Case 1:07-cv-00026-OWW-TAG Document 70 Filed 10/31/2007 Page 1 of 4

1 Mark A. Wasser CA SB #60160

LAW OFFICES OF MARK A. WASSER
2 400 Capitol Mall, Suite 1100
Sacramento, CA 95814
3 Phone: (916) 444-6400
Fax: (916) 444-6405
4 E-mail: mwasser!almarkwasser.com
5 Bernard C. Barmann, Sr.
KERN COUNTY COUNSEL
6 Mark Nations, Chief Deputy
1115 Truxton Avenue, Fourth Floor
7 Bakersfield, CA 93301
Phone: (661) 868-3800
8 (661) 868-3805
E-maiLmnations@co.kern.ca.us
9
10 Attornevs for Defendants Countv of
Peter Bryan, irwin Harris, Eugene Kercher,
11 Jennifer Abraham, Scott Ragiand, Toni Smith

12

13 UNITED STATES DISTRICT COURT

14 EASTERN DISTRICT OF CALIFORNIA

15
16 DAVID F. ,JADWIN, D.O. ) Case No.: 1:07-cv-00026-0WW-TAG
)
i7 Plaintiff, ) DEFENDANTS' OPPOSITION TO
) PLAINTIFF'S REQUEST FOR
18 I \IS. ) RECONSIDERATION
)
) [28 U.S.C. § 636(b)(1 Locai Rule 72-303]
I
19 COUNTY OF KERN. et aI.,
)
20 Defendants. ) Date Action Filed: January 6, 2007
) Trial Date: August 26, 2008
21 )
)

~)
22

23
24 Defendants submit this memorandum in opposition to Plaintiffs request for

25 reconsideration by the District Court of Magistrate Judge's ruling on Plaintiffs motion to strike

26 fifth affirmative defense.

27 III
28 III

DEFENDANTS' OPPOSITION TO PLAINTIFF'S REQUEST FOR RECONSIDERATION

 Case 1:07-cv-00026-OWW-TAG Document 70 Filed 10/31/2007 Page 2 of 4

I I. PLAINTIFF MISSTATES THE CASE

2 Plaintiffs request for reconsideration misrepresents the record. For example, on page
3 2:2-10 of PlaintifT s request for reconsideration, Plaintiff asserts that "the parties narrowed and
4 resolved the [fifth affirmative defense] to a mutual understanding" that it was based on a theory
5 of "comparative fault" This is not true, The parties did not "narrow" any issues and had no
6 "understanding." One has only to read what the parties have written to realize how polarized
7 their positions are,
8 ii, Defendants' m(,m'Jra,ndum opposition to the motion to strike
9 clearly stated Defendants position, Defendants liberally quoted the allegations from PlaintilTs
10 complaint regarding "hostile work environment". (Defendants' Memorandum of Points and
II Authorities Opposition to ,,~,mU'H to 0U'''U,P, 3:3- Defendants argued should have an
12 opportunity to rt"rn"pr and introduce evidence own hNlm!lnr as it rehites to
13 allegations of hostile work environment Defendants specifically and expressly disclaimed any
14 theory oFcontributory negligence," (Defendants' Memorandum of Points and Authorities in
15 Opposition to Motion to Strike, p, 4:22-23,)
16 Plaintiff filed a reply memorandum in support of his motion to strike after Defendants
17 filed their opposition memorandum, Thus, Plaintiff knew exactly what Defendants' position was
18 and he not had a full opportunity to reply, he did reply, His assertion that he "relied" on an i
19 "understanding" is squarely contradicted by papers Defendants filed is not worthy
20 further comment,
21 II. THE PARTIES ARE JUST BEGINNING DISCOVERY
22 Plaintiff asserts that the fifth affirmative defense "fails to provide fair notice" of the
23 defense, Not including this memorandum, there have been more than 70 pages wTitten to date
24 about the fifth affirmative defense, It has been analyzed and discussed ad naseum. Plaintiff has
25 full notice of what it is about Very simply, it puts Plaintiff on notice that his own behavior is at
26 issue. It is not complicated.
27 III

28 III

DEFENDANTS' OPPOSITION TO PLAINTIFF'S REQUEST FOR RECONSlDERA TION

 Case 1:07-cv-00026-OWW-TAG Document 70 Filed 10/31/2007 Page 3 of 4

1 Plaintiff is evidently either ashamed or embarrassed about his behavior and would prefer

2 that Defendants be precluded from developing evidenee about it. However, Defendants are

3 entitled to develop a defense by, among other things, showing how Plaintiffs behavior eroded

4 the work environment at Kern Medieal Center.

5 The Magistrate Judge reasonably gave Plaintiff an opportunity to renew his motion to

6 strike if Defendants are unable to develop evidence to support the fifth affirmative defense,

7 (Order denying Motion to Strike, p. 7:3-5.) Defendants had made Plaintiff the same offer during

8 meet-and-confer f(n)Cf,SS

9 There is no lack of notice regarding the meaning of thefit1.h affirmative defense.

10 m. PLAINTIFF MISREPRESENTS THE MAGISTRATE'S ORDER

11 Plaintiff asserts the Magistrate Judge raised the defenses

12 unclean hands, estoppel, an erstwhile defense can be loosely as

13 'hostile work environment causation.''' Plaintiff misstates the Magistrate Judge's Order.

14 On page 6 of her Order, the Magistrate Judge discussed the concepts of 'unclean hands"

15 and "equitable estoppel" as examples of theories that subject a plaintiffs behavior to scrutiny.

16 Nothing in the Order can be read as injecting new defenses into the ease and, to the cxtent

17 Plaintiff suggests it does, Plaintiff is mistaken.

18 Plaintiff knows his behavior is at issue and it will affect the relief that may

19 awarded. The Magistrate Judge correctly concluded that the Defendants have an opportunity to

20 explore it.

21 IV. CONCLUSION
22 The Magistrate Judge's Order thoughtfully and thoroughly analyzes the fit1.h affirmative

23 defense. Her Order denied Plaintiff s motion to strike without prejudiee, thereby giving Plaintiff

24 the opportunity to renew his motion ifthe Defendants are unable to develop faets to support the

25 fifth affirmative defense. That holding is not only legally sound, it is fair.

26 III

27 III

28 III

DEFENDANTS' OPPOSITION TO PLAINTIFF'S REQUEST FOR RECONSIDERATION

 Case 1:07-cv-00026-OWW-TAG Document 70 Filed 10/31/2007 Page 4 of 4

The request for reconsideration should be denied and the Magistrate Judge's Order

2 should stand.

3 Respectfully submitted,

4
5 Dated: October 3], 2007 LAW OFFICES OF MARK A. WASSER

7 Mark A. Wasser
8 Atlorrlev for Defendants. of et

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DEFENDANTS' OPPOSITION TO PLAINTIFF'S REQUEST FOR RECONSIDERATION