Case 1:07-cv-00026-OWW-TAG Document 46 Filed 08/06/2007 Page 1 of 7

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., Civil Action No. 1:07-cv-00026-OWW-TAG
15
DECLARATION OF EUGENE LEE IN
16 Plaintiff, SUPPORT OF PLAINTIFF’S REPLY TO
OPPOSITION TO MOTION TO STRIKE
17 v. FIFTH AFFIRMATIVE DEFENSE
18
Date: August 13, 2007
19 COUNTY OF KERN; et al.
Time: 9:30 a.m.
20 Defendants.
Place: U.S. Bankruptcy Court
21
Bakersfield Courtroom 8
22
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Date Action Filed: January 6, 2007
24 Date Set for Trial: August , 2008
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DECLARATION OF EUGENE D. LEE IN SUPPORT OF π’S REPLY TO OPPOSITION TO
MOTION TO STRIKE 1
 Case 1:07-cv-00026-OWW-TAG Document 46 Filed 08/06/2007 Page 2 of 7

1 DECLARATION OF EUGENE D. LEE

IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE AFFIRMATIVE DEFENSE
2
3 I, the undersigned, declare and say, as follows:
4 1. I am an attorney at law duly licensed to practice before the Federal and State Courts of
5 California and admitted to practice before the United States District Court for the Eastern District of
6 California. I am the attorney representing Plaintiff David F. Jadwin in this matter.
7 2. I am making this declaration in support of Plaintiff Dr. Jadwin’s Reply to the Opposition
8 to the Motion to Strike the Fifth Affirmative Defense of the Defendants. The facts stated herein are
9 personally known to me and if called as a witness, I could and would competently testify to the truth of
10 the facts set forth in this declaration.
11 3. On May 4, 2007, I sent an email to Mark Wasser, attorney of record for all Defendants in
12 this action, as part of Plaintiff’s attempt to meet and confer in good faith on the legal insufficiency of
13 certain of Defendants’ affirmative defenses, in which I asked Mr. Wasser to clarify the legal basis for
14 Defendants’ Fifth Affirmative Defense. A true and correct copy of that email is attached hereto as
15 Exhibit 1 and incorporated by reference herein.
16 4. On May 9, 2007, I received an email from Mr. Wasser in which he asserted that “…The
17 legal basis for the fifth affirmative defense is comparative fault. Plaintiff’s behavior was a contributing
18 factor to the injuries for which he is seeking general damages….” A true and correct copy of that email
19 is attached hereto as Exhibit 2, and incorporated by reference herein.
20
21 I declare under penalty of perjury under the laws of the United States of America that the
22 foregoing is true and correct.
23
24 Executed on August 6, 2007, at Los Angeles, California.
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26
________________________________________
27 Eugene D. Lee
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DECLARATION OF EUGENE D. LEE IN SUPPORT OF π’S REPLY TO OPPOSITION TO
MOTION TO STRIKE 2
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2 EXHIBITS TO DECLARATION OF EUGENE D. LEE
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4 EXHIBIT 1. Meet and confer email from Plaintiff’s attorney to Defendants’
attorney, dated 5/4/07
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EXHIBIT 2. Reply email from Defendants’ attorney to Plaintiff’s attorney, dated
6 5/9/07
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Case 1:07-cv-00026-OWW-TAG Document 46 Filed 08/06/2007 Page 4 of 7

EXHIBIT 1. Meet and confer email from Plaintiff’s attorney to Defendants’

attorney, dated 5/04/07
Case 1:07-cv-00026-OWW-TAG Document 46 Filed 08/06/2007 Page 5 of 7

From: Eugene D. Lee [mailto:elee@LOEL.com]

Sent: Friday, May 04, 2007 5:39 PM
To: mwasser@markwasser.com
Cc: jh@baelo.com
Subject: Jadwin/Kern: Additional Issues re: Answer

Mark,

It was a pleasure speaking with you just now. Like you, Joan and I thought that the call was very
productive and helpful.

Since we have agreed to stipulate to Defendants’ filing an Amended Answer (and to Plaintiff filing a
Second Supplemental Complaint), I would like to raise a couple of additional points regarding the Answer
for your consideration.

First, we are unclear as to what the legal basis is for the fifth affirmative defense (Plaintiff was
arrogant…). If there is no sufficient legal basis for that defense, please consider removing it.

Second, the ninth affirmative defense, qualified immunity, needs to be pled with particularity. See
Shechter v. Comptroller of City of New York (2nd Cir. 1996) 79 F3d 265, 270. Please consider
revising the answer to plead this defense with particularity.
If you have questions, please contact me. Otherwise, I wish you a good weekend.
Sincerely,

Gene Lee
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EXHIBIT 2. Reply email from Defendants’ attorney to Plaintiff’s attorney, dated

5/09/07
Case 1:07-cv-00026-OWW-TAG Document 46 Filed 08/06/2007 Page 7 of 7

From: Mark Wasser [mailto:mwasser@markwasser.com]

Sent: Wednesday, May 09, 2007 3:17 PM
To: elee@LOEL.com
Subject: RE: Jadwin/Kern: Additional Issues re: Answer

Gene,

I have revised our qualified immunity affirmative defense and the revised language will be our
answer to your Second Amended Complaint, after you file it. I think my new language should be
particular enough but, if you disagree, we can discuss it further.

The legal basis for the fifth affirmative defense is comparative fault. Plaintiff’s behavior was a
contributing factor to the injuries for which he is seeking general damages. Comparative fault is
accepted. We can discuss this, too, if you want.

Mark