Bertoli v. City of Sebastopol

JULIA ANNA BERTOLI et al.,

Plaintiffs and Appellants,

v.

CITY OF SEBASTOPOL et al.,

Defendants and Respondents.

No.  A132916

(Sonoma County Super. Ct.

No. SCV 249181)

California Courts of Appeal

First Appellate District

Division Four

Filed January 30, 2015

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 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.