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Case 1:07-cv-00026-OWW-TAG Document 250 Filed 11/13/2008 Page 1 of 2

1 Mark A. Wasser CA SB #060160LAW OFFICES OFMARK A. WASSER2 400 Capitol Mall, Suite 2640Sacramento, California 958143 Phone: (916) 444-6400Fax: (916) 444-64054 E-mail: mwasserlalmarkwasser.com5 Bernard C. Barmann, Sr. CA SB #060508KERN COUNTY COUNSEL6 Mark Nations, Chief Deputy CA SB #1018381115 Truxtun Avenue, Fourth Floor7 Bakersfield, California 93301Phone: (661) 868-38008 Fax: (661) 868-3805E-mail: [email protected]

10 Attorneys for Defendants County ofKern,Peter Bryan and Irwin Harris

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF CALIFORNIA

1112131415 DAVID F. JADWIN, D.O. Case No.: 1:07-cv-00026-0WW-TAG

Date Action Filed: January 6, 2007Trial Date: March 24, 2009

Date: January 12,2009Time: 10:00 a.m.Place: U.S. District Court, Courtroom 32500 Tulare Street, Fresno, CA

DEFENDANTS' NOTICE OF MOTIONAND MOTION FORJUDGMENT ONTHE PLEADINGSPlaintiff,

vs.COUNTYOF KERN, et aI.,

Defendants.

1617

181920212223 TO PLAINTIFF AND HIS ATTORNEY OF RECORD:24 PLEASE TAKE NOTICE that, on January 12,2009 at 10:00 a.m. or as soon thereafter as25 the matter can be heard in the courtroom of the above-referenced Court at 2500 Tulare Street,26 Fresno, California, Defendants will, and hereby do, move the Court for judgment on the27 pleadings.28

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DEFENDANTS NOTICE OFMOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS

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I The motion will be made on the grounds that the claim Plaintiff filed with the County2 does not satisfy the requirements ofCalifornia law and, consequently, Plaintiffs complaint must3 be dismissed.4 The motion will be based on this notice, the memorandum of points and authorities filed5 herewith and on such other materials as may be hereafter submitted to the Court.6 Respectfully submitted,789

10111213141516171819202122232425262728

Dated: November 13,2008 LAW OFFICES OF MARK A. WASSER

By: lsi Mark A. WasserMark A. WasserAttorney for Defendants, County of Kern, et al.

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DEFENDANTS NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS

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1 Mark A. Wasser CA SB #060160LAW OFFICES OF MARK A. WASSER2 400 Capitol Mall, Suite 2640Sacramento, California 958143 Phone: (916) 444-6400Fax: (916) 444-64054 E-mail: [email protected] Bernard C. Barmann, Sr. CA SB #060508KERN COUNTY COUNSEL6 Mark Nations, ChiefDeputy CA SB #1018381115 Truxtun Avenue, Fourth Floor7 Bakersfield, California 93301Phone: (661) 868-38008 Fax: (661) 868-3805E-mail: [email protected]

10 Attorneys for Defendants County of Kern,Peter Bryan and Irwin HarrisUNITED STATES DISTRICT COURTEASTERN DISTRICT OF CALIFORNIA

111213141516171819202122

DAVID F. JADWIN, D.O.Plaintiff,

vs.COUNTY OF KERN, et a!.,

Defendants.

Case No.: 1:07-cv-00026-0WW-TAGDEFENDANTS' MEMORANDUM OFPOINTS AND AUTHORITIES INSUPPORT OF MOTION FORJUDGMENT ON THE PLEADINGSDate: January 12,2009Time: 10:00 a.m.Place: U.S. District Court, Courtroom 32500 Tulare Street, Fresno, CADate Action Filed: January 6, 2007Trial Date: March 24, 2009

23 Defendants submit this memorandum in support of their motion for judgment on the24 pleadings and ask the Court to grant the motion and enter judgment in favor ofDefendants.25 STATEMENT OF FACTS26 On July 3, 2006, Plaintiff submitted a claim to the County in an apparent attempt to27 satisfy the claims filing requirements of California Government Code 900 et seq. A copy of28

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

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I Plaintiffs claim is attached to the Second Amended Complaint as Exhibit 2.2 The claim purports to recite the factual bases of Plaintiffs claims. The explanation of the3 facts is divided under headings that identify the several theories Plaintiffintended to pursue. The4 first heading is "breach of contract." The second heading is "wrongful demotion/termination in5 violation ofCalifornia Business and Professions Code 2056 and conspiracy relating thereto."6 The third heading is "libel per se/ratification by KMC." The final heading is labeled "related7 causes of action" and describes claims of "intentional infliction of emotional distress, negligent8 hiring, negligent supervision and negligent retention."9 The text of the claim contains a description of "date, place and other circumstances of the

10 accident or event(s) giving rise to the claim." To paraphrase what Plaintiffwrote, under theII "breach of contract" heading, Plaintiffalleged that Peter Bryan "failed to comply with the KMC12 bylaws in stripping [Plaintiff] of chairmanship." See, Second Amended Complaint, Exhibit 2.13 Under the heading "wrongful termination" etc., Plaintiffalleged that removing Plaintiff14 from his chairmanship "constituted a wrongful termination" and was "retaliation byMr. Bryan15 against [Plaintiff] for raising concerns relating to patient health care." Id.16 Under the heading "per se libel" etc., Plaintiff wrote that other physicians at KMC had17 written letters expressing "dissatisfaction" with Plaintiff and that another physician had18 "maliciously defamed [Plaintiff s] professional competence." Id.19 Under the heading "related causes of action" Plaintiffwrote that he intended to bring20 several other claims.21 Plaintiff concluded his claim by writing that he claimed pro rata loss of compensation,22 attorneys fees, "loss of reputation," and "severe emotional distress."23 The County reviewed and considered Plaintiffs claim and denied it.24 Plaintiff thereafter filed and served his Second Supplemental Complaint and, ultimately,25 his Second Amended Complaint. In the complaints, Plaintiff has alleged several California state-26 law claims. Specifically, Plaintiffalleges: Retaliation under California Health and Safety Code27 1278.5; Retaliation under California Labor Code 1102.5; Retaliation under California28

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I23456789

10I I1213141516171819202122232425262728

Government Code 12945.1 et seq.; Violation ofCFRA, Califomia Government Code 12945.1;Disability discrimination nnder Califomia Govemment Code 12940(a); Failure to providereasonable accommodation under Califomia Government Code 12940(m); Failure to engage ina good-faith interactive process under Califomia Government Code 12940(n) and; FEHAretaliation under California Government Code 12940(h).

ARGUMENTPLAINTIFF'S CLAIM IS INADEQUATE AND DID NOT PUT THE COUNTYON

NOTICE OF THE CLAIMS PLAINTIFF ACTUALLY FILEDCalifornia 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 requiresthat a claim contain a description of the "circnmstances of the occurrence or transaction" thatgave rise to the alleged claim.

In City a/San Jose v. Superior Court (1974) 12 Ca1.3d 447, the Califomia Supreme Codescribed the purpose of the claims statutes as follows:

[T]he purpose of these statutes is to provide the public entitysufficient information to enable it to adequately investigate claimsand to settle them, if appropriate, without theexpense oflitigation. [Citations omitted] It is well-settled thatclaims statutes must be satisfied even in face of the public entity'sactual knowledge of the circumstances surrounding the claim.

Id. at 455.The courts have consistently applied this interpretation. For example, in Fall River Joint

Unified School District v. Superior Court (1988) 206 Cal.App.3d 431, the court of appeal heldthat, if a plaintiff relies on more than one theory of recovery, each cause of action must havebeen reflected in a timely claim.

In Fall River, the real party in interest, a minor, was injured when the steel door of aschool building struck his head. His original complaint mirrored the claim he had filed with theDistrict and alleged liability for dangerous condition and negligent maintenance. However,


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1 about eight months later, he filed an amended complaint alleging a third cause of action for2 negligent failure to supervise students engaged in "dangerous horse-play."3 The District challenged the third cause of action by motion for judgment on the pleadings4 on the ground that plaintiffs claim had not given the District notice of the failure-to-supervise5 theory. The trial court denied the District's motion but the appellate court reversed, holding6 "denial of that motion was an abuse of discretion." Id. at 435. Because the plaintiff had failed to7 include facts regarding his new third cause of action in his claim, judgment on the pleadings was8 appropriate.9 In Donahue v. State o/California (1986) 178 Ca1.App.3d 795, an order granting

10 judgment on the pleadings was upheld where the plaintiff sued for damages incurred when his11 automobile was involved in an accident with one driven by a minor who was taking his driver's12 license test. The claim filed with the State alleged negligence in permitting an uninsured driver13 to take the test. However, the civil complaint filed in court asserted the State employee who14 conducted the test failed to instruct, direct and control the driver in the operation of his vehicle.15 (Id. at pg. 804.) The court concluded that "permitting an uninsured motorist to take a driving test16 is not the factual equivalent of the failure to control or direct the motorist in the course ofhis17 examination." (Id.)18 InState ex reI. Dept. o/Transportation v. Superior Court (1984) 159 Ca1.App.3d 331,19 plaintiff alleged damages following a mudslide when an embankment supporting Highway 10120 above Sausalito failed. The State demurred and the plaintiffs amended. Plaintiffs' amended21 complaint raised claims that were not in their claim, including a cause of action for damages for22 physical and mental injuries. The trial court denied the State's second demurrer, motion for23 partial summary judgment, and motion to strike, and ordered sanctions against the State. The24 State appealed and the appellate court granted a writ of mandate in favor of the State. The25 appellate court held the plaintiff's failure to include their personal injury claim in the claim they26 had presented to the State was fatal and the State's demurrer should have been sustained without27 leave to amend. Id. at 338-339.28


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1 See, also, Nelson v. State ofCalifornia (1982) 139 Cal.App.3d 72; Lopez v. Southern Cal.2 Permanente Medical Group_(l981) lIS Cal.App.3d 673; Shelton v. Sup. Ct. (1976) 56 Cal.App.3d 66.3 Here, Plaintiff s claim did not put the County on notice of the Claims Plaintiff actually4 filed in his complaint. None of the Claims in Plaintiffs Second Amended Complaint are5 identified or described in his claim. His claim contains no allegation and no factual description6 of any violation ofCFRA, no allegation of "disability," "depression," "whistleblowing" to a7 governmental agency, "reasonable accommodation," failure to accommodate or failure to engage8 in the interactive process - allegations that are all integral to his complaint.9 Conversely, his complaint does not contain a single theory identified in his claim: breach10 of contract, wrongful termination, conspiracy, per se libel, negligent hiring, negligent supervisio11 or negligent retention.12 There is no congruence between his claim and his complaint.13 Nothing in Plaintiffs claim put the County on notice of the state-law Claims Plaintiff14 ultimately pleaded in the First, Second, Third, Fifth, Sixth, Seventh, Eighth and Eleventh Claims15 of his Second Amended Complaint.16 Consequently, Defendants are entitled to judgment on the pleadings on all state law17 Claims in the Second Amended Complaint.18 Respectfully submitted,1920212223242526

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Dated: November 13,2008 LAW OFFICES OF MARK A. WASSER

By: lsi Mark A. WasserMark A. WasserAttorney for Defendants, County of Kern, et al.

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