Nina Johnson vs. City of Santa Barbara  

Case Number

23CV01612

Case Type

Hearing Date / Time

Fri, 03/22/2024 - 10:00

Nature of Proceedings

1. City of Santa Barbara’s Motion to File Records Under Seal; 2. Nina Johnson’s Motion to File Records Under Seal; and, 3. City Of Santa Barbara’s Motion for Judgment on the Pleadings

Tentative Ruling

Nina Johnson vs. City of Santa Barbara                             

Case No. 23CV01612         

Hearing Date: March 22, 2024                                                

HEARING:            1. City of Santa Barbara’s Motion to File Records Under Seal

                                    2. Nina Johnson’s Motion to File Records Under Seal

                                    3. City Of Santa Barbara’s Motion for Judgment on the Pleadings

ATTORNEYS:        For Plaintiff Nina Johnson: Christina A. Humphrey, Robert N. Fisher, Christina Humphrey Law, P.C.

                                    For Defendant City of Santa Barbara: Sarah J. Knecht, Tom R. Shapiro, John S. Doimas, Office of the City Attorney

                                     

TENTATIVE RULING:

For all reasons discussed herein:

1. The motions to file records under seal are denied.
   1. Each party shall comply with California Rules of Court, rule 2.551(b)(6). Should the court not be notified by the parties that the lodged records are to be filed unsealed within 10 days of this order, the clerk of the court shall return the lodged documents to the respective moving party.
2. The City of Santa Barbara’s motion for judgment on the pleadings is continued to April 26, 2024, at 10:00 a.m., in order to determine whether or not the December 8, 2022 letter is to be considered in ruling on the motion.

Background:

As alleged in the complaint filed in this action on April 14, 2023, plaintiff Nina Johnson (Johnson) was employed by defendant the City of Santa Barbara (the City) in the City Administrator’s Office from December 1998 until her resignation in 2022. (Complaint, ¶¶ 1, 17, 40.) As alleged in the complaint, during Johnson’s employment with the City, she was responsible for high visibility, high-level, and complex assignments on behalf of the City Administrator and City Council which involved directing interdepartmental teams, serving as the lead staff for numerous City Council committees, presenting a variety of complex issues on behalf of the City and regular interface and dialogue with community leaders. (Id. at ¶ 20.) Johnson received excellent performance reviews and support from community organizations. (Id. at ¶ 21.)

Johnson alleges that, despite her high-level responsibilities, the City misclassified Johnson with a non-executive position, gave Johnson an outdated title, and paid Johnson a salary that was incommensurate with her role. (Complaint, ¶ 22.) Johnson’s male, non-Asian predecessor was paid at a higher rate and classified as an executive while having the same duties, responsibilities, and oversight as Johnson who was never classified as having an executive position. (Id. at ¶ 25.) Johnson was also paid less than a male non-Asian counterpart who worked for the City at the same time as Johnson and who had lesser responsibilities with no staff oversight or direct reports. (Id. at ¶ 26.) In addition, though Johnson performed significant executive functions, she was screened out of interviews and unable to attend career networking events due to her position title. (Id. at ¶ 27.)

After Johnson brought these issues to her managers in 2016, Johnson experienced a demotion for the remainder of her employment with the City. (Complaint, ¶ 29.) Johnson was subjected to blacklisting efforts and rumors in which the City made comments to City managers and recruiters not to hire Johnson. (Id. at ¶¶ 29, 34.) After Johnson submitted a reclassification request, the City removed half of Johnson’s long-time work responsibilities, added a new duplicate position in the office, and hired Matt Fore (Fore) for the position at the top salary step although Fore did not have any direct reports. (Id. at ¶ 30.) The City gave Fore half of Johnson’s work assignments and responsibilities. (Ibid.) The City also eliminated an analyst position reporting to Johnson which forced Johnson to perform the analyst’s duties even though the City added positions overall. (Id. at ¶ 31.) Johnson was excluded from meetings, cut out of work processes, denied access to staff assistance, given low-level duties, denied promotion and special assignment opportunities, and was made to report to a manager instead of the City Administrator and Assistant Administrator as she had during previous years. (Id. at ¶ 32.)

Johnson was further retaliated against when she sought clarity regarding the selection of a contractor for the art elements of an Underpass Project (the project) that were outside the scope of the project’s RFP. (Complaint, ¶ 35.) During a meeting on February 25, 2021, Johnson was accused of trying to derail the project because she expressed these concerns. (Id. at ¶ 36.) Johnson’s job duties were removed, and the City hired a Public Information Officer to take over Johnson’s duties. (Id. at ¶¶ 37, 38.)

After Johnson returned from running for public office in December 2021, it was communicated to Johnson that her few remaining job functions had been reassigned to other staff. (Complaint, ¶ 39.) The City’s response to Johnson raising issues about her pay grade caused Johnson to lose advancement opportunities, suffer a decline in health, and forced Johnson to resign in 2022. (Id. at ¶ 40.)

The complaint alleges eight causes of action: (1) violation of Government Code section 12900 et seq. (the California Fair Employment and Housing Act or FEHA) – harassment and/or discrimination based on gender; (2) violation of FEHA – harassment and/or discrimination based on race; (3) violation of FEHA – retaliation; (4) violation of FHA – wrongful constructive discharge; (5) violation of FEHA – failure to prevent discrimination, harassment, and retaliation; (6) violation of Labor Code section 1102.5 – whistleblower retaliation; (7) violation of Labor Code section 1197.5 – Equal Pay Act; and (8) wrongful constructive termination in violation of public policy.

The City filed its answer to the complaint on September 29, 2023, asserting a general denial and 28 affirmative defenses.

The City now moves for judgment on the pleadings as to the sixth cause of action for whistleblower retaliation as well as the eighth cause of action for wrongful termination in violation of public policy. The City argues that the court has no jurisdiction over these causes of action because Johnson failed to timely file a government claim with the City prior to commencement of this action and that Johnson made an application for leave to present a late claim to either the City or the court.

Johnson opposes the motion, arguing that the City waived its right to raise a timeliness argument because it never notified plaintiff that her claims were late and told plaintiff’s counsel that there was no need to file any further documents to exhaust her remedies. Johnson also argues that the City is estopped from asserting failure to comply with the government claim defense because the City misled Johnson and her counsel regarding the need to make such a claim.

Each party has also filed a motion to file records under seal.

Analysis:

          Motions to File Records Under Seal

The City moves to file the December 8, 2022 letter that was sent by Johnson under seal arguing that it constitutes a confidential settlement communication.

Johnson moves to file email exchanges (exhibits 1, 3, and portions of 5) under seal. Those emails are also argued to be confidential settlement communications.

“A strong presumption exists in favor of public access to court records in ordinary civil trials. That is because the public has an interest, in all civil cases, in observing and assessing the performance of its public judicial system, and that interest strongly supports a general right of access in ordinary civil cases.” (In re Marriage of Nicholas (2010) 186 Cal.App.4th 1566, 1575.)

“A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.” (Cal. Rules of Court, rule 2.551(b)(1).)

California Rules of Court, rule 2.551 subdivision (b)(2) requires a party requesting that a record be filed under seal must, among other things, serve on “any party that already has access to the records to be placed under seal . . . a complete, unredacted version of all papers as well as a redacted version.” Further: “The party requesting that a record be filed under seal must lodge it with the court under (d) when the motion or application is made, unless good cause exists for not lodging it or the record has previously been lodged under (3)(A)(i). Pending the determination of the motion or application, the lodged record will be conditionally under seal.” (Id. at subd. (b)(4).

“Unless confidentiality is required by law, court records are presumed to be open.” (Cal. Rules of Court, rule 2.550(c).)

California Rules of Court, rule 2.550(d) provides:

“The court may order that a record be filed under seal only if it expressly finds facts that establish:

“(1) There exists an overriding interest that overcomes the right of public access to the record;

“(2) The overriding interest supports sealing the record;

“(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

“(4) The proposed sealing is narrowly tailored; and

“(5) No less restrictive means exist to achieve the overriding interest.”

“[A] reasoned decision about sealing or unsealing records cannot be made without identifying and weighing the competing interests and concerns. Such a process is impossible without (1) identifying the specific information claimed to be entitled to such treatment; (2) identifying the nature of the harm threatened by disclosure; and (3) identifying and accounting for countervailing considerations. The burden of presenting information sufficient to accomplish the first two steps is logically placed upon the party seeking the sealing of the documents, who is presumptively in the best position to know what disclosures will harm him and how. This means at a minimum that the party seeking to seal documents, or maintain them under seal, must come forward with a specific enumeration of the facts sought to be withheld and specific reasons for withholding them.” (H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 894.)

Here, although called a confidential settlement communication, the December 8, 2022 letter does not appear to be so. No settlement demand is made in the letter. The letter simply sets forth Johnson’s allegations, all of which appear in her complaint. There is no new or different information contained in the letter that is not already public record.

Likewise, the emails that Johnson moves to file under seal do not appear to contain any information that constitutes settlement discussions or not already part of the public record. Exhibit 1 is simply an email where counsel for the City asks for clarification regarding one of the allegations being made by Johnson. Exhibit 2 appears to be a response to Exhibit 1 and does not contain any information not contained in the complaint. The portion of the Exhibit 5 that plaintiff seeks to redact contains information that is included in the filed version of the opposition to the City’s motion for judgment on the pleadings and is already public record.

Both Johnson and the City have failed to show any overriding interest that overcomes the right of public access to the documents. All the information contained in the documents is already public record. The motions will be denied.

“If the court denies the motion or application to seal, the moving party may notify the court that the lodged record is to be filed unsealed. This notification must be received within 10 days of the order denying the motion or application to seal, unless otherwise ordered by the court. On receipt of this notification, the clerk must unseal and file the record. If the moving party does not notify the court within 10 days of the order, the clerk must (1) return the lodged record to the moving party if it is in paper form or (2) permanently delete the lodged record if it is in electronic form.” (Cal. Rules of Court, rule 2.551(b)(6).

Motion for Judgment on the Pleadings

“Like a demurrer, a motion for judgment on the pleadings attacks defects disclosed on the face of the pleadings or by matters that may be judicially noticed.” (Alameda County Waste Management Authority v. Waste Connections US, Inc. (2021) 67 Cal.App.5th 1162, 1174.)

“ ‘The intent of the Tort Claims Act is not to expand the rights of plaintiffs against governmental entities. Rather, the intent of the act is to confine potential governmental liability to rigidly delineated circumstances. [Citation.] [¶] The Tort Claims Act requires that any civil complaint for money or damages first be presented to and rejected by the pertinent public entity [Citations.]. The act creates a bond between the administrative claim and the judicial complaint. Each theory of recovery against the public entity must have been reflected in a timely claim. In addition, the factual circumstances set forth in the claim must correspond with the facts alleged in the complaint. [Citation.]’ ” [Citation.] The aim of the tort claim statutes is to provide sufficient information to enable the public entity to investigate claims and settle, if appropriate, without the expense of litigation, and to take the potential claim into account in fiscal planning. [Citations.]” (Castaneda v. Department of Corrections & Rehabilitation (2013) 212 Cal.App.4th 1051, 1060-1061.)

“ ‘Compliance with the claims provisions is mandatory. [Citations.]’ ” [Citation.] Fulfilling the requirements of the tort claims presentation procedure is a condition precedent to filing suit; it is not an affirmative defense. [Citation.] Thus, an injured party may not maintain an action against a public entity unless it has presented a claim to the entity . . .” (Ibid.)

“A claim shall be presented by the claimant or by a person acting on his or her behalf and shall show all of the following:

“(a) The name and post office address of the claimant.

“(b) The post office address to which the person presenting the claim desires notices to be sent.

“(c) The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted.

“(d) A general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim.

“(e) The name or names of the public employee or employees causing the injury, damage, or loss, if known.

“(f) The amount claimed if it totals less than ten thousand dollars ($10,000) as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. If the amount claimed exceeds ten thousand dollars ($10,000), no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case.” (Gov. Code § 910.)

“The [California Tort Claims] Act’s filing requirement serves to alert a public entity that something happened and point the entity’s investigation in the right direction; it is not designed to eliminate meritorious claims. Stockett v. Ass’n of Cal. Water Agencies Joint Powers Ins. Auth., 34 Cal. 4th 441, 449, (2004) (“ ‘[the statutes] should be given a liberal construction to permit full adjudication on the merits.’ ”) (citation and quotation marks omitted; brackets in original). “ ‘A complaint’s fuller exposition of the factual basis beyond that given in the claim is not fatal, so long as the complaint is not based on an entirely different set of facts.’ ” [Citation.]” (Wormuth v. Lammersville Union School District (2018) 305 F.Supp.3d 1108, 1128.)

“A claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action. A claim relating to any other cause of action shall be presented as provided in Article 2 (commencing with Section 915) not later than one year after the accrual of the cause of action.” (Gov. Code § 911.2, subd. (a).)

Despite the City’s argument that Johnson had six months to file a claim, Johnson had one year because her claims are not based on “death or for injury to person or to personal property or growing crops.” Even if Johnson had only six months to file her claim, the City waived that time limit by failure to give notice, pursuant to Government Code section 911.3, within 45 days.

On December 8, 2022, Johnson, through her attorney, sent a letter to assistant attorneys for the City. Both parties rely on this letter to support their positions and the court finds that consideration of the letter would be material to the disposition of the motion. As the court has denied the motions to seal, the City has the opportunity to withdraw the filing of the unredacted copy of the letter. Because of this, it is premature to make a ruling on the merits of the motion for judgment on the pleadings. The motion will be continued to allow the City to either notify the court that the letter is to be filed unsealed or to fail to do so, in which case the unredacted letter will be returned to the City and not considered in ruling on the motion at the continued hearing date.