Section 128.5 is similarly silent on whether an objective or subjective standard
applies. The question presented is whether the Legislature intended section 128.5 to be
interpreted similar to former section 128.5. Our review of the legislative history shows
one purpose of section 128.5 was to eliminate the subjective standard and impose an
objective standard.
The author of the bill explained the bar for the imposition of sanctions under
section 128.5 was considered to be "too high because the statute had been interpreted to
require both an objective standard that the act was without merit and a subjective bad-
faith motive, which was difficult to prove." (Assem. Com. on Judiciary, Analysis of
Assem. Bill No. 2494 (2013-2014 Reg. Sess.) as amended April 10, 2014, p. 4.) The
enactment of section 128.7 imposed a lower threshold by only requiring the attorney
conduct be objectively unreasonable, but its scope is limited to the filing of frivolous
12
pleadings. (§ 128.7.) Thus, courts have lost an important tool to discourage "bad faith
actions that can materially harm the other party or the fairness of a trial." (Assem. Com.
on Judiciary, Analysis of Assem. Bill No. 2494 (2013-2014 Reg. Sess.) as amended April
10, 2014, p. 4.) A later bill analysis shows the purpose of the current version of section
128.5 was to impose the same conditions for sanctions made under section 128.7.
(Assem. Com. on Appropriations, Analysis of Assem. Bill No. 2494 (2013-2014 Reg.
Sess.) as amended May 7, 2014, p. 2.)
Because the Legislature intended the conditions for sanctions under the current
version of section 128.5 mirror section 128.7, we conclude the objective standard used to
evaluate section 128.7 sanctions motions applies to section 128.5. (Bockrath v. Aldrich
Chemical Co. (1999) 21 Cal.4th 71, 82; Optimal Markets, Inc. v. Salant (2013) 221
Cal.App.4th 912, 921 [sanctions under § 128.7 are evaluated under an objective
standard].) Thus, the trial court erred by concluding the lack of evidence of subjective
bad faith by SDOG or its counsel required denial of the sanctions motion. Although the
objective standard of proof is easier to satisfy, the Legislature intended to "retain the
extremely high proof required for such awards" with its applicability lying with "truly
egregious behaviors." (Senate Judiciary Com., Analysis of Assem. Bill No. 2494 (2013-
2014 Reg. Sess.) as amended June 16, 2014, p. 5; cf. In re Marriage of Flaherty, supra,
31 Cal.3d at pp. 650-651 [addressing former § 128.5].)
The trial court also erred in determining the waste cause of action had legal merit
because the claim survived demurrer. The issue on demurrer is whether a claim alleges
facts sufficient to state a cause of action, assuming the truth of all properly pleaded
13
material facts. (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.) The
issue on a sanctions motion is whether the claim was "frivolous" meaning "totally and
completely without merit or for the sole purpose of harassing an opposing party."
(§ 128.5, subd. (b)(2); former § 128.5, subd.(b)(2).) An objective reasonable attorney
standard applies to this determination. (People v. LaBlanc (2015) 238 Cal.App.4th 1059,
1070 [addressing former § 128.5]; Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1,
12 [same].) Whether a claim is meritless or for the sole purpose of harassment must be
evaluated by examining whether the factual allegations of the claim had evidentiary
support. (580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d
1, 22 [addressing former § 128.5].) The order overruling the demurrer to the waste cause
of action is not relevant to this issue.
Defendants also contend the trial court improperly "flipped the burden of proof"
by requiring them to produce "evidence demonstrating that a useless expenditure of
public funds did not actually take place." The parties have not cited any cases addressing
the burden of proof on a sanctions motion. Our independent research reveals at least one
court concluded that after the moving party on a sanctions motion asserts an action lacks
legal support, the burden shifts to the other party to cite authority for the action.
(Weisman v. Bower (1987) 193 Cal.App.3d 1231, 1236, fn. 6.)
As a general matter, "[e]xcept as otherwise provided by law, a party has the
burden of proof as to each fact the existence or nonexistence of which is essential to the
claim for relief or defense that he is asserting." (Evid. Code, §§ 500, 550, subd. (b) ["The
burden of producing evidence as to a particular fact is initially on the party with the
14
burden of proof as to that fact."].) Both the current and former versions of section 128.5
do not provide otherwise. A party seeking sanctions may rely on factually devoid
discovery responses by the party opposing the sanctions motion to raise a reasonable
inference the party opposing the sanctions motion lacks facts supporting its claims. (Cf.
Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 589-590 [a moving defendant
may rely on factually devoid discovery responses to shift the burden of proof on
summary judgment].) Once the party with the burden of proof as to a particular fact
produces evidence sufficient to make its prima facie case, the burden of producing
evidence then shifts to the other party to refute the prima facie case. (Evid. Code, § 110;
see generally Sargent Fletcher, Inc. v. Able Corp. (2003) 110 Cal.App.4th 1658, 1667-
1668.) Despite this burden shifting, the ultimate burden of providing sanctionable
conduct remains with the moving party. (Evid. Code, § 115; cf. Tusher v. Gabrielsen
(1998) 68 Cal.App.4th 131, 144-145.)
The matter is remanded to the trial court to reevaluate the sanctions motion under
the proper legal standard of objective reasonableness. On remand, the trial court must
first evaluate whether the party seeking sanctions has tendered some evidence showing
potentially sanctionable conduct. If the party seeking sanctions satisfies its burden, the
burden of producing evidence shifts to the party opposing the sanctions motion to refute
the moving party's prima facie case. The trial court has the discretion to consider further
briefing and evidence before ruling on the motion. If the trial court determines sanctions
are appropriate, it must determine the type and amount of sanctions and whether to
15
impose sanctions on counsel, the client or both. (Cf. Code Civ. Proc., § 128.7, subds. (c)
& (d).) We express no opinion on the merits of the sanctions motion.
As a housekeeping matter we note a party filing a motion for sanctions under the
current version of section 128.5 is required to e-mail the California Research Bureau of
the California State Library "a copy of the endorsed, filed caption page of the motion or
opposition, a copy of any related notice of appeal or petition for a writ, and a conformed
copy of any order issued pursuant to this section, including any order granting or denying
the motion. The party shall also indicate whether a motion for sanctions was made
pursuant to Section 128.7." (§ 128.5, subd. (h)(1).) The record on appeal does not show
City complied with these reporting requirements.
II
Attorney Fees
A. Background
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 periods of time. City refused to produce any e-mail communications
stating the e-mails in Goldsmith's personal account were not "owned, used, prepared or
retained by . . . City" and did not qualify as public records. (Italics added.)
SDOG filed this verified action after confirming City would not produce any
responsive records. SDOG's pleading noted a newspaper article in which Goldsmith
stated he receives e-mails pertaining to City business on his personal account and his
practice is to forward these e-mails to his City e-mail account. After reading the
16
complaint, City claimed it realized for the first time that SDOG sought e-mails stored in
City's computer system. City conducted a search for responsive e-mails retained in its
system and produced over 900 pages of e-mails.
The trial court entered a judgment in favor of SDOG on its claim under the Act
and granted SDOG declaratory relief against City. The court found City did not produce
documents stored in its e-mail system because it improperly narrowed the request to
e-mail messages maintained on a private server, and should have sought clarification or
attempted to provide a partial response. The trial court later granted SDOG's request for
attorney fees as the prevailing party under the Act finding City disclosed public records
as a result of the action; and could have avoided litigation had it not improperly narrowed
the request, but instead sought clarification.
B. Analysis
City contends the trial court erroneously found SDOG to be the prevailing party
because the lawsuit did not cause it to disclose the e-mails and, after the trial court ruled
on its claimed privilege, it produced only one insignificant e-mail with the fate of other
e-mails at issue in the prior action still undecided. The record supports the trial court's
prevailing party determination.
The Act states " '[p]ublic records' " include "any writing containing information
relating to the conduct of the public's business prepared, owned, used, or retained by any
state or local agency regardless of physical form or characteristics." (Gov. Code, § 6252,
subd. (e), italics added.) A public agency has a duty to make "a reasonable effort to elicit
additional clarifying information from the requester that will help identify the record or
17
records." (Gov. Code, § 6253.1, subd. (b).) In a proceeding under the Act the court is
required to "award court costs and reasonable attorney fees to the plaintiff should the
plaintiff prevail in litigation filed pursuant to this section." (Gov. Code, § 6259, subd.
(d).)
A plaintiff prevails under the Act when it " 'files an action which results in
defendant releasing a copy of a previously withheld document.' " (Los Angeles Times v.
Alameda Corridor Transportation Authority (2001) 88 Cal.App.4th 1381, 1391.) "A
plaintiff is considered the prevailing party if [the] lawsuit motivated defendants to
provide the primary relief sought or activated them to modify their behavior [citation], or
if the litigation substantially contributed to or was demonstrably influential in setting in
motion the process which eventually achieved the desired result." (Belth v. Garamendi
(1991) 232 Cal.App.3d 896, 902.) We review a trial court's determination of whether a
litigant is a prevailing party for abuse of discretion, deferring to any factual findings
made by the court that are supported by substantial evidence. (Garcia v. Bellflower
Unified School Dist. Governing Bd. (2013) 220 Cal.App.4th 1058, 1064.) We accept the
trial court's resolution of credibility and conflicting substantial evidence, and its choice of
possible reasonable inferences that can be drawn from the evidence. (Galbiso v. Orosi
Public Utility Dist. (2008) 167 Cal.App.4th 1063, 1078.)
SDOG's request sought e-mails pertaining to City's official business sent to or
from Goldsmith's personal e-mail account. When City received the request, four City
attorneys reviewed it and concluded it sought only e-mails stored and maintained in
Goldsmith's private e-mail account and not e-mails saved to City's e-mail account. In
18
declarations submitted to the court, City's attorneys explained they came to this
conclusion based on the wording of prior requests under the Act submitted by SDOG's
counsel that sought e-mails regardless of whether the account was public or private. City
attorneys conceded they were aware private e-mails stored on City servers are considered
to be public records.
City refused to produce any e-mail communications, stating the e-mails in
Goldsmith's personal account were not "owned, used, prepared or retained by . . . City"
and did not qualify as public records. (Italics added.) City complains SDOG should have
expressly stated it sought private e-mails stored within City's system and, had SDOG
done so, City would have produced the e-mails to the extent they were not otherwise
privileged or exempt. City's claim it did not understand the request sought e-mails stored
in its computer system rings hollow. City knew private e-mails stored on its servers are
considered to be public records. 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. (Gov. Code, § 6253.1, subd. (b).) On this record, the trial court did not abuse its
discretion in finding SDOG to be the prevailing party and awarding SDOG its attorney
fees and costs.
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DISPOSITION
The order granting SDOG its attorney fees and costs is affirmed. The order
denying City's motion for sanctions is reversed and the matter is remanded for further
proceedings in conformity with this opinion. The parties are to bear their own costs for
this appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
McDONALD, J.
WE CONCUR:
HALLER, Acting P. J.
IRION, J.
20
AI Brief
AI-generated · verify before citing
Holding. The court held that Code of Civil Procedure section 128.5 applies to all pending actions, does not require compliance with the section 128.7 safe harbor waiting period, and is governed by an objective reasonableness standard. The court also affirmed the trial court's determination that the plaintiff was the prevailing party under the California Public Records Act.
Issues
Does Code of Civil Procedure section 128.5 apply to actions pending as of its January 1, 2015 effective date?
Must a party filing a sanctions motion under section 128.5 comply with the safe harbor waiting period of section 128.7, subdivision (c)(1)?
What is the legal standard for evaluating a request for sanctions under section 128.5?
Did the trial court err in its prevailing party determination under the California Public Records Act?
Disposition. Affirmed in part, reversed in part and remanded.
Quotations verified verbatim against the opinion
“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)”
“the legal standard in evaluating a request for sanctions under section 128.5 is whether the challenged conduct was objectively unreasonable.”