On June 7, 2016, the California Court of Appeal, Fourth Appellate District, Division One affirmed the award of attorney's fees to a state watchdog organization after they prevailed in a public records request - action, but remanded the case back to the trial court to determine if the group should be sanctioned for filing a frivolous claim.

San Diegans for Open Government (SDOG) is a private nonprofit group that aims to ensure government agencies are accountable and comply with all applicable laws. SDOG submitted a public records request to the City of San Diego and its attorney, Jan L. Goldsmith, requesting all emails pertaining to the city's official business sent to or from Goldsmith's personal email account. The city refused, to produce the emails, claiming they did not qualify as public records. SDOG filed a verified action to force the city to produce the records. SDOG also filed a cause of action for taxpayer-waste.

SDOG later dismissed the waste cause of action with prejudice. The trial court issued a judgment in favor of SDOG against the city on the public records action, and awarded attorney's fees. The trial court denied the city's request for sanctions against SDOG for filing the waste cause of action without any evidence to support it.

The city appealed both orders. The city alleged that SDOG's "sole piece of evidence" on the taxpayer waste claim was fabricated and the trial court should have awarded sanctions. The city also argued the trial court used the wrong legal standard in denying sanctions. The appellate court agreed and said that on remand, the trial court must "first evaluate whether the party seeking sanctions has tendered some evidence showing potentially sanctionable conduct." The trial court had ruled that SDOG waste cause of action did not qualify for sanctions because it was part of another action and SDOG dismissed that claim on their own. On remand, SDOG will have the "burden of producing evidence             to refute" the city's allegations. If
it cannot, the trial court should decide what sanctions, if any, are appropriate.

The trial court's award of attorney's fees to SDOG, however, was affirmed by the court of appeal. The city claimed that SDOG was not the prevailing party in the action because its lawsuit did not cause the city to disclose the emails, except for "one insignificant email," and the fate of the rest of the emails were still undecided. The appellate court disagreed with the city and upheld the trial court's award of attorney's .fees.

"The evidence suggests that the filing of the action motivated the city to actually look for and produce the private emails pertaining to City business stored in its system," wrote the court. The court also held that the city improperly narrowed SDOG's request rather than seeking clarification as it is required to do under California law.

"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."

The case was remanded to the trial court to determine the sanctions issue, and each party was required to bear their own appellate costs. See: San Diegans for Open Government v. City of San Diego, et al., No. D068421 (CA App. Ct. Div I, 6/7/2016).

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