Case 1:07-cv-00026-OWW-TAG Document 37 Filed 07/11/2007 Page 1 of 14

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 FOR THE EASTERN DISTRICT OF CALIFORNIA
13
14 DAVID F. JADWIN, D.O., Case No. 1:07-cv-00026-OWW-TAG
15 Plaintiff, PLAINTIFF’S MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT OF
16 v. MOTION TO STRIKE DEFENDANTS’
FIFTH AFFIRMATIVE DEFENSE AND
17 COUNTY OF KERN; et al. FOR SANCTIONS AGAINST COUNSEL
18 Defendants. [F.R.C.P. RULES 12(f) AND 11(c)]
19 Date: August 13, 2007
Time: 9:30 a.m.
20 Place: U.S. Bankruptcy Courtroom, Bakersfield
Courtroom 8
21
Date Action Filed: January 6, 2007
22 Date Set for Trial: August 26, 2008
23
24 Plaintiff David F. Jadwin, D.O. hereby moves to strike portions of the Answer to the Second
25 Supplemental Complaint (“Answer”), namely the Fifth Affirmative Defense for Contributory
26 Negligence (“FAD”), on the grounds that it is “an insufficient defense” and a “scandalous matter” under
27 Rule 12(f). [Answer at ¶105; page 12, lines 18-22].
28

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1 TABLE OF CONTENTS
2 TABLE OF AUTHORITIES ................................................................................................................... 3
3 I. BACKGROUND ............................................................................................................................... 1
II. LEGAL ARGUMENT...................................................................................................................... 2
4
A. THE FIFTH AFFIRMATIVE DEFENSE IS “INSUFFICIENT” AS A MATTER OF LAW....... 2
5 1. Even If True, the Fifth Affirmative Defense Will Not Defeat Plaintiff’s Claims......................... 2
2. Even If the Fifth Affirmative Defense Alleges Contributory Negligence, It Is Insufficient
6 Because None of Plaintiff’s Claims Are Based on Negligence........................................................... 3
B. THE FIFTH AFFIRMATIVE DEFENSE IS “SCANDALOUS” .................................................. 7
7 C. PLAINTIFF WILL BE PREJUDICED BY THE FIFTH AFFIRMATIVE DEFENSE................. 8
1. Plaintiff Is Not Required to Show Prejudice under Rule 12(f) ................................................... 8
8 2. Nevertheless, the Fifth Affirmative Defense Will Prejudice Plaintiff ......................................... 9
D. RULE 11 SANCTIONS AGAINST DEFENDANTS’ COUNSEL ARE WARRANTED............ 9
9 III. CONCLUSION ........................................................................................................................... 10
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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1 TABLE OF AUTHORITIES
2 CASES
3 Atlantic Richfield Co. v. Ramirez................................................................................................................ 8
Batchelder v. America West Airlines (9th Cir. Ariz 2001) 259 F.3d 1112 .................................................. 5
4 California v. United States (N.D.Cal. 1981) 512 F.Supp. 36 ..................................................................... 2
Cooter & Gell v. Hartmarx Corp. (1990) 496 U.S. 384............................................................................. 9
5 Daniels v. Williams, 474 U.S. 327 (U.S. 1986) .......................................................................................... 6
Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255........................................................ 4
6 Godfrey v. Steinpress (1982) 128 Cal.App.3d 154 ..................................................................................... 6
Golden Eagle Distributing Corp. v. Burroughs Corp................................................................................. 9
7 Graefenhain v. Pabst Brewing Co., 827 F.2d 13 (7th Cir. 1987) ............................................................... 7
Hersant v. California Dept. of Social Services (1997) 57 Cal.App.4th 997............................................... 7
8 Horsford v. Board of Trustees (2005) 132 Cal.App.4th 359 .................................................................... 10
Kaylor v. Fannin Regional Hospital, Inc. (N.D. Ga. 1996) 946 F.Supp. 988 ............................................ 5
9 King v. Preferred Technical Group (7th Cir. 1999) 166 F.3d 887 ............................................................. 5
Local 246 Util. Workers Union v. Southern Cal. Edison Co., 83 F.3d 292 (9th Cir. 1996)................... 6, 7
10 Marcano-Rivera v. Pueblo International, Inc. (1st Cir. 2000) 232 F.3d 245......................................... 5, 6
Mixon v. Fair Employment & Housing Commission ((1987) 192 Cal.App.3d 1306, 1317) ...................... 5
11 Mora v. Chem-Tronics, Inc. 16 F.Supp.2d 1192 (S.D. Cal. 1998) ............................................................. 5
Pang v. Beverly Hosp., Inc., 79 Cal. App. 4th 986 (2000) ......................................................................... 5
12 Patten v. Grant Joint Union High School Dist. (App. 3 Dist. 2005) 134 Cal.App.4th 1378 ..................... 4
Reeves v. Sanderson Plumbing (2000) 530 U.S. 133 ................................................................................. 7
13 SEC v. Gulf & Western Industries, Inc. (D. D.C. 1980) 502 F.Supp. 343.................................................. 9
Siegal v. Alpha Wire Corp. (3d Cir. 1990) 894 F.2d 50 ............................................................................. 7
14 Skadegaard v. Farrell (D. N.J. 1984) 578 F.Supp. 1209............................................................................ 7
Talbot v. Robert Matthews Distributing Co. (7th Cir. 1992) 961 F.2d 654................................................. 7
15 Weidenfeller v. Star & Garter (1991) 1 Cal.App.4th 1 .............................................................................. 6

16 STATUTES
2 CCR § 7297.10........................................................................................................................................ 5
17 2 CCR § 7297.7(a) ...................................................................................................................................... 4
260............................................................................................................................................................... 6
18 29 U.S.C. § 207(a)(1).................................................................................................................................. 6
29 U.S.C. §§ 216(b) .................................................................................................................................... 6
19 29 U.S.C. §§ 2601, et seq............................................................................................................................ 1
29 U.S.C. §201 et seq.................................................................................................................................. 1
20 42 U.S.C. § 1983..................................................................................................................................... 1, 6
Cal. Civil Code §§ 45- 47 ....................................................................................................................... 1, 6
21 Cal. Gov’t Code § 12940(n)........................................................................................................................ 6
Cal. Gov’t. C. § 12940(a)............................................................................................................................ 5
22 Cal. Gov’t. Code § 12940(a)....................................................................................................................... 1
Cal. Gov’t. Code §§ 12945.1, et seq ....................................................................................................... 1, 4
23 Cal. Gov't Code § 12940(m) ................................................................................................................... 1, 5
Cal. Health & Safety Code § 1278.5....................................................................................................... 1, 3
24 Cal. Health & Safety Code 1278.5(b)(1) .................................................................................................... 4
Cal. Heath & Safety Code § 1278.5(d) ....................................................................................................... 4
25 Cal. Labor Code § 1102.5 ....................................................................................................................... 1, 4
Gov't Code § 12940(n)................................................................................................................................ 1
26
TREATISES
27
5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts § 471....................................................................... 6
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1 I. BACKGROUND
2 On January 9, 2007, Plaintiff David F. Jadwin, D.O. filed the Complaint against the Defendants
3 alleging the following claims for relief:
4 1. Retaliation [Cal. Health & Safety Code § 1278.5];
2. Retaliation [Cal. Labor Code § 1102.5];
5 3. Retaliation [Cal. Family Rights Act (“CFRA”), Cal. Gov’t. Code §§ 12945.1, et seq.];
4. Interference [Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601, et seq.];
6 5. Violation of CFRA rights [Cal. Gov’t. Code §§ 12945.1, et seq.];
6. Disability Discrimination [California Fair Employment and Housing Act (“FEHA”), Cal.
7 Gov’t. Code § 12940(a).];
7. Failure to provide reasonable accommodation [FEHA, Cal. Gov't Code § 12940(m)];
8 8. Failure to engage in an interactive process [FEHA, Cal. Gov't Code § 12940(n)];
9. Defamation [Cal. Civil Code §§ 45- 47];
9 10. Violation of 14th Amend. procedural due process [42 U.S.C. § 1983]; and
11. Violation of the Fair Labor Standards Act (“FLSA”) [29 U.S.C. §201 et seq.]
10
On April 24, 2007, Plaintiff filed the First Supplemental Complaint re-alleging the same claims.
11
On April 30, Defendants filed their answer to Plaintiff’s First Supplemental Complaint, alleging
12
the Fifth Affirmative Defense (“FAD”). The FAD stated as follows:
13
As and for a fifth affirmative defense, Defendants allege that, during Plaintiff’s
14 employment at Kern Medical Center, Plaintiff was arrogant, disagreeable,
uncooperative, intimidating, overbearing, self-righteous and unfriendly and that
15 Plaintiff’s behavior contributed to and was the direct and proximate cause of any
stresses, disabilities or injuries that Plaintiff believes he sustained.
16 Answer at ¶ 105; Page 12, lines 18-22.
17 On May 11, 2007, Plaintiff’s attorneys sent a letter to Mark Wasser, attorney of record for all
18 Defendants in this action (“Mr. Wasser”), both by facsimile and US mail. The letter represented
19 Plaintiff’s attempt to meet and confer at length and in good faith on the legal insufficiency of certain of
20 Defendants’ affirmative defenses, including the FAD.
21 On May 16, Mr. Wasser and Plaintiff’s attorneys met and conferred by phone. Mr. Wasser
22 specifically stated that he “appreciated” Plaintiff’s legal brief of May 11, “educating” him.
23 On May 17, Mr. Wasser sent a letter to Plaintiff’s attorneys by facsimile and US mail responding
24 to their letter of May 11.
25 Later that day, Plaintiff’s attorneys sent a letter to Mr. Wasser by facsimile and US mail further
26 meeting and conferring with him.
27 On June 13, Plaintiff filed the Second Supplemental Complaint (“Complaint”) re-alleging the
28 same claims as in the original complaint.

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1 On June 21, 2007, Defendants filed the Answer to the Second Supplemental Complaint
2 (“Answer”), re-alleging the FAD.
3 On June 26, Plaintiff’s attorneys sent another letter to Mr. Wasser by facsimile and US mail
4 further meeting and conferring with him in light of the Answer.
5 On July 3, Mr. Wasser sent a letter to Plaintiff’s attorneys by facsimile and US mail responding
6 to their letter of June 26. Later that day, Plaintiff’s attorneys sent an email to Mr. Wasser further meeting
7 and conferring with him.
8 On July 4, Mr. Wasser sent an email to Plaintiff’s attorneys replying to their email of July 3.
9 On July 5, Plaintiff’s attorneys sent an email to Mr. Wasser further meeting and conferring with
10 him. Later that day, Mr. Wasser sent a reply email to Plaintiff’s attorneys.
11 On July 6, Plaintiff’s attorneys sent an email to Mr. Wasser further meeting and conferring with
12 him. Later that day, Mr. Wasser sent a reply email.
13 Plaintiff has attempted to meet and confer at length and in good faith regarding the legal
14 insufficiency and scandalous nature of the Fifth Affirmative Defense under FRCP 12(f). However,
15 Defendants refuse to withdraw the FAD. Plaintiff therefore brings this motion to strike.
16
II. LEGAL ARGUMENT
17
Rule 12(f) of the FRCP provides:
18
Upon motion made by a party before responding to a pleading or, if no responsive
19 pleading is permitted by these rules, upon motion made by a party within 20 days after
the service of the pleading upon the party or upon the court's own initiative at any time,
20 the court may order stricken from any pleading any insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter. F.R.C.P. 12(f).
21
Plaintiff moves to strike the FAD on the grounds that it is “an insufficient defense” and a
22
“scandalous matter” under Rule 12(f).
23
24 A. THE FIFTH AFFIRMATIVE DEFENSE IS “INSUFFICIENT” AS A MATTER OF
LAW.
25
1. Even If True, the Fifth Affirmative Defense Will Not Defeat Plaintiff’s Claims
26
A motion to strike is appropriate when an affirmative defense is insufficient as a matter of law.
27
California v. United States (N.D.Cal. 1981) 512 F.Supp. 36, 38.
28

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1 The role of an affirmative defense under Rule 8(c) is to set forth additional matters beyond the
2 four corners of the complaint that constitute an “avoidance” to a well-pled claim. Black’s Law
3 Dictionary defines an affirmative defense as: “A defendant’s assertion raising new facts and arguments
4 that, if true, will defeat the plaintiff’s or prosecution’s claim, even if all allegations in the complaint are
5 true.” Black’s Law Dict. (7th ed. 1999) p. 430, col. 1-2, italics added.
6 The FAD fails to allege any cognizable affirmative defense; it contains only loosely generalized
7 indictments on Plaintiff’s character and behavior, accusing him of being “arrogant, disagreeable,
8 uncooperative, intimidating, overbearing, self-righteous and unfriendly.” Nor were Defendants able to
9 articulate any cognizable affirmative defense during meet and confer discussions with Plaintiff despite
10 Plaintiff’s repeated requests. Mr. Wasser’s email of July 6, 2007 contains only a vague statement that
11 the behavior alleged in the FAD somehow “contributed to the problems [Plaintiff] alleges”. Lee Decl. ¶
12 15. However, when asked to clarify whether the FAD was effectively alleging “contributory negligence”
13 or, if not, what exact legal theory the FAD was alleging, Mr. Wasser obfuscates matters further by
14 stating: “We do not contend that [Plaintiff’s] behavior bars his claims in the way common law
15 contributory negligence barred a claim. We only contend his behavior contributed to the problems he
16 alleged.” Lee Decl. ¶ 15, italics added.
17 In short, over the course of numerous meet and confer efforts, Defendants have yet to articulate
18 the legal relevance of the FAD and have in fact acknowledged that the FAD, if true, will not defeat any
19 of Plaintiff’s claims. The FAD fails to allege a cognizable affirmative defense and should be stricken as
20 “insufficient”.
21
2. Even If the Fifth Affirmative Defense Alleges Contributory Negligence, It Is
22 Insufficient Because None of Plaintiff’s Claims Are Based on Negligence
23 Even if the FAD had validly alleged the affirmative defense of contributory negligence, it would
24 still have been legally insufficient because none of Plaintiff’s claims allege or require a showing of
25 negligence. Rather, they are all either non-negligence based statutory claims or intentional torts. Since
26 Plaintiff does not allege negligence, contributory negligence is completely inapposite.
27 Plaintiff’s First Cause of Action for health facility whistleblowing retaliation [Cal. Health &
28 Safety C. § 1278.5], Second Cause of Action for employee whistleblowing retaliation [Cal. Lab. C. §

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1 1102.5], Third Cause of Action for CFRA leave retaliation [Cal. Gov’t. C. §§ 12945.1, et seq.; and 2
2 CCR § 7297.7(a)] do not rest on negligence, but instead require that Plaintiff show a nexus between the
3 protected activity and the adverse employment action(s) that Defendant took against Plaintiff.1 [Id.; Cal.
4 Health & Safety Code 1278.5(b)(1) (“No health facility shall discriminate or retaliate in any manner
5 against a patient or employee of the health facility because that patient, employee, or any other person,
6 has presented a grievance or complaint, or has initiated or cooperated in any investigation or proceeding
7 of any governmental entity relating to the care, services, or conditions of that facility.”); Patten v. Grant
8 Joint Union High School Dist. (App. 3 Dist. 2005) 37 Cal.Rptr.3d 113, 117, 134 Cal.App.4th 1378 (“…a
9 plaintiff must show (1) she engaged in a protected activity, (2) her employer subjected her to an adverse
10 employment action, and (3) there is a causal link between the two.”); Dudley v. Department of
11 Transportation (2001) 90 Cal.App.4th 255, 261 (“...we conclude the elements of a cause of action for
12 retaliation in violation of CFRA under the circumstances of this case are as follows: (1) the defendant
13 was an employer covered by the CFRA; (2) the plaintiff was an employee eligible to take CFRA leave;
14 (3) the plaintiff exercised her right to take leave for a qualifying CFRA purpose; and (4) the plaintiff
15 suffered an adverse employment action, such as termination, fine, or suspension, because of her exercise
16 of her right to CFRA leave.”). The California Legislature has provided a rebuttable presumption of
17 retaliatory motive if the adverse employment action or threat of adverse action occurs within of 120 days
18 Plaintiff's protected activity. [Cal. Heath & Safety Code § 1278.5(d)]. Because retaliation must be a
19 motivating factor for Defendants' adverse employment actions against Plaintiff, retaliation claims do not
20 rest on a negligence theory.
21 Plaintiff’s Fourth and Fifth Causes of Action for FMLA and CFRA violations, respectively, rest
22 on strict liability. The District Court for Southern District of California has stated that “The FMLA is a
23 strict liability statute in the sense that an employee need not delve into the employer’s subjective intent
24 to recover for alleged violations for interference.” Mora v. Chem-Tronics, Inc. 16 F.Supp.2d 1192, 1219
25 1
Defendants’ many adverse actions include (i) denial of and interference with Plaintiff’s medical/recuperative leave, (ii)
retaliatory and discriminatory ratification of a campaign of defamation by Defendant William Roy and other Defendants
26 against Plaintiff, (iii) retaliatory and discriminatory demotion of Plaintiff from Chair of the Pathology Department at Kern
Medical Center (“KMC”) without meaningful notice and a hearing, and (iv) retaliatory and discriminatory preemptive
27 decision not to renew Plaintiff’s employment contract (which is not due to expire until October 4, 2007). See Complaint at ¶¶
135-136.
28

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1 (S.D. Cal. 1998); Batchelder v. America West Airlines (9th Cir. Ariz 2001) 259 F.3d 1112, 1130 ("An
2 employer who acts in good faith and without knowledge that its conduct violated the Act (FMLA),
3 therefore, is still liable for actual damages regardless of its intent.") . The Seventh Circuit Court of
4 Appeal has similarly found “If an employer interferes with the FMLA-created right to medical leave or
5 to reinstatement following the leave, a deprivation of this right is a violation regardless of the
6 employer’s intent.” King v. Preferred Technical Group (7th Cir. 1999) 166 F.3d 887, 891; see also,
7 Kaylor v. Fannin Regional Hospital, Inc. (N.D. Ga. 1996) 946 F.Supp. 988, 997 (“Accordingly, by
8 establishing a ‘minimum standard’ for employee leave, Congress apparently intended for FMLA leave
9 protected by §2612(a)(1) to be strictly enforced with any question of an employer's intent to violate the
10 FMLA to be considered only when assessing damages.”).
11 Likewise, CFRA is the state counterpart to the FMLA and is interpreted in a similar manner. The
12 California Court of Appeal has referred to the FMLA as the “federal law counterpart” to CFRA. Pang v.
13 Beverly Hosp., Inc., 79 Cal. App. 4th 986, 993 (2000). In Mora v. Chem-Tronics, Inc., the U.S. District
14 Court for the Southern District of California noted that “the CFRA and FMLA statutory schemes are so
15 similar that cases addressing the FMLA are instructive in interpreting CFRA claims”. 16 F. Supp. 2d
16 1192, 1202 (S.D. Cal. 1998), quoting from Ely v. Wal-Mart, Inc., 875 F. Supp. 1422, 1425 n.6 (C.D.
17 Cal. 1995), see also 2 CCR § 7297.10 (CFRA incorporates the regulations interpreting FMLA to the
18 extent they are consistent).
19 Plaintiff’s Sixth Cause of Action for disability discrimination [Cal. Gov’t. C. § 12940(a)] does
20 not rest on negligence, but discriminatory intent. As the California Court of Appeal stated in Mixon v.
21 Fair Employment & Housing Commission “To prevail under the disparate treatment theory, an employee
22 must show that the employer harbored a discriminatory intent.” ((1987) 192 Cal.App.3d 1306, 1317).
23 Plaintiff’s closely-related Seventh and Eighth Causes of Action for “failure to provide reasonable
24 accommodation” and “failure to engage in an interactive consultation”, respectively, under the FEHA do
25 not rest on a negligence theory of liability. In fact, the Legislature imposed strict liability on employers
26 who know of an employee’s disability but fail to provide reasonable accommodation. See Cal. Gov’t
27 Code § 12940(m); Marcano-Rivera v. Pueblo International, Inc. (1st Cir. 2000) 232 F.3d 245, 256-257.
28 In Marcano-Rivera v. Pueblo Int'l, Inc., the First Circuit Court of Appeal stated: “Hence, an employer

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1 who knows of a disability yet fails to make reasonable accommodations violates the statute, no matter
2 what its intent . . . .”. Id. at 257. Likewise, the Legislature imposed strict liability on employers who fail
3 to engage in good faith in an interactive consultation. See Cal. Gov’t Code § 12940(n).
4 Plaintiff’s Ninth Cause of Action alleges defamation. Defamation is an intentional tort. Cal. Civ.
5 Code §§ 45, 46; 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts § 471, pp. 557-558. Contributory
6 negligence is not a defense to an intentional tort. Godfrey v. Steinpress (1982) 128 Cal.App.3d 154;
7 Weidenfeller v. Star & Garter (1991) 1 Cal.App.4th 1.
8 Plaintiff’s Tenth Cause of Action for constitutional due process violation [42 USC § 1983] does
9 not rest on negligence, but affirmative intent. The U.S. Supreme Court specifically rejected a negligence
10 standard, holding:
11 In Parratt . . . we said that the loss of the prisoner's hobby kit, “even though negligently
caused, amounted to a deprivation [under the Due Process Clause].” 451 U.S., at 536-
12 537. JUSTICE POWELL, concurring in the result, criticized the majority for “[passing]
over” this important question of the state of mind required to constitute a “deprivation”
13 of property. Id. at 547. He argued that negligent acts by state officials, though causing
loss of property, are not actionable under the Due Process Clause . . . .Upon reflection,
14 we agree and overrule Parratt to the extent that it states that mere lack of due care by a
state official may “deprive” an individual of life, liberty, or property under the
15 Fourteenth Amendment.
Daniels v. Williams, 474 U.S. 327, 331 (U.S. 1986)
16
Finally, Plaintiff’s Eleventh Cause of Action for violation of FLSA imposes strict liability on
17
employers for non-payment of wages and disregards negligence. In Local 246 Util. Workers Union v.
18
Southern Cal. Edison Co., the employer and employees had entered into collective bargaining
19
agreements that miscalculated overtime rates by failing to include supplemental payments for disabled
20
employees in the regular base wage when calculating overtime. Despite the fact that the parties had
21
contractually agreed on the calculation, the Ninth Circuit Court of Appeal held that the method of
22
computation nevertheless violated 29 U.S.C. § 207(a)(1). 83 F.3d 292 (9th Cir. 1996)
23
In fact, non-negligence is to some extent an affirmative defense. The FLSA provides that an
24
employer may avoid liquidated damages (equal to the amount of actual damages) or reduce the total
25
damages award by proving that it acted in good faith and had reasonable grounds to believe its conduct
26
did not violate the FLSA. 29 U.S.C. §§ 216(b), 260. As the Ninth Circuit Court of Appeal noted in Local
27
246 Utility Workers Union of America v. Southern Calif. Edison Co., “Under 29 U.S.C. § 260, the
28

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1 employer has the burden of establishing subjective and objective good faith in its violation of the FLSA.
2 If the employer fails to carry that burden, liquidated damages are mandatory.” 83 F.3d 292, 297 (9th Cir.
3 1996).
4 Because none of Plaintiff’s claims rest on a negligence theory of recovery, the FAD is
5 insufficient and should be stricken.
6
B. THE FIFTH AFFIRMATIVE DEFENSE IS “SCANDALOUS”
7
The Fifth Affirmative Defense should be also stricken as “scandalous” within the meaning of
8
Rule 12(f). Courts have defined the term “scandalous” as allegations that cast a “cruelly” derogatory
9
light on a party or other person. See Skadegaard v. Farrell (D. N.J. 1984) 578 F.Supp. 1209, 1221;
10
Talbot v. Robert Matthews Distributing Co. (7th Cir. 1992) 961 F.2d 654, 665 (allegations that milk
11
distributor intentionally caused outbreak of salmonella in order to consummate fraudulent scheme
12
against route drivers held subject to motion to strike as “scandalous”).
13
Defendants are attempting to manufacture a pretextual , ex post facto, reason for their numerous
14
unlawful acts against Plaintiff by suggesting Plaintiff’s character defects brought about the problems he
15
alleges upon him.
16
However, this pretext is shown to be "unworthy of credence" by Defendants’ own
17
contemporaneous admissions which conspicuously establish other unrelated reasons for Defendants’
18
adverse actions against Plaintiff. [Reeves v. Sanderson Plumbing (2000) 530 U.S. 133, 148; Hersant v.
19
California Dept. of Social Services (1997) 57 Cal.App.4th 997,1004-1005; Siegal v. Alpha Wire Corp.
20
(3d Cir. 1990) 894 F.2d 50, 55 ("inconsistencies in performance evaluations prior and subsequent to an
21
employee's termination my support an inference of pretext"); Graefenhain v. Pabst Brewing Co., 827
22
F.2d 13 (7th Cir. 1987) (no contemporaneous evidence of poor performance shows pretext). For
23
example, in a letter dated April 17, 2006, from Defendant Peter Bryan, the then-chief executive officer
24
of KMC, to Plaintiff, Mr. Bryan admitted to Plaintiff during Plaintiff’s FMLA/CFRA reduced schedule
25
leave for depression that the Pathology Department continued to function well “as it had for many
26
years” and that Plaintiff had made many positive changes in the department. Complaint at ¶ 82. Then in
27
a letter just 11 days later, dated April 28, 2006, Mr. Bryan informed Plaintiff that he was converting Dr.
28

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1 Jadwin's reduced schedule leave for depression to full-time medical leave, and issued an ultimatum that
2 Plaintiff either return to work full-time or resign by June 17, 2006, explaining “the hospital needs you
3 here full-time.” Complaint at ¶ 86 (emphasis added). In an email dated June 14, 2006, three days before
4 the June 17 deadline, Mr. Bryan informed Plaintiff that he was preemptively demoting Plaintiff from
5 Chair of the Pathology Department because “This institution needs to have full-time leadership in the
6 department and because of your leave you have not been able to provide it.” Complaint at ¶ 90
7 (emphasis added). Mr. Bryan’s communications do not cite Plaintiff’s alleged character faults as the
8 reason for the adverse actions taken against him.
9 Defendants’ allegations in the FAD that “Plaintiff was arrogant, disagreeable, uncooperative,
10 intimidating, overbearing, self-righteous and unfriendly and that Plaintiff’s behavior contributed to and
11 was the direct and proximate cause of any stresses, disabilities or injuries that Plaintiff believes he
12 sustained” amount to nothing more than a cruelly derogatory attack on Plaintiff's character and
13 competence that would constitute defamation in any other context. Physicians, particularly those like
14 Plaintiff who have risen to visible leadership positions at large institutions, depend upon their
15 professional reputations for their very careers and livelihoods and are particularly vulnerable to such
16 attacks. The risk is heightened where, as here, the pleadings could potentially attract media attention.
17 Because Defendants' allegations are shielded from liability by the litigation privilege, Plaintiff's only
18 remedy is to request the court to strike them as "scandalous".
19 Plaintiff respectfully requests that the court grant the sole legal remedy available to him by
20 striking the FAD as scandalous.
21
C. PLAINTIFF WILL BE PREJUDICED BY THE FIFTH AFFIRMATIVE DEFENSE
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1. Plaintiff Is Not Required to Show Prejudice under Rule 12(f)
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Although there is a split of authority among the circuit courts of appeal, the Ninth Circuit has
24
expressly held that a party need not show prejudice in bringing a motion to strike. In Atlantic Richfield
25
Co. v. Ramirez, the Ninth Circuit stated:
26
We reject Ramirez’ contention that we should require the moving party to demonstrate
27 prejudice in order to justify striking redundant material. Rule 12(f) says nothing about a
showing of prejudice and allows a court to strike material sua sponte. We decline to add
28 additional requirements to the Federal Rules of Civil Procedure when they are not

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1 supported by the text of the rule. See In re Glenfed, 42 F.3d at 1546 (“We are not
permitted to add new requirements to Rule 9(b) simply because we like the effects of
2 doing so.”).
1999 U.S. App. LEXIS 8669 (9th Cir. 1999)
3
2. Nevertheless, the Fifth Affirmative Defense Will Prejudice Plaintiff
4
Defenses that “significantly complicate” the litigation are “particularly vulnerable to a motion to
5
strike.” SEC v. Gulf & Western Industries, Inc. (D. D.C. 1980) 502 F.Supp. 343, 345 (defenses charging
6
SEC with improprieties in investigating claims against D was removed to avoid spending unnecessary
7
time and money litigating the invalid defense).
8
Defendants are clearly attempting to use the FAD to justify a prejudicially broad scope of
9
discovery that has the goal of smearing Plaintiff. Mr. Wasser has repeatedly suggested Plaintiff should
10
stand by and permit Defendants to conduct its fishing expedition: “If facts sufficient to support the
11
defenses have not been developed by the time of the pre-trial conference, the defendants will entertain
12
your request that they be stricken then.” Lee Decl. ¶ 9. Given the invalidity of the FAD, such an
13
extensive fishing expedition having the goal of smearing Plaintiff would not only “significantly
14
complicate the litigation”, burdening Plaintiff with unnecessary additional expense in terms of time and
15
money, but would also unduly harass and embarrass Plaintiff. This prejudice, if unchecked, would only
16
propagate throughout the litigation, ultimately promoting jury confusion.
17
18 D. RULE 11 SANCTIONS AGAINST DEFENDANTS’ COUNSEL ARE WARRANTED
19 Rule 11 permits the Court to sanction attorneys2 who falsely certify in pleadings that “the claims,
20 defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous
21 argument for the extension, modification, or reversal of existing law or the establishment of new law”.
22 Rule 11 is intended to deter dilatory or abusive pretrial tactics and to streamline litigation by
23 excluding baseless filings. Cooter & Gell v. Hartmarx Corp. (1990) 496 U.S. 384. As the Ninth Circuit
24 held in Golden Eagle Distributing Corp. v. Burroughs Corp., “A lawyer should not be able to proceed
25 with impunity in real or feigned ignorance of authorities which render his argument meritless…Rule 11
26 is intended to reduce the burden on district courts by sanctioning, and hence deterring, attorneys who
27 2
(A) Note that Court may impose monetary sanctions against the attorney only: “Monetary sanctions may not be awarded
against a represented party for a violation of subdivision (b)(2)”. FRCP 11(c)(2)(A).
28

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1 submit motion or pleadings which cannot reasonably be supported in law or fact.”. (9th Cir. 1986) 801
2 F.2d 1531, 1542.
3 Prior to Defendants’ filing of the Answer, Plaintiff had already met and conferred at length with
4 Defendants by phone, email and letter, notifying them in no uncertain terms that the FAD was
5 “insufficient” and “scandalous”. Plaintiff’s efforts were to no avail. In filing the Answer, Defense
6 counsel certified that Defendants had legal and factual support for the FAD. Subsequently, Plaintiff
7 again met and conferred at length with Defendants, requesting that Defendants strike the FAD from the
8 Answer. To date, Defendants have refused. Lee Declaration ¶ 3.
9 Plaintiff requests the Court sanction Mr. Wasser and award Plaintiff attorney fees in the amount
10 of $4,500 in compensation of (a) 1 of the hours Mr. Eugene Lee and 1 of the hours Ms. Joan Herrington
11 spent meeting and conferring to avoid bringing this motion; and (b) 4 of the hours Mr. Lee and 4 of the
12 hours Ms. Herrington spent bringing this motion. Ms. Herrington’s and Mr. Lee’s regular rates for such
13 services are $500 and $400 per hour, respectively. Lee Decl. at ¶ 16; Herrington Decl. at ¶ 3.
14 Mr. Lee and Ms. Herrington attempted several times to secure local counsel to prosecute
15 Plaintiff’s suit but were ultimately unsuccessful. Lee Decl. at ¶¶ 18-20; Herrington Decl. at ¶ 6. Plaintiff
16 therefore requests this Court use the prevailing rate in Plaintiff's counsels’ respective counties (Mr. Lee
17 is in Los Angeles County, and Ms. Herrington is in Alameda County) rather than that of this forum to
18 determine their respective reasonable hourly rates. Horsford v. Board of Trustees (2005) 132
19 Cal.App.4th 359, 397; see Lee Decl. at ¶ 17; Herrington Decl. at ¶ 4. Plaintiff requests that this Court
20 take judicial notice of the fact that Plaintiff's counsels’ rates are also consistent with those set forth in the
21 adjusted Laffey Matrix used by the U.S. Department of Justice to determine the reasonable rate for
22 attorney fees in civil rights cases in the Baltimore/Washington area. See Herrington Decl. ¶ 7; Request
23 for Judicial Notice.
24
III. CONCLUSION
25
26 For the foregoing reasons, Plaintiff respectfully requests that the Court strike Defendants Fifth
27 Affirmative Defense pursuant to Rule 12(f), and grant Plaintiff sanctions against Defendants in the
28 amount of $ 4,500 pursuant to Rule 11(c).

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 Case 1:07-cv-00026-OWW-TAG Document 37 Filed 07/11/2007 Page 14 of 14

1 RESPECTFULLY SUBMITTED on July 11, 2007.

2
3 /s/ Eugene D. Lee SB# 236812
LAW OFFICE OF EUGENE LEE
4 555 West Fifth Street, Suite 3100
Los Angeles, California 90013
5 Telephone: (213) 992-3299
Facsimile: (213) 596-0487
6 Email: elee@LOEL.com
7 /s/ Joan Herrington, SB# 178988 (as authorized on 6/4/07)
BAY AREA EMPLOYMENT LAW OFFICE
8 5032 Woodminster Lane
Oakland, CA 94602-2614
9 Telephone: (510) 530-4078
Facsimile: (510) 530-4725
10 Email: jh@baelo.com
Of Counsel to LAW OFFICE OF EUGENE LEE
11 Attorneys for Plaintiff DAVID F. JADWIN, D.O.
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