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Case 1:07-cv-00026-OWW-TAG Document 295 Filed 12/31/2008 Page 1 of 5

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: mwasserialmarkwasser.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
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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' REPLY MEMORANDUM
Plaintiff, OF POINTS AND AUTHORITIES IN
17 SUPPORT OF MOTION FOR
vs. JUDGMENT ON THE PLEADINGS
18
COUNTY OF KERN, et aI., 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 reply memorandum in support of their motion for judgment on
24 the pleadings.

25 ARGUMENT
26 A. PlaintifPs Opposition Is Not Timely.
27 Defendants' motion for judgment on the pleadings is a dispositive motion. Granting the
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DEFENDANTS' REPLY MEMORANDUM OF POINTS AND AUTHORITIES


)N SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS
Case 1:07-cv-00026-OWW-TAG Document 295 Filed 12/31/2008 Page 2 of 5

I motion will dispose of any claims included in the Court's order. The Court's October 20,2008,
2 Revised Scheduling Order directs that all dispositive motions were to be filed by November 13,
3 2008 and all opposition papers were to be filed by December I, 2008. Plaintiffs opposition was
4 not filed until December 26, 2008. It is untimely.
5 Defendants request that the Court refuse to consider Plaintiffs opposition for that reason.
6 B. Defendants' Motion For Judgment on the Pleadings is Properly Filed.
7 At the October 6, 2008 hearing, when the Court granted Plaintiffs motion to file the
8 Second Amended Complaint, Defendants asked the Court to set aside time in the Revised
9 Scheduling Order for the filing of a Rule 12(b)(6) motion to challenge Plaintiffs new claims.
10 The Court declined to do that but, instead, suggested Defendants combine any Rule 12 challenge
II they wanted to make with their dispositive motions so the schedule could remain as compact and
12 efficient as possible.

13 That is exactly what Defendants did. Defendants combined their motion for judgment on
14 the pleadings with their motion for summary judgment. Both are dispositive motions and they
IS were both filed in compliance with the dispositive motion cut-off in the Revised Scheduling
16 Order.
17 The motion for judgment on the pleadings was properly filed and is properly before the
18 Court for consideration.
19 c. Exhaustion of Administrative Remedies is Not Relevant.
20 Plaintiff asserts Defendants' motion for judgment on the pleadings is frivolous because
21 Defendants have admitted Plaintiff exhausted his administrative remedies. Defendants did admit
22 that. Plaintiff has exhausted his administrative remedies. But, exhaustion of administrative
23 remedies is not the issue.
24 Exhaustion of administrative remedies has nothing to do with complying with the claims
25 filing requirement of the Govermnent Claims Act because filing a claim is not an administrative
26 remedy.
27 In Boziach v. State ofCalifornia, 32 Cal.App.3rd 688, 698 (1973) the court discussed the
28 origins of the doctrine of exhaustion of administrative remedies and the claims-filing
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DEFENDANTS' REPLY MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS
Case 1:07-cv-00026-OWW-TAG Document 295 Filed 12/31/2008 Page 3 of 5

1 requirements in the California Government Code. After summarizing the policies that underlie
2 each, the comt concluded by stating, "[t]he doctrine of exhaustion of administrative remedies has
3 no relationship whatever to division 3.6 of the Government Code [the claims-filing statutes] ... ".
4 Id.
5 In Lozada v. City and County ofSan Francisco, 145 Cal.App.4th 1139, 1154-1156
6 (2006), the court also discussed exhaustion of administrative remedies and the claims-filing
7 requirements of the Government Claims Act. In Lozada, a peace officer alleged violations of the
8 Public Safety Officers Procedural Bill of Rights Act (POBRA), California Government Code
9 §3300, et seq. POBRA does not require exhaustion of administrative remedies before filing
10 suit--even if administrative remedies exist-because the statute grants superior courts "initial
11 jmisdiction." See Mounger v. Gates, 193 Cal.App.3rd 1248, 1254-1257 (1987).
12 Relying on POBRA's exemption from the exhaustion of administrative remedies, Lozada
13 did not file a claim under the Government Claims Act. He argued having to comply with the
14 claims-filing requirement of the Government Claims Act would defeat the superior court's
15 "initial jmisdiction" under POBRA.
16 The court rejected his position and held a claim was still required because the policies
17 underlying the doctrine of exhaustion of administrative remedies and the claims-filing
18 requirements of the Government Claims Act serve two different and mutually exclusive
19 purposes. Id. at 1155. The court wrote, "elimination of the exhaustion requirement does not
20 release a litigant from the need to comply with the Government Claims Act requirements." Id.
21 Other courts have agreed. See, e.g., Richards v. Department ofAlcoholic Beverage
22 Control, 139 Cal.App.4th 304, 315 (2006) ("presentation of a claim ... is a separate, additional
23 prerequisite to commencing an action against ... a local public entity and is not a substitute for
24 the exhaustion of an administrative remedy.")
25 The fact that Plaintiff exhausted his administrative remedies does not excuse him from
26 complying with the separate and distinct obligation to file a claim under the Government Claims
27 Act.
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DEFENDANTS' REPLY MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS
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1 D. Plaintiff Has Not Complied With the Government Claims Act.


2 Plaintiff s attempt to defend the adequacy of the claim falls far short of what the law
3 requires. His complaint to the California Department of Fair Employment and Housing and his
4 demand letter to the County are not substitutes for a proper claim. His argument that lay people
5 who might write a claim should be given some slack enjoys no support in the case law. Further,
6 there is no evidence a lay person wrote Plaintiffs claim. On the contrary, it reflects legal writing
7 and analysis.
8 As is more fully explained in Defendants' memorandum in support of the motion,
9 Plaintiffs claim was specific. It referenced particular legal theories, including breach of
10 contract, wrongful termination, conspiracy, per se libel, negligent hiring, negligent supervision 0
11 negligent retention, and intentional infliction of emotional distress - none of which are claims in
12 the complaint he ultimately filed.
13 California law is well-developed and clear. A complaint must be congruent with the
14 claim that was submitted. See Fall River Joint Unified School District v. Superior Court, 206
15 Cal.App.3d 431, 434 (1988); Donahue v. State ofCalifornia, 178 Cal.App.3d 795,802-803
16 (1986); State ex rei. Dept. ofTransportation v. Superior Court, 159 Cal.App.3d 331, 338 (1984);
17 Nelson v. State ofCalifornia, 139 Cal.App.3d 72, 79-80 (1982); Lopez v. Southern Cal.
18 Permanente Medical Group, 115 Cal.App.3d 673, 676-677 (1981); Shelton v. Sup. Ct., 56
19 Cal.App.3d 66, 82-83 (1976).
20 Plaintiffs claim did not put the County on notice of the claims he actually filed. His
21 complaint does not contain a single theory that was in his claim.
22 Defendants acknowledge that claims under FEHA are exempt from the claims-filing
23 requirement of the Government Claims Act, at least when monetary damages are only incidental
24 to injunctive relief. See Snipes v. City ofBakersfield, 145 Cal.App.3d 861, 868-870 (2006). The
25 expansive nature of Plaintiff s complaint and his general prayer for compensatory damages
26 makes it impossible to determine from the pleadings the extent to which his alleged FEHA
27 monetary damages are "incidental" and the extent to which Plaintiff intends to use his FEHA
28 claims to bootstrap other damages.
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DEFENDANTS' REPLY MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS
Case 1:07-cv-00026-OWW-TAG Document 295 Filed 12/31/2008 Page 5 of 5

1 It is clear Plaintiffs other state-law claims are subject to the claims-filing requirements.

2 Defendants, therefore, request that the Court enter judgment on the pleadings in favor of the

3 Defendants.

4 Respectfully submitted,

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6 Dated: December 31, 2008 LAW OFFICES OF MARK A. WASSER

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