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{EJA-00988832;1} JOINT CASE MANAGEMENT 

STATEMENT 5:17-CV-00007 LHK

CHRISTOPHER E. PANETTA (Bar No. 175127)

EVAN J. ALLEN (Bar No. 310617)

FENTON & KELLER

2801 Monterey-Salinas Highway

Post Office Box 791

Monterey, California 93942

Telephone: (831) 373-1241

Facsimile: (831) 373-7219

CPanetta@FentonKeller.com

EAllen@FentonKeller.com

Attorneys for Defendant COUNTY OF 

MONTEREY

KAREN E. FORD Esq.

SW Ocean Ave & Mission, Suite 208

P.O. Box 287

Carmel-by-the-Sea, California 93921-0287

831-250-6433

Fax 831-250-6844

karen@fordslaw.com

SBN 88358

Attorney for Plaintiff JACQUELINE ZHANG

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

JACQUELINE ZHANG,

Plaintiff,

v.

COUNTY OF MONTEREY, 

MONTEREY COUNTY RESOURCE 

MANAGEMENT AGENCY, and 

MONTEREY COUNTY PARKS 

DEPARTMENT,

Defendants.

Case No. 5:17-CV-00007 LHK

JOINT CASE MANAGEMENT 

STATEMENT

Date: May 20, 2020

Time: 1:30 pm

Plaintiff, JACQUELINE ZHANG, an individual, and Defendant COUNTY OF 

MONTEREY, (also named as MONTERY COUNTY RESOURCE MANAGEMENT AGENCY, 

and MONTEREY COUNTY PARKS DEPARTMENT (hereafter “Defendant” or “County”), a 
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STATEMENT 5:17-CV-00007 LHK

public entity, jointly submit this JOINT CASE MANAGEMENT STATEMENT pursuant to the 

Order of this Court of April 13, 2020 and Civil Local Rule 16-10(d).

1. Jurisdiction & Service

This Court has subject matter jurisdiction of this action under 28 U.S.C. §§ 1331 and 

1343(a)(4), and 42 USC §§ 1983 and 1988. This Court may exercise supplemental jurisdiction 

over the state law claims including, without limitation, the Petition for Writ of Mandate, pursuant 

to 28 USC § 1367. There is no dispute as to the jurisdiction of this Court.

2. Facts

 Undisputed facts:

Plaintiff Zhang is a former employee of the County. She was employed as an accountant 

in the position of Finance Manager I. 

 The hiring letter from the County, dated September 9, 2015, stated that she would serve a 

probationary period of one year. She initially reported to Mark Mariscal, who was the 

Department Head of the Parks Department and was an Appointing Authority within the County. 

On or about July 15, 2016 she received a performance review from Mariscal. On the review 

form, Mariscal checked the boxes for both “8 Month Probationary” and “Annual” for “Type of 

Appraisal.” He did not check the box for “Retention/ Permanent Status.” In the body of the 

comments, Mariscal stated that Zhang “easily passes her probation.” Zhang received a step 

increase in connection with this performance appraisal. 

In August 2016, there was a reorganization within the County. The Parks department 

became part of the Resource Management Agency (“RMA”). On October 4, 2016, Zhang was 

called into a meeting with her supervisor, Shawne Ellerbee (“Ellerbee”). Ellerbee gave her a 

performance review that was unfavorable. Ellerbee also gave her notice that she was being 

released from employment due to unsuccessful completion of probation. This notice was the first 

notification that Zhang received that her employment was to be terminated. 

Zhang asserts she requested a hearing but was denied because she was deemed to be a 

probationary employee. If she had been treated as a regular employee who had successfully 

completed probation she would have been entitled to a hearing. Zhang also asserts that the 
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STATEMENT 5:17-CV-00007 LHK

reasons proffered for her termination were false and that there was not sufficient justification for 

the termination of her employment. She also contends that she was denied the procedural and 

substantive protections provided to even probationary employees. 

Plaintiff’s Statement of Supplemental Facts: 

Plaintiff Zhang is a highly-qualified accountant who is licensed as CPA in California, 

holds an MBA, and has years of practical experience. When she was hired by the County she was 

hired away from a high level management position as head of finance with an international 

corporation in Los Angeles. She had to make arrangements to leave that position without 

disadvantaging her former employer and to move from Los Angeles to Monterey. As a result of 

these concerns her exact start date was changed over time. She was asked by her future manager 

with the County to start as soon as possible and the agreed start date was initially set for midSeptember. The offer letter of September 9, 2015, on which the County relies, stated that her 

“tentative” start date would be October 5, 2015. The moving back of the start date and the fact 

that it was tentative was to allow her additional time to move. Ultimately, in accordance with the 

requests of her future manager, she started on October 1, 2015. On that date, at the request of her 

manager, Mr. Mariscal, she attended a County meeting and met with key managers. Her first 

payroll period began on October 3, 2015. On the weekend of October 3 and 4 she reviewed the 

Parks budget and the financial statements of the County, and visited two of the County Parks and 

meet with staff. The best evidence of when Zhang became an employee of the County is the 

payroll statement for her first payroll period. It shows her start date as October 3, 2015 not 

October 5, 2015.1

Thus, the one year of probation ended at the latest as of October 3, 2016. 

Zhang did complete certain initial HR documents in the week of October 5 and some of 

these on October 5. However, as managers with the County testified, it is not unusual for new 

employees to fill out these forms well after the actual start date of employment. 

Zhang received excellent performance reviews throughout her employment and received 

1 Ms. Zhang was a salaried employee and so would not be entitled to any additional pay for hours worked on the 

weekend. She routinely worked on weekends during her employment and was compensated through her salary and 

did not receive any additional pay for work on weekends
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praise for her excellent performance. The July 15, 2016 performance appraisal by Department 

Head Mark Mariscal was very complimentary and rated her highly. On the review form, Mariscal 

checked the boxes for both “8 Month Probationary” review and “Annual” (Final) review under 

the heading “Type of Appraisal”. In the body of the comments Mariscal stated about Zhang “She 

easily passes her probation.” He also checked the box next to the words “step increase”. The July 

15, 2016 performance review changed her probationary status to that of regular employee and 

stated that she had passed her probation. Employees receive an increase at the time of 

successfully completing probation. Zhang received the increase associated with successful 

completion of probation in July of 2015. She was a regular non-probationary employee from that 

point forward. This action was approved by the Assistant Chief Administrative Officer of the 

County who signed the July 15, 2016 performance appraisal.

After the August 2016 organizational changes Carl Holm, the RMA Department Head was 

the only appointing authority within RMA. Ellerbee, Plaintiff’s new supervisor, had been in a 

number of disagreements with the Auditor’s office. Ellerbee began to discriminate against and 

harass Zhang due to her national origin and accent and due to the identity of her husband. She 

was excluded from meetings and social events and was unfairly criticized. However, Zhang did 

her best to perform her job well. Zhang was given no formal counselling, warnings or other 

disciplinary actions. 

Ellerbee has a very poor relationship with the Auditor-Controller’s Office and was not 

well respected by them. The County Auditor-Controller is responsible for how the accounting is 

done by the County. Issues discovered by and reported to the Auditor-Controller in the RMA 

have resulted in several recent investigations and audits, using internal and external 

auditors/investigators. Ellerbee told Zhang not to communicate with the Auditor’s office and that 

she was not to do things in the manner required by the Auditor’s office. Ellerbee criticized 

Zhang’s work unfairly and otherwise discriminated against her and harassed her. Among other 

things, she had a problem with Zhang’s accent and use of English. Zhang’s English is excellent 

and she did not work with the public so her accent should not have been a problem. It was not a 

problem before Ellerbee became her supervisor.
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STATEMENT 5:17-CV-00007 LHK

Suddenly at the close of business on October 4, 2016 Zhang was called into a meeting 

with Ellerbee who gave her a very unfavorable performance review which contained false and 

inappropriate criticisms. Zhang can prove that the specific criticisms related to financial 

transactions are not only unfounded, they reflect Ellerbee violating County policy for handing 

transactions. Then, Ellerbee gave her a notice that her employment was being terminated due to 

failure to complete probation. The notice said she was terminated effective at 5:00 PM on 

October 4, 2016. The notice was given to her after 5:00 PM on October 4, 2016. Zhang has never 

been allowed to return to work.

The decision by Ellerbee was later confirmed by John Guertin, a temporary RMA 

manager. Ellerbee was not an Appointing Authority for the County entitled to make termination 

decisions and the Notice was not signed by an appropriate person. Her position is not eligible to 

ever be the Appointing Authority for the RMA. Guertin was not Ellerbee’s manager nor an 

authorized RMA Appointing Authority. He was a temporary employee and not allowed to 

discipline employees pursuant to a Board of Supervisor’s Order.

The issues raised in the October 4, 2016 performance evaluation by Ellerbee are false and 

without merit. She also made reference to her disapproval of Zhang’s accent. In the written 

evaluation it states Ellerbee had to ask Zhang for “clarification...multiple times.” Some of the 

complaints Ellerbee describes have to do with her personal differences with the procedures 

normally used by the Auditor’s Department and her objections to the way the Parks department 

had always handled certain transactions. She also complained about Zhang’s e-mails but provided 

no specific e-mail that was a problem. She did not say that there was anything wrong with the 

content of the e-mails but only that the “tone” was “curt”. No other employee of the County has 

been terminated without notice for such a trivial complaint. Zhang was not given a chance to 

respond to the statements in the evaluation during the meeting on October 4, 2016. 

Zhang requested a hearing on multiple occasions and from a number of different people 

and offices within the County. She was always denied on the grounds that she was a probationary 

employee. Zhang has followed the County’s internal processes to complain about the termination 

as a breach of contract, violation of statutes and procedures, and as unlawful discrimination. Her 
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claims were denied. She requested a hearing concerning her termination and it was denied on the 

grounds that she was a probationary employee. Zhang filed charges of discrimination with both 

the EEOC and the DFEH and has received right to sue letters from each. 

Zhang alleges various acts by Defendants in violation of applicable statutes, regulations, 

policies and procedures including, without limitation, the following: 

Zhang was denied her rights as a regular County employee. Regular employees may only 

be terminated for just cause and have rights to progressive discipline, advance notice of the intent 

to terminate and, and pre-termination hearing. However, Zhang received none of these rights. 

Zhang was improperly denied her rightful status as a regular employee. Her probation was 

documented as successfully completed as of July 15, 2016. Even if probation were not terminated 

in July, the termination of her employment took place well over a year after she started work. She 

started on October 1, 2015 and the end of a year of probation would have been September 30, 

2016. Even if October 5, 2015 were treated as her start date, she was terminated after close of

business on the 366th day.2 She had already completed her probation by any interpretation of the 

facts. 

Zhang was not given any advance notice of the termination. Even as a probationary 

employee her rights were violated. Regular and probationary employees are entitled, under 

applicable statutes and regulations, to five days advance notice prior to termination of 

employment and the right to protest the decision prior to implementation. No advance notice at all 

was given to Zhang. In fact, she was not told about the termination until after 5:00 PM on 

October 4, 2016 and so the Notice was actually retroactive. 

The Termination Notice was not in accordance with requirements. The notice lacked the 

signature of the HR Director and County Counsel. Pursuant to County policies and procedures 

both are required prior to terminating a probationary employee. 

Despite repeated requests Zhang was denied a due process hearing both before the 

termination was made final and after the termination. Ellerbee and Guertin were not “appointing 

2 The year 2016 was a leap year and so the 365th day after October 5, 2015 would have been October 3, 2016 not 

October 4, 2016. 
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STATEMENT 5:17-CV-00007 LHK

authorities’ and were not authorized to terminate Zhang’s employment. Those serving in a 

temporary or acting position may not terminate employees. Ellerbee can’t be an appointing 

Authority because pursuant to Board Order in July of 2016 there was only one appointing 

authority in the RMA and it was Holm. Guertin was in his position in a temporary or acting 

status.

Defendant’s Statement of Supplemental Facts:

Zhang’s offer letter notified Zhang that she would serve a probationary period of one year, 

with a tentative start date of October 5, 2015. On October 5, 2015, Zhang met with County staff 

from human resources and completed various onboarding documents that are completed by all 

newly appointed probationary employees. By August 2016, Ellerbee became concerned that 

Zhang was not performing at the level of a Finance Manager, but appeared more comfortable 

with simple accounting tasks. Ellerbee also received complaints from both County employees 

and third parties that Zhang failed to return calls, failed to respond to appropriate inquiries, and 

did not appear to have basic government accounting skills. County employees and others also 

complained that Zhang was rude and disrespectful in her communication. Ellerbee counseled 

Zhang about her performance and documented the concerns in various e-mails in August and 

September 2016. By mid-September, Ellerbee was sufficiently concerned with Zhang’s 

performance that she consulted with human resources for assistance and support. Ellerbee 

prepared a narrative about her concerns, supported by the myriad complaints, counseling e-mails, 

and performance management documentation. After reviewing the materials, the decision was 

made to issue the second performance evaluation and release Zhang from her probationary 

position, in compliance with the County Personnel Policies and Practices Resolution and 

applicable law. 

Zhang was afforded the opportunity to meet with Acting Deputy Director for the RMA, 

John Guertin on October 24, 2016. Prior to their meeting Zhang provided Guertin with a rebuttal 

to the October 4th performance appraisal. Having considered her written response and the 

information she provided, Guertin agreed with Ellerbee’s evaluation and approved the 

performance appraisal on October 27, 2016. However, Guertin held off on providing a written 
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response, while Zhang engaged in continued discussions under the auspices of the County’s 

Equal Opportunity Office. Guertin provided his written response on November 28, 2016 

indicating he was in agreement with the rating provided in the performance evaluation.

Procedural History:

Zhang originally filed the present action against the County on January 3, 2017. Zhang’s 

complaint asserted the following eight causes of action against the County: (1) discrimination on 

the basis of race and national original in violation of Title VII, 42 U.S.C. § 2000e et seq.; (2) 

discrimination on the basis of marital status, race, and national origin in violation of the 

California Fair Employment and Housing Act (“FEHA”), Cal. Gov’t Code § 12900 et seq.; (3) 

discrimination on the basis of race in violation of 42 U.S.C. § 1981; (4) deprivation of a property 

interest without due process of law in violation of the Fourteenth Amendment of the United States 

Constitution (pursuant to 42 U.S.C. § 1983); (5) deprivation of a liberty interest without due 

process of law in violation of the Fourteenth Amendment of the United States Constitution 

(pursuant to 42 U.S.C. § 1983); (6) deprivation of a property interest without due process of law 

and employment discrimination on the basis of race and national origin in violation of the 

California Constitution; (7) writ of mandate under California Code of Civil Procedure (“CCP”) § 

1085; and (8) writ of mandate under CCP § 1094.5. The County moved for summary judgment 

as to all causes of action on February 15, 2018. On April 24, 2018, this Court dismissed all of 

Zhang’s claims except the seventh cause of action for writ of mandate under CCP § 1085. As to 

that claim, this Court declined to exercise supplemental jurisdiction and dismissed that claim 

without prejudice. Zhang appealed. On February 10, 2020, the Ninth Circuit Court of Appeals

affirmed this Court’s judgment in part and reversed in part. Specifically, the 9th Circuit affirmed 

the dismissal of Zhang’s claims for discrimination based on race, national origin, and marital 

status, as well as her liberty interest claim and her petition for writ of administrative mandate 

under CCP § 1094.5 and reversed this Court's judgment as to Zhang’s procedural due 

process claims brought under 42 U.S.C. § 1983 and the California Constitution, and the petition 

for writ of mandate under CCP § 1085. As for the claims which were reversed, the Court held 

that there were “triable issues of fact on whether [Zhang] was deprived of a protected property 
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STATEMENT 5:17-CV-00007 LHK

interest in her continued employment,” and remanded to this Court for further proceedings. The 

Court expressly held, as the basis for its decision to remand, “Zhang raised genuine issues of fact 

material to whether she was a permanent employee ... when she was terminated”. Dkt 42-1 page 2

3. Legal Issues

Plaintiff Zhang states a claim for denial of due process in violation of the Fourteenth

Amendment brought pursuant to 42 USC § 1983 and pursuant to the California Constitution. She 

further alleges that she was denied her rights under applicable statutes, regulations policies and 

procedures. This included the fact that she was entitled to advance notice of the intent to 

terminate her employment. See Cal. Gov. Code § 19173; 2 CCR § 52.6; Monterey County 

Personnel Policies and Procedures D2 (five days advance notice) and D1 (probationary 

employees must be given notice of an adverse employment action and an opportunity to discuss 

with management “prior to its effective date”); Skelly v State Personnel Board, 15 Cal 3rd 194 

(1975). 

Plaintiff Zhang has also stated a claim for writ of mandate pursuant to CCP 1085. Ms. 

Zhang contends that she is entitled to a writ of mandate ordering reinstatement and damages 

because the County failed to follow applicable statutes, regulations, policies and procedures. 

Zhang asserts that these include statutes, regulations and policies that apply to probationary 

employees as well as regular employees. 

The County disputes Zhang’s contentions and asserts that it acted consistently with all 

statutes, regulations, policies, or procedures that apply to probationary employees as well as 

regular employees. 

Zhang contends that as part of the ruling on summary judgment this Court acknowledged 

that Zhang stated a valid claim under CCP 1085 even if she were only a probationary employee.3

See Oder dkt 72 p. 41 ll 2-6. This Court stated that Zhang’s claim for writ of mandate as a 

probationary employee, pursuant to CCP 1085 raised a novel and complex issue of state, and 

3 Of course, given the ruling of the Ninth Circuit, Zhang may not be presumed to have been a probationary employee. 

That is an issue for the jury and at this stage Zhang is entitled to raise claims presuming her standing as a regular 

employee also. 
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declined to exercise supplemental jurisdiction over the sole remaining state law claim. In 

remanding this matter, the 9th Circuit did not uphold the dismissal and, instead, instructed this 

Court to once again consider this exercise of discretion.

Zhang requests that this Court try the CCP 1085 Writ claim as there is no longer any 

efficiency to be realized because all the facts and events will have to be tried in any event. Zhang 

contends that one cornerstone of the original ruling by this Court declining jurisdiction was the 

presumption that she was a probationary employee. Zhang contends further that she may not, at 

this stage, be presumed to have been a probationary employee as opposed to a regular employee.4

Moreover, there are statutes and County procedures on which both parties have relied as 

controlling that guarantee Zhang her rights as outlined in the claim. See e.g. Cal Govt Code § 

19574. This Court in its ruling in 2018 declining jurisdiction noted that the County’s own policies 

concerning employees were enacted through a resolution passed by the Board of Supervisors. 

Zhang contends this is a normal procedure for enacting county regulations and is not a basis to 

deprive Plaintiff Zhang of her rights. Zhang contends that the County’s personnel policies as 

controlling the rights here and are controlling concerning Plaintiff Zhang’s former employment. 

This Court should not dismiss this claim without permitting further briefing on the issue of 

pendent jurisdiction and should not dismiss the claim on the presumption that Zhang was a 

probationary employee as that is currently, at least, an open question. 

The County asserts that Zhang was a probationary employee at the time of her release and 

that as a probationary employee, Zhang did not enjoy the additional procedural protections 

afforded permanent employees and was not entitled to a hearing either before or after her 

termination. The County further asserts that the notice of probationary release was adequate to 

meet due process requirements. Zhang disputes this particularly in light of the applicable statutes 

and policies. 

/ / /

4 In dicta in the Order of April 24, 2018 Dkt 72 at p 39-41 this Court discussed whether or not her rights as a 

probationary employee were part of required procedures, The entire set of policies on which both parties have relied 

were enacted as part of a resolution by the County supervisors. Moreover, there are also statutes which address the 

issue of the required written notice. See e.g. Cal Govt Code § 19574.
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4. Motions

 Both parties anticipate motions in limine and other possible pretrial motions. 

5. Amendment of Pleadings

None.

6. Evidence Preservation

Both parties have reviewed the ESI Guidelines and have taken appropriate steps to 

preserve any electronic information.

7. Disclosures

The parties have served initial disclosures, including identifying potential witnesses and 

relevant documents, and providing evidence of insurance. 

8. Discovery

Plaintiff’s statement re Discovery:

Discovery closed in January 2017. At the time summary judgment was granted there were

a few issues raised prior to the close of discovery that remained unresolved which include claims 

of attorney client privilege, the privilege log and disclosure of work product and related 

documents concerning Zhang’s work. In addition, there have been highly relevant events which 

occurred in the intervening time as to which discovery should be updated and supplemented. 

These include, but are not limited to, the following. Ms. Zhang is informed and believes that the 

manager who terminated Zhang, Shawne Ellerbee, was herself subjected to disciplinary action 

and, was terminated or threatened with termination. Ms. Zhang believes that this was due to 

incompetence and other issues directly related to the issues to be tried here. Zhang should be 

entitled to an updating of discovery disclosures with respect to Ellerbee. In addition, there have 

been over two years of additional wage loss and other damages. The parties should be permitted 

to obtain additional discovery and disclosures on such intervening events. Ms. Zhang believes 

that discovery should be permitted only to allow resolution of issues which arose prior to the 

close of discovery and concerning events after the close of discovery. 

However, Plaintiff does not agree that a full reopening of discovery is appropriate. 

Particularly the depositions which the County decided to forgo prior to the January 2018 
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discovery deadline should not be permitted now. Discovery closed years ago and the Plaintiff 

should not be put to the burden and expense of restating full discovery going on for months as if 

the case was only recently filed. Any further discovery should be limited to updating existing 

discovery as appropriate and discovery concerning events which occurred after the closed of 

discovery in January 19, 2018.

The individuals whom Defendants now ask to depose were well known to it in 2017 and 

2018. Gary Giboney, Michael Miller, Ron Holly and Patsy Gerard were all disclosed, along with 

summaries of their anticipated evidence, in Plaintiff’s initial disclosures served April 10, 2017.

Contrary to the inaccurate assertions below these witnesses were disclosed as witnesses to the 

“policies and procedures” of the County and their application to this case. The disclosed subjects 

of testimony also included the job performance of Plaintiff, Ellerbee, Guertin and other witnesses 

for the County. The disclosures were not limited to accounting subjects. Moreover, with the 

exception of Mr. Holly who was an outside auditor for the County, all were employees and 

officers of the County in 2017 and 2018. All were available to the County at all times. Discovery 

did not close until January 18, 2018. Defendants had at least 10 months after disclosure to take 

these depositions and chose not to do so. There is no justification for reopening discovery to 

permit discovery Defendants chose not to do in trial preparation in 2017 and 2018. Any reopening 

of fact discovery should be limited to events arising after the January 2018 close of discovery. To 

permit Defendants to start over as if the case had just been filed is to subject Plaintiff to the 

burdens and expense of double discovery in the same case. Such burdens would be unfair and 

unjustified. This case has been pending for well over three years and needs to move forward to 

pretrial and trial.

The County now, suddenly, seeks to add a new witness, Kim Moore. The County 

disclosed potential witnesses in two disclosures on April 12 2017 and June 27, 2017. The 

suggested new witness, was never disclosed during the original discovery and this new witness 

should not be permitted now. Moreover, she had no direct involvement in the decisions 

concerning Ms. Zhang. The County should not be permitted to add fact witnesses at this stage.

 
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STATEMENT 5:17-CV-00007 LHK

The County argues below that one county policy concerning changes in status does not 

specifically list probationary periods. This cherry picking of the language of one policy is 

disingenuous. Moreover the section in question is headed “Effective Date of Personnel Actions”

and not limited to certain personnel actions. The list is a list of examples only not a limitation.

The witnesses all testified that the effective date of a hiring also takes effect as of the start of a 

payroll period. The County cites no policy suggesting that this is not correct and presented no 

witnesses suggesting that this is not correct. The date of hire is when the initial payroll period 

starts particularly for a salaried employee. As the witnesses testified, without contradiction, 

making the start date of employment a date other than the beginning of a payroll period requires 

the specific written approval of the County Auditor (in this case Michael Miller). No such written 

permission to vary the start date to be other than a beginning of a payroll period was given here. 

Ms. Zhang agrees with County that there should be a new deadline set for designation of 

experts. No experts were identified by either party in the initial pretrial process.

Defendant’s Statement re Discovery:

As a preliminary matter, Shawne Ellerbee was never discharged and remains an employee 

of the County. As such, Zhang’s request to conduct further discovery related to Ms. Ellerbee and 

her qualifications is unnecessary.

The County propounded two sets of document production requests and one set of 

specially prepared interrogatories. The County also took Zhang’s deposition on November 10, 

2017. Fact discovery closed on January 18, 2018. In her papers filed in March 2018, opposing 

The County’s motion for summary judgment, Zhang contended that she was no longer a 

probationary employee on October 4, 2016, in part, because her appointment began on October 3, 

2015, which was the start of her first pay period with the County. In support of this contention, 

Zhang cited Section A.5.6 of the County’s Personnel Policies, which provides: “[p]romotions, 

demotions, reclassification, transfers, changes in normal hours worked, additional or deletion of

pay differentials and changes in status shall be made effective only at the beginning of a pay 

period unless the County Auditor-Controller, after receiving a statement of necessity from the 

appointing authority, approved another effective date.” This Court accurately noted that this 
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policy, by its own terms, does not designate the start of an initial probationary period. However, 

in reversing this Court’s decision regarding Zhang’s status as a probationary employee, the 9th 

Circuit relied heavily on the declarations of Zhang’s husband, Gary Giboney, Ron Holly, Michael 

J. Miller, and Patsy Girard to support Zhang’s contention that this policy applies to initial 

probationary appointments. 

Given that each of these individuals held accounting and finance related positions with the 

County, and Zhang had not disclosed these individuals as having human resources-related 

knowledge prior to Zhang’s presentment of their declarations, the County had no reason to 

investigate the understanding and authority these individuals held with respect to application of 

human relations oriented polices. As the proper calculation of Zhang’s start date is a critical 

issue, in order to ensure fair and proper adjudication of this case, the County must be afforded an 

opportunity to investigate the foundation of Zhang’s witnesses’ declarations and respond to the 

inaccurate information presented by them. Accordingly, the County intends to take the 

depositions of Gary Giboney, Ron Holly, Michael J. Miller, and Patsy Girard, and further intends 

to introduce the testimony of County employee, Kim Moore. Ms. Moore has knowledge 

concerning the County’s practices that is in direct response to the information presented to the 

Court in the declarations of Zhang’s witnesses. 

Electronic discovery:

As to electronic discovery, Zhang has sent e-mails to counsel for the County concerning 

the types of electronic records she anticipates will be involved in the case and her preference for 

the format in which they would be produced. These issues have been resolved.

Expert Discovery:

Neither party disclosed expert witnesses to date. However, lay percipient witnesses can 

and were formerly anticipated to testify about normal accounting procedures, government 

accounting, and similar issues. Plaintiff Zhang requests that she be permitted to name experts

prior to trial. The County has also proposed a new deadline for expert disclosures. 

9. Class Actions

This is not a class action.
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10. Related Cases

There are no related cases. 

11. Relief

Plaintiff Zhang seeks the following relief:

(1) Reinstatement to the same or similar position with the County of Monterey

(2) An award of pay in lieu of reinstatement if it is not possible to return her to work;

(3) Lost wages from the date of her termination, October 4, 2016 until the date of 

reinstatement (3 years and 8 months have accrued through the end of April 2020). Through April

30, 2020, the total is currently estimated to be $543,125. Ongoing lost wages are continuing to 

accumulate at the rate of approximately $13,675 per month;

5

(4) Compensatory and general damages;

(5) Attorney’s fees and costs.

The County denies that Plaintiff Zhang is entitled to any relief at all, and contends any 

claimed lost wages must be reduced by at least $6,920.00 per month to account for wages earned 

from her current position. 

12. Settlement and ADR

The parties participated in a private mediation separate from the Court’s ADR program on 

March 17, 2017. The parties engaged in further settlement discussions in May 2018. The matter 

has not settled. Plaintiff Zhang has recently approached the County to discuss settlement in the 

near future in hopes of possibly avoiding the costs and time of trial preparations and trial. 

13. Consent to Magistrate Judge for All Purposes

Whether all parties will consent to have a magistrate judge conduct all further proceedings 

including trial and entry of judgment. ____ YES __x__ NO

14. Other References

The case is not appropriate for these special proceedings.

5 These figures are computed including salary and fringe benefits but do not include compensation for time off 

allocations or retirement. Plaintiff reserves the right to adjust these numbers based on discovery. In particular and 

without limitation there have been wage increases over the intervening years which will increase the lost wages. 

There may also have been benefit changes which will impact the lost compensation damages.
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15. Narrowing of Issues

The issues of race and national origin discrimination and marital status discrimination 

have been resolved and are no longer at issue. The current claims and issues relate to due process 

and the alleged failure to follow of procedures. One important issue in this case is whether Zhang

was a probationary employee at the time of her termination on October 4, 2016. Another issue is 

whether her rights were violated even if she had been a probationary employee. The issues 

include whether the individuals who terminated her employment had the right under the 

applicable regulations and statutes to do so, whether she received due process, including 

mandatory notices, as either a probationary or a regular employee, and the remedy. There is no 

reason to bifurcate the trial. 

16. Expedited Trial Procedure

The parties do not believe this case is appropriate for Expedited Trial Procedures.

17. Scheduling

Plaintiff Zhang proposes the following pretrial and trial deadlines:

Close of non-expert discovery: August 17, 2020

Initial expert disclosures: August 31, 2020

Rebuttal expert disclosures: September 28, 2020

Close of expert discovery: October 14, 2020

Final pretrial conference: October 29, 2020 at 1:30 PM

Trial: November 10, 2020 

The County proposes the following deadlines:

Non-Expert Discovery cut off: January 29, 2021

Designation of Experts: January 15, 2021

Rebuttal Expert Designation: February 5, 2021

Close of Expert Discovery: February 19, 2021

Final Pretrial Conference: May 20, 2021, at 1:30 p.m.

Trial: June 7, 2021, 9:00 a.m.

/ / /
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18. Trial

Jury trial. The County expects the trial to require 5 court days. Zhang believes that 5 court 

days will not be sufficient and proposes setting aside at least eight court days for trial.

19. Disclosure of Non-party Interested Entities or Persons

Plaintiff Zhang is not aware of any non-party interested party. Plaintiff Zhang has filed a 

Certificate to that effect. As a governmental entity the County is exempt from compliance with 

Civil Local Rule 3-15. 

20. Professional Conduct

Attorneys for both parties have reviewed the Northern District of California’s Guidelines 

for Professional Conduct. 

21. Other

The parties are not aware of any other matters that the court needs to address at this time. 

Dated: May 13, 2020 FORD & ASSOCIATES, LLC

By: /s/ Karen E. Ford

Karen E. Ford, Esq.

Attorney for Plaintiff 

JACQUELINE ZHANG

Dated: May 13, 2020 FENTON & KELLER, PC

By: /s/ Christopher E. Panetta

Christopher E. Panetta, Esq.

Evan J. Allen, Esq.

Attorneys for Defendant 

COUNTY OF MONTEREY