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1 Law Office of Andréa Marcus, APC
Andréa Marcus (SBN 118098)
2 133 E. De La Guerra St. #143
Santa Barbara California 93101
3 Telephone: (888) 215-9021
4 Fax: (888) 215-9021
Email: andrea@andreamarcuslaw.com
5
Richard C. Solomon (SBN 41107)
6 2640 Las Encinas Lane
Santa Barbara, CA, 93105
7 Telephone: (805) 452-5839
8 Fax: (888) 215-9021
Email: rcsolomon42@gmail.com
9
Attorneys for Plaintiff/Petitioner
10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 COUNTY OF SANTA BARBARA
12
JANA ZIMMER, INDIVIDUALLY AND AS ) Case No.: 24CV00199
13 TRUSTEE OF THE SOLOMON-ZIMMER )
LIVING TRUST, ) PLAINTIFF’S OPPOSITION TO
14 ) DEFENDANTS’ MOTION TO STRIKE
Plaintiff/Petitioner, ) PUNITIVE DAMAGES
15 v. )
16 ) Petition Filed: January 16, 2024
COUNTY OF SANTA BARBARA, BOARD ) Hearing: April 29, 2024 10:00 AM
17 OF SUPERVISORS OF THE COUNTY OF )
SANTA BARBARA, LISA PLOWMAN, ) Judge: Hon. Colleen Sterne
18 DIRECTOR OF PLANNING AND ) Dept: 5
DEVELOPMENT, ROB HAZARD, FIRE )
19 MARSHAL, TRAVIS SEAWARDS, )
DEPUTY DIRECTOR OF PLANNING AND )
20 DEVELOPMENT, DAS WILLIAMS, FIRST )
21 DISTRICT SUPERVISOR, DOES 1-25, in )
their official and individual capacities, )
22 )
Defendants/Respondents. )
23 )
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PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE
DAMAGES
1 TABLE OF CONTENTS
2 Introduction ..................................................................................................................................... 1
3 Applicable Law ............................................................................................................................... 1
Plaintiff is not barred from seeking punitive damages. .................................................................. 2
4
The Complaint alleges facts sufficient to state a claim for punitive damages against the
5 individual Defendants. .................................................................................................................... 5
6 Conclusion .................................................................................................................................... 11
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TABLE OF CONTENTS
1 TABLE OF AUTHORITIES
2
Cases
3
Carey v. Piphus (1978) 435 U.S. 24, 256 ....................................................................................... 4
4 Courtesy Ambulance Service v. Superior Court (1992) 8 Cal. App.4th 1504, 1519................... 1
Lackner v. North (2006) 135 Cal. App. 4th 1188 ........................................................................... 1
5 Perkins v. Superior Court (1981) 117 Cal. App.3d 1................................................................... 1
Runyon v. Franco, 187 Cal. App. 3d 880 (1986) ....................................................................... 1, 2
6 Salinas v. Souza & McCue Constr. Co. (1967) 66 Cal.2d 217, 228 ............................................... 2
Stone v. Regents of University of California (1999) 77 Cal.App.4th 736, 746.............................. 2
7
Taylor v. Superior Court (1979) 24 Cal.3d 890 ............................................................................ 2
8 Laws
9 Gov. Code Section 85304.5 ............................................................................................................ 2
Gov. Code Section 83114 ............................................................................................................... 4
10 Gov. Code Section 65913.4.6(D) .................................................................................................... 7
11 Gov. Code Section 89519 ............................................................................................................... 2
Political Reform Act ....................................................................................................................... 4
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TABLE OF AUTHORITIES
1 1. Introduction
2 Punitive Damages are proper when a Defendant’s tortious conduct rises to the level of
3 extreme indifference to the Plaintiff’s rights, a level which decent citizens should not have to
4
tolerate. Lackner v. North (2006) 135 Cal. App. 4th 1188. The Court of Appeal held in Runyon v.
5
Franco, 187 Cal. App. 3d 880 (1986) that public employees can be held to account in punitive
6
damages, regardless of immunities claimed by the public entity. It should not go unnoticed that
7
8 Runyon also involved political retribution, as Plaintiff here has alleged in Para. 69-71. Plaintiff
9 has adequately alleged facts to show that the individual Defendants, Williams, Hazard, Plowman
10 and Seawards, and each of them, as individuals, have acted with malice, bias, or are motivated by
11 retaliation for Plaintiff’s expression of her First Amendment rights in criticizing public officials
12
and policies. Para 69,70. These officials, who are presumed to have superior knowledge of the
13
applicable law, have engaged in a year long process of bait and switch, bullying, gaslighting,
14
threats and escalating illegal demands. The question is not “whether” they have engaged in this
15
16 reprehensible conduct, but “why”.
17 2. Applicable Law
18
In passing on the correctness of a ruling on a motion to strike, judges read allegations
19
of a pleading 1 as a whole, all parts in their context, and assume their truth. (Courtesy Ambulance
20
Service v. Superior Court (1992) 8 Cal. App.4th 1504, 1519.) In Perkins v. Superior Court
21
22 (1981) 117 Cal. App.3d 1, the court granted a writ of mandate vacating the trial court’s order
23 to strike punitive damages, holding that the facts pleaded “describe a knowing and deliberate
24 state of mind from which a conscious, disregard of petitioner’s rights might be inferred - a state
25
26 1
Defendants cite to their own deceptive counter-allegations of “fact” in their Demurrer . (Motion to
Strike p.3 line 15) The relevant pleading is the Complaint. What should be stricken is their “Statement
27 of [Alleged ]Facts”.
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1
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE
DAMAGES
1 of mind which would sustain an award of punitive damages.” (Id. at p. 6, citing Taylor v.
2 Superior Court (1979) 24 Cal.3d 890. Plaintiff has adequately alleged that Defendants Williams,
3 Hazard, Plowman and Seawards, and each of them, have acted with malice, bias, and with precisely
4
such an extreme indifference to Plaintiff’s rights. 2
5
6 3. Plaintiff is not barred from seeking punitive damages.
7
8 The Court of Appeal held in Runyon v. Franco, 187 Cal. App. 3d 880 (1986) that public
9 employees can be held to account in punitive damages, regardless of immunities claimed by the
10 public entity. It should not go unnoticed that Runyon involved eerily similar political retribution,
11 as Plaintiff here has alleged in Para. 69-71. Nevertheless, Defendants deliberately misconstrue
12
the allegations of the Complaint to assert that punitive damages have been claimed against the
13
public entity, and they move to strike the Prayer. (“On the Fourth Cause of Action, for general
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and punitive damages for breach of the implied covenant of good faith and fair dealing according
15
16 to proof.”) This issue was specifically clarified by Plaintiff’s counsel at the time of the Meet and
17 Confer, on March 11, 2024. See, Plaintiff’s RJN 16, p.299-301. He wrote:
18 “The other issue you fail to appreciate is that the individual defendants,
particularly Supervisor Williams, and also Plowman, Sewards and Hazard are subject to
19 punitive damages, for acting maliciously and outside the scope of their employment in
20 2
But for the continuing stonewalling of these four Defendants, this case could and should have
21 been resolved without litigation. In these circumstances, the individuals can and should
experience the burden of funding their own defense, as has the Plaintiff, also an individual. They
22 should know that recovery by them of amounts they expend is barred if the employee acted or
failed to act because of ‘actual fraud, corruption or actual malice.’ (§ 996.4.)” (Stone v. Regents
23 of University of California (1999) 77 Cal.App.4th 736, 746. Alternatively, Defendant Williams
24 can fund his own defense by transferring funds from his candidate controlled committee pursuant
to Gov. Code Section 89519 and 85304.5. See, e.g. FPPC advice letter, File # A-13-144
25 (December 11, 2013) Plaintiff does not disagree that punitive damages are inappropriate where a
public entity is the sole defendant, since they would fall upon innocent taxpayers. See, Salinas
26 v. Souza & McCue Constr. Co. (1967) 66 Cal.2d 217, 228, fn. 1, quoting 4 Cal. Law Revision
Com. Rep. (1963) Recommendation Relating to Sovereign Immunity, p. 817. That is not our
27 case.
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PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE
DAMAGES
1 various respects- regardless of whether the County as an entity is immune. In fact, they
will be liable to reimburse the County for attorneys’ fees and costs, even if County
2 Counsel does defend them. ( (Attorney Solomon to Deputy County Counsel Kim,
3.11.2024) See, Plaintiff’s RJN 16, p.299-301.
3
4 Defendants never responded to this clarification. Furthermore, the face of the Complaint
5 shows that Defendants Wiliams, Seawards, Plowman and Hazard are sued in both their
6 individual and official capacities. The punitive damages allegations in the Fourth Cause of
7 Action are quite obviously not directed against the “public entity” – the County acting through a
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majority of the Board of Supervisors. Except for Williams, Plaintiff has not alleged that the
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Board had any involvement in the permit processing, which is the subject of the Fourth Cause of
10
Action. Indeed, Plaintiff has specifically alleged that the four other Board members took no
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12 action, individually, (they wouldn’t even talk to Plaintiff, or visit the property), but that they
13 unlawfully deferred to Defendant Williams, [Complaint, Para 22,71], and that the Board was
14 prevented from hearing any appeal of Defendant Plowman, Seawards, and Hazard’s actions- by
15 those individual Defendants. Para.64, 65, 78, 94, 95, 97, 98, 101, 121. See also, Para. 69, 70,71
16
specifically naming Williams, Plowman and Seawards, and Para 45,140, naming Hazard for his
17
own, individual obstructionist conduct in denying Plaintiff access to writings which could have
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clarified their claims, from the County, and from CalFire, a state agency, and by his persistent
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20 refusal to acknowledge his own incorrect allegations in his letter to Plaintiff of June 14, 2023
21 (Para. 85, 86). 3 Thus, Defendants incorrectly assert that Plaintiffs inappropriately seek punitive
22 damages against the public entity.
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25 3
The letter , which Defendants’ falsely cite as having established a fact in their Demurrer, erroneously
asserts that the Lane is “only” 9.5 feet wide (due to infringement of a large oak limb, in front of her
26 neighbor’s property. Defendant Hazard knows this is incorrect, and that he rescinded his own
Department’s order, in 2020, that the very same oak be limbed by its owner, the Museum of Natural
27 History Complaint, Para. 85-86.
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PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE
DAMAGES
1 The only claim that could be perceived to be alleged against other Board members- in
2 this case, as yet unnamed individual DOES, and not as the ‘public entity”, alleges that they have
3 improperly engaged in “ward courtesy”, for reasons having to do with politics, campaign
4
contributions, and the 2024 election. Individual misconduct by individual politicians and
5
political appointees is not shielded from punitive damages. See, Para. 3, which states:
6
“Plaintiff is informed and believes and thereon alleges that the Supervisors
7 engage in a practice of “ward courtesy” by which they defer to the Supervisor elected to
8 represent the District in which a property subject to the County’s land use permitting
scheme is located. Three of the Supervisors are running for election in 2024. Plaintiff is
9 informed and believes that Supervisors have established a pattern and practice of
deferring to, and enabling the First District Supervisor, and through him, in this case, to
10 the wishes of the Defendant Fire Marshal.”
11 And see, Para 66-71. This due process violation is separately actionable under 42 USC Section
12
1983. See, Carey v. Piphus (1978) 435 U.S. 24, 256 fn.11 (District officials can be liable for
13
punitive damages.) 4
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The court may infer that Defendant Board of Supervisors moves to strike punitive damages at
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16 this very early stage, because they have elected to defend all these individuals, and they must
17 have anticipated, from the allegations in the Complaint, as well as evidence in the record, which
18 was filed with the County Clerk before the initiation of this lawsuit, that conflicts have arisen or
19 will arise between and among the individual Defendants- specifically between Williams and the
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Executives, and between the Fire Marshal and Planning and Development Director and Deputy
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All of the individual Board members, as well as the Executives are subject to various
23 duties and penalties under the Political Reform Act. It is not the traditional role of the County
24 Counsel, let alone the taxpayers who fund them, to defend violations of the Political Reform Act.
At a minimum, attention must be paid, when advising an individual official, to Rule 1.13 of the
25 California Rules of Professional Conduct: the client is the local agency as an entity, and not any
individual public official. At most, County Counsel will transmit a request to the FPPC on
26 behalf of an individual Supervisor. See, e.g. Request for Advice from FPPC from Santa Barbara
former County Counsel 3.21.2003, RJN 31, p 412. Gov. Code 83114.
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PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE
DAMAGES
1 Director, on questions of liability for conduct both within and outside the scope of their
2 employment (i.e. retaliation for Plaintiff’s exercise of her First Amendment Rights, the Fire
3 Marshal’s untimely and illegal demands of Plaintiff, the Fire Marshal’s obstruction of Plaintiff’s
4
Public Records requests, Defendant Williams ,Seawards and Plowman’s retaliatory and
5
vindictive behavior against Plaintiff. Zimmer nowhere seeks punitive damages against the
6
County.
7
8 Despite the individual Defendants’ failure to comply in good faith with the Public Records
9 Act, there is already evidence to be discovered, based on at least one e- mail that slipped
10 through. See, incomplete e mail chain Seawards, Plowman, Dargiel ,Zimmer, April 13-14, 2023
11 Plaintiff’s RJN 19., p. 309-310. Plaintiff is entitled to discovery to understand what “actions”
12
she allegedly had taken in the preceding year (after 37 years of congenial relationships with
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County staff and elected officials, RJN 11, p. 240-243, Plaintiff comment to Board of
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Supervisors, 12.5.2023), to merit the level of contempt shown by Defendant Sewards, the bias
15
16 shown by Defendant Plowman, the public displays of vindictiveness by Williams, and the illegal
17 demands of Hazard. She alleges, at Para 69-70, that these individual Defendants were acting in
18 retaliation against her, and whether they were acting on direction from Defendant Williams, or
19 merely in a corrupt attempt to curry favor with him, or from their own biases, changes nothing.
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4. The Complaint alleges facts sufficient to state a claim for punitive damages against
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the individual Defendants.
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23 Punitive Damages are proper when tortious conduct rises to the levels of extreme
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indifference to the Plaintiff’s rights, a level which decent citizens should not have to tolerate
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Lackner v. North (2006) 135 Cal. App. 4th 1188. Plaintiff has adequately alleged that Defendants
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PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE
DAMAGES
1 Williams, Hazard, Plowman and Seawards have acted with the requisite conscious disregard of
2 Plaintiff’s rights, as follows:
3
The facts alleged include oppression, fraud or malice, as defined. For example, as set forth
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in her Complaint, and in their Tort Claim filed July 20, 2023, incorporated into her Complaint, as
5
6 Exhibit D, Plaintiffs specifically alleged, in detail:
7
“When Owner’s husband- who is 80 years old,-politely challenged Deputy Chief Tan
8 about their effective condemnation of all the Owner’s onsite parking spaces, (there is no
“street parking” available within hundreds of feet), he threatened to simply leave. 5 This
9 is bullying. This is elder abuse. When the Fire Marshal demanded an architect’s drawing
of a turnaround he knew they would never approve, the P&D Director threatened to
10 simply return the application to Owner, and then asserted that there is no administrative
appeal of any of their actions. This, too, is bullying.
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12 As of July 19, Fire has again demanded that Owner grant them an exclusive easement
over the entire parking area, which would preclude the construction of the same residence
13 that the County approved, for lack of a designated parking space, thus effectively
revoking the building permit that they already approved as consistent with their
14 standards.
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The fact that no one in the County hierarchy- not the Planning Director, not the CAO, not
16 County Counsel, is willing to set the Fire Marshal straight is incomprehensible. The Board
of Supervisors has both the opportunity and the duty to hold their staff – and themselves-
17 accountable for the burdens placed on a single taxpayer trying to build a single housing
unit.”
18
Tort Claim, Exhibit D to Complaint, pp. 92- 93.
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Defendants Seawards, Hazard and County Counsel refused, in August of 2022, to provide
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a “planner consultation” meeting so Plaintiff could ascertain her so-called “eligibility” for
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23 ministerial processing, specifically because all parties were aware of the property location on a fire
24 hazard map dating from the Schwarzenegger administration, and demanded that she submit a full
25
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This occurred after Captain Olmstead “reassured” Plaintiff that Fire would not prohibit parking their
26 cars, only RVs (Plaintiff has no RV) .Then, after Plaintiff engaged an architect to draw feasible
modifications, Tan, and then Hazard, explicitly prohibited Plaintiff from ever parking anywhere on her
27 own property. i.e., a physical taking. Complaint, Para. 47
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PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE
DAMAGES
1 development application. (Complaint, Para 20,29 ) The County told Plaintiff eleven months after
2 the application was submitted that she must not only comply with “standards” they never told her
3 about, and that are not applicable under the law, but that she must do so before the County
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processed the map. (Complaint Exh E ) And, they did so, knowing that Plaintiff would thereby
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be divested of her entitlement to have her application considered under the standards, policies and
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ordinances in effect at the time her application was complete under the Permit Streamlining Act,
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8 because of the intervening adoption of the Safety Element. (RJN 28, p.401)
9 After the individual staff members failed and refused, even after Plaintiff submitted a full
10
development application, to discuss with her the requirements of Gov. Code Section 65913.4.6(D),
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the only issue in this case, the Fire Marshal demanded, on his own behalf, on June 14, 2023,
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(Complaint, Exh. B), well after the deadlines established by the Permit Streamlining Act, that
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14 Plaintiff “voluntarily” perform one of two Options, both involving offsite improvements, prior to
15 recordation of the lot split. They neither allowed Plaintiff any administrative appeal, nor have they
16 acted on Plaintiff’s application, nor have they even returned the application, minus the money
17 already paid- as Defendant Plowman threatened on June 23 ,2023. (Para 50).) The Demurrer and
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the Motion to Strike (p. 3, lines 10-15 both intentionally mislead the court on the timeline and on
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the specific demands made: the only meeting with Plowman, Hazard, Seawards and County
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Counsel occurred on May 16, 2023, and the first Fire Marshal’s visit occurred on May 19, 2023.
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22 The only meeting Plowman, Seawards and Hazard deigned to attend occurred after the expiration
23 of Permit Streamlining Act deadlines. (Complaint Para. 81)
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The Fire Marshal first made his erroneous statements of fact and law on May 16, 2023, and
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then on June 14, 2023, after the application had been deemed consistent with all objective
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standards, and deemed approved. And, the demands on Plaintiff were changed, and escalated: the
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PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE
DAMAGES
1 Fire Marshal had demanded his improvements be made after project approval but “prior to
2 recordation of the map”, while Sewards and Plowman, and subsequently, the Board, demanded
3 them to be constructed “prior to determining eligibility for ministerial processing”, (Para 55)
4
thereby putting Plaintiff back to “square one”: in August of 2022 she requested a meeting with
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Fire, P&D and County Counsel- which she was willing to pay $1000 for them to attend
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(Para.19,27,28,29 ) to determine the precise question which is central to the case. (Complaint,
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8 Para.27). They refused.
9 Furthermore, the Complaint alleges in detail the individual Defendants’ bad faith conduct,
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at Paragraphs 47-55, detailing demands that were made after the lot split was deemed approved
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under the Permit Streamlining Act. In addition, in Paragraph 14 of the Complaint, Plaintiff alleged
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a “shameful” course of conduct, at Paragraph 45, she alleged that Defendant Hazard made a
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14 demonstrably false claim against Plaintiff that she had violated a prior permit condition, and never
15 withdrew that allegation, even after he was provided with confirmation from his Department that
16 she was in compliance. At Paragraph 18, she alleged that Defendant Hazard intentionally delayed
17 and resisted release of documents necessary to support Plaintiff’s case, which were then never
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released, and that while Hazard failed for seven months (or at all) to release County writings
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relevant to Plaintiff’s claims, Plaintiff alleged that based on documents that were released, that
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Cal Fire/Board of Forestry failed to search for or provide any writings requested by Plaintiff of
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22 that agency, specifically because Defendant Hazard represented to them that this was a “local”
23 matter. Para 140.
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Plaintiff alleges at Para. 69 that Plowman, Seawards, and Williams have been motivated
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by actual bias and animosity toward Plaintiff because she dared to criticize staff and Defendant
26
Williams when they discriminated against her in the exercise of her religion, and she criticized
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PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE
DAMAGES
1 their failed cannabis policies. After she paid them $10,451 dollars as a “deposit” for their review
2 of her ministerial permit, and they demanded additional deposits, and they wasted half of the
3 deposit debating among themselves the very question she had asked to meet to discuss before filing
4
any application, she told them to stop billing her until the issue was resolved. Then they made it
5
all about the money. And, apparently, the fact that they don’t care for the tone and volume of
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Zimmer’s voice on a zoom call. See, Complaint Para 81, RJN 19. P. 309-310. See, “Anti-Semitism
7
8 Uncovered: A Guide to Old Myths in a New Era (Anti-Defamation League, 2023) RJN 26.
9 Apparently, the County would argue that knowingly perpetuating and acting on historic
10 antisemitic tropes constitutes “normal” scope of employee behavior. County Counsel repeats this
11 trope in their manifestly false statement, Demurrer, p. 9, line 16-17, “According to Zimmer, the lot
12
split would save her money..” This falsehood compounds months of Defendant Plowman’s threats
13
to return Plaintiff’s application, and put a lien on her property, unless she “deposited” additional
14
sums, (Para 102-105), and Hazard’s demands, supported by Williams, Plowman and Seawards,
15
16 that Zimmer take responsibility to remedy Hazard’s own failures and errors (Complaint Para. 86,
17 87), by paying for and performing offsite improvements, on the property of others, which are the
18 responsibility and liability of others, and that they never had a legal right to demand. And, Zimmer
19 pointed out that the Fire Marshal had previously waived those requirements against those others.
20
(Para 86):
21
“At all times, the Fire Marshal has had the authority under their own
22 ordinances/“Development Standards” to require the Museum of Natural History (the owner
of the tree in question) to remove said oak limb, if it is less than 13’5” in height, and they
23 did in fact exercise that authority as to that tree in March of 2020. For reasons not disclosed
24 to Plaintiff, the Fire Marshal rescinded their demand of the Museum in 2020, and concluded
the limb did not pose an obstacle to access.”
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PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE
DAMAGES
1 The Fire Marshal, Plowman, Seawards engaged in a scheme to force Plaintiff to
2 compensate for their own past “mistakes”, by forcing her to undertake the same improvements
3 which they had demanded, and then inexplicably excused, of the Museum.
4
Defendant Williams, and others, are well aware of Zimmer’s history and her particular
5
sensitivities on the subject of antisemitism. She wrote the first Holocaust Remembrance Resolution
6
ever adopted by the County in 1990, when she was the Chief Deputy County Counsel. She wrote
7
8 and presented the 2023 Resolution in January of 2023 when County Counsel and at least Defendant
9 Williams were present. [RJN 13, p. 251] Williams, in particular is aware of her personal history
10 as a Second Generation Holocaust survivor, and the specific related reasons she is intent on
11 protecting her home, and her extreme sensitivity to abuse by government officials of individuals
12
who have no choice but to interact with hem. Yet, Plowman, Seawards, Hazard, and Williams
13
have persisted throughout the last year to attribute Zimmer’s opposition to their illegal demands
14
to her alleged desire not to ‘spend her money’. RJN 19, p. 309-310.
15
16 Despite their actual knowledge of the reasons for the lot split application, in their
17 Demurrer, the County again falsely asserts at page 9, line 16-19 that “[a]ccording to Zimmer, the
18 lot split would save her money, but would otherwise “change nothing except to add an invisible
19 line on a map.” This twisted and inaccurate comment, which intentionally misstates the
20
allegations of the Complaint (Para 15,27,106) reflects not only that the County is retaliating
21
against Zimmer because of her prior criticisms of Planning Department Executives and Williams,
22
as reflected in Paragraph 69 of the Complaint, but that this false, insulting, classically anti-
23
24 semitic trope 6has pervaded the County staff’s treatment of Zimmer throughout this permit
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27 6
See, “Anti-Semitism Uncovered: A Guide to Old Myths in a New Era” RJN 26, p. 341,344
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PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE
DAMAGES
1 process, including Defendant Plowman’s and Seawards’ objectively unreasonable conduct in
2 processing her application.
3
Conclusion
4
5 The Complaint adequately alleges that the conduct of the named individual Defendants,
6 specifically Supervisor Williams, Chief Hazard, Deputy Director Seawards and Planning
7
Director Plowman meets the standard for punitive damages. It is also clear that these Defendants
8
remain intent on denying Zimmer the opportunity to build her caregiver unit pursuant to the
9
building permit they themselves have approved, for no reason grounded in fact or law. 7 In this
10
case, Defendants’ malicious, arbitrary, biased, and retaliatory conduct implicates not only
11
12 Plaintiff’s statutory rights as set forth in the Complaint, and her First Amendment Rights, but her
13 14th Amendment rights to substantive and procedural due process and equal protection, as the
14 Defendants well know. There is no legitimate legal or policy reason for the County to dig in their
15
heels and force Plaintiff to litigate a case that could have been resolved in ten minutes if the
16
Defendants were operating in good faith. RJN 16 p. 299-301. Based on their individual and
17
collective behavior, the answer apparently lies in Paragraphs 69-71 of the Complaint. Since
18
Defendants’ withheld documentation under the Permit Streamlining Act, the court should allow
19
20 Plaintiff to proceed to discovery of additional evidence which further supports Plaintiff’s claim
21 for punitive damages. The Motion to Strike should be denied.
22
23
Respectfully Submitted,
24
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7
This behavior has persisted down to the last petty detail: Plaintiff requested that the approved building permit be
26 extended until 60 days after resolution of this litigation. Plowman refused, “granting” an extension only until June,
2024. Now Defendants are doing their best to make sure that Plaintiff’s claims are not heard on their merits, in a
27 timely fashion, or at all.
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PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE
DAMAGES
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__ __ DATED: April 16, 2024
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Richard C. Solomon, Esq.
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5 Andréa Marcus
6 Attorneys for Plaintiff
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PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE
DAMAGES
REQUEST FOR JUDICIAL NOTICE
EXHIBIT 16
13/14/24, 4:35 PM Gmail - Response to County's decision to fil e demurrer
Gmail Jana Zimmer
Response to County's decision to file demurrer
2 messages
Richard Solomon Mon, Mar 11, 2024 at 9:01 AM
To: Callie Kim
Cc: Jana Zimmer , Andrea Marcus
Dear Ms. Kim:
Thank you for the 'Meet and Confer" conversation of March 8. I will respond here only to the most obvious
errors in your assertions, which pertain to your stated intention to demur to every single cause of action.
First, you have apparently misunderstood my statement regarding documents produced under the Public
Records Act. I was referring specifically to writings which must exist, but were not produced, and which
pertain to communications between and among Fire staff and Deputy Director Sewards and others. Such
exchanges were described on the Accela billing sheets during the period from application submittal to April
10, 2023. There is no evidence that P&D even asked County Counsel for advice on the critical issues prior
to April, 2023 (See, Exhibit 170 filed with the Clerk), "we should make sure County Counsel will back us
up ... "] and Exh 143, P&D's Accela billing sheets, (with reference to a "pink sheet" requesting advice from
County Counsel, not submitted until at least April 10) all of which were submitted to the Clerk and
referenced in the Tort Claim, and which you have had for many months. The point is that Lisa Plowman
expressly withheld writings on at least one of the requests on a claim of privilege, and there has been no
final "disposition" of the other three. We do not believe you can justify withholding such writings as
privileged under the PRA, or on any other basis. We will be seeking them in discovery.
As you should know, since you have had full opportunity to consider the exhibits we submitted to the Clerk
and your clients, you have no legitimate ground to demur in this case for failure to allege facts sufficient,
and certainly not to seek an order sustaining a Demurrer without leave to amend, as to any of the causes of
action. There is no doubt that there are a few errors in the pleading- we were forced to spend the entire
Christmas holiday drafting the Complaint because you/your client refused to suspend or toll the statute of
limitations for the period of time you knew we would be out of the country. As to any such discrepancies, we
expect that the court will allow us to amend according to proof.
Your Demurrer will only increase the time, cost and stress of requiring my client to pursue this litigation.
Her reliance expenditures alone, on her approved building permit , already exceed $95,000. You are aware
that my client is an individual seeking only to be able to finance construction of the caregiver unit for which
the County has already approved a building permit, and that she has requested priority for her age, as well
as mediation in the Complaint. Your/your client's slash and burn approach is wholly inappropriate in the
circumstances.
As to the primary legal claims, you fail to acknowledge that by its terms, SB 9 preempts contrary or greater
local subdivision requirements, and Gov. Code 66411 expressly prohibits requiring correction of
nonconforming zoning conditions You rely on provisions of SB 330, which were either repealed or modified
by SB 8. The Complaint expressly alleges that SB 423 precludes your Fire Marshal's demands in the Local
Responsibility area, as was previously acknowledged in the HCD regulations. [See, Cause of Action for
Declaratory Judgment]. Notwithstanding that the lot split is ministerial, SB 8 specifically provides that an SB
9 lot split is indeed subject to the Permit Streamlining Act, as your staff is well aware. Please also consult
HCD's informational manual- also an exhibit you already have- on SB 9 which references: "One-Unit
Development (Reference: Gov. Code, §§ 65852.21, subd. (a); 65852.21, subd. (b)(2)(A)) SB 9 requires the
ministerial approval of either one or two residential units. Government Code section 65852.21 indicates that
the development of just one single-family home was indeed contemplated and expected. For
example, the terms "no more than two residential units" and "up to two units" appear in the first line of the
housing development-related portion of SB 9 (Gov. Code, § 65852.21, subd. (a)) and in the line obligating
local agencies to modify development standards to facilitate housing development. (Gov. Code, § 65852.21,
subd. (b)(2)(A).)" In addition, SB 8 also amended the HAA to specify that it applies to one single housing
unit. Gov. Code 65905(C). And your clients have specifically conceded in e-mails to us that the standards of
the HCA- with its much higher standards and burden of proof for the County to establish their defenses
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3/14/24, 4:35 PM Gmail - Response to County's decision to file demurrer
apply in this case. Zimmer is exactly the type of person that these provisions were intended to protect from
government abuse .
Your clients have been aware at all times that the lot split was specifically linked to the approved building
permit, and Travis Seawards specifically confirmed prior to the submittal of the lot split application in
numerous e mails that it didn't matter whether they began to construct under their approved building permit
before or after consideration of the lot split. The notion that the prohibition on requiring offsite improvements
only applies to the building permit and not the lot split is difficult to comprehend. You are aware that the
entire point of filing the SB 9 application was to be able to separately finance construction pursuant to the
approved building permit.(the Map Act applies to sale, lease or financing), and to avoid the risk of loss of fire
insurance. The applications were clearly linked from the outset. Your staff found the application eligible for
ministerial processing on February 13, 2023. The County cannot now call it 'ineligible' unless Zimmer
complies with illegal conditions, or that she do so not only prior to approval, but prior to being
(re)determined to be"eligible".
The other issue that you fail to appreciate is that the individual Defendants- particularly Supervisor
Williams, and also Plowman, Seawards and Hazard are subject to punitive damages, for acting maliciously
and outside the scope of their employment in various respects- regardless of whether the County as an
entity is immune. In fact, they will be liable to reimburse the County for attorneys' fees and costs, even if
County Counsel does defend them.
It is frivolous- and disingenuous in the extreme for the County to claim- over a year after submittal of the
application in December of 2022, that the application was never complete, and that this lot split is not
eligible and never was "eligible" to be processed ministerially under SB 9, and cannot be "determined" to be
eligible (which P&D in fact did, on February 13, 2023) unless Zimmer now physically constructs offsite
improvements, (which are expressly prohibited by SB 9) prior to P&D processing the application. The Fire
Marshal's demands of 6.14.2023 are and were unlawful and beyond his authority. The Fire Marshal -
personally advised the Clerk not to entertain an appeal of his demands. The P&D Director never
acknowledged Zimmer's right to appeal her extremely untimely allegation on or about June 23, 2023, that
the application was never complete under the Permit Streamlining Act.
Most importantly, we are mystified at what policy goal the Board could possible articulate to justify defending
this litigation, let alone depriving Zimmer of the benefits of the permit that the County has already approved,
for the exact type of housing unit that the Legislature has already declared to be such an important element
in their housing policy. This matter can be resolved immediately and your client - and the taxpayers,
who will fund the defense of certain of your clients' errors and intentional wrongdoing- can avoid all
damages, penalties and attorneys fees if they simply acknowledge:
1. That Zimmer, with the cooperation of two of her neighbors has indeed "voluntarily" widened Las
Encinas Lane to 15' from her property to Puesta Del Sol, which is the lane width demanded by your
Fire Marshal on and after June 14, 2023. No same practical effect determination is necessary. The
standard has been achieved.
2. That the County has no authority to require Zimmer to repave the lane. Maintenance of the lane
is required to be apportioned under Civil Code 845, and there is no evidence whatsoever that the
current condition, or the buildout of the approved unit on its own lot has any impact on the public
health and safety, let alone on fire equipment access to Zimmer's property.
3. That the County has no authority to require Zimmer to perform offsite improvements, including
the lane repaving and the limbing or removal of the Museum's tree .
4. That there are no other conditions or obstacles to immediate approval of the lot split.
Since Zimmer has been deprived of any appeal of any of staff's determinations, and we do not
know whether the Board was accurately informed or advised in closed session as to the facts and
their duties, or whether it was an affirmative desire of a majority to deprive Zimmer of the benefits of
the permits the County has already approved, we suggest that you consult immediately with them.
Richard Solomon Tue, Mar 12, 2024 at 10:47 AM
To: Callie Kim , Jana Zimmer
Cc: Andrea Marcus
Ms. Kim :
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'3/14/24, 4:35 PM Gmail - Response to County's decision to file demurrer
Our records indicate that Exhibit 143 was submitted to the Clerk of the Board with our Tort Claim in July of 2023. You will
recall that the Tort Claim was summarily rejected by the Risk Manager.
The exhibits were sent to the Clerk via Dropbox to Katherine Douglas. We are in the process of finalizing our Index to
Exhibits per the court rules, and it will be numbered differently at that time.
I am providing a copy here as a courtesy. We have other correspondence with the CAO's office reflecting our attempts to
work with them to produce all of the relevant documents which will be submitted to the court at the appropriate time.
On Tue, Mar 12, 2024 at 10:04 AM Callie Kim wrote:
Richard,
Can you please send me Exhibit 143 referenced below?
Thank you,
Callie
Callie Patton Kim
Deputy County Counsel
Santa Barbara County Counsel
105 East Anapamu Street, Suite 201
Santa Barbara, California 93101
(805) 568-2955
Notice: This information is private, confidential, and privileged and intended solely for the person or persons addressed herein.
Any review, distribution, reliance on, or other use of this information by persons or entities other than the intended recipient is
prohibited. If you have received this communication in error, immediately notify the sender and destroy/delete any copies of
this transmission. Thank you for your compliance. Please note that any views or opinions presented in this email are solely
those of the author and do not necessarily represent those of the County of Santa Barbara. Finally, the recipient should check this
email and any attachments for the presence of viruses. The County of Santa Barbara accepts no liability for any damage caused
by any virus transmitted by this email.
From: Richard Solomon
Sent: Monday, March 11, 2024 9:02 AM
To: Callie Kim
Cc: Jana Zimmer ; Andrea Marcus
Subject: Response to County's decision to file demurrer
Caution: This email originated from a source outside of the County of Santa Barbara. Do not dick links or open
attachments unless you verify the sender and know the content is safe.
[Quoted text hidden]
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REQUEST FOR JUDICIAL NOTICE
EXHIBIT 19
To: Seawards, Travis ; Dargel, Joseph
Subject: Fwd: STatus
I thought she said she didn't want you guys spending her money? Is she going in circles?
Get Outlook for iOS
From: Jana Zimmer
Sent: Thursday, April 13, 2023 6:43 :35 PM
To: Dargel, Joseph ; Seawards, Travis ;
Plowman, Lisa ; Van Mullem, Rachel
Subject: STatus
Caution: This email originated from a source outside of the County of Santa
Barbara. Do not click links or open attachments unless you verify the sender and
know the content is safe.
Joe and Travis:
Thank you for your time today.
Please clarify- Did I hear you correctly to be saying that based on your claim today that my
property is 'ineligible' for an SB 9 lot split, that unless I can convince Fire to accept the
sprinkler mitigation in lieu of their other claimed requirements, you are refusing to process the
application? You are aware that Fire has not responded to my email today, as of yet.
Please provide me with any documents that reflect the process- is this 'eligibility' letter unique
to SB 9? What is the authority for refusing to process an application that you have accepted?
I intend to put together a history of facts and law (as I see it) and then ask County Counsel,
Fire Chief and P&D Director to meet.
Thank you.
Jana Zimmer
(805)705-3 784
STATEMENT OF CONFIDENTIALITY & DISCLAIMER: The information contained in this
email message is attorney privileged and confidential, intended only for the use of the
individual or entity named above. If the reader of this message is not the intended recipient,
you are hereby notified that any dissemination, distribution or copy of this email is strictly
prohibited. If you have received this email in error, please notify us immediately by calling
(805) 705-3784 and delete the message. Thank you.
18
From: Oargel Jogph
To: Seawards Trayjs: Pk>wman Ljsa
Subject: RE: STatus
Date: Friday, April 14, 2023 9:47:00 AM
Attadunenta: iroageQ02,png
;mageOQ3 100
Yes, she was very angry. It was interesting - she acted very surprised when Travis asked her not to
yell at us. I don't think she understands how her actions are perceiv~d. But we didn't take the bait
and just repeated the Department's stance.
I do think we'll continue going in circles until a call is scheduled with Jana, Fire, and P&D. It may also
be good to meet with counsel first to make sure they'll back us_up dn our stance.
New Logo Joseph Dargel, PG
Supervising Planner
Planning & Development
123 E. Anapamu St.
Santa Barbara, CA 93101
805-568-3573
jdacael@countyofsb ocii
Preview
1 Law Office of Andréa Marcus, APC Andréa Marcus (SBN 118098) 2 133 E. De La Guerra St. #143 Santa Barbara California 93101 3 Telephone: (888) 215-9021 4 Fax: (888) 215-9021 Email: andrea@andreamarcuslaw.com 5 Richard C. Solomon (SBN 41107) 6 2640 Las Encinas Lane Santa Barbara, CA, 93105 7 Telephone: (805) 452-5839 8 Fax: (888) 215-9021 Email: rcsolomon42@gmail.com 9 Attorneys for Plaintiff/Petitioner 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF SANTA BARBARA 12 JANA ZIMMER, INDIVIDUALLY AND AS ) Case No.: 24CV00199 13 TRUSTEE OF THE SOLOMON-ZIMMER ) LIVING TRUST, ) PLAINTIFF’S OPPOSITION TO 14 ) DEFENDANTS’ MOTION TO STRIKE Plaintiff/Petitioner, ) PUNITIVE DAMAGES 15 v. ) 16 ) Petition Filed: January 16, 2024 COUNTY OF SANTA BARBARA, BOARD ) Hearing: April 29, 2024 10:00 AM 17 OF SUPERVISORS OF THE COUNTY OF ) SANTA BARBARA, LISA PLOWMAN, ) Judge: Hon. Colleen Sterne 18 DIRECTOR OF PLANNING AND ) Dept: 5 DEVELOPMENT, ROB HAZARD, FIRE ) 19 MARSHAL, TRAVIS SEAWARDS, ) DEPUTY DIRECTOR OF PLANNING AND ) 20 DEVELOPMENT, DAS WILLIAMS, FIRST ) 21 DISTRICT SUPERVISOR, DOES 1-25, in ) their official and individual capacities, ) 22 ) Defendants/Respondents. ) 23 ) 24 25 26 27 28 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES 1 TABLE OF CONTENTS 2 Introduction ..................................................................................................................................... 1 3 Applicable Law ............................................................................................................................... 1 Plaintiff is not barred from seeking punitive damages. .................................................................. 2 4 The Complaint alleges facts sufficient to state a claim for punitive damages against the 5 individual Defendants. .................................................................................................................... 5 6 Conclusion .................................................................................................................................... 11 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i TABLE OF CONTENTS 1 TABLE OF AUTHORITIES 2 Cases 3 Carey v. Piphus (1978) 435 U.S. 24, 256 ....................................................................................... 4 4 Courtesy Ambulance Service v. Superior Court (1992) 8 Cal. App.4th 1504, 1519................... 1 Lackner v. North (2006) 135 Cal. App. 4th 1188 ........................................................................... 1 5 Perkins v. Superior Court (1981) 117 Cal. App.3d 1................................................................... 1 Runyon v. Franco, 187 Cal. App. 3d 880 (1986) ....................................................................... 1, 2 6 Salinas v. Souza & McCue Constr. Co. (1967) 66 Cal.2d 217, 228 ............................................... 2 Stone v. Regents of University of California (1999) 77 Cal.App.4th 736, 746.............................. 2 7 Taylor v. Superior Court (1979) 24 Cal.3d 890 ............................................................................ 2 8 Laws 9 Gov. Code Section 85304.5 ............................................................................................................ 2 Gov. Code Section 83114 ............................................................................................................... 4 10 Gov. Code Section 65913.4.6(D) .................................................................................................... 7 11 Gov. Code Section 89519 ............................................................................................................... 2 Political Reform Act ....................................................................................................................... 4 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii TABLE OF AUTHORITIES 1 1. Introduction 2 Punitive Damages are proper when a Defendant’s tortious conduct rises to the level of 3 extreme indifference to the Plaintiff’s rights, a level which decent citizens should not have to 4 tolerate. Lackner v. North (2006) 135 Cal. App. 4th 1188. The Court of Appeal held in Runyon v. 5 Franco, 187 Cal. App. 3d 880 (1986) that public employees can be held to account in punitive 6 damages, regardless of immunities claimed by the public entity. It should not go unnoticed that 7 8 Runyon also involved political retribution, as Plaintiff here has alleged in Para. 69-71. Plaintiff 9 has adequately alleged facts to show that the individual Defendants, Williams, Hazard, Plowman 10 and Seawards, and each of them, as individuals, have acted with malice, bias, or are motivated by 11 retaliation for Plaintiff’s expression of her First Amendment rights in criticizing public officials 12 and policies. Para 69,70. These officials, who are presumed to have superior knowledge of the 13 applicable law, have engaged in a year long process of bait and switch, bullying, gaslighting, 14 threats and escalating illegal demands. The question is not “whether” they have engaged in this 15 16 reprehensible conduct, but “why”. 17 2. Applicable Law 18 In passing on the correctness of a ruling on a motion to strike, judges read allegations 19 of a pleading 1 as a whole, all parts in their context, and assume their truth. (Courtesy Ambulance 20 Service v. Superior Court (1992) 8 Cal. App.4th 1504, 1519.) In Perkins v. Superior Court 21 22 (1981) 117 Cal. App.3d 1, the court granted a writ of mandate vacating the trial court’s order 23 to strike punitive damages, holding that the facts pleaded “describe a knowing and deliberate 24 state of mind from which a conscious, disregard of petitioner’s rights might be inferred - a state 25 26 1 Defendants cite to their own deceptive counter-allegations of “fact” in their Demurrer . (Motion to Strike p.3 line 15) The relevant pleading is the Complaint. What should be stricken is their “Statement 27 of [Alleged ]Facts”. 28 1 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES 1 of mind which would sustain an award of punitive damages.” (Id. at p. 6, citing Taylor v. 2 Superior Court (1979) 24 Cal.3d 890. Plaintiff has adequately alleged that Defendants Williams, 3 Hazard, Plowman and Seawards, and each of them, have acted with malice, bias, and with precisely 4 such an extreme indifference to Plaintiff’s rights. 2 5 6 3. Plaintiff is not barred from seeking punitive damages. 7 8 The Court of Appeal held in Runyon v. Franco, 187 Cal. App. 3d 880 (1986) that public 9 employees can be held to account in punitive damages, regardless of immunities claimed by the 10 public entity. It should not go unnoticed that Runyon involved eerily similar political retribution, 11 as Plaintiff here has alleged in Para. 69-71. Nevertheless, Defendants deliberately misconstrue 12 the allegations of the Complaint to assert that punitive damages have been claimed against the 13 public entity, and they move to strike the Prayer. (“On the Fourth Cause of Action, for general 14 and punitive damages for breach of the implied covenant of good faith and fair dealing according 15 16 to proof.”) This issue was specifically clarified by Plaintiff’s counsel at the time of the Meet and 17 Confer, on March 11, 2024. See, Plaintiff’s RJN 16, p.299-301. He wrote: 18 “The other issue you fail to appreciate is that the individual defendants, particularly Supervisor Williams, and also Plowman, Sewards and Hazard are subject to 19 punitive damages, for acting maliciously and outside the scope of their employment in 20 2 But for the continuing stonewalling of these four Defendants, this case could and should have 21 been resolved without litigation. In these circumstances, the individuals can and should experience the burden of funding their own defense, as has the Plaintiff, also an individual. They 22 should know that recovery by them of amounts they expend is barred if the employee acted or failed to act because of ‘actual fraud, corruption or actual malice.’ (§ 996.4.)” (Stone v. Regents 23 of University of California (1999) 77 Cal.App.4th 736, 746. Alternatively, Defendant Williams 24 can fund his own defense by transferring funds from his candidate controlled committee pursuant to Gov. Code Section 89519 and 85304.5. See, e.g. FPPC advice letter, File # A-13-144 25 (December 11, 2013) Plaintiff does not disagree that punitive damages are inappropriate where a public entity is the sole defendant, since they would fall upon innocent taxpayers. See, Salinas 26 v. Souza & McCue Constr. Co. (1967) 66 Cal.2d 217, 228, fn. 1, quoting 4 Cal. Law Revision Com. Rep. (1963) Recommendation Relating to Sovereign Immunity, p. 817. That is not our 27 case. 28 2 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES 1 various respects- regardless of whether the County as an entity is immune. In fact, they will be liable to reimburse the County for attorneys’ fees and costs, even if County 2 Counsel does defend them. ( (Attorney Solomon to Deputy County Counsel Kim, 3.11.2024) See, Plaintiff’s RJN 16, p.299-301. 3 4 Defendants never responded to this clarification. Furthermore, the face of the Complaint 5 shows that Defendants Wiliams, Seawards, Plowman and Hazard are sued in both their 6 individual and official capacities. The punitive damages allegations in the Fourth Cause of 7 Action are quite obviously not directed against the “public entity” – the County acting through a 8 majority of the Board of Supervisors. Except for Williams, Plaintiff has not alleged that the 9 Board had any involvement in the permit processing, which is the subject of the Fourth Cause of 10 Action. Indeed, Plaintiff has specifically alleged that the four other Board members took no 11 12 action, individually, (they wouldn’t even talk to Plaintiff, or visit the property), but that they 13 unlawfully deferred to Defendant Williams, [Complaint, Para 22,71], and that the Board was 14 prevented from hearing any appeal of Defendant Plowman, Seawards, and Hazard’s actions- by 15 those individual Defendants. Para.64, 65, 78, 94, 95, 97, 98, 101, 121. See also, Para. 69, 70,71 16 specifically naming Williams, Plowman and Seawards, and Para 45,140, naming Hazard for his 17 own, individual obstructionist conduct in denying Plaintiff access to writings which could have 18 clarified their claims, from the County, and from CalFire, a state agency, and by his persistent 19 20 refusal to acknowledge his own incorrect allegations in his letter to Plaintiff of June 14, 2023 21 (Para. 85, 86). 3 Thus, Defendants incorrectly assert that Plaintiffs inappropriately seek punitive 22 damages against the public entity. 23 24 25 3 The letter , which Defendants’ falsely cite as having established a fact in their Demurrer, erroneously asserts that the Lane is “only” 9.5 feet wide (due to infringement of a large oak limb, in front of her 26 neighbor’s property. Defendant Hazard knows this is incorrect, and that he rescinded his own Department’s order, in 2020, that the very same oak be limbed by its owner, the Museum of Natural 27 History Complaint, Para. 85-86. 28 3 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES 1 The only claim that could be perceived to be alleged against other Board members- in 2 this case, as yet unnamed individual DOES, and not as the ‘public entity”, alleges that they have 3 improperly engaged in “ward courtesy”, for reasons having to do with politics, campaign 4 contributions, and the 2024 election. Individual misconduct by individual politicians and 5 political appointees is not shielded from punitive damages. See, Para. 3, which states: 6 “Plaintiff is informed and believes and thereon alleges that the Supervisors 7 engage in a practice of “ward courtesy” by which they defer to the Supervisor elected to 8 represent the District in which a property subject to the County’s land use permitting scheme is located. Three of the Supervisors are running for election in 2024. Plaintiff is 9 informed and believes that Supervisors have established a pattern and practice of deferring to, and enabling the First District Supervisor, and through him, in this case, to 10 the wishes of the Defendant Fire Marshal.” 11 And see, Para 66-71. This due process violation is separately actionable under 42 USC Section 12 1983. See, Carey v. Piphus (1978) 435 U.S. 24, 256 fn.11 (District officials can be liable for 13 punitive damages.) 4 14 The court may infer that Defendant Board of Supervisors moves to strike punitive damages at 15 16 this very early stage, because they have elected to defend all these individuals, and they must 17 have anticipated, from the allegations in the Complaint, as well as evidence in the record, which 18 was filed with the County Clerk before the initiation of this lawsuit, that conflicts have arisen or 19 will arise between and among the individual Defendants- specifically between Williams and the 20 Executives, and between the Fire Marshal and Planning and Development Director and Deputy 21 22 4 All of the individual Board members, as well as the Executives are subject to various 23 duties and penalties under the Political Reform Act. It is not the traditional role of the County 24 Counsel, let alone the taxpayers who fund them, to defend violations of the Political Reform Act. At a minimum, attention must be paid, when advising an individual official, to Rule 1.13 of the 25 California Rules of Professional Conduct: the client is the local agency as an entity, and not any individual public official. At most, County Counsel will transmit a request to the FPPC on 26 behalf of an individual Supervisor. See, e.g. Request for Advice from FPPC from Santa Barbara former County Counsel 3.21.2003, RJN 31, p 412. Gov. Code 83114. 27 28 4 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES 1 Director, on questions of liability for conduct both within and outside the scope of their 2 employment (i.e. retaliation for Plaintiff’s exercise of her First Amendment Rights, the Fire 3 Marshal’s untimely and illegal demands of Plaintiff, the Fire Marshal’s obstruction of Plaintiff’s 4 Public Records requests, Defendant Williams ,Seawards and Plowman’s retaliatory and 5 vindictive behavior against Plaintiff. Zimmer nowhere seeks punitive damages against the 6 County. 7 8 Despite the individual Defendants’ failure to comply in good faith with the Public Records 9 Act, there is already evidence to be discovered, based on at least one e- mail that slipped 10 through. See, incomplete e mail chain Seawards, Plowman, Dargiel ,Zimmer, April 13-14, 2023 11 Plaintiff’s RJN 19., p. 309-310. Plaintiff is entitled to discovery to understand what “actions” 12 she allegedly had taken in the preceding year (after 37 years of congenial relationships with 13 County staff and elected officials, RJN 11, p. 240-243, Plaintiff comment to Board of 14 Supervisors, 12.5.2023), to merit the level of contempt shown by Defendant Sewards, the bias 15 16 shown by Defendant Plowman, the public displays of vindictiveness by Williams, and the illegal 17 demands of Hazard. She alleges, at Para 69-70, that these individual Defendants were acting in 18 retaliation against her, and whether they were acting on direction from Defendant Williams, or 19 merely in a corrupt attempt to curry favor with him, or from their own biases, changes nothing. 20 4. The Complaint alleges facts sufficient to state a claim for punitive damages against 21 the individual Defendants. 22 23 Punitive Damages are proper when tortious conduct rises to the levels of extreme 24 indifference to the Plaintiff’s rights, a level which decent citizens should not have to tolerate 25 Lackner v. North (2006) 135 Cal. App. 4th 1188. Plaintiff has adequately alleged that Defendants 26 27 28 5 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES 1 Williams, Hazard, Plowman and Seawards have acted with the requisite conscious disregard of 2 Plaintiff’s rights, as follows: 3 The facts alleged include oppression, fraud or malice, as defined. For example, as set forth 4 in her Complaint, and in their Tort Claim filed July 20, 2023, incorporated into her Complaint, as 5 6 Exhibit D, Plaintiffs specifically alleged, in detail: 7 “When Owner’s husband- who is 80 years old,-politely challenged Deputy Chief Tan 8 about their effective condemnation of all the Owner’s onsite parking spaces, (there is no “street parking” available within hundreds of feet), he threatened to simply leave. 5 This 9 is bullying. This is elder abuse. When the Fire Marshal demanded an architect’s drawing of a turnaround he knew they would never approve, the P&D Director threatened to 10 simply return the application to Owner, and then asserted that there is no administrative appeal of any of their actions. This, too, is bullying. 11 12 As of July 19, Fire has again demanded that Owner grant them an exclusive easement over the entire parking area, which would preclude the construction of the same residence 13 that the County approved, for lack of a designated parking space, thus effectively revoking the building permit that they already approved as consistent with their 14 standards. 15 The fact that no one in the County hierarchy- not the Planning Director, not the CAO, not 16 County Counsel, is willing to set the Fire Marshal straight is incomprehensible. The Board of Supervisors has both the opportunity and the duty to hold their staff – and themselves- 17 accountable for the burdens placed on a single taxpayer trying to build a single housing unit.” 18 Tort Claim, Exhibit D to Complaint, pp. 92- 93. 19 20 Defendants Seawards, Hazard and County Counsel refused, in August of 2022, to provide 21 a “planner consultation” meeting so Plaintiff could ascertain her so-called “eligibility” for 22 23 ministerial processing, specifically because all parties were aware of the property location on a fire 24 hazard map dating from the Schwarzenegger administration, and demanded that she submit a full 25 5 This occurred after Captain Olmstead “reassured” Plaintiff that Fire would not prohibit parking their 26 cars, only RVs (Plaintiff has no RV) .Then, after Plaintiff engaged an architect to draw feasible modifications, Tan, and then Hazard, explicitly prohibited Plaintiff from ever parking anywhere on her 27 own property. i.e., a physical taking. Complaint, Para. 47 28 6 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES 1 development application. (Complaint, Para 20,29 ) The County told Plaintiff eleven months after 2 the application was submitted that she must not only comply with “standards” they never told her 3 about, and that are not applicable under the law, but that she must do so before the County 4 processed the map. (Complaint Exh E ) And, they did so, knowing that Plaintiff would thereby 5 be divested of her entitlement to have her application considered under the standards, policies and 6 ordinances in effect at the time her application was complete under the Permit Streamlining Act, 7 8 because of the intervening adoption of the Safety Element. (RJN 28, p.401) 9 After the individual staff members failed and refused, even after Plaintiff submitted a full 10 development application, to discuss with her the requirements of Gov. Code Section 65913.4.6(D), 11 the only issue in this case, the Fire Marshal demanded, on his own behalf, on June 14, 2023, 12 (Complaint, Exh. B), well after the deadlines established by the Permit Streamlining Act, that 13 14 Plaintiff “voluntarily” perform one of two Options, both involving offsite improvements, prior to 15 recordation of the lot split. They neither allowed Plaintiff any administrative appeal, nor have they 16 acted on Plaintiff’s application, nor have they even returned the application, minus the money 17 already paid- as Defendant Plowman threatened on June 23 ,2023. (Para 50).) The Demurrer and 18 the Motion to Strike (p. 3, lines 10-15 both intentionally mislead the court on the timeline and on 19 the specific demands made: the only meeting with Plowman, Hazard, Seawards and County 20 Counsel occurred on May 16, 2023, and the first Fire Marshal’s visit occurred on May 19, 2023. 21 22 The only meeting Plowman, Seawards and Hazard deigned to attend occurred after the expiration 23 of Permit Streamlining Act deadlines. (Complaint Para. 81) 24 The Fire Marshal first made his erroneous statements of fact and law on May 16, 2023, and 25 then on June 14, 2023, after the application had been deemed consistent with all objective 26 standards, and deemed approved. And, the demands on Plaintiff were changed, and escalated: the 27 28 7 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES 1 Fire Marshal had demanded his improvements be made after project approval but “prior to 2 recordation of the map”, while Sewards and Plowman, and subsequently, the Board, demanded 3 them to be constructed “prior to determining eligibility for ministerial processing”, (Para 55) 4 thereby putting Plaintiff back to “square one”: in August of 2022 she requested a meeting with 5 Fire, P&D and County Counsel- which she was willing to pay $1000 for them to attend 6 (Para.19,27,28,29 ) to determine the precise question which is central to the case. (Complaint, 7 8 Para.27). They refused. 9 Furthermore, the Complaint alleges in detail the individual Defendants’ bad faith conduct, 10 at Paragraphs 47-55, detailing demands that were made after the lot split was deemed approved 11 under the Permit Streamlining Act. In addition, in Paragraph 14 of the Complaint, Plaintiff alleged 12 a “shameful” course of conduct, at Paragraph 45, she alleged that Defendant Hazard made a 13 14 demonstrably false claim against Plaintiff that she had violated a prior permit condition, and never 15 withdrew that allegation, even after he was provided with confirmation from his Department that 16 she was in compliance. At Paragraph 18, she alleged that Defendant Hazard intentionally delayed 17 and resisted release of documents necessary to support Plaintiff’s case, which were then never 18 released, and that while Hazard failed for seven months (or at all) to release County writings 19 relevant to Plaintiff’s claims, Plaintiff alleged that based on documents that were released, that 20 Cal Fire/Board of Forestry failed to search for or provide any writings requested by Plaintiff of 21 22 that agency, specifically because Defendant Hazard represented to them that this was a “local” 23 matter. Para 140. 24 Plaintiff alleges at Para. 69 that Plowman, Seawards, and Williams have been motivated 25 by actual bias and animosity toward Plaintiff because she dared to criticize staff and Defendant 26 Williams when they discriminated against her in the exercise of her religion, and she criticized 27 28 8 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES 1 their failed cannabis policies. After she paid them $10,451 dollars as a “deposit” for their review 2 of her ministerial permit, and they demanded additional deposits, and they wasted half of the 3 deposit debating among themselves the very question she had asked to meet to discuss before filing 4 any application, she told them to stop billing her until the issue was resolved. Then they made it 5 all about the money. And, apparently, the fact that they don’t care for the tone and volume of 6 Zimmer’s voice on a zoom call. See, Complaint Para 81, RJN 19. P. 309-310. See, “Anti-Semitism 7 8 Uncovered: A Guide to Old Myths in a New Era (Anti-Defamation League, 2023) RJN 26. 9 Apparently, the County would argue that knowingly perpetuating and acting on historic 10 antisemitic tropes constitutes “normal” scope of employee behavior. County Counsel repeats this 11 trope in their manifestly false statement, Demurrer, p. 9, line 16-17, “According to Zimmer, the lot 12 split would save her money..” This falsehood compounds months of Defendant Plowman’s threats 13 to return Plaintiff’s application, and put a lien on her property, unless she “deposited” additional 14 sums, (Para 102-105), and Hazard’s demands, supported by Williams, Plowman and Seawards, 15 16 that Zimmer take responsibility to remedy Hazard’s own failures and errors (Complaint Para. 86, 17 87), by paying for and performing offsite improvements, on the property of others, which are the 18 responsibility and liability of others, and that they never had a legal right to demand. And, Zimmer 19 pointed out that the Fire Marshal had previously waived those requirements against those others. 20 (Para 86): 21 “At all times, the Fire Marshal has had the authority under their own 22 ordinances/“Development Standards” to require the Museum of Natural History (the owner of the tree in question) to remove said oak limb, if it is less than 13’5” in height, and they 23 did in fact exercise that authority as to that tree in March of 2020. For reasons not disclosed 24 to Plaintiff, the Fire Marshal rescinded their demand of the Museum in 2020, and concluded the limb did not pose an obstacle to access.” 25 26 27 28 9 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES 1 The Fire Marshal, Plowman, Seawards engaged in a scheme to force Plaintiff to 2 compensate for their own past “mistakes”, by forcing her to undertake the same improvements 3 which they had demanded, and then inexplicably excused, of the Museum. 4 Defendant Williams, and others, are well aware of Zimmer’s history and her particular 5 sensitivities on the subject of antisemitism. She wrote the first Holocaust Remembrance Resolution 6 ever adopted by the County in 1990, when she was the Chief Deputy County Counsel. She wrote 7 8 and presented the 2023 Resolution in January of 2023 when County Counsel and at least Defendant 9 Williams were present. [RJN 13, p. 251] Williams, in particular is aware of her personal history 10 as a Second Generation Holocaust survivor, and the specific related reasons she is intent on 11 protecting her home, and her extreme sensitivity to abuse by government officials of individuals 12 who have no choice but to interact with hem. Yet, Plowman, Seawards, Hazard, and Williams 13 have persisted throughout the last year to attribute Zimmer’s opposition to their illegal demands 14 to her alleged desire not to ‘spend her money’. RJN 19, p. 309-310. 15 16 Despite their actual knowledge of the reasons for the lot split application, in their 17 Demurrer, the County again falsely asserts at page 9, line 16-19 that “[a]ccording to Zimmer, the 18 lot split would save her money, but would otherwise “change nothing except to add an invisible 19 line on a map.” This twisted and inaccurate comment, which intentionally misstates the 20 allegations of the Complaint (Para 15,27,106) reflects not only that the County is retaliating 21 against Zimmer because of her prior criticisms of Planning Department Executives and Williams, 22 as reflected in Paragraph 69 of the Complaint, but that this false, insulting, classically anti- 23 24 semitic trope 6has pervaded the County staff’s treatment of Zimmer throughout this permit 25 26 27 6 See, “Anti-Semitism Uncovered: A Guide to Old Myths in a New Era” RJN 26, p. 341,344 28 10 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES 1 process, including Defendant Plowman’s and Seawards’ objectively unreasonable conduct in 2 processing her application. 3 Conclusion 4 5 The Complaint adequately alleges that the conduct of the named individual Defendants, 6 specifically Supervisor Williams, Chief Hazard, Deputy Director Seawards and Planning 7 Director Plowman meets the standard for punitive damages. It is also clear that these Defendants 8 remain intent on denying Zimmer the opportunity to build her caregiver unit pursuant to the 9 building permit they themselves have approved, for no reason grounded in fact or law. 7 In this 10 case, Defendants’ malicious, arbitrary, biased, and retaliatory conduct implicates not only 11 12 Plaintiff’s statutory rights as set forth in the Complaint, and her First Amendment Rights, but her 13 14th Amendment rights to substantive and procedural due process and equal protection, as the 14 Defendants well know. There is no legitimate legal or policy reason for the County to dig in their 15 heels and force Plaintiff to litigate a case that could have been resolved in ten minutes if the 16 Defendants were operating in good faith. RJN 16 p. 299-301. Based on their individual and 17 collective behavior, the answer apparently lies in Paragraphs 69-71 of the Complaint. Since 18 Defendants’ withheld documentation under the Permit Streamlining Act, the court should allow 19 20 Plaintiff to proceed to discovery of additional evidence which further supports Plaintiff’s claim 21 for punitive damages. The Motion to Strike should be denied. 22 23 Respectfully Submitted, 24 25 7 This behavior has persisted down to the last petty detail: Plaintiff requested that the approved building permit be 26 extended until 60 days after resolution of this litigation. Plowman refused, “granting” an extension only until June, 2024. Now Defendants are doing their best to make sure that Plaintiff’s claims are not heard on their merits, in a 27 timely fashion, or at all. 28 11 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES 1 2 __ __ DATED: April 16, 2024 3 Richard C. Solomon, Esq. 4 5 Andréa Marcus 6 Attorneys for Plaintiff 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES REQUEST FOR JUDICIAL NOTICE EXHIBIT 16 13/14/24, 4:35 PM Gmail - Response to County's decision to fil e demurrer Gmail Jana Zimmer Response to County's decision to file demurrer 2 messages Richard Solomon Mon, Mar 11, 2024 at 9:01 AM To: Callie Kim Cc: Jana Zimmer , Andrea Marcus Dear Ms. Kim: Thank you for the 'Meet and Confer" conversation of March 8. I will respond here only to the most obvious errors in your assertions, which pertain to your stated intention to demur to every single cause of action. First, you have apparently misunderstood my statement regarding documents produced under the Public Records Act. I was referring specifically to writings which must exist, but were not produced, and which pertain to communications between and among Fire staff and Deputy Director Sewards and others. Such exchanges were described on the Accela billing sheets during the period from application submittal to April 10, 2023. There is no evidence that P&D even asked County Counsel for advice on the critical issues prior to April, 2023 (See, Exhibit 170 filed with the Clerk), "we should make sure County Counsel will back us up ... "] and Exh 143, P&D's Accela billing sheets, (with reference to a "pink sheet" requesting advice from County Counsel, not submitted until at least April 10) all of which were submitted to the Clerk and referenced in the Tort Claim, and which you have had for many months. The point is that Lisa Plowman expressly withheld writings on at least one of the requests on a claim of privilege, and there has been no final "disposition" of the other three. We do not believe you can justify withholding such writings as privileged under the PRA, or on any other basis. We will be seeking them in discovery. As you should know, since you have had full opportunity to consider the exhibits we submitted to the Clerk and your clients, you have no legitimate ground to demur in this case for failure to allege facts sufficient, and certainly not to seek an order sustaining a Demurrer without leave to amend, as to any of the causes of action. There is no doubt that there are a few errors in the pleading- we were forced to spend the entire Christmas holiday drafting the Complaint because you/your client refused to suspend or toll the statute of limitations for the period of time you knew we would be out of the country. As to any such discrepancies, we expect that the court will allow us to amend according to proof. Your Demurrer will only increase the time, cost and stress of requiring my client to pursue this litigation. Her reliance expenditures alone, on her approved building permit , already exceed $95,000. You are aware that my client is an individual seeking only to be able to finance construction of the caregiver unit for which the County has already approved a building permit, and that she has requested priority for her age, as well as mediation in the Complaint. Your/your client's slash and burn approach is wholly inappropriate in the circumstances. As to the primary legal claims, you fail to acknowledge that by its terms, SB 9 preempts contrary or greater local subdivision requirements, and Gov. Code 66411 expressly prohibits requiring correction of nonconforming zoning conditions You rely on provisions of SB 330, which were either repealed or modified by SB 8. The Complaint expressly alleges that SB 423 precludes your Fire Marshal's demands in the Local Responsibility area, as was previously acknowledged in the HCD regulations. [See, Cause of Action for Declaratory Judgment]. Notwithstanding that the lot split is ministerial, SB 8 specifically provides that an SB 9 lot split is indeed subject to the Permit Streamlining Act, as your staff is well aware. Please also consult HCD's informational manual- also an exhibit you already have- on SB 9 which references: "One-Unit Development (Reference: Gov. Code, §§ 65852.21, subd. (a); 65852.21, subd. (b)(2)(A)) SB 9 requires the ministerial approval of either one or two residential units. Government Code section 65852.21 indicates that the development of just one single-family home was indeed contemplated and expected. For example, the terms "no more than two residential units" and "up to two units" appear in the first line of the housing development-related portion of SB 9 (Gov. Code, § 65852.21, subd. (a)) and in the line obligating local agencies to modify development standards to facilitate housing development. (Gov. Code, § 65852.21, subd. (b)(2)(A).)" In addition, SB 8 also amended the HAA to specify that it applies to one single housing unit. Gov. Code 65905(C). And your clients have specifically conceded in e-mails to us that the standards of the HCA- with its much higher standards and burden of proof for the County to establish their defenses 14 https://mail.google .com/mail/u/0/?ik=3c22f9931 e&view=pt&search=all&permthid=th read-f: 1793246269318060642&simpl=msg-f: 17932462693180606. . . 1/4 r 3/14/24, 4:35 PM Gmail - Response to County's decision to file demurrer apply in this case. Zimmer is exactly the type of person that these provisions were intended to protect from government abuse . Your clients have been aware at all times that the lot split was specifically linked to the approved building permit, and Travis Seawards specifically confirmed prior to the submittal of the lot split application in numerous e mails that it didn't matter whether they began to construct under their approved building permit before or after consideration of the lot split. The notion that the prohibition on requiring offsite improvements only applies to the building permit and not the lot split is difficult to comprehend. You are aware that the entire point of filing the SB 9 application was to be able to separately finance construction pursuant to the approved building permit.(the Map Act applies to sale, lease or financing), and to avoid the risk of loss of fire insurance. The applications were clearly linked from the outset. Your staff found the application eligible for ministerial processing on February 13, 2023. The County cannot now call it 'ineligible' unless Zimmer complies with illegal conditions, or that she do so not only prior to approval, but prior to being (re)determined to be"eligible". The other issue that you fail to appreciate is that the individual Defendants- particularly Supervisor Williams, and also Plowman, Seawards and Hazard are subject to punitive damages, for acting maliciously and outside the scope of their employment in various respects- regardless of whether the County as an entity is immune. In fact, they will be liable to reimburse the County for attorneys' fees and costs, even if County Counsel does defend them. It is frivolous- and disingenuous in the extreme for the County to claim- over a year after submittal of the application in December of 2022, that the application was never complete, and that this lot split is not eligible and never was "eligible" to be processed ministerially under SB 9, and cannot be "determined" to be eligible (which P&D in fact did, on February 13, 2023) unless Zimmer now physically constructs offsite improvements, (which are expressly prohibited by SB 9) prior to P&D processing the application. The Fire Marshal's demands of 6.14.2023 are and were unlawful and beyond his authority. The Fire Marshal - personally advised the Clerk not to entertain an appeal of his demands. The P&D Director never acknowledged Zimmer's right to appeal her extremely untimely allegation on or about June 23, 2023, that the application was never complete under the Permit Streamlining Act. Most importantly, we are mystified at what policy goal the Board could possible articulate to justify defending this litigation, let alone depriving Zimmer of the benefits of the permit that the County has already approved, for the exact type of housing unit that the Legislature has already declared to be such an important element in their housing policy. This matter can be resolved immediately and your client - and the taxpayers, who will fund the defense of certain of your clients' errors and intentional wrongdoing- can avoid all damages, penalties and attorneys fees if they simply acknowledge: 1. That Zimmer, with the cooperation of two of her neighbors has indeed "voluntarily" widened Las Encinas Lane to 15' from her property to Puesta Del Sol, which is the lane width demanded by your Fire Marshal on and after June 14, 2023. No same practical effect determination is necessary. The standard has been achieved. 2. That the County has no authority to require Zimmer to repave the lane. Maintenance of the lane is required to be apportioned under Civil Code 845, and there is no evidence whatsoever that the current condition, or the buildout of the approved unit on its own lot has any impact on the public health and safety, let alone on fire equipment access to Zimmer's property. 3. That the County has no authority to require Zimmer to perform offsite improvements, including the lane repaving and the limbing or removal of the Museum's tree . 4. That there are no other conditions or obstacles to immediate approval of the lot split. Since Zimmer has been deprived of any appeal of any of staff's determinations, and we do not know whether the Board was accurately informed or advised in closed session as to the facts and their duties, or whether it was an affirmative desire of a majority to deprive Zimmer of the benefits of the permits the County has already approved, we suggest that you consult immediately with them. Richard Solomon Tue, Mar 12, 2024 at 10:47 AM To: Callie Kim , Jana Zimmer Cc: Andrea Marcus Ms. Kim : 15 https ://mail.google .com/mail/u/0/?ik=3c22f9931 e&view=pt&search=all&permthid=th read-f: 1793246269318060642&simpl=msg-f: 17932462693180606 . . . 2/4 '3/14/24, 4:35 PM Gmail - Response to County's decision to file demurrer Our records indicate that Exhibit 143 was submitted to the Clerk of the Board with our Tort Claim in July of 2023. You will recall that the Tort Claim was summarily rejected by the Risk Manager. The exhibits were sent to the Clerk via Dropbox to Katherine Douglas. We are in the process of finalizing our Index to Exhibits per the court rules, and it will be numbered differently at that time. I am providing a copy here as a courtesy. We have other correspondence with the CAO's office reflecting our attempts to work with them to produce all of the relevant documents which will be submitted to the court at the appropriate time. On Tue, Mar 12, 2024 at 10:04 AM Callie Kim wrote: Richard, Can you please send me Exhibit 143 referenced below? Thank you, Callie Callie Patton Kim Deputy County Counsel Santa Barbara County Counsel 105 East Anapamu Street, Suite 201 Santa Barbara, California 93101 (805) 568-2955 Notice: This information is private, confidential, and privileged and intended solely for the person or persons addressed herein. Any review, distribution, reliance on, or other use of this information by persons or entities other than the intended recipient is prohibited. If you have received this communication in error, immediately notify the sender and destroy/delete any copies of this transmission. Thank you for your compliance. Please note that any views or opinions presented in this email are solely those of the author and do not necessarily represent those of the County of Santa Barbara. Finally, the recipient should check this email and any attachments for the presence of viruses. The County of Santa Barbara accepts no liability for any damage caused by any virus transmitted by this email. From: Richard Solomon Sent: Monday, March 11, 2024 9:02 AM To: Callie Kim Cc: Jana Zimmer ; Andrea Marcus Subject: Response to County's decision to file demurrer Caution: This email originated from a source outside of the County of Santa Barbara. Do not dick links or open attachments unless you verify the sender and know the content is safe. [Quoted text hidden] 16 https://mail.google .com/mail/u/0/?ik=3c22f9931 e&view=pt&search=all&permthid=thread-f: 1793246269318060642&simpl=msg-f: 17932462693180606. . . 3/4 REQUEST FOR JUDICIAL NOTICE EXHIBIT 19 To: Seawards, Travis ; Dargel, Joseph Subject: Fwd: STatus I thought she said she didn't want you guys spending her money? Is she going in circles? Get Outlook for iOS From: Jana Zimmer Sent: Thursday, April 13, 2023 6:43 :35 PM To: Dargel, Joseph ; Seawards, Travis ; Plowman, Lisa ; Van Mullem, Rachel Subject: STatus Caution: This email originated from a source outside of the County of Santa Barbara. Do not click links or open attachments unless you verify the sender and know the content is safe. Joe and Travis: Thank you for your time today. Please clarify- Did I hear you correctly to be saying that based on your claim today that my property is 'ineligible' for an SB 9 lot split, that unless I can convince Fire to accept the sprinkler mitigation in lieu of their other claimed requirements, you are refusing to process the application? You are aware that Fire has not responded to my email today, as of yet. Please provide me with any documents that reflect the process- is this 'eligibility' letter unique to SB 9? What is the authority for refusing to process an application that you have accepted? I intend to put together a history of facts and law (as I see it) and then ask County Counsel, Fire Chief and P&D Director to meet. Thank you. Jana Zimmer (805)705-3 784 STATEMENT OF CONFIDENTIALITY & DISCLAIMER: The information contained in this email message is attorney privileged and confidential, intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this email is strictly prohibited. If you have received this email in error, please notify us immediately by calling (805) 705-3784 and delete the message. Thank you. 18 From: Oargel Jogph To: Seawards Trayjs: Pk>wman Ljsa Subject: RE: STatus Date: Friday, April 14, 2023 9:47:00 AM Attadunenta: iroageQ02,png ;mageOQ3 100 Yes, she was very angry. It was interesting - she acted very surprised when Travis asked her not to yell at us. I don't think she understands how her actions are perceiv~d. But we didn't take the bait and just repeated the Department's stance. I do think we'll continue going in circles until a call is scheduled with Jana, Fire, and P&D. It may also be good to meet with counsel first to make sure they'll back us_up dn our stance. New Logo Joseph Dargel, PG Supervising Planner Planning & Development 123 E. Anapamu St. Santa Barbara, CA 93101 805-568-3573 jdacael@countyofsb ocii