Download - 77 Request for Reconsideration - Reply

8/14/2019 77 Request for Reconsideration - Reply

1/7

PLAINTIFFS REPLY TO OPPOSITION TO REQUEST FOR RECONSIDERATION OF COURTS

ORDER DENYING MOTION TO STRIKE FIFTH AFFIRMATIVE DEFENSE 1

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

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

PLAINTIFFS REPLY TO OPPOSITION TOREQUEST FOR RECONSIDERATION BYTHE DISTRICT COURT OF MAGISTRATE

JUDGES RULING ON PLAINTIFFSMOTION TO STRIKE FIFTHAFFIRMATIVE DEFENSE

[28 U.S.C. 636(b)(1)(A); Local Rule 72-303]

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

Plaintiff DAVID F. JADWIN, D.O. (Plaintiff) respectfully submits the following points and

authorities in reply to defendants opposition to plaintiffs request for reconsideration of Magistrate

Judge Theresa A. Goldners October 23, 2007 order denying plaintiffs motion to strike defendants fifth

affirmative defense. (Order). Plaintiff submits this reply pursuant to the minute order of the Court, dated

November 1, 2007, providing that plaintiff shall submit his reply by November 8, 2007.

Case 1:07-cv-00026-OWW-TAG Document 77 Filed 11/08/2007 Page 1 of 7


2/7



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

I. THE PARTIES AGREED IN MEET AND CONFER THAT THE FIFTH AFFIRMATIVEDEFENSE WAS COMPARATIVE FAULT, DEFENDANTS POST-MOTION CHANGE IN

STANCE NOTWITHSTANDING

Defendants Opposition contends that plaintiffs request for reconsideration misrepresents the

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

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

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

polarized positions throughout the meet and confer.

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

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

tack that the defendants specifically and expressly disclaimed any theory of contributory negligence.

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

correspondence. Ultimately, the Opposition does nothing to rebut plaintiffs observation in his request

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

record for defendants, stated:

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

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

midst of meet and confer with plaintiff, stated:

With regard to the fifth affirmative defense, we believe the facts in this case may presentan opportunity to test the application ofcontributory and comparative fault theoriesin the context of the statutory claims you have asserted. (Doc. 68, p. 4:13-23)(citationomitted).

Defendants took one stance during meet and confer that [t]he legal basis for the fifth affirmative

defense is comparative fault; then in their motion brief, defendants took the exact opposite tack and

specifically and expressly disclaimed any theory of contributory negligence with respect to the fifth

affirmative defense. Plaintiff fails to grasp how defendants post-motion change aboutface disproves

plaintiffs contention that, during the preceding meet and confer, the parties narrowed and resolved the

[fifth affirmative defense] to a mutual understanding that it was based on a theory of comparative

fault.



3/7



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

II. PURPORTED RELEVANCE IS NOT THE STANDARD FOR AN AFFIRMATIVEDEFENSE

Defendants Opposition states that the fifth affirmative defense puts [p]laintiff on notice that his

own behavior is at issue. It is not complicated. (Doc. 70, p. 2:25-26).An affirmative defense must do more than be at issue. Defendants contention echoes the

Courts erroneous analysis that the fifth affirmative defense is relevant to plaintiffs claims. (Order, p.

4:24). An affirmative defense must do more than be relevant. An affirmative defense must, if deemed

true, dispose of plaintiffs claims.Blacks Law Dictionary defines an affirmative defense as: A

defendants assertion raising new facts and arguments that, if true, will defeat the plaintiffs or

prosecutions claim, even if all allegations in the complaint are true.Blacks Law Dict. (7th ed. 1999) p

430, col. 1-2, italics added. The fifth affirmative defense does not do this. A generalized assertion that

plaintiffs behavior is at issue or is relevant does not suffice.

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

LEGALLY INSUFFICIENT

The Court, in finding the fifth affirmative defense relevant, misapplied the totality of the

circumstances test. The Court states that [p]laintiffs hostile work environment allegations bring into

issue the totality of the circumstances of his work environment . . . Each of these issues concerns

defendants and plaintiffs behavior at KMC. The fifth affirmative defense alleges that plaintiffs own

behavior caused the problems he encountered at KMC. Order, p. 5:5-11. However, the totality of the

circumstances test is used to measure the objective hostility of the victims working environment.

Harris v. Forklift Sys., Inc., 510 U.S. 17, 20-21, 23 (1993); Fuller v. City of Oakland, 47 F.3d 1522,

1527 (9th Cir. 1995). Whether plaintiffs own behavior caused the problems he encountered at

KMC is irrelevant to the totality of the circumstances test (Order, p. 5:10-11)(emphasis added).

The Court states that it is concerned with whether plaintiff caused any of the hostility; in so

doing, the Court is in essence restating the contributory negligence defense. Plaintiff has already

extensively briefed why the concept of comparative fault is irrelevant to plaintiffs claims and therefore

legally insufficient. (Doc. 37).



4/7



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

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

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

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

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

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

negligently contributed to the hostility of his work environment.

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

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

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

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

otherwise, by Plaintiff, and so they relegate themselves to focusing only on Plaintiffs behavior as

their defense.

IV.THE MAGISTRATE JUDGE SUA SPONTE RAISED NEW AFFIRMATIVE DEFENSESDefendants assert plaintiff misstates the Magistrate Judges Order, and that the Magistrate

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

that subject a plaintiffs behavior to scrutiny. (Doc. 70, p. 3:13-15).

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

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

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

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

The problem with plaintiffs premise is that it characterizes the fifth affirmative defense as exclusively

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

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

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

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

which had not been previously raised by defendants.



5/7



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

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

It should be further pointed out that, in liberally construing the fifth affirmative defense in the

light most favorable to defendants, the Court did not engage in the analysis of examining a singledefense and determining whether under no set of circumstances could the defense succeed, as would

have been proper (Order, p. 7:1). Rather, the Court mis-applied the liberal review standard on a motion

to strike to determine that the vaguely-worded fifth affirmative defense could advance a multiplicity of

separate defenses which were either relevant (hostile work environment causation, Order, p. 4:24-

5:16), or could conceivably succeed (unclean hands and equitable estoppel, Order, p. 6:4-7:5). In so

doing, the Court disregarded the fundamental requirement that an affirmative defense must first place

plaintiff on fair notice as to what the defense is. The Court denied plaintiffs motion to strike based on

this erroneous analysis.

If the parties meet and confer (establishing that the fifth affirmative defense is contributory

negligence) is given no effect, then the fifth affirmative defense fails to give plaintiff fair notice as to

what exactly the defense is. The Court itself suggested no less than four possibilities: (i) contributory

negligence, (ii) unclean hands, (iii) equitable estoppel, and (iv) an erstwhile defense that can loosely be

described as hostile work environment causation (essentially a contributory negligence defense). The

Court does not foreclose the possibility that the fifth affirmative defense could stand for yet additional

defenses.

Likewise, defendants statement in their Opposition brief that they are entitled to develop a

defense by, among other things, showing how Plaintiffs behavior eroded the work environment at

Kern Medical Center confirms that defendants are intending to leverage the fifth affirmative defense as

a placeholder for a multiplicity of affirmative defenses of Defendants later choosing. (Doc. 70, p. 3:2-

4)(emphasis added).

To date, plaintiff continues to have no idea what defense(s) the fifth affirmative defense is

advancing. This confusion prejudices plaintiffs discovery and trial planning. Plaintiff is forced to

consider the entire universe of defenses for which the fifth affirmative defense could conceivably stand

and plan accordingly. Defendants assert [t]here is no lack of notice regarding the meaning of the fifth



6/7



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

affirmative defense. (Doc. 70, p. 3:9). Plaintiff disagrees.

In fact, the Courts disregard of the fair notice requirement has the perverse result of rewarding

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

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

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

defense.

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

defense advanced a contributory negligence defense. Defendants own meet and confer communications

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

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

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

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

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

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

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

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

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

underscores plaintiffs contention that the fifth affirmative defense does not give fair notice as to the

substance of the defense being advanced. Moreover, the Courts disregard of this fair notice requirement

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

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

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

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

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

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

advancing.



7/7



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

Plaintiff respectfully requests the District Court reconsider the Order of the Magistrate Judge

denying plaintiffs motion to strike the fifth affirmative defense.

Respectfully submitted on November 8, 2007.

/s/ 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]

/s/ Joan Herrington, SB# 178988 (as authorized on 11/8/07)BAY 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 Plaintiff DAVID F. JADWIN, D.O.


Download - 77 Request for Reconsideration - Reply

Top Related