Case 1:07-cv-00026-OWW-TAG Document 45 Filed 08/06/2007 Page 1 of 8

1 Eugene D. Lee SB# 236812

LAW OFFICE OF EUGENE LEE
2 555 West Fifth Street, Suite 3100
Los Angeles, California 90013
3 Telephone: (213) 992-3299
Facsimile: (213) 596-0487
4 Email: elee@LOEL.com
5 Joan Herrington, SB# 178988
BAY AREA EMPLOYMENT LAW OFFICE
6 5032 Woodminster Lane
Oakland, CA 94602-2614
7 Telephone: (510) 530-4078
Facsimile: (510) 530-4725
8 Email: jh@baelo.com
Of Counsel to LAW OFFICE OF EUGENE LEE
9
Attorneys for Plaintiff
10 DAVID F. JADWIN, D.O.
11 UNITED STATES DISTRICT COURT
12 EASTERN DISTRICT OF CALIFORNIA
13
14 DAVID F. JADWIN, D.O., Civil Action No. 1:07-cv-00026-OWW-TAG
15 Plaintiff, PLAINTIFF’S REPLY TO OPPOSITION
TO MOTION TO STRIKE FIFTH
16 v. AFFIRMATIVE DEFENSE
17 COUNTY OF KERN; et al. Date: August 13, 2007
Time: 9:30 a.m.
18 Defendants. Place: U.S. Bankruptcy Court
Bakersfield Courtroom 8
19
Date Action Filed: January 6, 2007
20 Date Set for Trial: August , 2008
21
22 Plaintiff respectfully submits his reply to Defendants’ Opposition to the Motion to Strike the
23 Fifth Affirmative Defense, (“FAD”) which states:
24 As and for a fifth affirmative defense, Defendants allege that, during Plaintiff’s
employment at Kern Medical Center, Plaintiff was arrogant, disagreeable, uncooperative,
25 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
26 injuries that Plaintiff believes he sustained. Answer, 12:15-22.
27 A. THE FIFTH AFFIRMATIVE DEFENSE SHOULD BE STRICKEN AS “INSUFFICIENT”
28 A plaintiff’s contributory negligence is not a defense to an intentional tort. Godfrey v. Steinpress

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1 (1982) 128 Cal.App.3d 154; Weidenfeller v. Star & Garter (1991) 1 Cal.App.4th 1. Nor is it a defense to
2 strict liability causes of action.
3 1. Defendants Concede that Contributory Negligence is Irrelevant Here.
4 Defendants have expressly admitted in the Opposition that “[this action] is not a traditional
5 negligence case and contributory negligence is not a relevant concept.” Opposition, 4:24-25
6 (emphasis added). Nonetheless, Defendants still argue in the Opposition that this Court should not strike
7 their Fifth Affirmative Defense (“FAD”) because “Plaintiff’s behavior contributed to hostility in the
8 work environment.” Opposition, 6:11-12 (emphasis in original). In their Answer, Defendants avoid
9 labeling their Fifth Affirmative Defense as one of ‘Comparative Negligence’, but a plain reading of
10 Defendants’ arguments reveals it as such.
11 In fact, Defendants have expressly admitted that the FAD articulates a comparative negligence1
12 defense. In an email to Plaintiff’s counsel dated May 9, 2007, Mr. Mark Wasser, counsel of record for
13 Defendants, stated as follows:
14 The legal basis for the fifth affirmative defense is comparative fault. Plaintiff’s
behavior was a contributing factor to the injuries for which he is seeking general
15 damages. Comparative fault is accepted. We can discuss this, too, if you want.
Exhibit 1, Lee Decl. at ¶ 4 (emphasis added).
16
Hence, by Defendants’ own admission, the FAD is legally insufficient because this action is not
17
a traditional negligence case, contributory negligence does not apply and the legal basis for the FAD is
18
comparative negligence.
19
20 2. Contrary to Defendants’ Contention, Plaintiff’s Allegations of General Damages Are
Directly Related to Plaintiff’s Statutory Claims
21
Defendants contend that Plaintiff’s allegations of “non-economic damages, such as emotional
22
distress, anxiety, humiliation, and loss of reputation [are] distinctly unrelated to Defendants’ alleged
23
failure to comply with CFRA, FMLA or other statutes Plaintiff cites” and that they therefore constitute
24
generic personal injury claims to which the FAD applies. Opposition, 8:6-8 (emphasis added).
25
26 1
Contributory negligence and comparative negligence are used interchangeably here because both constitute affirmative
defenses to negligence-based causes of action, not causes of action based on strict liability or intentional tort as Plaintiff is
27 asserting without exception in this action. See Motion to Strike, 3:21.5 – 7:5, for an exhaustive discussion. It should further
be noted that, in any case, the FAD on its face fails to properly articulate a comparative/contributory negligence defense;
28 hence, Defendants have waived it.

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1 This is incorrect – Plaintiff’s allegations of general damages are directly related to the remedies
2 provided by the statutes that he alleges Defendants violated. In fact, the FEHA and CFRA2 specifically
3 permit recovery for general damages.
4 The California Supreme Court held in State Personnel Bd. v. Fair Employment & Housing Com.,
5 that these “same remedies [authorized under Cal. Gov’t. C. § 12970 (damages for emotional pain,
6 suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses)]
7 along with compensatory and punitive damages, may be awarded by a superior court in a private
8 enforcement action under the FEHA.” 39 Cal. 3d 422, 433-434 (Cal. 1985).
9 Similarly, the California Court of Appeal has held:
10 In a civil action under the FEHA, at least, an injured employee is entitled to “all relief
generally available in noncontractual actions, including punitive damages . . . .” It is
11 settled that employment discrimination . . . can cause emotional distress and that such
distress is compensable under traditional theories of tort law.
12 Murillo v. Rite Stuff Foods, 65 Cal. App. 4th 833, 848 (Cal. Ct. App. 1998) (citations
omitted).
13
14 3. Contrary to Defendants’ Contention, Contributory/Comparative Negligence Is Not A
Defense in Strict Liability Cases
15
16 Defendants further contend that Safeway Stores, Inc. v. Nest-Kart, 21 Cal.3d 322 (1978) stands
17 for the proposition that “evidence of a party’s own behavior is relevant even in strict liability cases.”
18 Opposition, 8:12-13. The case is utterly inapposite. There, the California Supreme Court considered the
19 issue of how to apportion liability between co-defendant joint tortfeasors, one of which had been
20 found strictly liable and the other both negligent and strictly liable. The court concluded that it was
21 appropriate to apply comparative fault apportionment of liability between the co-defendants according to
22 the jury’s determination. Id. at 331-32. Safeway Stores in no way stands for the proposition that a
23 plaintiff’s contributory or comparative negligence is “relevant even in strict liability cases”. Id.
24 Not only have Defendants insisted on re-litigating the well-settled proposition that a plaintiff’s
25 contributory negligence is not an affirmative defense to an intentional tort or strict liability actions, in
26 doing so they have made incorrect and misleading representations about the law to this Court.
27
28 2
CFRA is a part of the FEHA and subject to the same remedies.

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1 For the foregoing reasons, Defendants’ FAD should be stricken as legally “insufficient”.
2 B. THE FIFTH AFFIRMATIVE DEFENSE SHOULD BE STRICKEN AS “SCANDALOUS”
3 Under Rule 26, affirmative defenses which are legally sufficient may still be stricken if they are
4 “redundant, immaterial, impertinent, or scandalous.” SEC v. Gulf & Western Industries, Inc. 502 F.Supp.
5 343, 345 (D.D.C. 1980).
6 Plaintiff’s Motion contends that the FAD is “scandalous” and cites Skadegaard v. Farrell 578
7 F.Supp. 1209, 1221 (D.N.J. 1984) for its holding that “scandalous” allegations are those that cast a
8 “cruelly” derogatory light on a party or other person. Motion, 7:8.5-8.5.3 Skadegaard further established
9 that allegations must be neither (1) “unnecessarily derogatory” nor (2) “irrelevant”. Id. at 1221.
10 1. The Fifth Affirmative Defense Is “Unnecessarily Derogatory”
11 The Opposition states “Nothing in the defense attacks Plaintiff’s character or competence.”
12 Opposition, 6:10; see also Id. at 7:10. Defendants further argue that the FAD’s allegations that “Plaintiff
13 was arrogant, disagreeable, uncooperative, intimidating, overbearing, self-righteous, and unfriendly”
14 describe Plaintiff’s “behavior” and not his “character”. Opposition, 6:11-15. This erstwhile distinction is
15 belied by the syntax of the FAD: “[. . . ] Defendants allege that [. . .] Plaintiff was arrogant,
16 disagreeable, uncooperative, intimidating, overbearing, self-righteous, and unfriendly and that
17 Plaintiff’s behavior…”) (emphasis added). The FAD itself contradicts Defendants’ assertion that the
18 mal-adjectives at issue in the first clause relate to behavior rather than character.
19 The first clause of the FAD constitutes a purely gratuitous attack on Plaintiff’s character. It is
20 “unnecessarily derogatory” and is therefore scandalous.
21
2. The Fifth Affirmative Defense Is “Irrelevant”4
22
The FAD is an ex post facto pretext manufactured by Defendants to explain their adverse actions
23
against Plaintiff and is irrelevant to this action.
24
25 3
The Opposition contends that Skadegaard “[does] not support [Plaintiff’s] position.” Opposition, 6:16. Yet, the Opposition
then cites Skadegaard for the same proposition as Plaintiff, its holding that an attack on a party’s moral character is
26 “scandalous” if it is degrading and irrelevant. Opposition, 7:4-6.
4
Plaintiff challenges the FAD not on the grounds that it is “immaterial”, but on the grounds that it is “insufficient” and
27 “scandalous”. Nevertheless, Defendants raise the issue of “immateriality” sua sponte. The Opposition states: “‘immaterial’
matter is that which has no essential or important relationship to the claim.” Opposition, 4:5-10, citing Fantasy, Inc. v.
28 Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993).

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1 Defendants cite RDF Media Ltd. v. Fox Broadcasting Co.as an example where the court struck
2 scandalous allegations from a complaint. There, the court reasoned that the plaintiff had quoted “sharp”
3 words from newspaper articles to “lend credence to the opinions” of commentators and give the
4 “appearance that such opinions are legally relevant to the dispute”. Opposition, 7:12-19, citing RDF
5 Media Ltd. v. Fox Broadcasting Co., 372 F. Supp. 2d 556.
6 Here, the converse applies. In alleging the FAD, Defendants omitted quotations from any
7 contemporaneous employee performance reviews that might substantiate their derogatory attack on
8 Plaintiff’s character. Opposition, 7:12-19, citing RDF Media Ltd. v. Fox Broadcasting Co., 372 F. Supp.
9 2d 566 (C.D. Cal. 2005). This is because, as the Motion discussed at length, the documented
10 explanations Defendants provided at the time they took adverse employment actions against Plaintiff
11 make no reference to Plaintiff’s character. Now after the fact, the FAD alleges Plaintiff has a bad
12 character and offers this as the explanation for the adverse actions. Motion, 7:16.5 – 8:8.
13 The FAD is nothing more than pretext and is irrelevant to this action.
14 Moreover, as discussed in Section A, supra, whether or not Plaintiff “contributed” to the hostility
15 of the work environment is by Defendants’ own admissions “not relevant”. Opposition, 4:24-25.
16
17 For the foregoing reasons, the FAD is scandalous because it is unnecessarily derogatory and
18 irrelevant and should be stricken.
19 C. PLAINTIFF WILL BE PREJUDICED BY THE FIFTH AFFIRMATIVE DEFENSE
20 1. Defendants Concede That Plaintiff Need Not Show Prejudice under Rule 12
21 Defendants’ Opposition does not challenge Plaintiff’s assertion in the Motion that Plaintiff is not
22 required to show prejudice in bringing a motion to strike. Motion, 8:21.5 – 9:3 (citing Atlantic Richfield
23 Co. v. Ramirez, 176 F.3d 481 (9th Cir. 1999)). Defendants have therefore conceded this point.
24 2. Defendants Concede That Plaintiff Will Be Prejudiced by the Fifth Affirmative Defense
25 Nevertheless, Plaintiff contends that, if the FAD is not stricken, Plaintiff will be prejudiced.
26 Motion, 8:21.5 – 9:16.5. Such prejudice would include “unnecessary additional expense in terms of time
27 and money”. Motion, 9:12.5-16.5.
28 Defendants have conceded that “the function of a motion to strike is to avoid the expenditure of

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1 time and money that must arise from litigating spurious issues by dispensing them before trial.”
2 Opposition, 4:5-7 (emphasis added). In other words, Defendants concede that prejudice flows
3 inevitably from the need to litigate “spurious issues”. As Plaintiff has already shown that the FAD
4 raises “spurious issues”, Defendants have conceded that Plaintiff will be prejudiced unless the FAD is
5 stricken.
6 Given the foregoing, Plaintiff has met any showing of prejudice that this Court might require.
7 Thus, the Court should strike the FAD without delay.
8 D. DELAYING PLAINTIFF’S MOTION TO STRIKE UNTIL AFTER DISCOVERY WOULD
ONLY COMPOUND PLAINTIFF’S PREJUDICE
9
Defendants argue that Plaintiff’s motion to strike is “premature” because “there has been no
10
discovery and no facts have been developed.”5 Opposition, 5:2. Defendants selectively cite case law in
11
which motions to strike were filed after the parties had already had an opportunity to engage in
12
discovery. In so doing, Defendants bootstrap this gratuitous exercise in arbitrary caselaw selection into
13
the contention that granting a motion to strike prior to discovery would put this Court “at odds with what
14
the courts did in S.E.C. v. Sands and LeDuc v. Kentucky Cent. Life Ins. Co.” Opposition, 5:13-15.
15
This proposition is incorrect and misleading.
16
In California ex rel. State Lands Com. v. United States, the District Court for the Northern
17
District of California entertained a nearly identical argument that a plaintiff’s pre-discovery motion to
18
strike affirmative defenses was premature. There, the defendant had argued that “all facts surrounding
19
the controversy involved in the lawsuit should be ascertained before determining whether sufficient facts
20
exist to apply the three defenses to bar the action.” 512 F. Supp. 36, 38 (N.D.Cal. 1981).
21
The court rejected defendant’s argument and granted plaintiff’s motion to strike. In support of its
22
ruling, the court stated:
23
[W]here the motion may have the effect of making the trial of the action less
24 complicated, or have the effect of otherwise streamlining the ultimate resolution of the
25 5
The Opposition further emphasizes that Defendants “even offered to consider striking the defense voluntarily . . . if
evidence to support the defense has not been developed by then.” Opposition, 5:21-23. Plaintiff does not dispute the accuracy
26 of this account but notes that Defendants’ promise to “consider” striking the FAD is no accommodation at all. Likewise, by
offering to “stipulate that Plaintiff can bring this motion later, after Defendants have had an opportunity for discovery,”
27 Defendants do no more than grant Plaintiff a right it already had to file a motion for summary judgment or other dispositive
motion at that juncture. Opposition, 5:19-20. It is in this context that Plaintiff’s rejection of those “offers” should be
28 understood.

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action, the motion to strike will be well taken. See, e.g., Narragansett Tribe v. So. R. I.
1 Land Devel., 418 F. Supp. 798, 801-802 (D.R.I.1976). By framing the question as
whether it will be ultimately more time consuming to determine the applicability of the
2 three [affirmative] defenses . . . it is clear that the latter would be more time consuming
and burdensome to the Court. Thus, resolution of the State’s motion to strike at this stage
3 of the proceedings will have only beneficial effects.
Id.at 38-39.
4
While the Opposition is correct in stating that “motions to strike are disfavored”, such motions
5
must nevertheless be granted without delay when warranted. Opposition, 3:20-24. In fact, in both cases
6
which the Opposition cites in support of its proposition, SEC v. Sands, 902 F. Supp. 1149, 1167
7
(C.D.Cal. 1995) and RDF Media Ltd. v. Fox Broad. Co., 372 F. Supp. 2d 556, 567 (C.D.Cal. 2005), the
8
District Court for the Central District of California granted plaintiff’s motion to strike with respect to
9
the majority of the affirmative defenses or allegations requested to be stricken.
10
A motion to strike is appropriate when an affirmative defense is insufficient as a matter of law.
11
California v. United States (ND CA 1981) 512 F. Supp. 36, 38. Here, the FAD is legally insufficient on
12
its face. No amount of evidence can convert a legally insufficient affirmative defense into a legally
13
sufficient one. Therefore, delaying grant of this motion until after discovery simply compounds the
14
prejudice to Plaintiff.
15
16 E. RULE 11 SANCTIONS AGAINST DEFENDANTS’ COUNSEL ARE WARRANTED
17 Rule 11 sanctions against Defendants’ counsel are warranted.
18 Defendants’ counsel has delayed this litigation by refusing to withdraw a scandalous affirmative
19 defense that he already knew from Plaintiff’s briefing during extensive meet and confers to be legally
20 insufficient. This refusal has forced Plaintiff to motion this Court to seek the only remedy available to
21 him against the FAD’s scandalous allegations.
22 In addition, given Defendants’ counsel’s Rule 11 certification of the facts on which his argument
23 is based, Plaintiff respectfully requests that Defendants stipulate to, and/or the Court order, that the list
24 of “undisputed facts” set forth in the Scheduling Conference Order, entered on June 6, 2007, be
25 supplemented to include the following undisputed facts which the FAD implicitly admits to: (1)
26 Plaintiff’s work environment at KMC was hostile; and (2) persons other than Plaintiff contributed to the
27 hostility of his work environment. The doctrine of judicial estoppel should preclude Defendants from
28 maintaining otherwise later in this litigation.

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1 F. CONCLUSION
2 For the foregoing reasons, we respectfully request this Court to strike Defendants’ Fifth
3 Affirmative Defense pursuant to Rule 12(f); and to award Plaintiff sanctions against Defendants’
4 counsel in the amount of at least $4,500.00 pursuant to Rule 11(B)(2).
5 In addition, Plaintiff respectfully request that the Court order that the list of “undisputed facts”
6 set forth in the Scheduling Conference Order be supplemented to include the following undisputed facts
7 which the FAD as currently alleged implicitly admits to: (1) Plaintiff’s work environment at KMC was
8 hostile; and (2) persons other than Plaintiff contributed to the hostility of his work environment.
9
10 RESPECTFULLY SUBMITTED on August 6, 2007.
11
/s/ Eugene D. Lee SB# 236812
12 LAW OFFICE OF EUGENE LEE
555 West Fifth Street, Suite 3100
13 Los Angeles, California 90013
Telephone: (213) 992-3299
14 Facsimile: (213) 596-0487
Email: elee@LOEL.com
15
/s/ Joan Herrington, SB# 178988 (as authorized on 8/6/07)
16 BAY AREA EMPLOYMENT LAW OFFICE
5032 Woodminster Lane
17 Oakland, CA 94602-2614
Telephone: (510) 530-4078
18 Facsimile: (510) 530-4725
Email: jh@baelo.com
19 Of Counsel to LAW OFFICE OF EUGENE LEE
20 Attorneys for Plaintiff DAVID F. JADWIN, D.O.
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28

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