'San Diegans for Open Government' and No Safe Harbor


Fortin Law Group

Published: March 30, 2022

Traditionally, Californian litigants who bring frivolous or unnecessarily delaying actions can be sanctioned, but they had a “safe harbor” through Civil Code § 128.7(c)(1). This provision requires a party moving for sanctions under section 128.7 to serve the motion to the other party at least 21 days before filing the same, to give the other party a chance to remedy or withdraw the offending paper involved. Cal. Civ. P. Code. § 128.7; Li v. Majestic Industry Hills, LLC, 177 Cal.App. 4th 585, 590-591 (2009). The purpose of the provision was to discourage pointless litigation by encouraging statutory compliance. Levy v. Blum, 92 Cal.App.4th 625, 638 (2001); Barnes v. Department of Corrections, 74 Cal.App.4th 126 (1999).


A recent California Court of Appeals case, San Diegans for Open Government v. City of San Diego, 247 Cal.App. 4th 1306 (2016), discusses how this situation has changed with the arrival of the “revised and revived” Civil Code § 128.5. 247 Cal.App. 4th at 1311.


In San Diegans, Plaintiff, San Diegans for Open Government (“SDOG”), was a non-profit, government watchdog group who brought suit against Defendants, the City of San Diego (“the City”) and San Diego City Attorney Jan I. Goldsmith (“Goldsmith”). Defendants refused to comply with SDOG’s public records request and turn over all e-mail communications detailing official city business sent to or from Goldsmith. Upon this refusal, SDOG filed an action under the California Public Records Act and sought declaratory relief to compel the City to disclose the emails. It also sued the City under Civil Code § 526a, alleging tax waste. 247 Cal.App.4th at 1312.


The trial court ruled in favor of SDOG on its Public Records Act cause of action and granted them declaratory relief, but the League of California Cities stepped in and challenged this by petitioning the Court of Appeals for a writ of mandate under the Act. This was granted and the case remanded, but SDOG once again prevailed at the trial court level. Meanwhile, the City requested sanctions against SDOG under the new section 128.5 but was denied. The City then appealed both decisions. Id.


California Code of Civil Procedure section 128.7 supplanted the old section 128.5 starting the first day of 1995. This changed on January 1, 2015—some twenty years later. Since that day both statutes have applied to any action then-pending or brought thereafter. 247 Cal.App. 4th at 1313-15. What does this mean for a California attorney?


In San Diegans, Plaintiffs argued that the safe harbor procedure described in section 128.7(c)(1) was not followed by Defendants. Id. at 1316. In fact, the Court interpreted the statute as not requiring the moving party to provide a safe harbor period. The Court looked to the plain language of section 128.5 as well as the legislative intent behind it and found nothing pointing to the section 128.7 safe harbor waiting period rule. Id. at 1316-17.


The Court also considered the different applications of the two sections. While section 128.7 applies strictly to signed pleadings and other papers, section 128.5 applies more broadly. Specifically, to “actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” Cal Civ. P. Code § 128.5(a). The section defines actions or tactics as to “include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading,” excluding the mere filing of a complaint not served on opposing party. § 128.5(b)(1). The remedial purpose of the section 128.7 safe harbor provision is inapplicable to section 128.5 and its expanded list of frivolous actions or tactics, as the waiting period cannot be used to withdraw or remedy these actions or tactics. 247 Cal.App. 4th at 1317. Thus, the Court ruled that a party filing a sanctions motion under the new section 128.5 does not need to comply with the safe harbor provision of section 127.8.


Dissimilarly, the Court also found that the new section 128.5 should mirror section 128.7 in what legal standard should apply. The Court again looked to legislative intent and ruled that the same conditions for sanctions should apply to both; a court should look at what a reasonable person or attorney would do under the circumstances, to assess the frivolousness of the “actions or tactics” under consideration, rather than the potential bad-faith motive of the particular party or counsel in the case. Id. at 1317-19. While an easier standard, the objective lens to be used with section 128.5 sanctions would, reportedly, still apply to only the most egregious actions. Id. at 1318-19.


The “new and improved” section 128.5 thus gives litigators a more powerful tool to utilize against frivolous actions or tactics used against their clients. And this is in addition to the section 128.7 motion for sanctions an attorney may file against an opposing party in relation to any complaint or other paper filed papers specifically.


One final thing to point out: The new section 125.8 does come with some administrative red tape. A party filing a 128.5 motion for sanctions:

[I]s required to e-mail the California Research Bureau of the California State Library “a copy of the endorsed, filed caption page of the motion or opposition, a copy of any related notice of appeal or petition for a writ, and a conformed copy of any order issued pursuant to this section, including any order granting or denying the motion. The party shall also indicate whether a motion for sanctions was made pursuant to Section 128.7.”


Cal. Civ. P. Code. § 128.5(h)(1), cited in 247 Cal.App. 4th at 1320. The City in San Diegans failed to do this; be sure to dot all i’s and cross all t’s with your motion for sanctions under section 128.5, to avoid any headaches.


Fortin Law Group has decades of experience representing public entities, including Government Code interpretation. Contact us should you wish to discuss public entity defense.


This article was provided by Fortin Law Group, Costa Mesa, California. This article is intended to provide the reader with general information regarding current legal issues. It is not construed as specific legal advice or as a substitute for the need to seek competent legal advice on specific legal matters.

Tags: 2022, Public Entity



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