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									Case 1:07-cv-00026-OWW-TAG
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Mark A. Wasser CA SB #060160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 2640 Sacramento, California 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 E-mail: mwasserlalmarkwasser.com Bernard C. Barmann, Sr. CA SB #060508 KERN COUNTY COUNSEL Mark Nations, Chief Deputy CA SB #101838 1115 Truxtun Avenue, Fourth Floor Bakersfield, California 93301 Phone: (661) 868-3800 Fax: (661) 868-3805 E-mail: mnations@co.kern.ca.us Attorneys for Defendants County of Kern, Peter Bryan and Irwin Harris

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

DAVID F. JADWIN, D.O.
Plaintiff,

Case No.: 1:07-cv-00026-0WW-TAG

DEFENDANTS' NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS
Date: January 12,2009 Time: 10:00 a.m. Place: U.S. District Court, Courtroom 3 2500 Tulare Street, Fresno, CA Date Action Filed: January 6, 2007 Trial Date: March 24, 2009

COUNTY OF KERN, et aI., Defendants.

TO PLAINTIFF AND HIS ATTORNEY OF RECORD: PLEASE TAKE NOTICE that, on January 12,2009 at 10:00 a.m. or as soon thereafter as the matter can be heard in the courtroom of the above-referenced Court at 2500 Tulare Street, Fresno, California, Defendants will, and hereby do, move the Court for judgment on the pleadings.

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DEFENDANTS NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS

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The motion will be made on the grounds that the claim Plaintiff filed with the County does not satisfy the requirements of California law and, consequently, Plaintiffs complaint must be dismissed. The motion will be based on this notice, the memorandum of points and authorities filed herewith and on such other materials as may be hereafter submitted to the Court. Respectfully submitted,

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Dated: November 13,2008

LAW OFFICES OF MARK A. WASSER

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By: lsi Mark A. Wasser Mark A. Wasser Attorney for Defendants, County of Kern, et al.

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Mark A. Wasser CA SB #060160 LAW OFFICES OF MARK A. WASSER 400 Capitol Mall, Suite 2640 Sacramento, California 95814 Phone: (916) 444-6400 Fax: (916) 444-6405 E-mail: mwasser@markwasser.com Bernard C. Barmann, Sr. CA SB #060508 KERN COUNTY COUNSEL Mark Nations, Chief Deputy CA SB #101838 1115 Truxtun Avenue, Fourth Floor Bakersfield, California 93301 Phone: (661) 868-3800 Fax: (661) 868-3805 E-mail: mnations@co.kern.ca.us Attorneys for Defendants County of Kern, Peter Bryan and Irwin Harris
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

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-1DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS

DAVID F. JADWIN, D.O.

Case No.: 1:07-cv-00026-0WW-TAG
DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS

Plaintiff, vs.
COUNTY OF KERN, et a!.,

Defendants.

Date: January 12,2009 Time: 10:00 a.m. Place: U.S. District Court, Courtroom 3 2500 Tulare Street, Fresno, CA Date Action Filed: January 6, 2007 Trial Date: March 24, 2009

Defendants submit this memorandum in support of their motion for judgment on the pleadings and ask the Court to grant the motion and enter judgment in favor of Defendants. STATEMENT OF FACTS On July 3, 2006, Plaintiff submitted a claim to the County in an apparent attempt to satisfy the claims filing requirements of California Government Code §§900 et seq. A copy of

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Plaintiffs claim is attached to the Second Amended Complaint as Exhibit 2. The claim purports to recite the factual bases of Plaintiffs claims. The explanation of the facts is divided under headings that identify the several theories Plaintiff intended to pursue. The first heading is "breach of contract." The second heading is "wrongful demotion/termination in violation of California Business and Professions Code §2056 and conspiracy relating thereto." The third heading is "libel per se/ratification by KMC." The final heading is labeled "related causes of action" and describes claims of "intentional infliction of emotional distress, negligent hiring, negligent supervision and negligent retention." The text of the claim contains a description of "date, place and other circumstances of the accident or event(s) giving rise to the claim." To paraphrase what Plaintiff wrote, under the "breach of contract" heading, Plaintiff alleged that Peter Bryan "failed to comply with the KMC bylaws in stripping [Plaintiff] of chairmanship." See, Second Amended Complaint, Exhibit 2. Under the heading "wrongful termination" etc., Plaintiff alleged that removing Plaintiff from his chairmanship "constituted a wrongful termination" and was "retaliation by Mr. Bryan against [Plaintiff] for raising concerns relating to patient health care." Id. Under the heading "per se libel" etc., Plaintiff wrote that other physicians at KMC had written letters expressing "dissatisfaction" with Plaintiff and that another physician had "maliciously defamed [Plaintiff s] professional competence." Id. Under the heading "related causes of action" Plaintiff wrote that he intended to bring several other claims. Plaintiff concluded his claim by writing that he claimed pro rata loss of compensation, attorneys fees, "loss of reputation," and "severe emotional distress." The County reviewed and considered Plaintiffs claim and denied it. Plaintiff thereafter filed and served his Second Supplemental Complaint and, ultimately, his Second Amended Complaint. In the complaints, Plaintiff has alleged several California statelaw claims. Specifically, Plaintiff alleges: Retaliation under California Health and Safety Code §1278.5; Retaliation under California Labor Code §1102.5; Retaliation under California

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Government Code §12945.1 et seq.; Violation ofCFRA, Califomia Government Code §12945.1; Disability discrimination nnder Califomia Govemment Code §12940(a); Failure to provide reasonable accommodation under Califomia Government Code §12940(m); Failure to engage in a good-faith interactive process under Califomia Government Code §12940(n) and; FEHA retaliation under California Government Code §12940(h).

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ARGUMENT PLAINTIFF'S CLAIM IS INADEQUATE AND DID NOT PUT THE COUNTY ON NOTICE OF THE CLAIMS PLAINTIFF ACTUALLY FILED
California Government Code §945.4 provides that "no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented. .. until a written claim therefor has been presented to the public entity ..." Section 910 requires that a claim contain a description of the "circnmstances of the occurrence or transaction" that gave rise to the alleged claim. In City a/San Jose v. Superior Court (1974) 12 Ca1.3d 447, the Califomia Supreme Co described the purpose of the claims statutes as follows: [T]he purpose of these statutes is to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense oflitigation. [Citations omitted] It is well-settled that claims statutes must be satisfied even in face of the public entity's actual knowledge of the circumstances surrounding the claim. Id. at 455. The courts have consistently applied this interpretation. For example, in Fall River Joint

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Unified School District v. Superior Court (1988) 206 Cal.App.3d 431, the court of appeal held
that, if a plaintiff relies on more than one theory of recovery, each cause of action must have been reflected in a timely claim. In Fall River, the real party in interest, a minor, was injured when the steel door of a school building struck his head. His original complaint mirrored the claim he had filed with the District and alleged liability for dangerous condition and negligent maintenance. However,

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about eight months later, he filed an amended complaint alleging a third cause of action for negligent failure to supervise students engaged in "dangerous horse-play." The District challenged the third cause of action by motion for judgment on the pleadings on the ground that plaintiffs claim had not given the District notice of the failure-to-supervise theory. The trial court denied the District's motion but the appellate court reversed, holding "denial of that motion was an abuse of discretion." Id. at 435. Because the plaintiff had failed to include facts regarding his new third cause of action in his claim, judgment on the pleadings was appropriate. In Donahue v. State o/California (1986) 178 Ca1.App.3d 795, an order granting judgment on the pleadings was upheld where the plaintiff sued for damages incurred when his automobile was involved in an accident with one driven by a minor who was taking his driver's license test. The claim filed with the State alleged negligence in permitting an uninsured driver to take the test. However, the civil complaint filed in court asserted the State employee who conducted the test failed to instruct, direct and control the driver in the operation of his vehicle.
(Id. at pg. 804.) The court concluded that "permitting an uninsured motorist to take a driving test

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is not the factual equivalent of the failure to control or direct the motorist in the course of his examination." (Id.) InState ex reI. Dept. o/Transportation v. Superior Court (1984) 159 Ca1.App.3d 331, plaintiff alleged damages following a mudslide when an embankment supporting Highway 101 above Sausalito failed. The State demurred and the plaintiffs amended. Plaintiffs' amended complaint raised claims that were not in their claim, including a cause of action for damages for physical and mental injuries. The trial court denied the State's second demurrer, motion for partial summary judgment, and motion to strike, and ordered sanctions against the State. The State appealed and the appellate court granted a writ of mandate in favor of the State. The appellate court held the plaintiff's failure to include their personal injury claim in the claim they had presented to the State was fatal and the State's demurrer should have been sustained without leave to amend. Id. at 338-339.

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See, also, Nelson v. State ofCalifornia (1982) 139 Cal.App.3d 72; Lopez v. Southern Cal.

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Permanente Medical Group_(l981) lIS Cal.App.3d 673; Shelton v. Sup. Ct. (1976) 56 Cal.App.3d 66.

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Here, Plaintiff s claim did not put the County on notice of the Claims Plaintiff actually filed in his complaint. None of the Claims in Plaintiffs Second Amended Complaint are identified or described in his claim. His claim contains no allegation and no factual description of any violation of CFRA, no allegation of "disability," "depression," "whistleblowing" to a governmental agency, "reasonable accommodation," failure to accommodate or failure to engage in the interactive process - allegations that are all integral to his complaint. Conversely, his complaint does not contain a single theory identified in his claim: breach of contract, wrongful termination, conspiracy, per se libel, negligent hiring, negligent supervisio or negligent retention. There is no congruence between his claim and his complaint. Nothing in Plaintiffs claim put the County on notice of the state-law Claims Plaintiff ultimately pleaded in the First, Second, Third, Fifth, Sixth, Seventh, Eighth and Eleventh Claims of his Second Amended Complaint. Consequently, Defendants are entitled to judgment on the pleadings on all state law Claims in the Second Amended Complaint. Respectfully submitted,

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Dated: November 13,2008

LAW OFFICES OF MARK A. WASSER

By: lsi Mark A. Wasser Mark A. Wasser Attorney for Defendants, County of Kern, et al.

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