U
(J:ugene D. Lee Attorney at Law

cc:

Dr. David F. Jadwin, D.O. Joan Herrington, Esq. Stipulation & Order

enc:

3

To: 213-596-0487

From: Law OFFice of Eugene Lee
Document 39

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Case 1:07-cv-00026-OWW-TAG

Filed 07/16/2007

Page 23 of 34

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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: elee@LOEL.com 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: jh@baelo.com Of Counsel to LAW OFFICE OF EUGENE LEE Attorneys for Plaintiff DAVID F. JADWIN, D.O. UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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v.

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

Civil Action No. 1:07-cv-00026-0WW-TAG STIPULATION TO STRIKE DEFENDANTS' FIFTH & EIGHTH AFFIRMATIVE DEFENSES & ORDER THEREON. Date Action Filed: Date Set for Trial: January 6, 2007 August 26, 2008

COUNTY OF KERN; et al. Defendants.

Parties hereby stipulate that Defendants' Fifth and Eighth Affirmative Defenses alleged in the 21 Answer to the Second Supplemental Complaint should be stricken; and request this Court to so order.

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

Date: June

,2007

By:

Eugene Lee Attorney for Plaintiff David F. Jadwin, D.O.

~-~-----

To: 213-596-0487

From: Law OFFice of Eugene Lee
Document 39

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Case 1:07-cv-00026-OWW-TAG

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Date: June _,2007

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By:

Mark Wasser Attorney for Defendants

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IT IS SO ORDERED. Date: July __,2007

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By:

--"'----,c,-----,,--O,vp-----,,"''''----

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The Honorable Oliver W. Wanger Judge ofthe United States District Court Eastern District of California

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

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Case 1:07-cv-00026-OWW-TAG

Document 39

Filed 07/16/2007

Page 25 of 34

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT 5. Reply letter from Defendants’ attorney to Plaintiff’s attorney, dated 7/3/07

Jul 03 07 09:47a

Mark Wasser

916-444-6405

p.1

Case 1:07-cv-00026-OWW-TAG
400 Capitol Mall, Suite 1100 Sacramento, California 95814 Office: 916-444-6400 Fax: 916-444-6405

Document 39

Filed 07/16/2007

Page 26 of 34

The Law Offices of Mark A. Wasser

Fax
To:
FaK: Phone:

EugeneLe
(213) 596-0487

From: Pages: Date:

Mark Wasser 3 (including cover page) July 3, 2007

(213) 992-3299

Re:

Jadwin v. County of Kern

cc:

o Urgent
• Comments:

o For Review

o Please Comment

0 Please Reply

o Please Recycle

Please see the enclosed letter. Thank you.

Jul 03 07 09:47a

Mark Wasser

916-444-6405

p.2

Case 1:07-cv-00026-OWW-TAG

MARKA. WASSER
mwasser@markwasser.com

Law Offices of Document 39

Filed 07/16/2007

Page 27 of 34

400 CapitoL\!all, Suite 1100 Sacramento, California 95814 Office: 916-444-6400 Fax: 916-444-6405

July 3, 2007

VIA FACSIMILE & FIRST CLASS MAIL

Eugene Lee Law Offices of Eugene Lee 555 West Fifth Street, Suite 3100 Los 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 eighth affinnative 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 you bring a motion now. In order to prevail, you must convince the Court that there are no possible facts that could support the defenses. Depending upon the view that the Court takes, you might also be required to show that Dr. Jadv"in \\,111 be prejudiced if the defendants are allowed to maintain the defenses. Because there has been no discovery and no facts have yet been developed, we believe that a motion a strike, brought now, will be premature. We believe you ~ll have a hard time making the requisite sho~ng. As I told you several weeks ago, we believe the appropriate time to address your concerns about the affirmative defenses will be at the pre-trial conference. If facts sufficient to support the defenses have not been developed by the time of the pre-trial conference, the defendants will entertain your request that they be stricken then. We will stipulate that you may bring your motion then.

Admined

to

Practice in California and Nevada

Jul 03 07 09:47a

Mark Wasser

916-444-6405

p.3

Case 1:07-cv-00026-OWW-TAG Eugene Lee July 3, 2007 Page 2

Document 39

Filed 07/16/2007

Page 28 of 34

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

Very Truly Yours,

Vd#4~
Mark A. Wasser cc: Mark Nations (via first class mail) Karen Barnes (via first class mail) Joan Herrington (via first class mail)

Case 1:07-cv-00026-OWW-TAG

Document 39

Filed 07/16/2007

Page 29 of 34

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT 6. Meet and confer email correspondence between Plaintiff’s attorney and Defendants’ attorney, dated 7/3/07 to 7/4/07

Page 1 of 1 Case 1:07-cv-00026-OWW-TAG Eugene D. Lee
From: Sent: To: Cc: Mark Wasser [mwasser@markwasser.com] Wednesday, July 04, 2007 9:26 AM elee@LOEL.com 'Joan Herrington'

Document 39

Filed 07/16/2007

Page 30 of 34

Subject: RE: 070703 Reply to MNC re Affirmative Defenses Gene, Based upon your letters, I assumed you were contending that the defenses are legally insufficient. That is what your letters say. If your concern is vagueness, what is it about the defenses that is vague or fails to put you on sufficient notice? We are willing to address that concern if you can explain it for me. We certainly intend for the pleadings to be clear. I will revise them if you can help me understand your concern. Mark From: Eugene D. Lee [mailto:elee@LOEL.com] Sent: Tuesday, July 03, 2007 6:11 PM To: mwasser@markwasser.com Cc: '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 “must convince the Court that there are no possible facts that could support the defenses”, but do not agree with it. As Judge Wanger said at the Mandatory Scheduling Conference, the issue is whether Defendants’ affirmative defenses are “legally insufficient”. We agree with Judge Wanger: our position is not that Defendants currently lacks 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 sufficient notice 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 to Strike, which we intend to file shortly. If you wish to reconsider your position or discuss this further, please do not hesitate to contact us. Sincerely, Gene Lee

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ L A W    O F F I C E    O F    E U G E N E     L E E E M P L O Y M E N T    L A W
555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : elee@LOEL.com W e b s i t e : www.LOEL.com

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Case 1:07-cv-00026-OWW-TAG

Document 39

Filed 07/16/2007

Page 31 of 34

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT 7. Meet and confer email correspondence between Plaintiff’s attorney and Defendants’ attorney, dated 7/5/07 to 7/6/07

Page 1 of 4 Case 1:07-cv-00026-OWW-TAG Eugene D. Lee
From: Sent: To: Mark Wasser [mwasser@markwasser.com] Friday, July 06, 2007 2:28 PM elee@LOEL.com

Document 39

Filed 07/16/2007

Page 32 of 34

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

contributed to and was the direct and proximate cause of any stresses, disabilities or injuries that Plaintiff believes he sustained.” That is the essence of the defense: Dr. Jadwin’s behavior contributed to the problems he alleges. We do not contend that his behavior bars his claims in the way common law contributory negligence barred a claim. We only contend his behavior contributed to the problems he has alleged. We hope to flesh that out as discovery proceeds. If, as I have written to you before, there are insufficient facts to support the defense, we will drop it. The defense is in the answer to put you on notice, as it clearly has given the volume of writings you have generated about it. The Eighth Affirmative Defense alleges that Dr. Jadwin had “available adequate administrative remedies which he failed to exhaust”. As I wrote yesterday, we believe he did not exhaust a remedy he may have had to challenge his removal as chair. I am not sure about this, however, because I have not been able to discuss this with former employees and have not been able to collect or review all the internal policies at KMC. There may be other administrative remedies, as well, that pertain to other aspects of his claims. You have alleged exhaustion, as you point out. If we cannot establish the existence 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:elee@LOEL.com] Sent: Friday, July 06, 2007 1:27 PM To: mwasser@markwasser.com Cc: '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 sought clarification as to whether Defendants’ Fifth Affirmative Defense is an attempt to allege “Contributory Negligence” as an affirmative defense (even though those words are not expressly stated anywhere in the allegation). Please confirm or deny that Defendants’ Fifth Affirmative Defense is an attempt to allege Contributory Negligence as an affirmative defense to Plaintiff’s claims. If Defendants deny, then please clarify what exact legal theory the Fifth Affirmative Defense is proposing. Plaintiff has also repeatedly sought clarification as to what administrative remedy Defendants refer to in Defendants’ Eighth Affirmative Defense. Plaintiff has alleged and incorporated evidence showing his exhaustion of administrative remedies with Kern County, the DFEH, and the LWDA in the Second Supplemental Complaint. Are Defendants alleging that (1) Plaintiff’s exhaustion was defective in some way; OR (2) are Defendants alleging that administrative exhaustion with some other agency was required, OR (3) both?

The Fifth Affirmative Defense alleges that “Plaintiff’s behavior

7/8/2007

Page 2 of 4 Case 1:07-cv-00026-OWW-TAG Document 39 Filed 07/16/2007 Page 33 of 34

We look forward to Defendants’ clarification of the above. Sincerely, Gene Lee / Joan Herrington

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ L A W    O F F I C E    O F    E U G E N E     L E E E M P L O Y M E N T    L A W
555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : elee@LOEL.com W e b s i t e : www.LOEL.com

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From: Mark Wasser [mailto:mwasser@markwasser.com] Sent: Thursday, July 05, 2007 1:18 PM To: elee@LOEL.com Cc: Joan Herrington; Karen Barnes; MARK NATIONS Subject: 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 about FEHA and CFRA remedies. Those are not our main concern. Our concern is with the Pathology Department Chairmanship. Not having had an opportunity to interview former employees, review your initial disclosures or gather all the relevant facts, we are unsure about the administrative remedies that Dr. Jadwin may have had regarding his chairmanship. So, to preserve the defense pending discovery and investigation, we included it. As I 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 not demean Dr. Jadwin’s character nor do we intend it to. It describes behaviors that are at least partly responsible for the stressful work environment Dr. Jadwin complains about. Since Dr. Jadwin is complaining about his work environment, it is relevant to suggest, via defense, his own contribution to it. Numerous witnesses will testify that the behaviors described in the fifth affirmative defense caused a variety of problems. Because the scope of your claims and the evidence you intend to rely on is not known, we do not know how the defense will fit into the overall strategy of the case but, again, to preserve it, we included it. If it proves to be unsupported by facts or irrelevant to the claims Dr. Jadwin pursues, we will drop it. But, we cannot make that determination now. Mark m: Eugene D. Lee [mailto:elee@LOEL.com] Sent: Thursday, July 05, 2007 11:49 AM To: mwasser@markwasser.com Cc: '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 this issue to you, which Defendants will ultimately be responsible for. But since you request it, I’m more than happy to reiterate 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:

7/8/2007

Page 3 of 4 Case 1:07-cv-00026-OWW-TAG Document 39 Filed 07/16/2007 Page 34 of 34

“Based on your explanation in our subsequent discussions, we understand that Defendants are attempting to assert a comparative fault theory here. Again, please clarify if Defendants 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 of recovery. A plaintiff's contributory negligence is not a defense to an intentional tort. [citation omitted]. However, none of Plaintiff's claims are grounded in a negligence theory of recovery; so a comparative 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 negligence defense.” 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 determine whether it should also be stricken.” Among other things, the vagueness of the affirmative defenses makes them legally insufficient to the extent they fail to put Plaintiff on fair notice as to what the defenses are. The underlying requirement is that a pleading give “fair notice”. Conley v. Gibson (1957) 355 US 41, 47–48; Swierkiewicz v. Sorema N.A. (2002) 534 US 506, 513. As noted above, the Fifth Affirmative Defense is also “scandalous” in that it contains allegations that cast a “cruelly” 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 distributor intentionally caused outbreak of salmonella in order to consummate fraudulent scheme against route drivers held subject to motion to strike as “scandalous”)]. Please refer to the letter for a detailed explanation of the various legal insufficiencies of the affirmative defenses. The foregoing flaws in Defendants’ Answer demonstrate that they should be stricken. Failure to strike them will prejudice Plaintiff in that Plaintiff will otherwise be required to make burdensome additional disclosures in discovery/Initial Disclosures that respond to these broad, impermissibly vague defenses. Likewise, their breadth and vagueness will permit Defendants to engage in a broader scope of discovery than they would otherwise have been 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 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.” The excessive breadth of (irrelevant) discovery this vague defense (apparently contributory negligence, which is legally insufficient for all the reasons stated in our letter) will engender is self-evident. We will proceed with filing the Motion to Strike within the requisite 20-day period. If you wish to reconsider Defendants’ position, please let us know. Sincerely, Gene Lee

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ L A W    O F F I C E    O F    E U G E N E     L E E E M P L O Y M E N T    L A W
555 WEST FIFTH ST., STE. 3100 LOS ANGELES, CA 90013 Tel: (213)992-3299 Fax: (213)596-0487 E - m a i l : elee@LOEL.com W e b s i t e : www.LOEL.com

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DOCUMENT INFO
Description: David F. Jadwin v. Kern County: 1:07-cv-26 in the United Stated District Court for the Eastern District of California, Fresno Division before Judge Oliver W. Wanger. This was a 2009 federal employment lawsuit that went to a bench and jury trial resulting in a unanimous verdict and significant judgment for the plaintiff employee. Issues involved violations of medical leave and disability discrimination laws, as well as 42 U.S.C. 1983 procedural due process violation. Plaintiff was represented by Eugene Lee, a Los Angeles, California employment lawyer.