1

Filed 1/30/15; unmodified opn. attached

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

JULIA ANNA BERTOLI et al.,

Plaintiffs and Appellants,

v.

CITY OF SEBASTOPOL et al.,

Defendants and Respondents.

 A132916

 (Sonoma County Super. Ct.

 No. SCV 249181)

 ORDER MODIFYING OPINION

 [CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on January 20, 2015, be modified as 

follows:

1. The language on page 13, last sentence of the first paragraph is deleted.

Thus, we dismiss appellants’ second appeal in Bertoli et al. v. City of 

Sebastopol et al. (A134799), including Respondents’ cross-appeal, and, if necessary, will 

consider any issues raised in that matter in the context of this case.

The sentence is replaced with the following language:

Thus, Bertoli et al. v. City of Sebastopol et al. (A134799), the related case, 

has been dismissed.

2. The language on page 26, middle of the paragraph is deleted.

In fact, the very issue involved in this case is currently the basis for a 

petition for review in our own Supreme Court; persuasive evidence that this is an area of 

the law which remains in flux. (See City of San Jose v. Superior Court (2014) 225 
2

Cal.App.4th 75, review granted June 25, 2014, S218066 [noting in the case summary that 

the question presented is as follows: “Are written communications pertaining to city 

business, including email and text messages, which (a) are sent or received by public 

officials and employees on their private electronic devices using their private accounts, 

(b) are not stored on city servers, and (c) are not directly accessible by the city, ‘public 

records’ within the meaning of the California Public Records Act?”].) 

It is replaced with the following language:

In fact, the very issue involved in this case is currently pending before our 

own Supreme Court; persuasive evidence that this is an area of the law which remains in 

flux. (City of San Jose v. Superior Court (2014) 225 Cal.App.4th 75, review granted 

June 25, 2014 S218066.)

3. The language on page 29 is deleted as follows:

Appellants’ appeal from the post-judgment order determining the amount 

of attorney fees and costs in Bertoli et al. v. City of Sebastopol et al. (A134799), which 

includes Respondents’ cross-appeal, is dismissed. 

There is a change in the judgment. The disposition will now read as 

follows:

III. DISPOSITION

The judgment is reversed to the extent it orders appellants to pay attorney fees and 

costs pursuant to section 6259, subdivision (d). In the interests of justice, each party 

shall bear its own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

_________________________

RUVOLO, P. J.

Bertoli v. City of Sebastopol A132916 modification
1

Filed 1/20/15; unmodified version

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

JULIA ANNA BERTOLI et al.,

Plaintiffs and Appellants,

v.

CITY OF SEBASTOPOL et al.,

Defendants and Respondents.

 A132916

 (Sonoma County Super. Ct.

 No. SCV 249181)

In this case involving the California Public Records Act (PRA) (Gov. Code,

§ 6250 et seq.), Julia Anna Bertoli (Bertoli) and her attorney David Rouda (Rouda)

(collectively, appellants) appeal from the trial court’s order finding their PRA litigation 

“clearly frivolous” and awarding costs and attorneys fees to the City of Sebastopol (City) 

and certain other respondents pursuant to Government Code section 6259, 

subdivision (d).1Through the PRA litigation, Bertoli and Rouda were attempting to 

obtain copies of relevant emails or other electronically stored data contained on the hard 

drives of past and present City officials and employees, including both municipal 

computers and private electronic devices. In making its frivolousness determination, the 

trial court found the PRA request to be unfocused and nonspecific, unduly burdensome, 

and an alarming invasion of privacy rights. While we do not disagree with the trial 

court’s characterization of the PRA request at issue, we conclude that, under the 

 

1 All statutory references are to the Government Code unless otherwise indicated.
2

particular circumstances of this case, the court’s “clearly frivolous” finding should not 

stand. We therefore reverse the order for attorneys fees and costs. 

I. BACKGROUND

On July 3, 2009, Bertoli (then 15 years old) was involved in a tragic accident 

when she was struck by a car as she walked inside a crosswalk located on Highway 116, 

a highway owned by the State of California which runs through the City. As a result, 

Bertoli was rendered permanently physically and mentally disabled. Subsequently, 

Bertoli’s family retained Rouda to represent her interests with respect to the accident. 

A. Requests for City Records Under the PRA

On August 14, 2009, Rouda served the Sebastopol Police Department (Police) 

with an “amended” PRA request (Police Request) seeking all evidence, including photos, 

reports, audio logs, handwritten notes, and emails, with respect to Bertoli’s July 3 

accident. The Police Request also asked for any surveys, traffic or pedestrian counts, and 

letters or complaints received with respect to the intersection at issue, all for the past ten 

years. According to Rouda, the Police never provided any of the materials requested, 

claiming records of traffic collision reports were privileged. City claims never to have 

received the Police Request. However, it maintains that, in response to an earlier, August 

10, 2009, PRA request, the Police produced a complete copy of the traffic collision report 

related to Bertoli’s accident, handwritten notes of the investigating officer, and a report 

listing all accidents on Healdsburg Avenue for the past 10 years.2In addition, in July and 

September 2010, the City instructed Rouda to review the general traffic collision

information provided and indicate which collision reports he would like to review so that 

they could be made available to him. According to the City, Rouda never requested any

additional reports. 

On March 31, 2010, Rouda submitted an additional PRA request to the City

through its Planning Department (Request). The Request contained 62 different 

categories of public records sought by Rouda. Some of these items were relatively 

 

2

It appears, however, that the handwritten notes were not disclosed until April 2011 in 

connection with pending litigation regarding Bertoli’s accident. 
3

straightforward. For example, number 28 asked for any and all “City of Sebastopol 

General Plan documents, amendments and modifications, 1990 to present.” Or, pursuant 

to number 53, the City was asked to provide “[a]ny and all documentation of or relating 

to the City of Sebastopol’s Annual Report on Growth Management 1999 to present.” 

Other items, however, were significantly more open-ended and nonspecific. One such 

request was number 24 which sought: “Any and all documents, including but not limited 

to traffic impact studies, reports, evaluations, and/or consultations, and correspondence 

(including but not limited to emails, letters, notes, records of phone calls), relating to 

Highway 116 through the entire city limits of Sebastopol, CA, 1995 to present. This 

includes but is not limited to documents and correspondence related to permit approval 

for developments or work on property abutting or fronting Highway 116/Healdsburg 

Avenue and/or on property that at the time of permit application potentially could or 

would increase traffic on Highway 116/Healdsburg Avenue.” Another example was 

number 47, which asked for “[a]ny and all maintenance records for work planned, started 

and/or completed on Healdsburg Avenue/116 from the intersection with North Main 

Street through the intersection with Murphy Avenue, including but not limited to the 

entire intersections of Florence Ave/116 and of Cleveland Ave./116, Sebastopol, for any 

and all times.” When he submitted the Request, Rouda indicated that he would prefer to 

receive responsive documents in electronic format whenever possible. 

After asserting its right to a 14-day extension of the usual 10-day response period 

for a PRA request based on the voluminousness of the public records demanded, the City 

responded to the Request by letter dated April 22, 2010.3In general, the City objected to 

the 62 separate requests as “overly extensive, overly broad and, in some cases, unlimited 

in time.” It noted that many of the requests were “not reasonably limited to a certain file 

or project” and required “numerous City departments to search their entire catalog of 

 

3

Specifically, section 6253, subdivision (c) permits an extension of the 10-day time limit 

for production of public records in response to a PRA request under “unusual 

circumstances,” which are defined to include “[t]he need to search for, collect, and 

appropriately examine a voluminous amount of separate and distinct records that are 

demanded in a single request.” (§ 6253, subd. (c)(2).)
4

records.” This was particularly true because the City does not keep files by street name 

or intersection, but many of the requests spoke in terms of documents relevant to the area 

in and around Bertoli’s accident site. The City also reported that its seven-year document 

retention policy might limit the number of responsive documents available. Thereafter, 

the City responded to each specific request by (1) attaching certain responsive 

documents; (2) indicating that no responsive documents existed; (3) attaching a list of 

files that might contain responsive documents; (4) designating certain departments and/or 

files where specific responsive documents could be found; (5) referencing certain 

responsive documents already provided to Rouda; (6) objecting to a particular request as 

too ambiguous or overbroad for a response; and/or (7) indicating other agencies (such as 

Caltrans) which were likely to possess responsive documents. 

The City stated that it was happy to work with Rouda to narrow any overbroad 

requests. Further, since the volume of potentially responsive documents was so large, it 

made space available in a City break room on Tuesdays and Thursdays beginning on 

June 8, 2010, for Rouda to review any requested files and designate which documents he 

would like to have copied. On June 7, 2010, Rouda sent a formal reply to the City’s 

April 22 response to the Request. Generally, Rouda challenged the City’s 

characterization of many of the requests as vague or overbroad; identified certain 

responses as inaccurate or incomplete; highlighted requests requiring additional 

responses from the City; and argued that the possession of potentially responsive 

documents by other agencies did not obviate the City’s obligation to produce responsive 

documents in its possession. Rouda also stated, however, that he would review relevant 

files and file indexes, if available, from each department and identify the files he wanted 

to inspect. Initially, he indicated 87 engineering department files for review. In the end, 

Rouda spent 20 days over the course of three months reviewing 65,000 pages of 

potentially relevant documents from 400 files before designating 16,000 pages for 

scanning at his expense. According to the City, these 65,000 pages included hard copies 

of all “reasonably identifiable” emails and other electronically stored information (ESI)

relevant to the Request.
5

Rouda, in contrast, believed that potentially responsive ESI existed outside of the 

paper files provided by the City. On June 2, 2010, he sent an email to the City suggesting 

that the burden on City staff related to the Request could be alleviated by the hiring, at 

Rouda’s expense, of a neutral third-party collection company specializing in the retrieval

of ESI. Such a company would conduct searches on all municipal computers, servers, 

and electronic storage devices, as well as on any personal computers used by City 

employees to perform City work outside of the office. Rouda suggested nine primary 

search terms related to the location of Bertoli’s accident, and a host of possible secondary 

search terms. On June 4, 2010, Rouda facilitated a conference call between the City and 

an ESI collection company representative to further explain the third-party ESI collection 

process. And, in his June 7 reply to the City’s PRA response, Rouda reiterated his offer 

to hire a third-party ESI collector and asked various questions regarding the number, 

type, and location of municipal and personal computers of City employees.4In a meeting 

on June 8, 2010, however, the City declined Rouda’s offer for third-party ESI retrieval. 

On June 22, 2010, Rouda filed a personal injury lawsuit on Bertoli’s behalf 

naming the State of California, the City, and 35 other defendants. (Bertoli v. City of 

Sebastopol et al. (Super. Ct. Sonoma County, 2010, No. SCV-247619).) The lawsuit 

claimed that Bertoli’s significant injuries were caused by dangerous conditions on and 

around the public roadway and adjacent private properties. Thereafter, in its formal 

July 22, 2010, response to Rouda’s June 7 PRA reply, the City reiterated its position

regarding third party ESI retrieval, stating: “The City respectfully declines your offer to 

hire an unbiased third party to conduct a search of the City’s computer storage. We are 

aware of no authority that requires the City to comply with such a request.” The City 

further indicated that the writings of individual Sebastopol City Council (City Council)

members were not disclosable public records for purposes of the PRA because an 

individual government official is not a “local agency” as defined by the PRA. Finally, 

with respect to Rouda’s paper document review, the July 22 letter also stated: “Now that 

 

4 Rouda had previously requested this information on June 2 and 4, 2010. 
6

you have filed suit against the City, you must complete your review promptly.” Arguing 

that it was not required by the PRA to make documents available indefinitely, the City set 

a July 30 deadline for Rouda to complete his review.

5

Rouda responded immediately to the City’s letter, disagreeing with each of the 

City’s stated positions. With respect to responsive ESI, Rouda indicated that electronic 

materials related to the conduct of the public’s business are clearly “writings” for 

purposes of the PRA and asked the City to reconsider its response to his electronic search 

request. In fact, at some point, the Public Works Superintendent did conduct a word 

search for emails on his work computer and provided responsive documents to Rouda. 

Further, while at the Engineering Department conducting his paper document review on 

August 11, 2010, Rouda advised Sue Kelly, the City’s Engineering Director, that he still 

wanted the City to produce responsive emails. Ms. Kelly told Rouda to send her 

something describing what emails he wanted from her. Thus, on August 12, 2010, Rouda 

responded to Ms. Kelly (Supplemental Request), indicating that she should search her 

email correspondence for emails to or from 76 different people/organizations. 

Additionally, emails to or from 53 of these identified people/organizations should be 

further filtered by searches for 14 specified subjects.

The City sent a final letter to Rouda on August 20, 2010, seeking to resolve 

“ongoing issues” regarding the Request and the Supplemental Request. The City first 

stated that, if Rouda needed more time than the three months provided for paper 

document review, he would need to “seek court intervention.” Next, the City indicated

that it stood by its refusal to produce the individual communications of City Council 

members and that such records would “not be produced without a court order.” Finally, 

with respect to the Supplemental Request, the City asserted that it was not reasonable as 

it would require the City to conduct more than 700 individual email searches. The City 

 

5

This deadline was extended several times, until Rouda’s paper document examination 

was completed on September 10, 2010. On September 12, 2010, Rouda complained that 

he was unable to complete the requested document review in the time allotted by the 

City. Thereafter, he was allowed additional time to review documents in the office of the 

City’s attorney on September 16, 2010. 
7

refused to undertake “such a daunting and burdensome task,” noting that it would require 

City staff to “spend an excessive amount of time performing the searches and also 

reviewing the results to remove irrelevant and privileged matters.” The City did state, 

however, that it was willing to discuss “reasonable parameters” for an email search. 

B. The Petition for Writ of Mandate

On February 18, 2011, appellants filed a petition for writ of mandate (Petition) in 

Sonoma County Superior Court pursuant to section 6258, which provides that “[a]ny 

person may institute proceedings for injunctive or declarative relief or writ of mandate in 

any court of competent jurisdiction to enforce his or her right to inspect or to receive a 

copy of any public record or class of public records under [the PRA].” As respondents, 

the Petition named the City—including the City Council and nine specific City 

departments—as well as 33 individuals (collectively, Respondents). The individual 

Respondents designated included five former City employees; eight former members of 

the City Council, including one deceased member; fifteen current employees, including 

six department heads; and five current members of the City Council, including the current 

Mayor and Vice Mayor.

The Petition sought an order mandating that the City and its departmental 

employees produce ESI, including emails, responsive to the Request and the Police 

Request.

6

Specifically, the Petition maintained that the City refused to search or produce 

responsive ESI and also refused to allow a neutral third party ESI collection company to 

retrieve the ESI and perform a search. Appellants therefore requested an order allowing 

“a neutral third party ESI collection company such as TERIS access to copy 

Respondents’ electronic storage devices inside and outside of City of Sebastopol 

department offices where city business related ESI is or may be stored.” Indeed, the 

Petition claimed that, given the City’s “bias and resistance,” there was no way that 

appellants could be assured of gaining access to all responsive ESI short of an order 

allowing such third-party access. Appellants further requested that, once all pertinent 

 

6

The Petition also sought certain paper documents it alleged were improperly withheld in 

connection with the Police Request. 
8

electronic storage devices were copied, the ESI company be allowed to run searches of 

the copied data using designated search terms. Any results would then be turned over to 

the City, which would be required to review the material and create a privilege log within 

one month. Ultimately, under appellants’ plan, any ESI for which the City claimed 

privilege would be subject to in camera review by the trial court to determine whether or 

not it was disclosable.

The City, unsurprisingly, opposed the Petition, describing it as an “improper, 

baseless, ‘scorched earth’ massive invasion of privacy and horrendous waste of precious 

City resources” which would require the City and 34 private individuals to “hand over” 

the hard drives on at least 109 computers, laptops and PDA’s. The City argued with 

respect to the individually named Respondents that any information contained on their 

personal computers and cell phones did not constitute “public records” pursuant to the 

PRA and was therefore not properly subject to a PRA request. Moreover, the City argued 

that allowing a PRA request to reach the private electronic devices of municipal officials 

and employees would have a “tremendous chilling effect” on public service. In addition, 

the City noted that none of these individuals, many of whom no longer have any 

affiliation with the City, had been served with the underlying Request which ultimately 

led to the Petition. Finally, in extensive declarations filed with the trial court, each of the 

named Respondents indicated that they, in fact, had no public records on their personal 

computers or phones that had not already been produced to appellants. 

With respect to the City, itself, the City argued that the Petition should be denied 

as unduly burdensome, emphasizing the confidentiality of many City documents and the 

“hundreds of hours” it would take to sort through all of the potentially responsive 

documents that would be identified by various computer searches in order to extract 

privileged material. The City further contended that it had reasonably complied with the 

Request and “reasonably produced all identifiable ESI and emails.” In this regard, the 

City Manager declared that it was his understanding that “significant emails are printed 

by the department heads and filed in the corresponding project files.” And, according to 

both the City’s Engineering Director and the City’s Planning Director, this was their
9

practice. Under such circumstances, the City maintained that it was justified in refusing 

to permit appellants carte blanche to copy the designated hard drives. 

In reply, appellants argued that the City misunderstood the invasiveness of the 

computer search process and exaggerated the number of responsive documents that 

would be generated, failing to appreciate that multiple search terms would be applied 

simultaneously to filter the results. They further asserted that the writings of individual 

City Council members and any public documents maintained on private computers do fall 

within the purview of the PRA. Appellants emphasized that they repeatedly asked for 

information regarding the location of all responsive ESI, but received no response from 

the City. Moreover, although the Request and the Police Request were directed solely to 

the City, Rouda declared that he made clear to the City on numerous occasions that he 

was seeking all responsive ESI regardless of its location. Finally, appellants 

characterized as implausible the City’s claim that no City Council members, who worked 

exclusively from personal computers and private email addresses, possessed any 

responsive public records on those private devices. Appellants reiterated their request 

that the trial court order use of a third-party ESI collection company to obtain all 

responsive ESI from the Respondents. 

After the trial court published its tentative decision in the matter, however, Rouda 

took a much more circumscribed position during oral argument. He stated that his sole 

intention in filing the Petition was to assist his client, Bertoli, and that he never intended 

to unduly burden the City. Further, Rouda stressed the lack of settled law in this area, 

and also argued that his decision to name so many individual Respondents stemmed from 

the City’s unwillingness to provide him with the location of computers relevant to the 

Request, despite numerous attempts by him to obtain that information. Finally, Rouda 

indicated that the hiring of a third party ESI collection company was a suggestion, not a 

demand, and that he would have been happy if the City had performed some type of 

limited email search on its own.

By order dated June 17, 2011, the trial court—having “carefully weighed the 

competing interests at stake”—denied the Petition. In its order, it noted that the City had 
10

shown a “remarkable degree of openness and cooperation” in its response to Bertoli’s 

PRA requests; that it had “reasonably complied with access obligations pertaining to 

electronically stored information;” and that it “did not unreasonably restrict access to 

public records.” In contrast, the trial court characterized the relief sought in the Petition

as an “unprecedented fishing expedition” which would “constitute an alarming invasion 

of property rights, an extravagant use of limited city resources, and an unwanted green 

light for immoderate discovery.” With respect to the personal computer records of the 

individually-named Respondents, the trial court concluded that there was “patently no 

basis” for the requested access as none of the named individuals had previously been 

served with a request to produce computer hard drives. Moreover, the declarations 

submitted by the individual Respondents amply showed that there were no public records 

on the private computers at issue. The trial court went on to reject the Petition with 

respect to the municipal computers as “not consistent with public interest.” Specifically, 

it concluded that “[t]he burden to be imposed would be excessive, and the precedent to be 

set would be undesirable.” 

Notice of Entry of Order was served on June 23, 2011, with Notice of Entry of 

Judgment served on July 14, 2011. Thereafter, on August 2, 2011, appellants filed an 

extraordinary writ pursuant to section 6259, subdivision (c), with this court challenging 

the trial court’s decision.7 We summarily denied the writ. (Bertoli et al. v. Superior 

Court of Sonoma (Aug. 9, 2011, A132793) (nonpub. order).) A subsequent petition for 

 

7

Section 6259, subdivision (c), provides in relevant part: “[A]n order of the court, either 

directing disclosure by a public official or supporting the decision of the public official 

refusing disclosure, is not a final judgment or order within the meaning of Section 904.1 

of the Code of Civil Procedure from which an appeal may be taken, but shall be 

immediately reviewable by petition to the appellate court for the issuance of an 

extraordinary writ. Upon entry of any order pursuant to this section, a party shall, in 

order to obtain review of the order, file a petition within 20 days after service upon him 

or her of a written notice of entry of the order, or within such further time not exceeding 

an additional 20 days as the trial court may for good cause allow. If the notice is served 

by mail, the period within which to file the petition shall be increased by five days.”
11

Supreme Court review was also denied. (Bertoli et al. v. Superior Court (Sept. 28, 2011, 

S195819).)

C. The Motion for Attorneys Fees and Costs

In the meantime, Respondents had also filed a request for attorneys fees and costs 

in accordance with section 6259, subdivision (d), which provides in relevant part as 

follows: “If the court finds that the plaintiff's case is clearly frivolous, it shall award court 

costs and reasonable attorney fees to the public agency.” According to Respondents, the 

Petition was “clearly frivolous” for purposes of this statute because it named among the 

Respondents 34 individuals who had never been served with the underlying PRA request. 

Moreover, Respondents argued that the personal computers and cell phones sought in the 

Petition were, by definition, not public records under the PRA and therefore manifestly 

not subject to disclosure. Finally, with respect to the City, Respondents claimed that the 

Petition was clearly frivolous because of the significant additional burden it would 

impose on the municipality, despite its prior reasonable efforts to comply with the 

Request. Respondents sought attorneys fees in the amount of $42,280 to “punish” 

appellants for filing their “clearly frivolous” Petition. 

As a part of its June 17, 2011, order, the trial court agreed with Respondents, 

finding the Petition to be “clearly frivolous.” It therefore awarded costs and attorneys 

fees to Respondents pursuant to section 6259, subdivision (d). Indeed, the trial court 

declared that “[i]n nearly 25 years of judging, this court has not seen discovery 

disproportionality of this magnitude before.” The actual amount of the fee award was to 

be fixed through a noticed motion. 

Thereafter, Respondents filed a noticed motion increasing the amount of attorneys 

fees requested to $64,010. In response, appellants argued that the amount awarded 

should reflect “reasonable compensation for reasonable attorney hours spent” rather than 

punishment. They then went on to argue that the fees sought were excessive for 

numerous reasons. And, despite the fact that he was a named petitioner, Rouda also 

requested that any fee award not be enforceable against him personally, as he was only 

pursuing the Petition as Bertoli’s attorney. In reply, Respondents again increased the 
12

amount of fees sought, this time to $82,380, to compensate them for additional time spent 

on the unsuccessful extraordinary writ and petition for Supreme Court review filed by 

appellants with respect to the underlying merits of the Petition. Ultimately, on 

December 16, 2011, the trial court set the award of attorneys fees and costs at $44,630, 

applicable to all petitioners, including Rouda.

8 Notice of Entry of Order was served on 

January 6, 2012, with Notice of Entry of Judgment served on January 20, 2012. 

Appellants filed their notice of appeal with respect to the trial court’s finding of 

clear frivolousness on August 10, 2011. A notice of appeal challenging the amount of 

fees actually awarded was separately filed on March 2, 2012, in Bertoli et al. v. City of 

Sebastopol et al. (A134799). 

II. DISCUSSION

A. Appealability and Standard of Review

Our previous denial of appellants’ request for a writ of mandate pursuant to 

subdivision (c) of section 6259 has conclusively resolved that the trial court’s denial of 

the Petition was proper. (Crews v. Willows Unified School Dist. (2013) 217 Cal.App.4th 

1368, 1373 (Crews).) However, “[a]n order granting or denying attorneys fees under the 

[PRA] is reviewable on appeal from a final judgment in the proceeding.” (Motorola 

Communication & Electronics, Inc. v. Department of General Services (1997) 55 

Cal.App.4th 1340, 1344, fn. 2, citing Butt v. City of Richmond (1996) 44 Cal.App.4th 925 

(Butt).) Here, as set forth above, appellants properly appealed from the judgment that 

denied the Petition and found Respondents entitled to attorneys fees and costs under 

section 6259, subdivision (d). In addition, appellants filed a second notice of appeal from 

the subsequent order and judgment determining the exact amount of those attorneys fees 

and costs. 

 

8 On December 16, 2011, Respondents filed a motion to dismiss this appeal, arguing that 

it was premature, as the actual amount of fees had not yet been set. We denied the 

motion on January 5, 2012. As stated above, the amount of fees was set in the trial court 

on December 16. This award is currently on appeal in a separate matter, trailing 

resolution of these proceedings. (Bertoli et al. v. City of Sebastopol et al. (A134799).) 

We take judicial notice of our file in that appeal. (Evid. Code, § 452, subd. (d).) 
13

Under similar circumstances, the Third District in Crews concluded that it had 

jurisdiction under the first notice of appeal (establishing the entitlement to attorneys fees 

under section 6259, subdivision (d)) to review the propriety of the actual fees 

subsequently awarded. (Crews, supra, 217 Cal.App.4th at p. 1379.) Specifically, the 

Crews court cited prior case law holding that “ ‘when a judgment awards costs and fees 

to a prevailing party and provides for the later determination of the amounts, the notice of 

appeal subsumes any later order setting the amounts of the award.’ ” (Ibid., quoting 

Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 998.) It therefore dismissed Crew’s 

second appeal fixing the amount of attorney fees and costs. (Crews, supra, 217 

Cal.App.4th at p. 1379.) We will follow the same procedure in this case. Thus, we

dismiss appellants’ second appeal in Bertoli et al. v. City of Sebastopol et al. (A134799), 

including Respondents’ cross-appeal, and, if necessary, will consider any issues raised in 

that matter in the context of this case.

Crews also lays to rest the parties’ dispute regarding the appropriate standard of 

review to be applied in this court to the trial court’s determination of clear frivolousness 

under section 6259, subdivision (d). In Crews, the Third District noted that de novo 

review of an award of fees and costs is appropriate “ ‘where the determination of whether 

the criteria for an award of attorney fees and costs in this context have been satisfied 

amounts to statutory construction and a question of law.’ ” (Crews, supra, 217 

Cal.App.4th at p. 1379.) Since an award of attorneys fees and costs to a public agency 

pursuant to section 6259, subdivision (d), requires consideration of whether the PRA 

request at issue was frivolous within the meaning of that statute, the Crews court 

concluded that independent review of such a determination is warranted. (Crews, supra, 

217 Cal.App.4th at p. 1379; see also Sacramento County Employees’ Retirement System

v. Superior Court (2011) 195 Cal.App.4th 440, 454 (SCERS).) Of course, any factual 

findings made by the trial court in reaching this ultimate legal conclusion must be upheld 

if supported by substantial evidence. (Crews, supra, 217 Cal.App.4th at p. 1379; see also 

SCERS, supra, 195 Cal.App.4th at p. 454.)
14

B. Statutory Framework Related to PRA Requests

When enacting the PRA in 1968, the Legislature expressly declared that, while it 

was “mindful of the right of individuals to privacy, . . . access to information concerning 

the conduct of the people’s business is a fundamental and necessary right of every person 

in this state.” (§ 6250; County of Santa Clara v. Superior Court (2009) 170 Cal.App.4th 

1301, 1319-1320 (Santa Clara).) As the California Supreme Court has further explained

in the PRA context: “Openness in government is essential to the functioning of a 

democracy. ‘Implicit in the democratic process is the notion that government should be 

accountable for its actions. In order to verify accountability, individuals must have 

access to government files. Such access permits checks against the arbitrary exercise of 

official power and secrecy in the political process.’ ” (International Federation of 

Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 

Cal.4th 319, 328-329.) California voters endorsed this broad policy of public access by 

approving Proposition 59 in 2004, a ballot initiative “which amended the state 

Constitution to explicitly recognize the ‘right of access to information concerning the 

conduct of the people’s business’ and to provide that ‘the writings of public officials and 

agencies shall be open to public scrutiny.’ ” (Santa Clara, supra, 170 Cal.App.4th at 

p. 1320, quoting Cal. Const., art. I, § 3, subd. (b)(1).)9

In addition to embracing the public’s right to access, however, the PRA, as stated 

above, also incorporates explicit support for individual privacy rights. (§ 6250.) Indeed, 

“the express policy declaration at the beginning of the [PRA] ‘bespeaks legislative 

concern for individual privacy as well as disclosure.’ ” (Copley Press, Inc. v. Superior 

Court (2006) 39 Cal.4th 1272, 1282 (Copley Press).) Likewise, the right to access 

 

9

Thus, pursuant to subdivision (b)(2) of section 3 of article I of the California 

Constitution: “A statute, court rule, or other authority, including those in effect on the 

effective date of this subdivision, shall be broadly construed if it furthers the people’s 

right of access, and narrowly construed if it limits the right of access.” Further, the PRA 

is modeled on the federal Freedom of Information Act (FOIA) (5 U.S.C. § 552), so, “the 

judicial construction and legislative history of the federal act serve to illuminate the 

interpretation of its California counterpart.” (American Civil Liberties Union Foundation 

v. Deukmejian (1982) 32 Cal.3d 440, 447 (ACLU).)
15

enshrined in the California Constitution by Proposition 59 is expressly qualified by the 

assurance that such right of access is not meant to supersede or modify existing privacy 

rights. (Cal.Const., art. I, § 3, subd. (b)(3).) Given these dueling considerations, 

“ ‘judicial decisions interpreting the [PRA] seek to balance the public right to access to 

information, the government’s need, or lack of need, to preserve confidentiality, and the 

individual’s right to privacy. [Citations.]’ ” (Copley Press, supra, 39 Cal. 4th at 

p. 1282.) 

To implement its goal of public access, the PRA provides that “[p]ublic records 

are open to inspection at all times during the office hours of the state or local agency and 

every person has a right to inspect any public record, except as hereafter provided.” 

(§ 6253, subd. (a).) Moreover, the term “ ‘[p]ublic records’ ” is broadly defined to 

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.” (§ 6252, subd. (e).) Finally, for purposes of the PRA, a 

local agency is defined to include “a county; city, whether general law or chartered; city 

and county; school district; municipal corporation; district; political subdivision; or any 

board, commission or agency thereof; other local public agency; or entities that are 

legislative bodies of a local agency pursuant to subdivisions (c) and (d) of Section 

54952.” (§ 6252, subd. (a).) 

The ESI sought by appellants in this case is clearly a type of public record that 

may be subject to disclosure under the PRA. Indeed, the PRA defines “writing” quite 

expansively to include “any handwriting, typewriting, printing, photostating, 

photographing, photocopying, transmitting by electronic mail or facsimile, and every 

other means of recording upon any tangible thing any form of communication or 

representation, including letters, words, pictures, sounds, or symbols, or combinations 

thereof, and any record thereby created, regardless of the manner in which the record has 

been stored.” (§ 6252, subd. (g).) Moreover, section 6253.9, subdivision (a), provides 

that “any agency that has information that constitutes an identifiable public record not 

exempt from disclosure pursuant to this chapter that is in an electronic format shall make 
16

that information available in an electronic format when requested by any person.” 

Further, the agency is required to “make the information available in any electronic 

format in which it holds the information.” (§ 6253.9, subd. (a)(1).) And, a requestor 

under the PRA is required to pay the cost of producing an electronic record, “including

the cost to construct a record, and the cost of programming and computer services 

necessary to produce a copy of the record,” when the PRA request “would require data 

compilation, extraction, or programming to produce the record.”10 (§ 6253.9, 

subd. (b)(2).)

Finally, a public agency faced with a PRA request has certain obligations under 

the PRA designed to promote effective access to identifiable public records. Specifically, 

“[w]hen a member of the public requests to inspect a public record or obtain a copy of a 

public record, the public agency, in order to assist the member of the public make a 

focused and effective request that reasonably describes an identifiable record or records, 

shall do all of the following, to the extent reasonable under the circumstances:

[¶] (1) Assist the member of the public to identify records and information that are 

responsive to the request or to the purpose of the request, if stated. [¶] (2) Describe the 

information technology and physical location in which the records exist. [¶] (3) Provide 

suggestions for overcoming any practical basis for denying access to the records or 

information sought.” (§ 6253.1, subd. (a).) However, a public agency is not required to 

fulfill these obligations under a number of statutorily delineated circumstances, including 

when that agency has made available an index of its records. (§ 6253.1, subd. (d)(3).) 

 

10 In fact, pursuant to subdivision (c)(4) of section 6253, a public agency may extend the 

time allotted for its response to a particular PRA request, if that request creates “[t]he 

need to compile data, to write programming language or a computer program, or to 

construct a computer report to extract data.”
17

C. Attorney Fees and Costs under the PRA

As discussed above, the PRA also contains special provisions with respect to the 

award of court costs and attorneys fees. Specifically, subdivision (d) of section 6259 

provides that “[t]he court shall award court costs and reasonable attorney fees to the 

plaintiff should the plaintiff prevail in litigation filed pursuant to this section.” In 

contrast, public agencies such as the City are ordinarily not entitled to attorney fees and

costs from a requestor who fails to secure public documents in a court challenge based on 

a PRA request. Rather, a public agency may recover its attorney fees and costs only if 

the trial court “finds that the plaintiff’s case is clearly frivolous.” (§ 6259, subd. (d).) 

The California Supreme Court has described these disparate fee provisions as 

“protections and incentives for members of the public to seek judicial enforcement of 

their right to inspect public records subject to disclosure.” (Filarsky v. Superior Court

(2002) 28 Cal.4th 419, 427.) 

Appellant’s sole argument in this action is that attorney fees and costs should not 

have been awarded to Respondents because the Petition was not “clearly frivolous” for 

purposes of section 6259, subdivision (d).11 The PRA does not define the term “clearly 

frivolous” for purposes of an award of fees and costs under that statute. Recently, 

however, the Third District considered the issue and found useful the Supreme Court’s 

analysis in In re Marriage of Flaherty (1982) 31 Cal.3d 637 (Flaherty), in which the high 

court articulated a test for determining whether an appeal is frivolous. (Crews, supra, 

217 Cal.App.4th at pp. 1380-1381.) In Flaherty, the Supreme Court first noted that an 

appeal is not frivolous simply because it is without merit. (Flaherty, supra, 31 Cal.3d at 

p. 650.) The Court then endorsed the “ ‘obvious’ ” proposition that “ ‘the borderline 

between a frivolous appeal and one which simply has no merit is vague indeed.’ ” (Ibid.) 

Given the difficulty in drawing this line, the Court concluded that any sanction for 

prosecuting a frivolous appeal “should be used most sparingly to deter only the most 

egregious conduct.” (Id. at pp. 650-651.) Ultimately, it held that “an appeal may be 

 

11 In support of appellants’ position, we have received amicus curiae briefs from (1) 

Californians Aware, and (2) First Amendment Coalition and Ben Glass. 
18

deemed frivolous only when prosecuted for an improper motive—e.g., to harass the 

respondent or for purposes of delay—or when lacking any merit—i.e., when any 

reasonable attorney would agree the appeal is totally without merit.” (Crews, supra, 217 

Cal.App.4th at p. 1381, citing Flaherty.)

In Crews, the court adopted the Flaherty paradigm when analyzing whether PRA 

litigation was “clearly frivolous” for purposes of section 6259, subdivision (d). (Crews, 

supra, 217 Cal.App.4th at pp. 1380-1383.) Although Flaherty did not involve a finding 

of clear frivolousness, the Third District reasonably concluded that “[t]he addition of the 

adverb ‘clearly’ to frivolous does not change the test for purposes of section 6259, 

subdivision (d). Since a frivolous action is one entirely lacking in merit, there can be no 

lower standard for a ‘clearly frivolous’ action.” (Crews, supra, 217 Cal.App.4th at 

p. 1381.) 

Crews involved a PRA request by a newspaper publisher seeking one year of 

emails to and from the Superintendent of the Willows Unified School District (District). 

The District indicated that it would comply with what the appellate court later 

characterized as a “burdensome request,” and ultimately turned over 60,000 emails, with 

only 3,200 pages withheld under claims of privilege. (Crews, supra, 217 Cal.App.4th at 

pp. 1371-1372.) On the day the District had previously indicated that it would begin 

turning over the requested emails, Crews filed a PRA petition in the superior court 

seeking to compel production of the promised documents. After reviewing the withheld 

documents in camera, the trial court concluded that the District had not improperly 

withheld any public records. It denied the petition and, finding it to be “clearly 

frivolous,” awarded attorneys fees and costs to the District in the amount of $56,595.50. 

(Id. at pp. 1372-1373, 1377.) Specifically, the trial court found the petition frivolous 

because it failed to result in any benefit to Crews, as the District was already complying 

with his request at the time he served the petition on the agency. (Id. at p. 1377.) 

The appellate court reversed the award of fees and costs. In particular, it 

concluded that the petition was not clearly frivolous because Crews used it (1) to confirm 

that the District had not improperly withheld any public records, and (2) to challenge 
19

whether the District should properly have produced the emails in their “native” format 

rather than in portable document format (PDF). (Crews, supra, 217 Cal.App.4th at 

pp. 1373-1374, 1382-1385.) Although the petition failed to generate the disclosure of 

any improperly withheld documents and Crews’ attempt to obtain the emails in “native” 

format was ultimately unsuccessful, the Third District concluded that the petition was not 

completely lacking in merit or brought for an improper purpose. Thus, an award of fees 

and costs to the District pursuant to section 6259, subdivision (d) was improper. (Id. at 

pp. 1383-1385.)

We find the analytical structure set forth in Flaherty and adopted in Crews

particularly appropriate in the PRA context where, pursuant to subdivision (b)(2) of 

section 3 of article I of the California Constitution, a statute must be “broadly construed if 

it furthers the people’s right of access, and narrowly construed if it limits the right of 

access.” An interpretation of section 6259, subdivision (d), which permits an award of 

attorneys fees and costs “ ‘to deter only the most egregious conduct’ ” by a PRA 

petitioner clearly advances the people’s right of access to public records. (Crews, supra, 

217 Cal.App.4th at p. 1381, quoting Flaherty.) Thus, with these standards in mind, we 

turn to the trial court’s award of attorneys fees and costs in this case.

D. The Trial Court’s “Clearly Frivolous” Determination

Preliminarily, we conclude that the record in this case does not support the

premise that appellants filed the instant action for an improper purpose, that is to harass 

Respondents or for purposes of delay. In fact, the trial court noted that the underlying 

accident which generated the Request was “indeed serious” and that, to a certain extent, it 

understood Rouda being zealous for his client. Further, Respondents’ argument that 

appellants’ motives were somehow questionable because the Request was proffered “as 

discovery for use in personal-injury litigation” is unavailing. By its plain terms, the PRA 

requires that public records be made available to “every person in this state” and further 

provides that “any person” aggrieved by a refusal to disclose public records may seek 

relief through PRA litigation. (§§ 6250, 6253, subd. (a), 6258.) Thus, unless a petitioner 

submits a PRA request for an improper purpose (such as harassment or delay), the
20

petitioner’s motive in making the request is essentially irrelevant. (See § 6257.5 [“This 

chapter does not allow limitations on access to a public record based upon the purpose for 

which the record is being requested, if the record is otherwise subject to disclosure”].) 

Indeed, in Wilder v. Superior Court (1998) 66 Cal.App.4th 77, 79 (Wilder), a case 

very similar to the one at hand, petitioner Wilder was struck by a Blue Line train operated 

by the Los Angeles County Metropolitan Transportation Authority (MTA). After Wilder 

made two PRA requests related to her accident, the MTA refused to disclose a number of 

documents, claiming that the records were prepared in anticipation of litigation and that 

Wilder had a plain, speedy, and adequate remedy at law because she could file a claim 

against the MTA and receive any disclosable documents through the discovery process. 

(Id. at pp. 79-81.) Wilder filed a petition for writ of mandate in the trial court seeking to 

compel disclosure of the records, but the trial court adopted the MTA’s analysis and 

dismissed the writ. (Id. at p. 81.) 

The Second District reversed. Noting that Wilder “did not cease to be a ‘member 

of the public’ when she was struck by the Blue Line,” the Wilder court opined that, under 

the PRA, “[t]here is no exception for persons who may potentially have a claim for 

damages against a governmental agency.” (Wilder, supra, 66 Cal.App.4th at pp. 82-83.) 

The appellate court went on to contrast a request under the PRA, which “can cover 

anything the person making the request suspects the agency might have in its files,” with 

discovery, which “is limited to matters ‘relevant to the subject matter involved in the 

pending action’ which are themselves ‘admissible in evidence’ or ‘appear[] reasonably 

calculated to lead to the discovery of admissible evidence.’ ” (Id. at p. 83 [quoting prior 

version of Code Civ. Proc., currently § 2017.010].) Moreover, the Wilder court 

recognized that “[t]he legislative purpose of expediency and immediate reviewability” 

embodied by the PRA “cannot be served by transforming a public record request into a 

drawn out discovery battle.” (Id. at p. 84.) Rather, as a “member of the public,” Wilder 

was “entitled to the broader categories of documents” in the timeframe available under

the PRA. (Id. at p. 83.) 
21

Similarly, in the present case, appellants’ Request and related Petition were no less 

legitimate simply because they were pursued in anticipation of litigation. Indeed, the trial 

court’s apparent conflation of discovery concepts with the PRA request at issue in these 

proceedings is cause for some concern. In its order denying the Petition, the trial court 

began its analysis with the statement: “This is an automobile accident case.” It went on 

to characterize the Petition as, among other things, “an unwanted green light for 

immoderate discovery” (italics added). And, in finding the Petition clearly frivolous, the 

trial court declared: “In nearly 25 years of judging, this court has not seen discovery 

disproportionality of this magnitude before” (italics added). However, appellants’ 

argument to the contrary notwithstanding, the record is clear that the trial court did apply 

the proper standard of clear frivolousness when assessing fees and costs against 

appellants herein, rather than the less stringent standard available for the imposition of 

discovery sanctions. (See, e.g., Code Civ. Proc., § 2023.030, subd. (a) [sanctions 

available against party who misuses discovery process without “substantial 

justification”]; id. § 2023.010, subds. (a), (e) & (h); id. § 2031.310, subd. (d).) 

In sum, there was no basis for deeming appellants’ motives improper. Thus, the 

trial court’s conclusion that the matter was “clearly frivolous” can only be supported if 

the Petition, itself, was entirely lacking in merit. Put another way, in order to uphold the 

award of attorneys fees and costs in these proceedings, we must determine that “any 

reasonable attorney” would agree that the Petition was “totally” without merit. (See 

Crews, supra, 217 Cal.App.4th at p. 1381, citing Flaherty.) Under the particular facts of 

this case, we cannot reach this conclusion.

12

Undeniably, the Petition and underlying Request in these proceedings were overly 

aggressive, unfocused, and poorly drafted to achieve their desired outcomes. Further, a 

request which, like the Petition and Request herein, “requires an agency to search an

 

12 Given this result, we need not consider further the appropriateness of the trial court’s 

December 16, 2011, order setting the amount of attorney fees and costs in this matter, 

which was initially challenged in appellants’ second appeal. (See Bertoli et al. v. City of 

Sebastopol et al. (A134799).)
22

enormous volume of data for a ‘needle in the haystack’ ” or which “compels the 

production of a huge volume of material” may be objectionable as “unduly burdensome.” 

(California First Amendment Coalition v. Superior Court (1998) 67 Cal.App.4th 159, 

166.) Indeed, under the PRA, a governmental agency is only obliged to disclose public 

records that can be located with reasonable effort and cannot be subjected to a “limitless”

disclosure obligation. (Ibid.; see also ACLU, supra, 32 Cal.3d at p. 453.) 

Pursuant to subdivision (a) of section 6255, disclosure of otherwise responsive

public records may be blocked as overly burdensome if “ ‘on the facts of the particular 

case the public interest served by not making the record public clearly outweighs the 

public interest served by disclosure of the record.’ ” (See ACLU, supra, 32 Cal.3d at 

p. 452; see also Rogers v. Superior Court (1993) 19 Cal.App.4th 469, 477.) When 

weighing the benefits and costs of disclosure, any expense or inconvenience to the public 

agency may properly be considered. (ACLU, supra, 32 Cal.3d at pp. 452-453.) And, in 

fact, in this case, the trial court “carefully weighed the competing interests at stake,”

including the potential financial impact on the City, before denying the Petition. 

A PRA request denied under section 6255, subdivision (a), as unduly burdensome,

however, is not necessarily “totally without merit” and therefore subject to a finding of 

clear frivolousness. (See Crews, supra, 217 Cal.App.4th at p. 1381, citing Flaherty.)

Indeed, it is easy to envision a situation in which a petitioner makes a strong case for 

disclosure, but, under the particular circumstances of the case, the public interest in 

nondisclosure still justifies withholding access to the public documents at issue. 

(Compare Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1345 [concluding 

that “whatever merit disclosure might otherwise warrant in principle is simply crushed 

under the massive weight of the Times’s request in this case: the newspaper seeks almost 

five years of the Governor’s calendars and schedules, covering undoubtedly thousands of 

meetings, conferences and engagements of every conceivable nature. We are not 

persuaded that any identifiable public interest supports such a wholesale production of 

documents”] (Times Mirror).) Here, although the trial court ultimately determined that 

the City had “reasonably complied with access obligations pertaining to electronically 
23

stored information,” and that the Petition, as drafted, was unduly burdensome and would 

“significantly compromise interests in privacy and confidentiality,” appellants’ position 

was not entirely baseless.13

Putting aside the issue of the private electronic devices for the moment, it is 

indisputable that any emails contained on the City’s municipal computers, to the extent

they contain “information relating to the conduct of the public’s business,” constitute 

“public records” for purposes of the PRA. (§ 6252, subd. (e); see also Tracy Press, Inc. 

v. Superior Court (2008) 164 Cal.App.4th 1290, 1300 [noting that if a member of the city 

council had emailed from city offices discussing city business, “it is undeniable that the 

records would be ‘public records’ that must be produced”] (Tracy Press).) As discussed 

above, such materials are manifestly “writings” that are “prepared, owned, used, or 

retained by” a “local agency.” (§§ 6252, subds. (e) & (g), 6253.9.) Further, under the 

particular circumstances of this case, appellants could reasonably have believed that

responsive ESI did exist that had not been disclosed by the City, because Rouda had 

received responsive emails written to the City’s Engineering Director, Sue Kelly, as part 

of a Caltrans PRA request that were not contained in the City’s paper file disclosure. 

Additionally, the Public Works Superintendent did conduct a limited word search for 

emails on his work computer and was able to provide responsive documents to Rouda. 

Moreover, although the City later declared in its response to the Petition that its policy is 

to print out all “significant” emails and file them in the appropriate project files, it never 

denied appellants access to its ESI based on the premise that no additional responsive ESI 

existed. Rather, the City rejected appellants’ requested ESI search set forth in the 

Supplemental Request because it was “daunting and burdensome” and therefore 

unreasonable. Indeed, even after refusing to comply with the Supplemental Request, the 

City still maintained that is was “willing to discuss reasonable parameters for an email 

search,” some indication that such a search was not destined to be fruitless. Thus, 

 

13 Indeed, the trial court appears to have recognized this as well, stating: “If this had been 

done differently, the Court’s response would probably be different, but I have to deal 

with what’s on the table.” 
24

although ultimately “crushed under the massive weight” of the Request and the Petition, 

appellants’ core position, seeking responsive ESI that had not been disclosed, was not 

completely without merit.

14

 (Compare Times Mirror, supra, 53 Cal.3d at p. 1345.)

However, in addition to finding the Petition overly burdensome, the trial court, in 

making its clearly frivolous finding, was plainly influenced by its belief that the personal 

electronic devices of the numerous individual Respondents named in the Petition were 

beyond the purview of the PRA. Specifically, the trial court stated: “There is patently no 

basis for an adversarial attempt to gain access to the personal computer records. . . . 

Surfing personal computer records is not acceptable.” Respondents, as well, repeatedly 

insist that a PRA search of private electronic devices is per se unreasonable. 

In analyzing this issue, we note first that Respondents’ repeated assertion that

appellants were demanding that the trial court order “33 private individuals to turn over 

their ‘personal computers, laptops, cell phones and other electronic devices’ so that 

Appellants could search every megabyte of data on each device” is an unhelpful 

exaggeration of the actual facts. In truth, although appellants suggested use of a private 

ESI retrieval company, they, themselves, were never seeking anything other than public 

documents and had no interest in reviewing or otherwise compromising the private 

information of the Respondents. That said, appellants’ assertion that they simply sought 

 

14 Although not essential to our decision in this matter, it is interesting to note that, as part 

of the discovery process in Bertoli’s civil suit, Rouda finally did make a number of very 

specific and focused requests for City emails in May 2012. As one example, he sought: 

“All EMAILS of (to, forwarded to, cc’d to, bcc’d to, and/or from) Susan (‘Sue’) Kelly 

REFERRING TO STREET SMART SEBASTOPOL.” In its July 23, 2012, response, the 

City indicated its intention to comply with Rouda’s requests and produce the relevant 

emails, which, according to Rouda, it did via flash drive and CD the next day. The City’s 

response to Rouda’s document request is before this court pursuant to appellants’ motion 

for judicial notice filed on July 30, 2012. On August 1, 2012, we denied the request as to 

Exhibit 18 and granted the request as to Exhibits 19 and 20 “with no present 

determination of relevance.” We find Exhibit 19 irrelevant and therefore disregard it. 

We find the City’s response to Rouda’s document request (Exhibit 20) relevant and 

consider it to the extent set forth herein.
25

some “City pedestrian project related emails by City employees” also seriously misstates 

the scope and burden of the Petition. In fact, appellants’ Petition was onerous and clearly 

implicated the privacy rights of the many individual Respondents. However, given the 

current state of the law in this area, it was not entirely frivolous to take the position that 

public documents responsive to a PRA request could exist on private electronic devices.

In fact, an email message which both relates to the conduct of the public’s 

business and is written and retained by an agency employee on his/her personal computer 

or cell phone is arguably a “writing” that is “prepared, owned, used, or retained” by a 

local agency. Thus, under a plain reading of the PRA, it is a public record subject to 

disclosure. (§ 6252, subds. (e) & (g).) Although it can be argued that an individual 

employee is not a “local agency” as defined by the PRA, it is equally plausible that an 

employee acting on behalf of a local agency should be treated as indistinguishable from 

that agency for PRA purposes. Indeed, as discussed above, it appears beyond dispute that 

the emails of City employees located on public computers constitute public records under 

the PRA. (Compare Tracy Press, supra, 164 Cal.App.4th at p. 1300 [noting that if a 

member of the city council had emailed from city offices discussing city business, “it is 

undeniable that the records would be ‘public records’ that must be produced”].) To 

permit a different rule simply because the employee is conducting public business from 

his/her home computer would allow a public agency to shield its public documents from 

disclosure simply by instructing its employees to use their private email accounts. (See 

Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 

278, 291 [“[w]e consider it unlikely the Legislature intended to render documents 

confidential [and therefore not subject to PRA disclosure] based on their location, rather 

than their content”]; see also § 6254.9, subd. (d) [“[n]othing in this section is intended to 

affect the public record status of information merely because it is stored in a computer”]; 

but see § 6253, subd. (c) [implying disclosable public records must be “in the possession 

of the agency”; Board of Pilot Commissioners v. Superior Court (2013) 218 Cal.App.4th 

577, 597-600 [discussing requirement that public records be in the “possession” of the 

agency] (Pilot Commissioners).) 
26

Moreover, private computer access under the PRA is clearly an evolving area of 

the law about which reasonable attorneys could hold differing opinions. In reality, courts 

throughout the country are struggling with the weighty issues raised by the use of 

emerging and rapidly changing technologies in the conduct of the public’s business. 

(See, e.g., City of Champaign v. Madigan (2013) 2013 IL App (4th) 120662 [concluding 

that text messages and emails sent or received by a city council member during council 

meetings were public records under Illinois’s Freedom of Information Act]; In re 

Silberstein (Pa.Commw.Ct. 2011) 11 A.3d 629 [holding electronic communications 

between citizens and commissioners on a township board were not public records under 

Pennsylvania’s Right-to-Know Law]; Howell Education Assn., MEA/NEA v. Howell Bd. 

of Education (2010) 287 Mich. App. 228, 235 [holding under Michigan’s Freedom of 

Information Act that personal emails involving union matters retained on an agency 

computer system are not subject to disclosure unless used “in the performance of an 

official function”].) In fact, the very issue involved in this case is currently the basis for a 

petition for review in our own Supreme Court; persuasive evidence that this is an area of 

the law which remains in flux. (See City of San Jose v. Superior Court (2014) 225 

Cal.App.4th 75, review granted June 25, 2014, S218066 [noting in the case summary that 

the question presented is as follows: “Are written communications pertaining to city 

business, including email and text messages, which (a) are sent or received by public 

officials and employees on their private electronic devices using their private accounts, 

(b) are not stored on city servers, and (c) are not directly accessible by the city, ‘public 

records’ within the meaning of the California Public Records Act?”].) That several amici 

curiae have filed briefs supporting appellants’ position also buttresses our conclusion that 

not all reasonable attorneys would agree that the Petition was entirely without merit. 

(Tracy Press, supra, 164 Cal.App.4th at p. 1302 [noting, in its refusal to find a PRA 

request clearly frivolous under section 6259, subdivision (d), that “the participation of 

amici curiae attests to the importance of the issue” raised by the request].)

Of course, whatever the underlying merits of appellants’ position with respect to 

the private electronics of City officials and employees, the Petition in this case was 
27

clearly overbroad with respect to the number of individual Respondents named. 

Moreover, such overbreadth cannot be forgiven, as appellants suggest, merely by reliance 

on Tracy Press. In that case, a newspaper sought emails related to public business, but 

sent by a city council member (Tucker) from her personal computer through her private 

email account. (Tracy Press, supra, 164 Cal.App.4th at p. 1294.) The trial court 

concluded that Tucker was not a “local agency” for PRA purposes and thus her private 

emails were not “public records” subject to disclosure. (Ibid.) In a holding which 

highlights the practical problems associated with characterizing as “public” documents 

located on private electronic devices that are not in the possession of a public agency, the 

appellate court dismissed the case because Tucker was not named as a party. (Id. at 

p. 1295.) Specifically, the court concluded that any order giving access to her personal 

writings would necessarily affect Tucker’s rights such that she was an indispensable party 

under section 389 of the Code of Civil Procedure. (Id. at pp. 1297-1302.) According to 

appellants, they were required to name all of the individual Respondents in this case or 

risk dismissal under Tracy Press if responsive ESI was located on the personal electronic 

devices of those individuals. Moreover, appellants claim that they could not be more 

precise because the City had failed to provide them with any information about the 

location of potentially responsive ESI, despite numerous requests by Rouda. 

Appellants’ arguments, however, are insufficient to justify their failure to focus 

their efforts to obtain responsive ESI under the Petition, especially in light of the fact that 

they were aware as early as 2009, after a PRA request to Caltrans, that Sue Kelly, the 

City’s Engineering Director, was the “hub of the wheel” for the projects they were 

interested in and therefore most likely to have responsive ESI. However, similar to our 

previous analysis of undue burden, the mere fact that the Petition was impermissibly 

overbroad and therefore properly rejected by the trial court does not necessarily mean 

that it was entirely without merit. Rather, as stated above, it is an open issue whether and 

to what extent public records may be obtained from private computers under the PRA. 

Further, there was evidence that several current employees had responsive documents

that were not disclosed and that certain city council members, at least, used their home 
28

computers for City-related business. Thus, despite the overbreadth of the Petition, it was 

not, on that basis, clearly frivolous.15

The First District recently acknowledged the unique and fact-specific nature of 

actions under the PRA, stating that the extent of the PRA’s coverage “ ‘is a matter to be 

developed by the courts on a case-by-case basis. [Citation.]’ ” (Pilot Commissioners, 

supra, 218 Cal.App.4th at p. 588.) In fact, “ ‘[t]his decision-making process is an 

unavoidable consequence resulting from “the ‘myriad organizational arrangements’ 

adopted ‘for getting the business of the government done.’ ” ’ ” (Ibid.) It follows, then, 

that “ ‘each arrangement must be examined in its own context.’ ” (Ibid.; see also ACLU, 

supra, 32 Cal.3d at p. 454, fn. 14 [noting that its holding under section 6255 is 

“necessarily limited to the facts of this particular case” and that different facts might lead 

to a different result].) Where, as here, the resolution of the matter rests on the careful 

balancing of multiple fact-specific considerations (and given the breadth of a public 

agency’s disclosure obligations under the PRA), drafting a petition that is entirely

 

15

 Respondents make much of appellants’ prayer for relief in the Petition, arguing that it 

is strong evidence in support of the court’s determination of clear frivolousness. In their 

prayer, appellants requested an order allowing “a neutral third party ESI collection 

company such as TERIS access to copy Respondents’ electronic storage devices inside 

and outside of City of Sebastopol department offices where city business related ESI is or 

may be stored” and also asked for “such other and further relief as the court may deem 

proper” (italics added). Once Respondents filed their declarations in response to the 

Petition indicating that no responsive ESI was located on any of their private electronic 

devices or on many of the City’s municipal computers, the trial court could have issued a 

limited order, consistent with the prayer, that allowed a search of the few municipal 

computers where responsive ESI “is or may be stored,” either by the City, itself, or by a 

neutral third party. Thus, we do not find the prayer dispositive. Further, contrary to 

Respondents’ assertion and the trial court’s apparent belief, it is not at all clear that, 

pursuant to the plain language of section 6258, appellants were required to serve the 

Request on all of the individual Respondents prior to filing the Petition. Rather, 

appellants could have assumed in their initial Request that the City would coordinate the 

retrieval of any public documents from individual City officials and employees. The 

naming of the individual Respondents only became an issue when this did not occur. Of 

course, the reasonableness of such an assumption depends on the scope of the City’s 

obligation to produce responsive emails or other ESI not in its direct custody or control, 

an unresolved issue as described above. 
29

without merit may actually be difficult to do. Indeed, this may be one reason why only 

one published appellate opinion has ever affirmed an award of attorneys fees and costs to 

a public agency based on a finding of clear frivolousness under subdivision (d) of section 

6259.

16

III. DISPOSITION

The judgment is reversed to the extent it orders appellants to pay attorneys fees 

and costs pursuant to section 6259, subdivision (d). Appellants’ appeal from the postjudgment order determining the amount of attorney fees and costs in Bertoli et al. v. City 

of Sebastopol et al. (A134799), which includes Respondents’ cross-appeal, is dismissed. 

In the interests of justice, each party shall bear its own costs on appeal. (Cal. Rules of 

Court, rule 8.278(a)(5).)

 

16 In Butt, supra, 44 Cal.App.4th 925, the First District affirmed an award of attorneys 

fees and costs in the amount of $3,991 pursuant to subdivision (d) of section 6259 based 

on a finding of clear frivolousness. (Id. at pp. 929, 932.) However, there is no discussion 

of the frivolousness issue in the published portion of the opinion. (Id. at p. 931.) 
30

_________________________

REARDON, J.

We concur:

_________________________

RUVOLO, P. J.

_________________________

RIVERA, J.

Bertoli v. City of Sebastopol A132916
31

Trial Court: Sonoma County Superior Court

Trial Judge: Hon. Mark Tansil

Counsel for Appellant: David Rouda

Counsel for Respondents: Geary, Shea, O’Donnell, Grattan & Mitchell

Matthew K. Good

Steven C. Mitchell

Bertoli v. City of Sebastopol A132916