Jadwin v. County of Kern

Decision Date24 January 2011
Docket NumberNo. 1:07–CV–00026–OWW–DLB.,1:07–CV–00026–OWW–DLB.
Citation767 F.Supp.2d 1069
PartiesDavid F. JADWIN, D.O., Plaintiff,v.COUNTY OF KERN, Defendant.
CourtU.S. District Court — Eastern District of California


Eugene David Lee, Law Office Eugene Lee, Los Angeles, CA, Joan Herrington, Bay Area Employment Law Office, Oakland, CA, for Plaintiff.Mark A. Wasser, Law Offices of Mark A. Wasser, Sacramento, CA, for Defendant.


OLIVER W. WANGER, District Judge.


This case arises out of Plaintiff's former employment at the Kern Medical Center, an acute care teaching hospital owned and operated by the County of Kern, California. Plaintiff David F. Jadwin, D.O. (Plaintiff) claimed, among other things, that the County and its employees retaliated and discriminated against him in contravention of federal and state law. The employment issues were tried before the Court and a jury from May 14, 2009 to June 4, 2009. On June 5, 2009, the jury returned verdicts in favor of Plaintiff. On August 4, 2009, Findings of Fact and Conclusions of Law were issued on the claims tried to the court alone. On May 4, 2010, Final Judgment was entered in favor of Plaintiff and against Kern County in the amount of $505,457, plus $1 in nominal damages on his civil rights claim. At trial, Plaintiff requested over $4.2 million in economic damages.

Before the Court for decision are several post-trial motions. Plaintiff has moved to amend the judgment to incorporate his bill of costs and for prejudgment interest. He has also moved to recover $3,944,818.00 in attorneys' fees pursuant to 42 U.S.C. § 1988, 29 U.S.C. § 2617(a)(3) and California Government Code § 12965.1 Defendants have moved for a new trial under Rule 59(e) and, separately, to amend the judgment to reflect to reflect the dismissals of several individually-named defendants.

Oral argument on these motions was held on July 28, 2010. The Court, pursuant to Moreno v. City of Sacramento, 534 F.3d 1106 (9th Cir.2008), a Ninth Circuit case establishing the rules for evaluating an attorney's fee request under 42 U.S.C. § 1988, directed Plaintiff to supplement, organize, and refine his motion for attorneys' fees.2 In particular, it was determined that Plaintiff's counsel's documentary evidence concerning the hourly rates and tasks performed was materially non-specific and limited the district court's ability to meet Moreno's exacting and mandatory standards imposed on district judges for calculating fee awards. See id. at 1111 ([w]hen the district court makes its award, it must explain how it came up with the amount.) (emphasis added).3 Plaintiff filed his supplemental and reply briefs, more than 500 pages of argument and billing information, on August 16 and September 16, 2010. Defendants opposed the supplemental motion on September 3, 2010. The motions are now submitted for decision.


The relevant facts and procedural history are summarized in the Court's previous Memorandum Decisions in this case, filed on April 8, 2009 and March 31, 2010, in brief: 4 In this employment case, trial commenced on May 14, 2009 and concluded on June 5, 2009. The jury returned verdicts, entered on June 8, 2009, in favor of Plaintiff. (Doc. 384.) The jury found that Defendant County: (1) retaliated against Plaintiff for engaging in certain activities in violation of the Family and Medical Leave Act (“FMLA”) and the California Fair Employment and Housing Act (“FEHA”); (2) retaliated against Plaintiff for taking medical leave under the FMLA and the California Family Rights Act (“CFRA”); (3) discriminated against Plaintiff on the basis of his mental disability in violation of the FEHA; (4) failed to reasonably accommodate Plaintiff's mental disability in violation of the FEHA; and (5) failed to engage in an interactive process with Plaintiff in violation of the FEHA. The jury found against the County on its defense that Plaintiff's employment contract was not renewed by reason of his conduct and alleged violation of the employer's rules and contract requirements and/or that Plaintiff's improper behavior was the cause of the nonrenewal of his contract. The jury awarded damages as follows:

Certain claims were not submitted to the jury, specifically, Plaintiff's claim for interference with his rights under the FMLA/CFRA and a deprivation of Plaintiff's due process rights under the Fourteenth Amendment (made actionable by 42 U.S.C. § 1983).5 On August 4, 2009, Findings of Fact and Conclusions of Law were issued on those claims. As to the FMLA/CFRA claim, it was determined that Plaintiff lacked standing to assert his claim or, arguendo, assuming standing existed at the time of the operative pleading, the claim was moot. As to the procedural due process claim, it was determined that Plaintiff's due process rights were violated and he was awarded nominal damages. On May 4, 2010, Final judgment was entered in favor of Plaintiff and against Kern County in the amount of $505,457, plus $1 in nominal damages on Plaintiff's due process claim, and any costs as permitted by law.

On May 28, 2010, Defendant filed two post-trial motions. The first, to amend the Final Judgment to incorporate the dismissals of several individually-named defendants. (Doc. 414.) According to the County, these individually-named defendants are “prevailing parties in this action and are entitled to recover their costs of suits. The motion concerns the following individually-named defendants, who were named in the original and first amended complaint: Dr. Eugene Kercher, Dr. Jennifer Abraham, Dr. Scott Ragland, Dr. William Roy, Dr. Irwin Harris, Toni Smith and Peter Bryan. 6 Defendant's second post-trial motion was for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure. (Doc. 415.) The County argues that Ninth Circuit case law mandates a new trial based on Plaintiff's counsel's wrongful misconduct during trial.

Plaintiff also filed two post-trial motions. On May 28, 2010, Plaintiff moved to amend the Final Judgment to incorporate in the final judgment, prejudgment interest and his recoverable costs. (Doc. 424.) On June 1, 2010, Plaintiff moved for attorney's fees of $3,944,818.00 pursuant to 42 U.S.C. § 1988, 29 U.S.C. § 2617(a)(3), Cal. Gov't Code § 12965, and E.D. Local Rule 54–293. (Doc. 425.)

Oral argument on the post-trial motions was held on July 28, 2010. At the conclusion of the hearing, it was determined that supplemental briefing and specific justification was necessary to resolve the motions for prejudgment interest and attorney's fees. (Doc. 450.) Opening supplemental briefs/oppositions on these issues were filed on August 6, 13, 16, and 18, 2010. (Docs. 444, 447–49.) The final opposition and reply briefs were filed on September 3 and 16, 2010. (Docs. 450 and 451.)


A. New Trial Motion1. Introduction and Argument

The County moves for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure.7 The County argues that there are several independent reasons to grant a new trial, including: the intentional attorney misconduct of Plaintiff's counsel, Mr. Eugene Lee, during trial; Mr. Lee's repeated use of the word “demotion” in violation of an in limine order and despite numerous admonitions during trial; Mr. Lee and his co-counsel's inappropriate gesturing, mocking, and disruptive behavior at Plaintiff's counsel table in the juries' presence during trial; Mr. Lee's interference with the County's attempt to evaluate Plaintiff during discovery; and Mr. Lee's intentional “blurring” to the jury of Plaintiff's employment-based claims, which allegedly resulted in an erroneous award of “front pay” and a violation of the “primary rights” doctrine.

The County filed its motion for a new trial on May 28, 2010.8 In support of its motion, Defendant submitted: (1) a Memorandum supporting the County's motion; (2) the declaration of Mark A. Wasser, the County's lead counsel; (3) the declaration of Karen S. Barnes, an in-house attorney for Kern County, who was present throughout and testified at trial; (4) the declaration of Amy Remly, Mr. Wasser's paralegal; (5) the declaration of Joanne DeLong, an attorney who observed the entire trial in the courtroom; (6) the declaration of Dr. Robert Burchuk, the County's medical expert; (7) the declaration of Dr. Irwin Harris, who provided expert testimony during trial; and (8) the declaration of Renita Nunn, who testified on May 20 and June 2, 2009. (Docs. 417–423.)

The declarations describe Mr. Lee's conduct during trial, including his alleged gesturing and scoffing during witness examinations in front of the jury; his inappropriate and inflammatory comments during closing argument; and his apparent “confusion” over yet repeated use of the term “demotion” as it relates to Dr. Jadwin's removal from his Pathology Department chairmanship position at Kern County Medical Center. The declarations and other supporting Rule 59 evidence are delineated by topic:

a. Use of Word “Demotion” at Trial

1. Mr. Wasser

Early in trial, Mr. Lee began using the words “demoted” and “demotion” to refer to Plaintiff's removal from his chairmanship position at Kern County Medical Center despite the absence of any evidence that Plaintiff was demoted. Every time he used these words, I objected. The Court sustained all of my objections. After Mr. Lee's third or fourth continued usage of the words, the Court admonished Mr. Lee and told him he was dangerously close to being held in contempt. Mr. Lee never stopped using the words. He even used them in his closing argument, prompting yet another admonition from the Court. On at least one occasion, Mr. Lee sought to excuse his misconduct by claiming it was his first trial.(Doc. 417 at ¶ 6.)

2. Joanne Delong

During the course of the trial, in the presence of the jury, Plaintiff's attorney, Eugene Lee, used the word “demotion” several times in reference to Plaintiff's removal from the...

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