Filed 6/7/16 CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE STATE OF CALIFORNIA

SAN DIEGANS FOR OPEN GOVERNMENT, Plaintiff and Respondent,

v. CITY OF SAN DIEGO et al. , Defendants and Appellants. D068421

(Super. Ct. No. 37

- 2014

- 00000217

- CU

- MC

- CTL)

APPEAL from an order of the Superior Court of San Diego County, Joe l R. Wohlfeil, Judge. Affirmed in part, reversed in part and remanded for further proceedings. Jan I. Goldsmith, City Attorney, Da vid 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.2

Effective January 1, 2015, the Legislature rev ised and revived Code of Civil
Procedure section 128.5 , 1 which provides statutory authority for an award of sanctions. ( Stats. 2014, ch. 425 (Asse m . Bill No. 2494), § § 1

- 2, pp. 3295

- 3297 .) W e conclude the current version of section 128.5 applies to any c ase 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 un der 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 i n conformity with this opinion. We also address the prevailing party det ermination under the California P ublic 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

non profit organization acting as a government " watchdog " to ensure public agencies comply with all applicable laws aimed at promoting transparency and accountability in government. D efendants 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

1 All statutory references are to the Code of Civil Procedure unless otherwise specified.3

Goldsm ith ' 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 - mail s. SDOG also alleged a cause of action under section 526a for taxpayer waste. SDOG ultimately dismissed the waste c ause 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 mand ate 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 (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 tim ely appealed both orders.
DISCUSSION
I
Sanctions
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 a4

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 f inding 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 specul ated, 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, subd ivision (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 m otion. 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 Mut ual Ins. Co. (2002) 95 Cal.App.4th 68, 76

- 77.)

" Our fundamental task i nvo lving 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 and5

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 langu age. [Citation.] ' [Citation s .] ' 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.) In 1981, the Legislature enacted former section 128.5 to provide statutory authority for an award of sanct ions. ( Clark v. Optical Coating Laboratory, Inc. (2008) 165 Cal.App.4th 150, 164.) 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.) 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.) S ection 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 no t show subjective bad faith, but instead show the6

challenged conduct was " ' objectively unreasonable. ' " ( Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167.) In 2014, the Legislature proposed revising and reviving former section 128.5 " to provide an add itional 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 secti on 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 form er 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 delete s 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 impro per retroactive application of the statute to past conduct.7

Former section 128.5 applied only to complaints filed, or proceedings initiated, on or befor e December 31, 1994. (Former § 128.5, subd. (b)(1).) When enacted in 1994, section 128.7 expressly pr ovided 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 p aper filed in that matter. " ( § 128.7, subd. (i).) The current version of s ection 128.5 contains no date r estriction, 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 [ t he California Supreme Court has

" ro utinely 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 Decemb er 31, 1994, date limitation on a trial court ' s authorization to award reasonable expenses incurred as a result of bad

- faith actions or tactics that are frivolous or solely intended to cause unnecessary delay, thus making both of the provisions described a bove applicable commencing January1, 2015. " (Governor ' s Office, Enrolled Bill R e p . on Assem. Bill
No. 2494 (2013

- 2014 Reg. Sess.), Aug. 29 , 2014, p. 2.) We conclude section 128.5 applies to any action pending as of January 1, 2015. " An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied. " ( § 1049.) In arguing section 128.5 should not apply, SDOG relies on the " well

- es tablished presumption that statutes apply prospectively in the absence of a clearly expressed contrary intent

. . . . " ( Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1218.)8

Assuming, for the sake of argument, the Legislature did not make its inten t clear, we examine SDOG ' s contention. A statute establishing rules for the conduct of pending litigation without changing the legal consequences of past conduct is not retroa ctive merely because it draws on facts existing prior to its enactment; rather, such statutes are actually prospective in nature because they relate to the procedure to be followed in the future. ( Californians f or Disability Rights v. Mervyn ' s, LLC (2006) 39 Cal.4th 223, 231; see also Republic Corp. v. Superior Court (1984) 160 Cal.App.3d 1253, 1257; Olson v. Hickman (1972) 25 Cal.App.3d 920, 922 .) No litigant has a vested right in any matter of procedure. ( National Auto. & Cas. Ins. Co. v. Downey (1950) 98 Cal.App.2d 586, 591.) Statutory enactments allowing an awa rd of attorney fees made after the occurrence of an event and during the pendency of legal proceedings are properly characterized " as an ancillary provision, creating no new cause of action. It is procedural only. A lawsuit is governed by a change in pro cedural rules made during its pendency, and the suit is pending until its final determination on appeal. " ( Olson v. Hickman , supra , 25 Cal.App.3d at p. 922.) A motion for sanctions, like a motion for attorney fees, is a matter collateral to the underlyin g litigation. ( San Bernardino Community Hospital v. Meeks (1986) 187 Cal.App.3d 457, 462.) Nothing in section 128.5 impacts the rights or liabilities of the parties regarding the claims at issue in SDOG ' s complaint. Rather, section 128.5 operates prospe ctively because it is a procedural statute governing the conduct of proceedings following its enactment to determine the legal significance of past events, i.e., whether these past events make the moving party eligible for sanctions.9

SDOG next contends de fendants did not comply with the safe harbor waiting period of section 128.7 as required by section 128.5, subdivision (f), which states: " [a]ny sanctions imposed pursuant to this section shall be imposed consistently with the standards, conditions, and p rocedures set forth in subdivisions (c), (d), and (h) of Section
128.7. " Before addressing this question we briefly review each subdivision of section 128.7 mentioned in section 128.5. Section 128.7, s ubdivision (h) , provides a motion for sanctions broug ht for an improper purpose is itself subject to a motion for sanctions. S ection 128.7, s ubdivision (d) , authorizes monetary and nonmonetary sanctions " limited to what is sufficient to deter repetition of this conduct or comparable conduct by others simila rly situated. " Monetary sanctions can be fines payable to the court or an award to the moving party for

" reasonable attorney fees and other expenses incurred as a direc t result of the violation. " ( § 128.7, subd. (d).) S ection 128.7, s ubdivision (c) , pro vides sanctions may be awarded against attorneys, law firms, or parties. Subdivision (c)(1) describes a two

- step procedure for a section 128.7 sanction motion. The moving party serves the sanctions motion on the offending party without filing it. The op posing party then has 21 days to withdraw or correct the improper pleading and avoid sanctions (the safe harbor waiting period). At the end of the waiting period, if the pleading is not withdrawn or appropriately corrected, the moving part y may then file the motion. ( § 128.7, subd. (c)(1); Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 698

- 699.) S ection 128.7, s ubdivision (c)(2) , allows a court, on its own motion, to " enter an order describing the specific conduct that appears to violate subd ivision (b) and directing an attorney, law firm, or party to show10

cause why it has not violated subdivision (b), unless, within 21 days of service of the order to show cause, the challenged paper, claim, defense, contention, allegation, or denial is withdr awn or appropriately corrected. " We are not persuaded by SDOG ' s contention that a party seeking sanctions under section 128.5 must comply with the safe harbor waiting period in section 128.7, subdivision (c)(1). SDOG ' s argument requires us to interpret t he language of section 128.5. Section 128.5, s ubdivision (f) , requires sanctions be " imposed consistently with the standards, conditions, and procedures set forth in subdivisions (c), (d), and (h) of Section 128.7. " (Italics added.) The plain language of the statute specifies sanctions are to be imposed consistently with section 128.7, subdivision (c), pertaining to who can be sanctioned and whether the party seeking sanctions exercised due diligence. The Legislat ure did not specify motions under section 128.5 needed to be imposed consistently with the safe harbor provisions of section 128.7, subdivisions (c)(1) and (c)(2). To the extent section 128.5 can be considered ambiguous regarding adoption of the safe harb or provisions of section 128.7, subdivisions (c)(1) and (c)(2), our review of the legislative history reveals no mention of the section 128.7 safe harbor waiting period. It is inconceivable the Legislature intended to incorporate by reference a prerequisi te filing requirement without mentioning the requirement. Finally, section 128.7 is limited to misconduct in the filing or advocacy of groundless claims made in signed pleadings and other papers. ( § 128.7, subd. (b).) The purpose of the safe harbor wait ing period contained in section 128.7 is to allow a party to " avoid sanctions by withdrawing or11

otherwise appropriately correcting the offending paper, claim, defense, contention, allegation, or denial. " ( Barnes v. Department of Corrections (1999) 74 Cal. App.4th 126, 132.) S ection 128.5 is not limited to misconduct made in signed pleadings and other papers. ( § 128.5, subd

. (a).) As a practical matter, requiring a party to comply with the safe harbor waiting period of section 128.7 before filing a sancti ons motion under section 128.5 makes little sense as the waiting period cannot be used to " withdraw or appropriately correct[] " past bad

- faith actions or tactics. ( § 128.7, subd. (c)(1).) We conclude a party filing a sanctions motion under section 128.5 does not need to comply with the safe harbor waiting period described in section 128.7, subdivision (c)(1).
2. Legal Standard Defendants contend the trial court applied an improper legal standard when it denied the sanctions motion. Both the f

ormer and current version s of section 128.5 give a trial court discretion to award " reasonable expenses, including attorney fees, incurred by another party as a result of bad

- faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. " ( § 128.5, subd. (a); f ormer § 128.5, subd. (a).) " ' Actions or tactics ' " include the making or opposing of motions or the filing and service of a complaint or cross - complaint. (Former § 128.5, subd. (b)(1).) The current version of section 128.5 broa dened the definition of an action or tactic to include the filing and service of an answer or other responsive pleading. ( § 128.5, subd.(b)(1).) " ' Frivolous '12

means (A) totally and completely without merit or (B) for the sole purpose o f harassing
an oppo sing party. ' " ( § 128.5, subd. (b)(2); f ormer § 128.5, subd.(b)(2).) Former section 128.5 is silent on whether an objective or subjective standard applies to determine whether actions or tactics are frivolous or solely intended to cause
unnecessary delay. The subjective standard evaluates the motives of a party or counsel and the objective standard looks at the merits from a reasonable person ' s perspective. ( In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649.) Many courts interpreting former

sec tion 128.5 required a showing of subjective bad faith in addition to frivolousness. ( Shelton v. Rancho Mortgage & Investment Corp. (2002) 94 Cal.App.4th 1337, 1346 [listing cases] .) S ection 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 standar d 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, A nalysis 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 frivolous13

pleadings. ( § 128.7

. ) Thus, courts have lost an important tool to discourage " bad faith actions that can materially harm the other pa rty or the fairness of a trial. " (Assem. Com. on Judiciary, A nalysis 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 c onditions for sanctions made under section 128.7. (Assem. Com. on Appropriations, A nalysis 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 versi on 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 Chem ical 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., A nalysis of Assem. Bill No. 24 94 (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 plead ed14

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); f

ormer § 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.A pp.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 C al.Ap p.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 " evi dence 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 aft er 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 otherwis e 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 the15

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 par ty 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 devo id 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 mo ving 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 sanct ions 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 to16

impos e sanctions on counsel, the client or both. (Cf. Code Ci v. Proc., § 128.7, subd s . (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 o f 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
cop y 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 - mail s in Goldsmith ' s personal account were not " owned, used, prepared or retained by

. . . City " and did not qualify as public records . (Italics added.)
SDO G 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 - mail s pertaining to City business on his personal account and his practice is to forward these e - mail s to his City e - mail account. After reading the17

complaint, City claimed it realized for the first time that SDOG sought e - mail s stored in City ' s computer system. City conducted a search for responsive e - mail s retained in its system a nd produced over 900 pages of e - mail s. 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 unde r 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 t o be the prevailing party because the lawsuit did not cause it to disclose the e - mail s and, after the trial court ruled on its claimed privilege, it produced only one insignificant e - mail with the fate of other

e - mail s at issue in the prior action still un decided. 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

st ate or local agency regardless of physical form or c haracteristics. " (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 iden tify the rec ord or18

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 t o this secti on. " (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 Transp ortation Authority (2001) 8 8 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 a buse 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 cre dibility 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 - mail s pertaining to Ci ty ' 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 - mail s stored and maintained in Goldsmith ' s private e - mail account and not e - mail s sa ved to City ' s e - mail account. In19

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 - mail s regardless of whether the ac count was public or private. City attorneys conceded they were aware private e - mail s stored on City servers are considered to be public records. City refused to produce any e - mail communications , stating the e - mail s in Goldsmith ' s personal account were n ot " 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 - mail s stored within City ' s system and, had SDOG done so, City would have produced the e - mail s to the extent they were not otherwise privileged or exempt. City ' s claim it did not understand the request sought e - mail s stored in its computer system rings hollow. City knew private e - mail s stored on its servers are

cons idered 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 f iling of the action motivated City to actually look for and produce the private e - mail s 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 clarifica tion 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.20 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 o f Court, rule 8.278(a)(5).)

McDONALD, J. WE CONCUR:

HALLER, Acting P. J.

IRION, J.