San Diegans for Open Gov't v. City of San Diego

247 Cal.App.4th 1306

203 Cal.Rptr.3d 34

SAN DIEGANS FOR OPEN GOVERNMENT, Plaintiff and Respondent

v.CITY OF SAN DIEGO et al., Defendants and Appellants.

D068421

Court of Appeal, Fourth District, Division 1, California.

Filed June 7, 2016

Jan I. Goldsmith, City Attorney, David J. Karlin, Chief Deputy City Attorney, and Walter C. Chung, Deputy City Attorney, for Defendants and Appellants.

Briggs Law Corporation, Cory J. Briggs and Kelly E. Mourning for Plaintiff and Respondent.

McDONALD, J.

Effective January 1, 2015, the Legislature revised and revived Code of Civil Procedure section 128.5,¹ which provides statutory authority for an award of sanctions. (Stats. 2014, ch. 425 (Assem. Bill No. 2494), §§ 1–2, pp. 3295–3297.) We conclude the current version of section 128.5 applies to any case pending as of its effective date; a party filing a sanctions motion under section 128.5 does not need to comply with section 128.7, subdivision (c)(1) (the safe harbor waiting period); and (3) the legal standard in evaluating a request for sanctions under section 128.5 is whether the challenged conduct was objectively unreasonable. We reverse the trial court's order denying sanctions and remand the matter for further proceedings in conformity with this opinion.

We also address the prevailing party determination under the California Public Records Act (Gov.Code, § 6250 et seq. (the Act)). We affirm the trial court's order finding plaintiff to be the prevailing party and awarding it attorney fees and costs.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, San Diegans for Open Government (SDOG), describes itself as a nonprofit organization acting as a government “watchdog” to ensure public agencies comply with all applicable laws aimed at promoting transparency and accountability in government. Defendants are the City of San Diego (City) and Jan L. Goldsmith, the San Diego City Attorney (together defendants). SDOG submitted a public records request to City for all e-mail communications pertaining to City's official business sent to or from Goldsmith's personal e-mail account during certain time periods. City refused to produce any e-mail communications, stating they did not qualify as public records. SDOG filed this verified action after confirming City would not produce any responsive records. The operative pleading claimed a violation of the Act and sought declaratory relief against defendants to compel disclosure of the e-mails. SDOG also alleged a cause of action under section 526a for taxpayer waste.

SDOG ultimately dismissed the waste cause of action with prejudice. The trial court issued a judgment in favor of SDOG on its claim under the Act and granted SDOG declaratory relief against City. Third party, League of California Cities, subsequently petitioned this court for a writ of mandate under the Act challenging the trial court's order. We granted the petition and remanded the matter for further proceedings. (League of California Cities v. Superior Court (2015) 241 Cal.App.4th 976, 194 Cal.Rptr.3d 444 (the prior action).) On remand, the trial court determined SDOG to be the prevailing party under the Act and awarded it attorney fees and costs. The court also denied City's request for sanctions under section 128.5. City timely appealed both orders.

DISCUSSION

ISanctions

A. Background

Defendants sought sanctions on the ground SDOG had no evidence to support its waste cause of action, SDOG's sole piece of evidence was invented, and soon after filing the claim SDOG started a publicity campaign against Goldsmith to wrongfully leverage a settlement. SDOG opposed the motion, arguing it was procedurally defective and SDOG's counsel believed in good faith the waste cause of action had merit. The trial court denied the motion finding the waste “cause of action was not completely devoid of legal merit” because the claim survived demurrer; defendants “provide[d] no evidence demonstrating that a useless expenditure of public funds did not actually take place”; and defendants speculated, but provided no evidence, SDOG's counsel acted in bad faith.

B. Analysis

1. Procedural Issues

SDOG contends we should affirm the trial court's order denying City's request for sanctions because the motion was procedurally defective. SDOG argues section 128.5 does not apply to this action because it was not in effect when SDOG filed the operative pleading. SDOG also argued below that defendants did not comply with the safe harbor waiting period of section 128.7 as required by section 128.5, subdivision (f), but SDOG did not pursue this issue on appeal. Under Government Code section 68081, we requested additional briefing from the parties on the proper interpretation of section 128.5, subdivision (f), and how this impacted defendants' sanctions motion. The parties submitted additional briefing as requested.

Issues of statutory interpretation present a question of law subject to de novo review on appeal. (Bialo v. Western Mutual Ins. Co. (2002) 95 Cal.App.4th 68, 76–77, 115 Cal.Rptr.2d 3.) “Our fundamental task involving statutory interpretation ‘ “is to determine the Legislature's intent so as to effectuate the law's purpose.” [Citation.] “We begin with the plain language of the statute, affording the words of the provision their ordinary and usual meaning and viewing them in their statutory context, because the language employed in the Legislature's enactment generally is the most reliable indicator of legislative intent.” [Citations.] The plain meaning controls if there is no ambiguity in the statutory language. [Citation.]’ [Citations.] ‘If there is no ambiguity in the language of the statute, “then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs.” [Citation.] “Where the statute is clear, courts will not ‘interpret away clear language in favor of an ambiguity that does not exist.’ [Citation.]” ' [Citation.] ‘ “If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute's purpose, legislative history, and public policy.” ’ ” (Simplon Ballpark, LLC v. Scull (2015) 235 Cal.App.4th 660, 667, 185 Cal.Rptr.3d 482.)

In 1981, the Legislature enacted former section 128.5 to provide statutory authority for an award of sanctions. (Clark v. Optical Coating Laboratory, Inc. (2008) 165 Cal.App.4th 150, 164, 80 Cal.Rptr.3d 812.) Former section 128.5 applied only to complaints filed, or proceedings initiated, on or before December 31, 1994. (Olmstead v. Arthur J. Gallagher & Co. (2004) 32 Cal.4th 804, 819, 11 Cal.Rptr.3d 298, 86 P.3d 354.) In 1994, the Legislature essentially suspended former section 128.5 when it enacted section 128.7, which provided statutory authorization for sanctions in actions filed on or after January 1, 1995. (§ 128.7, subd. (i); Olmstead, at p. 816, 11 Cal.Rptr.3d 298, 86 P.3d 354.) Section 128.7 is much narrower and applies solely to misconduct in the filing or advocacy of groundless claims made in signed pleadings and other papers. (§ 128.7, subd. (b).) Section 128.7 also imposes a lower threshold for sanctions as the movant need not show subjective bad faith, but instead show the challenged conduct was “ ‘objectively unreasonable.’ ” (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167, 128 Cal.Rptr.2d 65.)

In 2014, the Legislature proposed revising and reviving former section 128.5 “to provide an additional tool by which courts may potentially sanction bad faith actions or tactics.” (Assem. Com. on Judiciary, analysis of Assem. Bill No. 2494 (2013–2014 Reg. Sess.) as amended April 10, 2014, p. 1.) The Legislature enacted the current version of section 128.5, effective January 1, 2015. (See Cal. Const., art. IV, § 8, subd. (c)(1) [absent urgency clause, a statute enacted at a regular session of the Legislature becomes effective on January 1 of the following year].) The substantive provisions of former section 128.5 and section 128.5 are virtually identical. (Compare § 128.5, subds. (a), (b), (c) & (d) and former § 128.5, subds. (a), (b), (c) & (d).) The current version of section 128.5 contains three additional provisions: (1) stating it does not apply to discovery disclosures and motions (id., subd. (e)); (2) providing any sanctions imposed must be “imposed consistently with the standards, conditions, and procedures set forth in subdivisions (c), (d) and (h)” of section 128.7 (§ 128.5, subd. (f) ); and (3) imposing reporting obligations (id., subds. (e), (f) & (h)). These three additional provisions will be repealed on January 1, 2018, unless a later-enacted statute deletes or extends that date. (§ 128.5, subd. (i) ; see Stats. 2014, ch. 425, §§ 1, p. 3295.)

SDOG contends section 128.5 does not apply because SDOG filed this action and dismissed its waste cause of action in 2014, before the effective date of the statute. SDOG asserts applying section 128.5 under these circumstances amounts to improper retroactive application of the statute to past conduct.

Former section 128.5 applied only to complaints filed, or proceedings initiated, on or before December 31, 1994. (Former § 128.5, subd. (b)(1).) When enacted in 1994, section 128.7 expressly provided it applied “to a complaint or petition filed on or after January 1, 1995, and any other pleading, written notice of motion, or other similar paper filed in that matter.” (§ 128.7, subd. (i).) The current version of section 128.5 contains no date restriction, suggesting it should apply to any action pending at the time of its enactment. The enrolled bill report for section 128.5 supports this interpretation. ( Elsner v. Uveges (2004) 34 Cal.4th 915, 934, fn. 19, 22 Cal.Rptr.3d 530, 102 P.3d 915 [the California Supreme Court has “routinely found enrolled bill reports, prepared by a responsible agency contemporaneous with passage and before signing, instructive on matters of legislative intent.”].) The enrolled bill report for section 128.5 explained the “bill would delete the December...