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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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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
Case 1:07-cv-00026-OWW-TAG Document 295 Filed 12/31/2008 Page 4 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