Appellate Court Reverses Denial Of Section 128.5 Sanctions, But Affirms Fee Recovery To Plaintiff Under California Public Records Act.
San Diegans For Open Government v. City of San Diego, Case No. D068421 (4th Dist., Div. 1 June 7, 2016) (published) is a key decision on the timing, applicability, and scope of Code of Civil Procedure section 128.5, a sanctions statute which hit the sunset for a while but was revived effective January 1, 2015. After a plaintiff non-profit organization dismissed a waste claim, City of San Diego moved for 128.5 sanctions, which was denied even though plaintiff was found to be the prevailing party under the California Public Records Act’s fee-shifting statute.
A mixed result on appeal, with the 128.5 sanctions denial reversed but with the Public Records Act result affirmed.
The appellate court found that the following points were salient with regard to the “revived” section 128.5 sanctions statute: (1) it applies to activities in a case pending as of January 1, 2015 even though the predicate sanctioning activities occurred before January 1, 2015 (adopting, by analogy, a case holding that a fee entitlement statute adopted during the pendency of a case for prior events should be applied, see Olson v. Hickman, 25 Cal.App.3d 920, 922 (1972)); (2) the new 128.5 statute does not require compliance with section 128.7 “safe harbor” requirements; and (3) new section 128.5 requires a litigant to show objective unreasonableness, dispensing with the need to show subjective bad faith as necessary under the prior version of the statute.
With respect to the California Public Records Act determination, the appellate court affirmed the award because the trial court could conclude that the governmental entity unreasonably attempted to narrow the requests rather than asking for clarifications so as to avoid a fee recovery.
However, for all of you bringing a 128.5 motion, the appellate court noted a “housekeeping matter”—everyone bringing this motion must supply all papers on such a motion (including appellate paperwork) to the California Research Bureau of the California State Library.