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

1 Mark A. Wasser CA SB #060160

LAW OFFICES OF MARK A. WASSER
2 400 Capitol Mall, Suite 2640
Sacramento, California 95814
3 Phone: (916) 444-6400
Fax: (916) 444-6405
4 E-mail: mwasserlalmarkwasser.com
5 Bernard C. Barmann, Sr. CA SB #060508
KERN COUNTY COUNSEL
6 Mark Nations, Chief Deputy CA SB #101838
1115 Truxtun Avenue, Fourth Floor
7 Bakersfield, California 93301
Phone: (661) 868-3800
8 Fax: (661) 868-3805
E-mail: mnations@co.kern.ca.us
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10 Attorneys for Defendants County of Kern,
Peter Bryan and Irwin Harris
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12 UNITED STATES DISTRICT COURT
13 EASTERN DISTRICT OF CALIFORNIA
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15 DAVID F. JADWIN, D.O. Case No.: 1:07-cv-00026-0WW-TAG
16 Plaintiff, DEFENDANTS' NOTICE OF MOTION
AND MOTION FOR JUDGMENT ON
17 vs. THE PLEADINGS
18 Date: January 12,2009
COUNTY OF KERN, et aI., Time: 10:00 a.m.
19 Defendants. Place: U.S. District Court, Courtroom 3
2500 Tulare Street, Fresno, CA
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Date Action Filed: January 6, 2007
21 Trial Date: March 24, 2009

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23 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 as
25 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 the
27 pleadings.

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DEFENDANTS NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS

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

I The motion will be made on the grounds that the claim Plaintiff filed with the County
2 does not satisfy the requirements of California law and, consequently, Plaintiffs complaint must
3 be dismissed.

4 The motion will be based on this notice, the memorandum of points and authorities filed
5 herewith and on such other materials as may be hereafter submitted to the Court.
6 Respectfully submitted,

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8 Dated: November 13,2008 LAW OFFICES OF MARK A. WASSER
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10 By: lsi Mark A. Wasser

Mark A. Wasser
11 Attorney for Defendants, County of Kern, et al.
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DEFENDANTS NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS

 Case 1:07-cv-00026-OWW-TAG Document 251 Filed 11/13/2008 Page 1 of 5

1 Mark A. Wasser CA SB #060160

LAW OFFICES OF MARK A. WASSER
2 400 Capitol Mall, Suite 2640
Sacramento, California 95814
3 Phone: (916) 444-6400
Fax: (916) 444-6405
4 E-mail: mwasser@markwasser.com
5 Bernard C. Barmann, Sr. CA SB #060508
KERN COUNTY COUNSEL
6 Mark Nations, Chief Deputy CA SB #101838
1115 Truxtun Avenue, Fourth Floor
7 Bakersfield, California 93301
Phone: (661) 868-3800
8 Fax: (661) 868-3805
E-mail: mnations@co.kern.ca.us
9
10 Attorneys for Defendants County of Kern,
Peter Bryan and Irwin Harris
11

12 UNITED STATES DISTRICT COURT

13 EASTERN DISTRICT OF CALIFORNIA

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15 Case No.: 1:07-cv-00026-0WW-TAG
DAVID F. JADWIN, D.O.
16 DEFENDANTS' MEMORANDUM OF
Plaintiff, POINTS AND AUTHORITIES IN
17 SUPPORT OF MOTION FOR
vs. JUDGMENT ON THE PLEADINGS
18
COUNTY OF KERN, et a!., Date: January 12,2009
19 Time: 10:00 a.m.
Defendants. Place: U.S. District Court, Courtroom 3
20 2500 Tulare Street, Fresno, CA

21 Date Action Filed: January 6, 2007

Trial Date: March 24, 2009
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23 Defendants submit this memorandum in support of their motion for judgment on the
24 pleadings and ask the Court to grant the motion and enter judgment in favor of Defendants.
25 STATEMENT OF FACTS
26 On July 3, 2006, Plaintiff submitted a claim to the County in an apparent attempt to
27 satisfy the claims filing requirements of California Government Code §§900 et seq. A copy of
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DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS
 Case 1:07-cv-00026-OWW-TAG Document 251 Filed 11/13/2008 Page 2 of 5

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 the
3 facts is divided under headings that identify the several theories Plaintiff intended to pursue. The
4 first heading is "breach of contract." The second heading is "wrongful demotion/termination in
5 violation of California 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 "related
7 causes of action" and describes claims of "intentional infliction of emotional distress, negligent
8 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 Plaintiff wrote, under the
II "breach of contract" heading, Plaintiff alleged that Peter Bryan "failed to comply with the KMC
12 bylaws in stripping [Plaintiff] of chairmanship." See, Second Amended Complaint, Exhibit 2.
13 Under the heading "wrongful termination" etc., Plaintiff alleged that removing Plaintiff
14 from his chairmanship "constituted a wrongful termination" and was "retaliation by Mr. Bryan
15 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 had
17 written letters expressing "dissatisfaction" with Plaintiff and that another physician had
18 "maliciously defamed [Plaintiff s] professional competence." Id.
19 Under the heading "related causes of action" Plaintiff wrote that he intended to bring
20 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, Plaintiff alleges: Retaliation under California Health and Safety Code
27 §1278.5; Retaliation under California Labor Code §1102.5; Retaliation under California
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DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS
 Case 1:07-cv-00026-OWW-TAG Document 251 Filed 11/13/2008 Page 3 of 5

I Government Code §12945.1 et seq.; Violation ofCFRA, Califomia Government Code §12945.1;

2 Disability discrimination nnder Califomia Govemment Code §12940(a); Failure to provide

3 reasonable accommodation under Califomia Government Code §12940(m); Failure to engage in

4 a good-faith interactive process under Califomia Government Code §12940(n) and; FEHA

5 retaliation under California Government Code §12940(h).

6 ARGUMENT
7 PLAINTIFF'S CLAIM IS INADEQUATE AND DID NOT PUT THE COUNTY ON
8 NOTICE OF THE CLAIMS PLAINTIFF ACTUALLY FILED
9 California Government Code §945.4 provides that "no suit for money or damages may be

10 brought against a public entity on a cause of action for which a claim is required to be presented.

II .. until a written claim therefor has been presented to the public entity ..." Section 910 requires

12 that a claim contain a description of the "circnmstances of the occurrence or transaction" that

13 gave rise to the alleged claim.

14 In City a/San Jose v. Superior Court (1974) 12 Ca1.3d 447, the Califomia Supreme Co

15 described the purpose of the claims statutes as follows:

16 [T]he purpose of these statutes is to provide the public entity

17 sufficient information to enable it to adequately investigate claims
and to settle them, if appropriate, without the
18 expense oflitigation. [Citations omitted] It is well-settled that
claims statutes must be satisfied even in face of the public entity's
19 actual knowledge of the circumstances surrounding the claim.
20 Id. at 455.
21 The courts have consistently applied this interpretation. For example, in Fall River Joint
22 Unified School District v. Superior Court (1988) 206 Cal.App.3d 431, the court of appeal held
23 that, if a plaintiff relies on more than one theory of recovery, each cause of action must have
24 been reflected in a timely claim.
25 In Fall River, the real party in interest, a minor, was injured when the steel door of a
26 school building struck his head. His original complaint mirrored the claim he had filed with the
27 District and alleged liability for dangerous condition and negligent maintenance. However,
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DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS
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1 about eight months later, he filed an amended complaint alleging a third cause of action for
2 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 pleadings
4 on the ground that plaintiffs claim had not given the District notice of the failure-to-supervise
5 theory. The trial court denied the District's motion but the appellate court reversed, holding
6 "denial of that motion was an abuse of discretion." Id. at 435. Because the plaintiff had failed to
7 include facts regarding his new third cause of action in his claim, judgment on the pleadings was
8 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 his
11 automobile was involved in an accident with one driven by a minor who was taking his driver's
12 license test. The claim filed with the State alleged negligence in permitting an uninsured driver
13 to take the test. However, the civil complaint filed in court asserted the State employee who
14 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 test

16 is not the factual equivalent of the failure to control or direct the motorist in the course of his
17 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 101
20 above Sausalito failed. The State demurred and the plaintiffs amended. Plaintiffs' amended
21 complaint raised claims that were not in their claim, including a cause of action for damages for
22 physical and mental injuries. The trial court denied the State's second demurrer, motion for
23 partial summary judgment, and motion to strike, and ordered sanctions against the State. The
24 State appealed and the appellate court granted a writ of mandate in favor of the State. The
25 appellate court held the plaintiff's failure to include their personal injury claim in the claim they
26 had presented to the State was fatal and the State's demurrer should have been sustained without
27 leave to amend. Id. at 338-339.
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DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS
 Case 1:07-cv-00026-OWW-TAG Document 251 Filed 11/13/2008 Page 5 of 5

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 actually
4 filed in his complaint. None of the Claims in Plaintiffs Second Amended Complaint are
5 identified or described in his claim. His claim contains no allegation and no factual description
6 of any violation of CFRA, no allegation of "disability," "depression," "whistleblowing" to a
7 governmental agency, "reasonable accommodation," failure to accommodate or failure to engage
8 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: breach
10 of contract, wrongful termination, conspiracy, per se libel, negligent hiring, negligent supervisio
11 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 Plaintiff
14 ultimately pleaded in the First, Second, Third, Fifth, Sixth, Seventh, Eighth and Eleventh Claims
15 of his Second Amended Complaint.
16 Consequently, Defendants are entitled to judgment on the pleadings on all state law
17 Claims in the Second Amended Complaint.
18 Respectfully submitted,
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20 Dated: November 13,2008 LAW OFFICES OF MARK A. WASSER

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22 By: lsi Mark A. Wasser
Mark A. Wasser
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Attorney for Defendants, County of Kern, et al.
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DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS