Nina Johnson vs City of Santa Barbara

Case Number

23CV01612

Case Type

Hearing Date / Time

Fri, 10/04/2024 - 10:00

Nature of Proceedings

Motion to Compel

Tentative Ruling

For the reasons set forth herein, defendant’s motion to compel further responses to form interrogatories - general (set one) No. 12.2 and form interrogatories - employment (set one) No. 215.1, is granted. Plaintiff shall serve complete code-compliant responses, without objections, no later than October 11, 2024. No sanctions shall be awarded against or in favor of either party.

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despite her high-level responsibilities, the City misclassified Johnson with a non-executive position, gave Johnson an outdated title, and paid Johnson a salary that was incommensurate with her role.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 to compel further responses to Form Interrogatories - General (Set One), No. 12.2,  and Form Interrogatories - Employment (Set One), No. 215.1. The City also requests sanctions in the amount of $800.00.

Plaintiff opposes the motion.

Analysis:

As an initial matter, the City points out that plaintiff late-filed her opposition on September 23, 2024. Pursuant to Code of Civil Procedure section 1005, subdivision (b), opposition papers are required to be filed and served at least nine court days before the hearing. As September 27, 2024 was a court holiday, the last day for the filing and service of the opposition was September 20, 2024. Plaintiff did not seek permission to late-file the opposition and did not provide any excuse as to why the opposition was not timely filed. The court could exercise its discretion, pursuant to California Rules of Court, rule 3.1300, subdivision (d), and refuse to consider the opposition. However, because the motion will be granted for substantive reasons, the court will consider the opposition. Counsel for plaintiff is reminded to comply with all applicable court rules, including deadlines.

“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.” (Code Civ. Proc., § 2017.010.)

“A trial court must be mindful of the Legislature’s preference for discovery over trial by surprise, [and] must construe the facts before it liberally in favor of discovery. . .” (Williams v. Superior Court (2017) 3 Cal.5th 531, 540.)

Code of Civil Procedure, section 2030.010 provides, “(a) Any party may obtain discovery within the scope delimited by Chapter 2 (commencing with Section 2017.010), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by propounding to any other party to the action written interrogatories to be answered under oath. (b) An interrogatory may relate to whether another party is making a certain contention, or to the facts, witnesses, and writings on which a contention is based. An interrogatory is not objectionable because an answer to it involves an opinion or contention that relates to fact or the application of law to fact, or would be based on information obtained or legal theories developed in anticipation of litigation or in preparation for trial.”

The interrogatories in dispute are Form Interrogatory - General No. 12.2, which asks:

“Have YOU OR ANYONE ACTING ON YOUR BEHALF interviewed any individual concerning the INCIDENT? If so, for each individual state:

“(a) the name, ADDRESS, and telephone number of the individual interviewed;

“(b) the date of the interview;

“(c) the name, ADDRESS, and telephone number of the PERSON who conducted the interview.”; and

Form Interrogatory - Employment No. 215.1, which seeks the same information.

For each response, plaintiff provided objections, including objections based upon work product and third-party privacy rights. Work product and third-party privacy rights are the only arguments made by plaintiff in opposition to the present motion. As none of the other objections are addressed by plaintiff, and none even arguably apply, the other objections are all overruled.

Important here is that the City is not requesting actual witness statements by way of the discovery requests in dispute. The City is merely requesting the names and identifying information regarding potential witnesses, that were interviewed, and the identity of the person that interviewed them.

Both parties appear to concede that Coito v. Superior Court (2012) 54 Cal.4th 480 (Coito) is controlling in the present dispute. While Coito was addressing Form Interrogatory No. 12.3, rather than 12.2, the holding still applies. Both interrogatories seek information regarding persons that were interviewed.

Rather than give a definitive answer, the court in Coito gave some examples and guidance in analyzing whether requiring a party to disclose a list of witnesses implicates attorney work product. “Take, for example, a bus accident involving 50 surviving passengers and an allegation that the driver fell asleep at the wheel. If an attorney for one of the passengers took recorded statements from only 10 individuals, disclosure of the list may well indicate the attorney’s evaluation or conclusion as to which witnesses were in the best position to see the cause of the accident. [Citation.] Such  information may be entitled to absolute privilege under [Code of Civil Procedure] section 2018.030, subdivision (a). If absolute privilege were inapplicable, such a list may still be entitled to qualified privilege under section 2018.030, subdivision (b) to the extent it reflects the attorney’s industry and effort in selecting which witnesses to ask for a recorded statement.” (Id. at p. 501.)

“At the same time, however, we cannot say that it will always or even often be the case that a witness list responsive to form interrogatory No. 12.3 reflects counsel’s premeditated and carefully considered selectivity as in the scenario above. As Justice Kane posited in his separate opinion below: “ ‘Take, for example, a typical automobile accident. The police report may disclose the existence of several witnesses. If the attorney for one party obtains witness statements from one or more of those individuals whom everyone in the case knows are percipient witnesses, that fact does not show anything definite about the attorney’s evaluation of the strengths and weaknesses of the case, attorney strategy or tactics, or even the relative strength of any particular witness. . . . Indeed, a particular witness statement might be in an attorney’s file for a host of reasons, including that the person happened to be available when the attorney sent out an investigator.’ ” Although the witness statements themselves reflect the attorney’s time and effort in taking the statements and are therefore qualified work product (see ante, at pp. 496-497), disclosing the list of such witnesses in Justice Kane’s scenario does not implicate the problem of one attorney free riding on the work of another, as no significant work or selectivity went into creating the list.” (Id. at pp. 501-502.)

“Where it appears that an attorney has sought to take recorded statements from all or almost all of the known witnesses to the incident, compelling a response to form interrogatory No. 12.3 is unlikely to violate the work product privilege.” (Id. at p. 502.)

“Because it is not evident that form interrogatory No. 12.3 implicates the policies underlying the work product privilege in all or even most cases, we hold that information responsive to form interrogatory No. 12.3 is not automatically entitled as a matter of law to absolute or qualified work product privilege. Instead, the interrogatory usually must be answered. However, an objecting party may be entitled to protection if it can make a preliminary or foundational showing that answering the interrogatory would reveal the attorney’s tactics, impressions, or evaluation of the case, or would result in opposing counsel taking undue advantage of the attorney's industry or efforts. Upon such a showing, the trial court should then determine, by making an in camera inspection if necessary, whether absolute or qualified work product protection applies to the material in dispute. Of course, a trial court may also have to consider nonparty witnesses’ privacy concerns.” (Ibid.)

Here, plaintiff has not made a “preliminary or foundational showing that answering the interrogator[ies] would reveal the attorney’s tactics, impressions, or evaluation of the case, or would result in opposing counsel taking undue advantage of the attorney’s industry or efforts.” The opposition, and declaration of plaintiff’s counsel, simply use the operative words in conclusory fashion without any application to the facts of this case. Just as important as what plaintiff’s counsel states in her opposition, is what she does not say. Plaintiff’s counsel declares that plaintiff has disclosed the names of 30 witnesses. (Humphrey Decl., ¶ 5.) “Two of those witnesses interviewed have cooperated and provided information throughout the duration of the case and may or may not be called as witnesses in a trial of this matter.” (Humphrey Decl., ¶ 6.) The declaration does not say how many of the 30 witnesses were actually interviewed. In fact, the language used by plaintiff’s counsel implies that there were more witnesses interviewed than the two that plaintiff does not wish to disclose. How many were interviewed is not stated. Regardless, even if the two unidentified witnesses were the only ones interviewed, plaintiff would still be compelled to disclose their identity because of plaintiff’s lack of any preliminary or foundational showing that answering the interrogatories would reveal the attorney’s tactics, impressions, or evaluation of the case.

It is also unclear if the two witnesses were ever disclosed in response to other discovery requests. Based on plaintiff counsel’s declaration, it appears that they likely have not been identified at all. The City is entitled to discover the identity and contact information of potential witnesses. It does not matter whether plaintiff intends to call them as witnesses or not.

“Central to the discovery process is the identification of potential witnesses. “ ‘The disclosure of the names and addresses of potential witnesses is a routine and essential part of pretrial discovery.’ “ [Citation.] Indeed, our discovery system is founded on the understanding that parties use discovery to obtain names and contact information for possible witnesses as the starting point for further investigations: “ ‘The Civil Discovery Act also provides that a party may obtain information by the use of various methods, including oral and written deposition. [Citation.] The party’s ability to subpoena witnesses presumes that he has the witnesses’ contact information.’ ” [Citation.] Once glance at the form interrogatories approved by the Judicial Council, particularly the interrogatories in the 12.0 series, demonstrates how fundamentally routine the discovery of witness contact information is. These standard form interrogatories request the names, addresses, and telephone numbers of witnesses to the relevant incident, persons possessing tangible objects relevant to the investigation, and persons who have been interviewed or give statements about the incident, or made a report or investigation of the incident. [Citation.]” (Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1249-1250.)

As for plaintiff’s objection that providing the information would violate the witnesses privacy rights: Any invasion of the witnesses’ privacy here would be trivial and is heavily outweighed by the City’s right to investigate and present a defense to plaintiff’s claims.

The motion to compel will be granted. 

As to the City’s implied request that plaintiff be ordered to produce a privilege log: requests for production of documents are not at issue in the present motion. A privilege log is applicable when a party withholds documents and things, in response to a document request, based on a claim of privilege. It is not applicable to responses to interrogatories. (see Code of Civ. Proc., § 2031.240, subd. (c); Best Products, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 1190.) Plaintiff will not be ordered to provide a privilege log.

Sanctions

As noted above, the City seeks sanctions in the amount of $800.00.

“The court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2030.300, subd. (d).)

“The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2023.030, subd. (a).)

After considering the circumstances and argument of counsel for both parties, the court finds that circumstances would make the imposition of sanctions unjust. No sanctions shall be awarded against or in favor of either party.