Preview
1 THERESE Y. CANNATA (SBN 88032)
KARL OLSON (SBN 104760)
2 MARK P. FICKES (SBN 178570)
ZACHARY E. COLBETH (SBN 297419)
3
ETHAN J. WICKLUND (SBN 306645)
4 CANNATA O’TOOLE FICKES & OLSON LLP
100 Pine Street, Suite 350
5 San Francisco, California 94111
Telephone: (415) 409-8900
6 Facsimile: (415) 409-8904
Email: tcannata@cofolaw.com
7
8
Attorneys for Plaintiff and Petitioner
9 KURT WILSON
SAN FRANCISCO CA, 94111
SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SAN JOAQUIN
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KURT WILSON, Case No. STK-CV-UWM-2019-0012404
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Plaintiff and Petitioner, DECLARATION OF THERESE Y.
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14 CANNATA IN SUPPORT OF
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v. PETITIONER KURT WILSON’S
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15 OPENING TRIAL BRIEF ON PETITION
CITY COUNCIL OF CITY OF
ST R E E T , S U I T E
STOCKTON and CITY OF STOCKTON, FOR WRITS OF MANDATE FOR
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VIOLATIONS OF THE CALIFORNIA
PUBLIC RECORDS ACT (Gov. Code §
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17 Defendants and Respondents.
6250, et seq.) AND THE RALPH M.
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18 BROWN ACT (Gov. Code § 54950, et seq.)
_____________________________________/
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Complaint/Petition Filed: September 20, 2019
20 First Am. Comp./Pet. Filed: October 13, 2020
21 Trial Date: October 4, 2021
22 Hearing Date: October 8, 2021
CITY OF STOCKTON, Dept: 10C
23 Judge: Hon. Jayne Lee
Cross-Complainant,
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v.
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KURT WILSON and ROES 1-100,
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Cross-Defendants.
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DECLARATION OF THERESE Y. CANNATA ISO WRIT PETITIONS RE: PRA AND BROWN ACT
1 I, THERESE Y. CANANTA, hereby declare as follows:
2 1. I am an attorney at law, duly licensed to practice before all Courts of the State of
3 California, and am in good standing with the State Bar of California. I am a partner of the law firm
4 of Cannata, O’Toole, Fickes & Olson LLP, attorneys of record for plaintiff and petitioner Kurt
5 Wilson (“Petitioner” or “Dr. Wilson”), in the above-referenced action. I make this declaration
6 based upon my personal knowledge, except when indicated upon information and belief. If called
7 upon to testify as to the truth of the matters set forth herein, I could and would do so based upon
8 my own personal knowledge, and as to those matters stated upon information and belief, I believe
9 them to be true.
SAN FRANCISCO CA, 94111
10 Summary of Relevant Pleadings and Other Litigation Events in This Action
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11 2. On September 20, 2019, on behalf of Dr. Wilson, my office filed a Verified
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12 Complaint for Breach of Contract Damages and Petition for Writs of Mandate for Violations of
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13 the California Public Records Act and the Ralph M. Brown Act (“Complaint”) against
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14 Defendants, alleging the following causes of action: 1) breach of contract; 2) violations of the
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15 Brown Act; and 3) violations of the PRA.
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16 3. Dr. Wilson filed his operative First Amended Complaint and Writ Petition
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(“FAC”) on October 13, 2020.
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18 4. On November 12, 2020, Defendants filed an Answer to the FAC.
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19 5. In addition to the above-referenced pleadings, the following other relevant events
20 occurred in this action:
21 a. On April 6, 2020, the parties participated in a JAMS mediation session
22 before the Honorable Fred K. Morrison. On December 1, 2020, the parties participated in a
23 mediation session before the Honorable Lesley D. Holland.
24 b. Because the City’s document productions were produced on a very slow
25 rolling basis, and the City was concurrently resisting compliance with two separate Public
26 Records Act (“PRA”) requests, discovery has been delayed and costly. The City has not yet
27 confirmed if its document productions or PRA productions are actually complete. Deposition
28 discovery of fact witnesses commenced in February 2021, and is expected to conclude on or
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DECLARATION OF THERESE Y. CANNATA ISO WRIT PETITIONS RE: PRA AND BROWN ACT
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about September 20, 2021 with the deposition of persons most knowledgeable about the City of
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Stockton’s Economic Development Department, including its work flow and projects during Dr.
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Wilson’s tenure as City Manager.
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c. There have been two motions to compel before Judge Holland, serving as
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the discovery referee, and the Court adopted Judge Holland’s recommendations in full as to both.
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The first concerned the City’s failure to produce a privilege log regarding its PRA document
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production, resulting in an order dated on August 3, 2020. (See paragraph 17 [Exhibit J], infra.)
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The second concerned the City’s deficient written discovery responses, resulting in an order dated
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May 17, 2021 in which the Court adopted the discovery referee’s April 22, 2021 Recommended
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Ruling on Dr. Wilson’s motion to compel. The City was ordered to serve further discovery
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responses within 21 days and to “deliver to Plaintiff copies of all responsive nonprivileged
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documents” (including responsive text messages and email communications involving Dr. Wilson
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and the Councilmembers) within 10 days after thereafter. It also required Respondents to provide
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Dr. Wilson with a comprehensive privilege log showing all responsive discovery documents
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being claimed as privileged. The City did not produce the missing text messages (as well as
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various other responsive documents) within the Court-mandated timeframe (nor did they, for the
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Similarly, the privilege log – when it was
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vast majority of text messages, produce them at all).
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untimely provided to Dr. Wilson months later on July 19, 2021 – also did not contain references
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to the missing text messages.
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Summary of Correspondence with the City Immediately After Dr. Wilson’s Termination,
21 and the City’s Refusal to Cure or Correct the Brown Act Violations
22 6. Following the City Council’s meeting on July 30, 2019, my office attempted to
23 contact the City Attorney, John M. Luebberke, to better understand the “for cause” reason given
24 for Dr. Wilson’s termination and how exactly he engaged in a “willful failure to implement
25 Council policy.”
26 7. On August 12, 2019, my office sent a letter to the City Attorney (copying the City
27 mayor, vice mayor, all council members, and City clerk), requesting that Defendants/Respondents
28 disclose this basic information about why the City Council voted to terminate Dr. Wilson. The
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letter also alerted Respondents to the fact that “the termination ‘for cause’ appears to be a pretext
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intended to deprive Dr. Wilson of substantial compensation, including benefits, due to him under
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the Contract.” A true and correct copy of the August 12, 2019 letter is attached hereto as Exhibit
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A.
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8. On August 28, 2019, my office contacted the City Attorney through another letter,
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informing Respondents that the July 30, 2019 meeting violated multiple provisions of the Brown
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Act and demanding that Respondents “cure or correct” its unlawful actions taken in violation of
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the Brown Act on or about July 30, 2019. A true and correct copy of the August 28, 2019 letter is
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attached hereto as Exhibit B.
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9. On September 6, 2019, the City Attorney’s office sent a letter to my office, in
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response to my office’s August 12 and 28 letters, stating that the City would not provide any facts
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which it “relied on in contending Wilson failed to implement Council policy” (and that it would
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not address or otherwise cure or correct the Brown Act violations). A true and correct copy of the
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City’s September 6, 2019 letter is attached hereto as Exhibit C.
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10. The following paragraphs in my declaration provide a summary of the key facts
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and general timeline of the events giving rise to the PRA claims.
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Summary of August 6, 2019 Public Records Act Request and City’s Responses Thereto
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11. On August 6, 2019, Dr. Wilson transmitted a request for documents to Ms. Laurie
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Montes (Acting City Manager) that the City treated as a PRA request. The PRA request sought
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the following: all emails, SharePoint files, and OneNote files regarding Dr. Wilson during his
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employment with the City. A true and correct copy of the August 6, 2019 PRA request is
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attached hereto as Exhibit D.
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12. On August 27, 2019, three (3) weeks after Dr. Wilson first made the request (and
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in clear violation of the PRA’s strict deadlines under Government Code section 6253(c)), the City
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finally responded. However, the City did not make its Section 6253(c) “determination” at this
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time, and instead had its Community Relations Officer, Ms. Connie Cochran, belatedly email Dr.
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Wilson and request that he narrow and clarify the email portion of his August 2019 PRA request.
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Dr. Wilson immediately did so the next day, narrowing and clarifying his request to encompass
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emails sent or received by Dr. Wilson “related to Council, in one way or another.” A true and
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correct copy of Ms. Cochran’s email correspondence to Dr. Wilson, dated August 27, 2019, is
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attached hereto as Exhibit E.
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13. Nearly two (2) months after the initial PRA request, on September 24, 2019, in an
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email and letter from Ms. Cochran, the City then finally issued its required “determination” under
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Section 6253(c) that it “ha[d] records to disclose.” However, in clear contravention of the PRA’s
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requirement that agencies “shall make the records promptly available” under Government Code
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section 6253(b) (emphasis added), the City indicated that it would not be until nearly three (3)
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months after the initial request that any records (i.e., just the initial batch of responsive records)
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would be provided. Ms. Cochran, on behalf of the City, also accepted Dr. Wilson’s clarification
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and narrowing of the email portion of the request, reiterating the narrowed request in her
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September 24, 2019 letter and stating that the records would be produced on a “rolling basis.” A
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true and correct copy of Ms. Cochran’s email correspondence and letter to Dr. Wilson, dated
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September 24, 2019, is attached hereto as Exhibit F.
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14. Three (3) days later, on September 27, 2019, Ms. Cochran sent another letter to Dr.
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Wilson regarding his August 6, 2019 CPRA request, this time extending the City’s response time
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by over a month to December 3, 2019 – indicating that it anticipated it being nearly four (4)
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months after the initial request that any records would be provided. A true and correct copy of
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Ms. Cochran’s letter to Dr. Wilson, dated September 27, 2019, is attached hereto as Exhibit G.
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15. On October 30, 2019, after nearly three months from the date of Dr. Wilson’s
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initial August 6, 2019 PRA request, Ms. Cochran sent a letter to Dr. Wilson with links to records
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it asserted were responsive to the request. Ms. Cochran made clear, though, that the records were
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not complete, stating that the City would provide further records on a “rolling basis” and that it
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anticipated that the next batch of records would not be provided until over a month later on
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December 13, 2019. Ms. Cochran again acknowledged Dr. Wilson’s narrowing and clarification
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regarding the email portion of the request. She also stated that “[c]ertain records have been
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withheld under the following California Government Code Sections: draft documents under
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6254(a); communications related to personnel investigations and hiring under 6254(c); attorney-
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client communications under 6254(k); and public interest provisions of 6255.” A true and correct
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copy of Ms. Cochran’s letter to Dr. Wilson, dated October 30, 2019, is attached hereto as Exhibit
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H.
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16. After the City’s initial, limited production of documents on October 30, 2019, Dr.
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Wilson (through my office) and the City entered into preliminary talks about attempting to settle
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the case through mediation. On November 8, 2019, in an effort to accommodate the parties’
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settlement efforts and an anticipated mediation session, my office agreed to stay the August 2019
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PRA request until thirty (30) days after the close of mediation. Mediation between the parties
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occurred on April 6, 2020, and the stay on the August 6, 2019 PRA request was lifted on May 6,
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2020 (making the temporary stay period for the PRA between November 8, 2019 and May 6,
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2020). For many months thereafter, the City failed to resume making productions of responsive
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documents to the August 2019 PRA.
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17. Meanwhile, on January 16, 2020, we requested that the City produce a privilege
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log of withheld documents for Dr. Wilson’s PRA requests (i.e., both the August 2019 PRA
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request and the October 2019 PRA request). Attached hereto as Exhibit I is a true and correct
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copy of the January 16, 2020 letter from Dr. Wilson’s counsel. The City refused to produce any
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privilege logs for Dr. Wilson’s PRAs, which would disclose exactly what documents were being
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withheld, how many were being withheld, and on what basis the records were being withheld.
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Dr. Wilson was thus forced to file a motion to compel production of the PRA privilege logs
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(which he did on February 27, 2020) and obtain a Court order for a privilege log (which he did on
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August 3, 2020, after the Court “adopted in full” the Recommended Ruling of the discovery
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referee in this case, Judge Lesley Holland). Attached hereto as Exhibit J is a true and correct
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copy of the Court’s August 3, 2020 Order compelling the City to produce a privilege log. The
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Recommended Ruling specifically referenced the October 2019 PRA request, however its
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reasoning applied to the August 2019 PRA request as well, and Dr. Wilson continued to request
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from the City that privilege logs be provided for both the August and October 2019 PRA requests.
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In compliance with the Court’s Order, the City eventually produced a privilege log regarding the
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October 2019 PRA request on October 2, 2020. However, the City did not produce a privilege
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log regarding the August 2019 PRA request until April 2021; it produced an updated log in
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August 2021.
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18. After the stay period for the August 2019 PRA request was lifted on May 6, 2020,
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Dr. Wilson did not receive any further documents from the City regarding the August 2019 PRA
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until nearly six (6) months later when, on November 2, 2020, the City agreed to disclose and
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produce additional records as part of completing its August 2019 PRA response, providing a list
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of Bates-ranges for further responsive documents and stating that more would be forthcoming. In
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its November 2, 2020 letter, the City noted that the Bates-ranges for the documents pertaining to
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the August 2019 PRA request were derived from documents earlier-produced by the City to Dr.
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Wilson’s separate and distinct February 2020 written discovery requests. Also in the City’s
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November 2, 2020 letter, the City made a belated assertion – over a year after Dr. Wilson had
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made his PRA request, narrowed it regarding the email portion of that request, and the City had
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accepted that narrowed request and expressed its intention to move forward on that basis – that
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the email portion of the request was still “overly broad.” A true and correct copy of the City’s
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November 2, 2020 letter is attached hereto as Exhibit K.
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19. On November 24, 2020 and, months later, on February 19, 2021, the City provided
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further Bates-ranges of responsive documents, again solely based on its document production
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from the civil discovery process. True and correct copies of the City’s November 24, 2020 and
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February 19, 2021 letters are attached hereto as Exhibit L and Exhibit M, respectively.
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20. On April 16, 2021, the City produced further responsive documents, again
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providing a Bates-range of documents determined to be responsive to Dr. Wilson’s August 2019
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PRA request, as well as a “Vaughn index” (i.e., privilege log) for withheld documents pertaining
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to the August 2019 PRA request (which was something that my office had repeatedly requested
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since January of 2020). The City also again asserted overbreadth regarding the email portion of
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Dr. Wilson’s request, despite Dr. Wilson already narrowing this portion of the request back in
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2019 and the City (through Connie Cochran’s October 30, 2019 letter) moving forward on that
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basis. A true and correct copy of the City’s April 16, 2021 letter is attached hereto as Exhibit N.
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A true and correct copy of the City’s original privilege log regarding the August 2019 PRA
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request is attached hereto as Exhibit O.
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21. On June 6, 2021, after conducting a review of the documents produced by the City
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to date and a review of the City’s privilege log, my office sent the City a comprehensive letter and
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analysis explaining the various deficiencies with the City’s withholding of documents. My office
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also explained that, while disagreeing with the City’s overbreadth assertion regarding the email
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portion of the August 2019 PRA request (particularly given the City’s earlier acceptance of Dr.
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Wilson’s narrowed scope of the email request back in 2019) that Dr. Wilson would further
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narrow his request to accommodate the City, which he did by providing a non-exclusive list of
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suggested search terms and by narrowing the email portion of the August 2019 PRA request to
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just emails “to or from Dr. Wilson in the years 2018 and 2019.” A true and correct copy of the
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June 6, 2021 letter is attached hereto as Exhibit P.
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22. Throughout the next several months, my office engaged in a series of
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correspondence with the City in order to attempt to obtain the documents that the City should
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have earlier produced back in 2019 as responsive to the August 2019 PRA request. As a result of
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this process, the City produced various additional responsive documents (including documents
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that it was previously deliberately withholding). However, the City also continued to withhold
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other documents that it erroneously maintained were exempt from the PRA. This correspondence
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is briefly summarized below:
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a. On June 8, 2021, in response to my office’s comprehensive June 4, 2021
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letter and analysis regarding the August 2019 PRA request, the City sent my office a short letter
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stating that it had additional responsive email documents to produce (that it anticipated would be
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available a month later, on July 9, 2021), and it cursorily stated that “the City disagrees with the
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assertions that the City’s response was insufficient” and that it would “respond fully to these
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assertions in a separate correspondence.” A true and correct copy of the City’s June 8, 2021 letter
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is attached hereto as Exhibit Q.
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b. On June 25, 2021, the City sent my office a letter stating that it would
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produce additional documents and that it was also producing several “meeting appointments”
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documents that it was previously withholding. The meeting documents list “Kurt Wilson” as the
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“Organizer” and were for dates in January and February of 2019. A true and correct copy of the
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City’s June 25, 2021 letter is attached hereto as Exhibit R.
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c. On July 9, 2021, nearly two (2) years after Dr. Wilson’s August 2019 PRA
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request, the City sent my office a letter with a link to access an initial batch of responsive email
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documents. It stated that “additional records will be available by August 6, 2021” (about a month
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later). A true and correct copy of the City’s July 9, 2021 letter is attached hereto as Exhibit S.
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d. Also on July 9, the City sent an email with the same link to the initial batch
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of email documents, to which Karl Olson, a partner at my firm, replied. Mr. Olson requested an
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expedited response (given the huge prior delay and that the City was not going to produce more
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documents for another month), reiterating in his email that “Government Code section 6253(b)
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requires that public agencies ‘shall make the records promptly available’ to Public Records Act
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requesters” and stating that “[t]he City’s past delays and reference to further delays does not
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Mr. Olson also cited Government Code section 6253.1, which
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comply with section 6253(b).”
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requires government agencies to pro-actively assist members of the public to identify responsive
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records, stating that any requests for “clarification” should have been made in 2019 (not 2021)
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and that the City’s complaints about burden and timing were unwarranted, as the City “had the
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requests for two years, not two months, and there is also a trial coming up very soon.” The City
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insisted that it was working “diligently.” A true and correct copy of this July 9, 2019 email
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exchange is attached hereto as Exhibit T.
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e. On July 28, 2019, Zachary Colbeth, an associate at my office, again wrote
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to the City in a letter, reiterating and requesting that “all outstanding non-exempt records responsive
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to the August 2019 PRA request be produced immediately.” Mr. Colbeth also pointed out that, inter
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alia, the City had already clarified the email portion of the August 2019 PRA request back in 2019
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(and had accepted Dr. Wilson’s clarification and moved forward on that basis); that the “stay period”
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for the request was known by all parties to be “temporary” and had expired on May 6, 2020; that the
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City had waited six months to produce any further documents in response to the August 2019 PRA
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request (and only did so after repeated prompting from my office); that the City had only recently
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produced a privilege log for the August 2019 PRA request in April of 2021; and that the City had not
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addressed many of the substantive points from my office’s June 4, 2021 letter, particularly regarding
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the parties’ disputes over claimed PRA exemptions by the City. A true and correct copy of the July
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28, 2021 letter is attached hereto as Exhibit U.
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f. On August 4, 2021, the City responded by letter, identifying a Bates-range
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for a very large number of further responsive documents to the email portion of Dr. Wilson’s
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August 2019 PRA request. Regarding the City’s claimed PRA exemptions, the City stated that it
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would review the arguments raised by my office’s July 28, 2019 letter and would “provide
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supplemental descriptions or provide additional records as appropriate.” A true and correct copy
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of the City’s August 4, 2021 letter is attached hereto as Exhibit V.
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g. Weeks later, on August 20, 2021, the City sent my office a letter, refusing
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to produce any further documents and also providing an amended privilege log of documents
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withheld in response to Dr. Wilson’s August 2019 PRA request. This letter constituted yet
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another instance where the City continued to claim unwarranted and unjustified exemptions under
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the PRA (this time in an amended privilege log). A true and correct copy of the City’s August 4,
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2021 letter is attached hereto as Exhibit W. A true and correct copy of the City’s amended
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privilege log regarding the August 2019 PRA request is attached hereto as Exhibit X.
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23. Overall, I believe that the City’s response to Dr. Wilson’s August 2019 PRA
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request was grossly inadequate and extremely violative and non-compliant with the PRA. The
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City, inter alia, (1) failed to comply with the PRA’s basic ten-day timing requirement for making
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a “determination” regarding disclosable public records; (2) failed to produce responsive records
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“promptly,” in any sense of the word (dragging the production of clearly responsive documents
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out for nearly 2 years); (3) failed to pro-actively assist Dr. Wilson with the identification of
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responsive records; and (4) failed to meet its burden of justifying withheld documents under
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claimed PRA exemptions. Dr. Wilson is therefore requesting from the Court, inter alia, (1) a
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peremptory writ of mandate under Government Code section 6259 directing Respondents to
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immediately produce all public records requested in Dr. Wilson’s August 2019 PRA request
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(including those being currently withheld); (2) a declaratory judgment that Respondents violated
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the PRA by unlawfully failing to respond to, withholding, and/or delaying production of the
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records requested; and (3) an award of Dr. Wilson’s reasonable attorney’s fees and costs pursuant
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to Government Code section 6259(d) and/or, in the alternative, pursuant to Code of Civil
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Procedure section 1021.5.
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Summary of October 4, 2019 Public Records Act Request and City’s Responses Thereto
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24. Dr. Wilson, through counsel submitted a second Public Records Act request on
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October 4, 2019, directed to the City and seeking, inter alia (emphasis added): 1) “All
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communications (via email, text or other means) received by, from, between, and among the
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Mayor, any other City Council members, the Mayor’s staff (including Daniel Lopez, Cameron
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Burns and Max Vargas), Bob Deis, Henry Garcia, Wayne McAffee, Patrick ‘Motec’ Sanchez,
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Kathleen Gapusan, any member of the media, any member of the public, any member or
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representative of any labor group, any real estate developers, and/or Ken Pulskamp (facilitator of
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Dr. Wilson’s evaluation)) that reference or relate to Dr. Wilson and/or any evaluations of
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him or refer or relate to his termination. . . .”; and 2) “Any communications . . . from Daniel
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Lopez, Cameron Burns, Max Vargas, and/or the Mayor to any members of the news media during
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the month of July 2019” [emphasis added]. Citing the California Supreme Court’s decision in
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City of San Jose v. Superior Court (2007) 2 Cal.5th 608 (which holds that communications
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relating to public business on the “private” electronic devices of city employees and officials are
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public records), the October 2019 PRA request specifically stated that “[t]his request
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specifically includes text messages between or among any of the above individuals, as well
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1 THERESE Y. CANNATA (SBN 88032) KARL OLSON (SBN 104760) 2 MARK P. FICKES (SBN 178570) ZACHARY E. COLBETH (SBN 297419) 3 ETHAN J. WICKLUND (SBN 306645) 4 CANNATA O’TOOLE FICKES & OLSON LLP 100 Pine Street, Suite 350 5 San Francisco, California 94111 Telephone: (415) 409-8900 6 Facsimile: (415) 409-8904 Email: tcannata@cofolaw.com 7 8 Attorneys for Plaintiff and Petitioner 9 KURT WILSON SAN FRANCISCO CA, 94111 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 OL S O N L L P COUNTY OF SAN JOAQUIN 11 415.409.8904 12 KURT WILSON, Case No. STK-CV-UWM-2019-0012404 AT LAW & 13 FICKES Plaintiff and Petitioner, DECLARATION OF THERESE Y. – FAX: 14 CANNATA IN SUPPORT OF ATTORNEYS v. PETITIONER KURT WILSON’S 350, TOOLE 415.409.8900 15 OPENING TRIAL BRIEF ON PETITION CITY COUNCIL OF CITY OF ST R E E T , S U I T E STOCKTON and CITY OF STOCKTON, FOR WRITS OF MANDATE FOR 16 O’ VIOLATIONS OF THE CALIFORNIA PUBLIC RECORDS ACT (Gov. Code § CANNATA 17 Defendants and Respondents. 6250, et seq.) AND THE RALPH M. TEL: 18 BROWN ACT (Gov. Code § 54950, et seq.) _____________________________________/ 100 PINE 19 Complaint/Petition Filed: September 20, 2019 20 First Am. Comp./Pet. Filed: October 13, 2020 21 Trial Date: October 4, 2021 22 Hearing Date: October 8, 2021 CITY OF STOCKTON, Dept: 10C 23 Judge: Hon. Jayne Lee Cross-Complainant, 24 v. 25 KURT WILSON and ROES 1-100, 26 Cross-Defendants. 27 28 DECLARATION OF THERESE Y. CANNATA ISO WRIT PETITIONS RE: PRA AND BROWN ACT 1 I, THERESE Y. CANANTA, hereby declare as follows: 2 1. I am an attorney at law, duly licensed to practice before all Courts of the State of 3 California, and am in good standing with the State Bar of California. I am a partner of the law firm 4 of Cannata, O’Toole, Fickes & Olson LLP, attorneys of record for plaintiff and petitioner Kurt 5 Wilson (“Petitioner” or “Dr. Wilson”), in the above-referenced action. I make this declaration 6 based upon my personal knowledge, except when indicated upon information and belief. If called 7 upon to testify as to the truth of the matters set forth herein, I could and would do so based upon 8 my own personal knowledge, and as to those matters stated upon information and belief, I believe 9 them to be true. SAN FRANCISCO CA, 94111 10 Summary of Relevant Pleadings and Other Litigation Events in This Action OL S O N L L P 11 2. On September 20, 2019, on behalf of Dr. Wilson, my office filed a Verified 415.409.8904 12 Complaint for Breach of Contract Damages and Petition for Writs of Mandate for Violations of AT LAW & 13 the California Public Records Act and the Ralph M. Brown Act (“Complaint”) against FICKES – FAX: 14 Defendants, alleging the following causes of action: 1) breach of contract; 2) violations of the ATTORNEYS 350, TOOLE 415.409.8900 15 Brown Act; and 3) violations of the PRA. ST R E E T , S U I T E 16 3. Dr. Wilson filed his operative First Amended Complaint and Writ Petition O’ (“FAC”) on October 13, 2020. CANNATA 17 TEL: 18 4. On November 12, 2020, Defendants filed an Answer to the FAC. 100 PINE 19 5. In addition to the above-referenced pleadings, the following other relevant events 20 occurred in this action: 21 a. On April 6, 2020, the parties participated in a JAMS mediation session 22 before the Honorable Fred K. Morrison. On December 1, 2020, the parties participated in a 23 mediation session before the Honorable Lesley D. Holland. 24 b. Because the City’s document productions were produced on a very slow 25 rolling basis, and the City was concurrently resisting compliance with two separate Public 26 Records Act (“PRA”) requests, discovery has been delayed and costly. The City has not yet 27 confirmed if its document productions or PRA productions are actually complete. Deposition 28 discovery of fact witnesses commenced in February 2021, and is expected to conclude on or 1 DECLARATION OF THERESE Y. CANNATA ISO WRIT PETITIONS RE: PRA AND BROWN ACT 1 about September 20, 2021 with the deposition of persons most knowledgeable about the City of 2 Stockton’s Economic Development Department, including its work flow and projects during Dr. 3 Wilson’s tenure as City Manager. 4 c. There have been two motions to compel before Judge Holland, serving as 5 the discovery referee, and the Court adopted Judge Holland’s recommendations in full as to both. 6 The first concerned the City’s failure to produce a privilege log regarding its PRA document 7 production, resulting in an order dated on August 3, 2020. (See paragraph 17 [Exhibit J], infra.) 8 The second concerned the City’s deficient written discovery responses, resulting in an order dated 9 SAN FRANCISCO CA, 94111 May 17, 2021 in which the Court adopted the discovery referee’s April 22, 2021 Recommended 10 Ruling on Dr. Wilson’s motion to compel. The City was ordered to serve further discovery OL S O N L L P 11 415.409.8904 responses within 21 days and to “deliver to Plaintiff copies of all responsive nonprivileged 12 documents” (including responsive text messages and email communications involving Dr. Wilson AT LAW & 13 FICKES and the Councilmembers) within 10 days after thereafter. It also required Respondents to provide – FAX: 14 ATTORNEYS Dr. Wilson with a comprehensive privilege log showing all responsive discovery documents 350, TOOLE 415.409.8900 15 ST R E E T , S U I T E being claimed as privileged. The City did not produce the missing text messages (as well as 16 O’ various other responsive documents) within the Court-mandated timeframe (nor did they, for the CANNATA 17 Similarly, the privilege log – when it was TEL: vast majority of text messages, produce them at all). 18 untimely provided to Dr. Wilson months later on July 19, 2021 – also did not contain references 100 PINE 19 to the missing text messages. 20 Summary of Correspondence with the City Immediately After Dr. Wilson’s Termination, 21 and the City’s Refusal to Cure or Correct the Brown Act Violations 22 6. Following the City Council’s meeting on July 30, 2019, my office attempted to 23 contact the City Attorney, John M. Luebberke, to better understand the “for cause” reason given 24 for Dr. Wilson’s termination and how exactly he engaged in a “willful failure to implement 25 Council policy.” 26 7. On August 12, 2019, my office sent a letter to the City Attorney (copying the City 27 mayor, vice mayor, all council members, and City clerk), requesting that Defendants/Respondents 28 disclose this basic information about why the City Council voted to terminate Dr. Wilson. The 2 DECLARATION OF THERESE Y. CANNATA ISO WRIT PETITIONS RE: PRA AND BROWN ACT 1 letter also alerted Respondents to the fact that “the termination ‘for cause’ appears to be a pretext 2 intended to deprive Dr. Wilson of substantial compensation, including benefits, due to him under 3 the Contract.” A true and correct copy of the August 12, 2019 letter is attached hereto as Exhibit 4 A. 5 8. On August 28, 2019, my office contacted the City Attorney through another letter, 6 informing Respondents that the July 30, 2019 meeting violated multiple provisions of the Brown 7 Act and demanding that Respondents “cure or correct” its unlawful actions taken in violation of 8 the Brown Act on or about July 30, 2019. A true and correct copy of the August 28, 2019 letter is 9 SAN FRANCISCO CA, 94111 attached hereto as Exhibit B. 10 9. On September 6, 2019, the City Attorney’s office sent a letter to my office, in OL S O N L L P 11 415.409.8904 response to my office’s August 12 and 28 letters, stating that the City would not provide any facts 12 which it “relied on in contending Wilson failed to implement Council policy” (and that it would AT LAW & 13 FICKES not address or otherwise cure or correct the Brown Act violations). A true and correct copy of the – FAX: 14 ATTORNEYS City’s September 6, 2019 letter is attached hereto as Exhibit C. 350, TOOLE 415.409.8900 15 ST R E E T , S U I T E 10. The following paragraphs in my declaration provide a summary of the key facts 16 O’ and general timeline of the events giving rise to the PRA claims. CANNATA 17 Summary of August 6, 2019 Public Records Act Request and City’s Responses Thereto TEL: 18 100 PINE 11. On August 6, 2019, Dr. Wilson transmitted a request for documents to Ms. Laurie 19 Montes (Acting City Manager) that the City treated as a PRA request. The PRA request sought 20 the following: all emails, SharePoint files, and OneNote files regarding Dr. Wilson during his 21 employment with the City. A true and correct copy of the August 6, 2019 PRA request is 22 attached hereto as Exhibit D. 23 12. On August 27, 2019, three (3) weeks after Dr. Wilson first made the request (and 24 in clear violation of the PRA’s strict deadlines under Government Code section 6253(c)), the City 25 finally responded. However, the City did not make its Section 6253(c) “determination” at this 26 time, and instead had its Community Relations Officer, Ms. Connie Cochran, belatedly email Dr. 27 Wilson and request that he narrow and clarify the email portion of his August 2019 PRA request. 28 3 DECLARATION OF THERESE Y. CANNATA ISO WRIT PETITIONS RE: PRA AND BROWN ACT 1 Dr. Wilson immediately did so the next day, narrowing and clarifying his request to encompass 2 emails sent or received by Dr. Wilson “related to Council, in one way or another.” A true and 3 correct copy of Ms. Cochran’s email correspondence to Dr. Wilson, dated August 27, 2019, is 4 attached hereto as Exhibit E. 5 13. Nearly two (2) months after the initial PRA request, on September 24, 2019, in an 6 email and letter from Ms. Cochran, the City then finally issued its required “determination” under 7 Section 6253(c) that it “ha[d] records to disclose.” However, in clear contravention of the PRA’s 8 requirement that agencies “shall make the records promptly available” under Government Code 9 SAN FRANCISCO CA, 94111 section 6253(b) (emphasis added), the City indicated that it would not be until nearly three (3) 10 months after the initial request that any records (i.e., just the initial batch of responsive records) OL S O N L L P 11 415.409.8904 would be provided. Ms. Cochran, on behalf of the City, also accepted Dr. Wilson’s clarification 12 and narrowing of the email portion of the request, reiterating the narrowed request in her AT LAW & 13 FICKES September 24, 2019 letter and stating that the records would be produced on a “rolling basis.” A – FAX: 14 ATTORNEYS true and correct copy of Ms. Cochran’s email correspondence and letter to Dr. Wilson, dated 350, TOOLE 415.409.8900 15 ST R E E T , S U I T E September 24, 2019, is attached hereto as Exhibit F. 16 O’ 14. Three (3) days later, on September 27, 2019, Ms. Cochran sent another letter to Dr. CANNATA 17 Wilson regarding his August 6, 2019 CPRA request, this time extending the City’s response time TEL: 18 by over a month to December 3, 2019 – indicating that it anticipated it being nearly four (4) 100 PINE 19 months after the initial request that any records would be provided. A true and correct copy of 20 Ms. Cochran’s letter to Dr. Wilson, dated September 27, 2019, is attached hereto as Exhibit G. 21 15. On October 30, 2019, after nearly three months from the date of Dr. Wilson’s 22 initial August 6, 2019 PRA request, Ms. Cochran sent a letter to Dr. Wilson with links to records 23 it asserted were responsive to the request. Ms. Cochran made clear, though, that the records were 24 not complete, stating that the City would provide further records on a “rolling basis” and that it 25 anticipated that the next batch of records would not be provided until over a month later on 26 December 13, 2019. Ms. Cochran again acknowledged Dr. Wilson’s narrowing and clarification 27 regarding the email portion of the request. She also stated that “[c]ertain records have been 28 4 DECLARATION OF THERESE Y. CANNATA ISO WRIT PETITIONS RE: PRA AND BROWN ACT 1 withheld under the following California Government Code Sections: draft documents under 2 6254(a); communications related to personnel investigations and hiring under 6254(c); attorney- 3 client communications under 6254(k); and public interest provisions of 6255.” A true and correct 4 copy of Ms. Cochran’s letter to Dr. Wilson, dated October 30, 2019, is attached hereto as Exhibit 5 H. 6 16. After the City’s initial, limited production of documents on October 30, 2019, Dr. 7 Wilson (through my office) and the City entered into preliminary talks about attempting to settle 8 the case through mediation. On November 8, 2019, in an effort to accommodate the parties’ 9 SAN FRANCISCO CA, 94111 settlement efforts and an anticipated mediation session, my office agreed to stay the August 2019 10 PRA request until thirty (30) days after the close of mediation. Mediation between the parties OL S O N L L P 11 415.409.8904 occurred on April 6, 2020, and the stay on the August 6, 2019 PRA request was lifted on May 6, 12 2020 (making the temporary stay period for the PRA between November 8, 2019 and May 6, AT LAW & 13 FICKES 2020). For many months thereafter, the City failed to resume making productions of responsive – FAX: 14 ATTORNEYS documents to the August 2019 PRA. 350, TOOLE 415.409.8900 15 ST R E E T , S U I T E 17. Meanwhile, on January 16, 2020, we requested that the City produce a privilege 16 O’ log of withheld documents for Dr. Wilson’s PRA requests (i.e., both the August 2019 PRA CANNATA 17 TEL: request and the October 2019 PRA request). Attached hereto as Exhibit I is a true and correct 18 copy of the January 16, 2020 letter from Dr. Wilson’s counsel. The City refused to produce any 100 PINE 19 privilege logs for Dr. Wilson’s PRAs, which would disclose exactly what documents were being 20 withheld, how many were being withheld, and on what basis the records were being withheld. 21 Dr. Wilson was thus forced to file a motion to compel production of the PRA privilege logs 22 (which he did on February 27, 2020) and obtain a Court order for a privilege log (which he did on 23 August 3, 2020, after the Court “adopted in full” the Recommended Ruling of the discovery 24 referee in this case, Judge Lesley Holland). Attached hereto as Exhibit J is a true and correct 25 copy of the Court’s August 3, 2020 Order compelling the City to produce a privilege log. The 26 Recommended Ruling specifically referenced the October 2019 PRA request, however its 27 reasoning applied to the August 2019 PRA request as well, and Dr. Wilson continued to request 28 5 DECLARATION OF THERESE Y. CANNATA ISO WRIT PETITIONS RE: PRA AND BROWN ACT 1 from the City that privilege logs be provided for both the August and October 2019 PRA requests. 2 In compliance with the Court’s Order, the City eventually produced a privilege log regarding the 3 October 2019 PRA request on October 2, 2020. However, the City did not produce a privilege 4 log regarding the August 2019 PRA request until April 2021; it produced an updated log in 5 August 2021. 6 18. After the stay period for the August 2019 PRA request was lifted on May 6, 2020, 7 Dr. Wilson did not receive any further documents from the City regarding the August 2019 PRA 8 until nearly six (6) months later when, on November 2, 2020, the City agreed to disclose and 9 SAN FRANCISCO CA, 94111 produce additional records as part of completing its August 2019 PRA response, providing a list 10 of Bates-ranges for further responsive documents and stating that more would be forthcoming. In OL S O N L L P 11 415.409.8904 its November 2, 2020 letter, the City noted that the Bates-ranges for the documents pertaining to 12 the August 2019 PRA request were derived from documents earlier-produced by the City to Dr. AT LAW & 13 FICKES Wilson’s separate and distinct February 2020 written discovery requests. Also in the City’s – FAX: 14 ATTORNEYS November 2, 2020 letter, the City made a belated assertion – over a year after Dr. Wilson had 350, TOOLE 415.409.8900 15 ST R E E T , S U I T E made his PRA request, narrowed it regarding the email portion of that request, and the City had 16 O’ accepted that narrowed request and expressed its intention to move forward on that basis – that CANNATA 17 the email portion of the request was still “overly broad.” A true and correct copy of the City’s TEL: 18 100 PINE November 2, 2020 letter is attached hereto as Exhibit K. 19 19. On November 24, 2020 and, months later, on February 19, 2021, the City provided 20 further Bates-ranges of responsive documents, again solely based on its document production 21 from the civil discovery process. True and correct copies of the City’s November 24, 2020 and 22 February 19, 2021 letters are attached hereto as Exhibit L and Exhibit M, respectively. 23 20. On April 16, 2021, the City produced further responsive documents, again 24 providing a Bates-range of documents determined to be responsive to Dr. Wilson’s August 2019 25 PRA request, as well as a “Vaughn index” (i.e., privilege log) for withheld documents pertaining 26 to the August 2019 PRA request (which was something that my office had repeatedly requested 27 since January of 2020). The City also again asserted overbreadth regarding the email portion of 28 6 DECLARATION OF THERESE Y. CANNATA ISO WRIT PETITIONS RE: PRA AND BROWN ACT 1 Dr. Wilson’s request, despite Dr. Wilson already narrowing this portion of the request back in 2 2019 and the City (through Connie Cochran’s October 30, 2019 letter) moving forward on that 3 basis. A true and correct copy of the City’s April 16, 2021 letter is attached hereto as Exhibit N. 4 A true and correct copy of the City’s original privilege log regarding the August 2019 PRA 5 request is attached hereto as Exhibit O. 6 21. On June 6, 2021, after conducting a review of the documents produced by the City 7 to date and a review of the City’s privilege log, my office sent the City a comprehensive letter and 8 analysis explaining the various deficiencies with the City’s withholding of documents. My office 9 SAN FRANCISCO CA, 94111 also explained that, while disagreeing with the City’s overbreadth assertion regarding the email 10 portion of the August 2019 PRA request (particularly given the City’s earlier acceptance of Dr. OL S O N L L P 11 415.409.8904 Wilson’s narrowed scope of the email request back in 2019) that Dr. Wilson would further 12 narrow his request to accommodate the City, which he did by providing a non-exclusive list of AT LAW & 13 FICKES suggested search terms and by narrowing the email portion of the August 2019 PRA request to – FAX: 14 ATTORNEYS just emails “to or from Dr. Wilson in the years 2018 and 2019.” A true and correct copy of the 350, TOOLE 415.409.8900 15 ST R E E T , S U I T E June 6, 2021 letter is attached hereto as Exhibit P. 16 O’ 22. Throughout the next several months, my office engaged in a series of CANNATA 17 TEL: correspondence with the City in order to attempt to obtain the documents that the City should 18 100 PINE have earlier produced back in 2019 as responsive to the August 2019 PRA request. As a result of 19 this process, the City produced various additional responsive documents (including documents 20 that it was previously deliberately withholding). However, the City also continued to withhold 21 other documents that it erroneously maintained were exempt from the PRA. This correspondence 22 is briefly summarized below: 23 a. On June 8, 2021, in response to my office’s comprehensive June 4, 2021 24 letter and analysis regarding the August 2019 PRA request, the City sent my office a short letter 25 stating that it had additional responsive email documents to produce (that it anticipated would be 26 available a month later, on July 9, 2021), and it cursorily stated that “the City disagrees with the 27 assertions that the City’s response was insufficient” and that it would “respond fully to these 28 7 DECLARATION OF THERESE Y. CANNATA ISO WRIT PETITIONS RE: PRA AND BROWN ACT 1 assertions in a separate correspondence.” A true and correct copy of the City’s June 8, 2021 letter 2 is attached hereto as Exhibit Q. 3 b. On June 25, 2021, the City sent my office a letter stating that it would 4 produce additional documents and that it was also producing several “meeting appointments” 5 documents that it was previously withholding. The meeting documents list “Kurt Wilson” as the 6 “Organizer” and were for dates in January and February of 2019. A true and correct copy of the 7 City’s June 25, 2021 letter is attached hereto as Exhibit R. 8 c. On July 9, 2021, nearly two (2) years after Dr. Wilson’s August 2019 PRA 9 SAN FRANCISCO CA, 94111 request, the City sent my office a letter with a link to access an initial batch of responsive email 10 documents. It stated that “additional records will be available by August 6, 2021” (about a month OL S O N L L P 11 415.409.8904 later). A true and correct copy of the City’s July 9, 2021 letter is attached hereto as Exhibit S. 12 d. Also on July 9, the City sent an email with the same link to the initial batch AT LAW & 13 FICKES of email documents, to which Karl Olson, a partner at my firm, replied. Mr. Olson requested an – FAX: 14 ATTORNEYS expedited response (given the huge prior delay and that the City was not going to produce more 350, TOOLE 415.409.8900 15 documents for another month), reiterating in his email that “Government Code section 6253(b) ST R E E T , S U I T E 16 O’ requires that public agencies ‘shall make the records promptly available’ to Public Records Act CANNATA 17 requesters” and stating that “[t]he City’s past delays and reference to further delays does not TEL: 18 Mr. Olson also cited Government Code section 6253.1, which 100 PINE comply with section 6253(b).” 19 requires government agencies to pro-actively assist members of the public to identify responsive 20 records, stating that any requests for “clarification” should have been made in 2019 (not 2021) 21 and that the City’s complaints about burden and timing were unwarranted, as the City “had the 22 requests for two years, not two months, and there is also a trial coming up very soon.” The City 23 insisted that it was working “diligently.” A true and correct copy of this July 9, 2019 email 24 exchange is attached hereto as Exhibit T. 25 e. On July 28, 2019, Zachary Colbeth, an associate at my office, again wrote 26 to the City in a letter, reiterating and requesting that “all outstanding non-exempt records responsive 27 to the August 2019 PRA request be produced immediately.” Mr. Colbeth also pointed out that, inter 28 8 DECLARATION OF THERESE Y. CANNATA ISO WRIT PETITIONS RE: PRA AND BROWN ACT 1 alia, the City had already clarified the email portion of the August 2019 PRA request back in 2019 2 (and had accepted Dr. Wilson’s clarification and moved forward on that basis); that the “stay period” 3 for the request was known by all parties to be “temporary” and had expired on May 6, 2020; that the 4 City had waited six months to produce any further documents in response to the August 2019 PRA 5 request (and only did so after repeated prompting from my office); that the City had only recently 6 produced a privilege log for the August 2019 PRA request in April of 2021; and that the City had not 7 addressed many of the substantive points from my office’s June 4, 2021 letter, particularly regarding 8 the parties’ disputes over claimed PRA exemptions by the City. A true and correct copy of the July 9 SAN FRANCISCO CA, 94111 28, 2021 letter is attached hereto as Exhibit U. 10 f. On August 4, 2021, the City responded by letter, identifying a Bates-range OL S O N L L P 11 415.409.8904 for a very large number of further responsive documents to the email portion of Dr. Wilson’s 12 August 2019 PRA request. Regarding the City’s claimed PRA exemptions, the City stated that it AT LAW & 13 FICKES would review the arguments raised by my office’s July 28, 2019 letter and would “provide – FAX: 14 ATTORNEYS supplemental descriptions or provide additional records as appropriate.” A true and correct copy 350, TOOLE 415.409.8900 15 of the City’s August 4, 2021 letter is attached hereto as Exhibit V. ST R E E T , S U I T E 16 O’ g. Weeks later, on August 20, 2021, the City sent my office a letter, refusing CANNATA 17 TEL: to produce any further documents and also providing an amended privilege log of documents 18 withheld in response to Dr. Wilson’s August 2019 PRA request. This letter constituted yet 100 PINE 19 another instance where the City continued to claim unwarranted and unjustified exemptions under 20 the PRA (this time in an amended privilege log). A true and correct copy of the City’s August 4, 21 2021 letter is attached hereto as Exhibit W. A true and correct copy of the City’s amended 22 privilege log regarding the August 2019 PRA request is attached hereto as Exhibit X. 23 23. Overall, I believe that the City’s response to Dr. Wilson’s August 2019 PRA 24 request was grossly inadequate and extremely violative and non-compliant with the PRA. The 25 City, inter alia, (1) failed to comply with the PRA’s basic ten-day timing requirement for making 26 a “determination” regarding disclosable public records; (2) failed to produce responsive records 27 “promptly,” in any sense of the word (dragging the production of clearly responsive documents 28 9 DECLARATION OF THERESE Y. CANNATA ISO WRIT PETITIONS RE: PRA AND BROWN ACT 1 out for nearly 2 years); (3) failed to pro-actively assist Dr. Wilson with the identification of 2 responsive records; and (4) failed to meet its burden of justifying withheld documents under 3 claimed PRA exemptions. Dr. Wilson is therefore requesting from the Court, inter alia, (1) a 4 peremptory writ of mandate under Government Code section 6259 directing Respondents to 5 immediately produce all public records requested in Dr. Wilson’s August 2019 PRA request 6 (including those being currently withheld); (2) a declaratory judgment that Respondents violated 7 the PRA by unlawfully failing to respond to, withholding, and/or delaying production of the 8 records requested; and (3) an award of Dr. Wilson’s reasonable attorney’s fees and costs pursuant 9 SAN FRANCISCO CA, 94111 to Government Code section 6259(d) and/or, in the alternative, pursuant to Code of Civil 10 Procedure section 1021.5. OL S O N L L P 11 415.409.8904 Summary of October 4, 2019 Public Records Act Request and City’s Responses Thereto 12 24. Dr. Wilson, through counsel submitted a second Public Records Act request on AT LAW & 13 FICKES October 4, 2019, directed to the City and seeking, inter alia (emphasis added): 1) “All – FAX: 14 ATTORNEYS communications (via email, text or other means) received by, from, between, and among the 350, TOOLE 415.409.8900 15 Mayor, any other City Council members, the Mayor’s staff (including Daniel Lopez, Cameron ST R E E T , S U I T E 16 O’ Burns and Max Vargas), Bob Deis, Henry Garcia, Wayne McAffee, Patrick ‘Motec’ Sanchez, CANNATA 17 TEL: Kathleen Gapusan, any member of the media, any member of the public, any member or 18 100 PINE representative of any labor group, any real estate developers, and/or Ken Pulskamp (facilitator of 19 Dr. Wilson’s evaluation)) that reference or relate to Dr. Wilson and/or any evaluations of 20 him or refer or relate to his termination. . . .”; and 2) “Any communications . . . from Daniel 21 Lopez, Cameron Burns, Max Vargas, and/or the Mayor to any members of the news media during 22 the month of July 2019” [emphasis added]. Citing the California Supreme Court’s decision in 23 City of San Jose v. Superior Court (2007) 2 Cal.5th 608 (which holds that communications 24 relating to public business on the “private” electronic devices of city employees and officials are 25 public records), the October 2019 PRA request specifically stated that “[t]his request 26 specifically includes text messages between or among any of the above individuals, as well