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Bertoli v. City of Sebastopol

California Court of Appeals, First District, Fourth Division

January 20, 2015

JULIA ANNA BERTOLI et al., Plaintiffs and Appellants,
CITY OF SEBASTOPOL et al., Defendants and Respondents.

[As modified Jan. 30, 2015.]

Sonoma County Super. Ct. No. SCV 249181, Hon. Mark Tansil Judge.

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[Copyrighted Material Omitted]

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David Rouda for Plaintiffs and Appellants.

Geary, Shea, O’Donnell, Grattan & Mitchell Matthew K. Good and Steven C. Mitchell for Defendants and Respondents.



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 attorney fees to the City of Sebastopol (City) and certain other respondents pursuant to Government Code section 6259, subdivision (d).[1] Through the PRA litigation, Bertoli and Rouda were attempting to obtain copies of relevant e-mails 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.

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While we do not disagree with the trial court’s characterization of the PRA request at issue, we conclude that, under the particular circumstances of this case, the court’s “clearly frivolous” finding should not stand. We therefore reverse the order for attorney fees and costs.


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 e-mails, 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.[2] In 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 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

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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.[3] In 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 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 the Department of Transportation (Caltrans) which were likely to possess responsive documents.

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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" e-mails and other electronically stored information (ESI) relevant to the Request.

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 e-mail 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.[4] In 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 (Super. Ct. Sonoma County, 2010, No. SCV-247619).) The lawsuit claimed that Bertoli’s significant injuries were caused by dangerous

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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 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 e-mails 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 e-mails. Ms. Kelly told Rouda to send her something describing what e-mails he wanted from her. Thus, on August 12, 2010, Rouda responded to Ms. Kelly (Supplemental Request), indicating that she should search her e-mail correspondence for e-mails to or from 76 different people/organizations. Additionally, e-mails 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

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Supplemental Request, the City asserted that it was not reasonable as it would require the City to conduct more than 700 individual e-mail searches. The City 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 e-mail 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 e-mails, 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 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 ...

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