Metropolitan News-Enterprise


Wednesday, June 8, 2016


Page 1


C.A. Upholds Attorney Fee Order in San Diego Email Dispute

But Panel Reinstates City’s Bid for Sanctions Over Rejected Waste Claim




A San Diego Superior Court judge properly awarded attorney fees in a dispute over the San Diego city attorney’s use of a personal email account for city business, the Fourth District Court of Appeal ruled yesterday.

Div. One, however, also ruled that the judge used the wrong legal standard when he denied the city’s request for sanctions against San Diegans for Open Government, and its lawyer Cory Briggs, for what the city argues was a frivolous claim for waste. The panel ordered the trial court to reconsider that matter.

The open government group, commonly known as SDOG, brought a California Public Records Act request for all of City Attorney Jan Goldsmith’s personal account emails that related to city business, sent or received during the years 2008 through 2013. The city asserted that various emails were exempt from disclosure, including those between an individual identified as the League of California Cities’ legal assistant and attorneys who were league members.

The exemption claims were based on the records assertedly not being public records or being subject to privilege.

SDOG petitioned for a writ of mandate, also asserting a cause of action for waste of taxpayer funds under Code of Civil Procedure §526a, which it later dismissed with prejudice.

Emails Produced

As for the CPRA cause of action, the city produced more than 900 pages of emails after the complaint was filed. As to the emails that were claimed to be privileged, Superior Court Judge Joel Wohlfeil ordered that the city provide a privilege log.

After that was done, the judge declined to review the emails in camera, concluded the city failed to meet its burden of proof, and ordered production of the emails.

The city did not challenge the order on appeal, but the League of California Cities did. In League of California Cities v. Superior Court (2015) 241 Cal.App.4th 976, decided last October, the court held that the league had standing and said the judge should have reviewed the emails in camera before ordering disclosure.

On remand, the judge again ruled against the city, found SDOG to be the prevailing party, and awarded attorney fees and costs.

As for the city’s request for sanctions regarding the waste cause of action, Wohlfeil ruled that the claim was not frivolous because it survived demurrer, and that the city did not prove that the plaintiff knew that the action lacked merit.

Appellate Opinion

Justice Alex McDonald, however, said the trial judge erred in applying a subjective, rather than an objective, standard. That an action is sufficiently well pled to survive demurrer, he added, does not establish that it is not “totally and completely without merit or for the sole purpose of harassing an opposing party.”

The justice also concluded that §128.5 applies to the action, because it was still pending on the section’s Jan. 1, 2015 effective date, even though the waste cause of action was dismissed the previous year. He also said that the “safe harbor” provision of §128.7, which requires that a party be given 21 days to withdraw an allegedly frivolous pleading or paper before a sanctions motion may be filed, does not apply when the sanctions request is made under §128.5.

On the attorney fees issue, McDonald said the trial judge did not abuse his discretion in determining that SDOG had prevailed on its CPRA claim.

City’s Explanation

The city argued that the reason it did not initially produce the emails is that SDOG did not expressly request that emails that were sent to or from private accounts, but subsequently stored on the city’s servers—Goldsmith said that he forwarded all emails dealing with city business from his private accounts to the city—be disclosed.

That argument “rings hollow,” the justice said.

“City knew private e‑mails stored on its servers are considered to be public records,” he wrote. “Yet City declined to produce any documents claiming it did not ‘retain[]’ them.  It appears City claimed it did not retain the requested documents without verifying the veracity of this statement.  This evidence suggests the filing of the action motivated City to actually look for and produce the private e‑mails pertaining to City business stored in its system.  This evidence also supports the trial court’s finding City improperly narrowed the request rather than seek clarification as it was obligated to do.”

The case is San Diegans for Open Government v. City of San Diego, 16 S.O.S. 2769.


Copyright 2016, Metropolitan News Company