Modification: National Lawyers Guild v. City of Hayward

NATIONAL LAWYERS GUILD, SAN FRANCISCO BAY AREA CHAPTER,

Plaintiff and Respondent,

v.

CITY OF HAYWARD et al.,

Defendants and Appellants.

No. A149328

(Alameda County

Super. Ct. No. RG15785743)

California Courts of Appeal

First Appellate District

Division Three

Filed Oct. 26, 2018

ORDER MODIFYING OPINION AND DENYING REHEARING;

NO CHANGE IN JUDGMENT

Counsel:Michael S. Lawson, City Attorney (Hayward) and Justin Nishioka, Assistant City Attorney, for Appellants. Law Offices of Amitai Schwartz and Amitai Schwartz; American Civil Liberties Union Foundation of Northern California, Inc. and Alan L. Schlosser for Respondent. Katie Townsend, Bruce D. Brown and Caitlin Vogus for Reporters Committee for Freedom of the Press as Amicus Curiae on behalf of Respondent. Jim Ewert and Nikki Moore for California News Publishers Association as Amicus Curiae on behalf of Respondent. Terry Francke for Californians Aware as Amicus Curiae on behalf of Respondent. Judy Alexander; Davis Wright Tremaine and Thomas Burke for The Center for Investigative Reporting as Amicus Curiae on behalf of Respondent. David Snyder for First Amendment Coalition as Amicus Curiae on behalf of Respondent. Barbara W. Wall for Gannett Co., Inc. as Amicus Curiae on behalf of Respondent. Jeffrey Glasser for Los Angeles Times, LLC and The San Diego Union-Tribune, LLC as Amici Curiae on behalf of Respondent. Juan Cornejo for The McClatchy Company as Amicus Curiae on behalf of Respondent.

THE COURT:

It is ordered that the opinion filed herein on September 28, 2018, be modified as follows:

On page 1, in the first sentence of the opinion, the words "writ of administrative mandate" are changed to "writ of mandate" so the first sentence reads as follows:¹

This is an appeal from the trial court's decision to grant the petition for writ of mandate of the National Lawyers Guild, San Francisco Bay Area Chapter (Guild), and to issue a writ directing the City of Hayward and its Chief of Police Diane Urban (collectively, City) to refund the Guild for two payments made to cover certain of the City's costs in complying with the Guild's requests for production under the California Public Records Act (Gov. Code, § 6250 et seq.) (CPRA).

On page 15, the last full paragraph of the opinion immediately preceding the disposition, beginning "Accordingly, we conclude based on the language of the statute" and ending "computer programming in the form of the Windows Movie Maker software," is modified to read as follows:

Accordingly, we conclude based on the language of the statute, the legislative history, and policy considerations that the costs allowable under section 6253.9, subdivision (b)(2) include the City's expenses incurred in this case to construct a copy of the police body camera video recordings for disclosure purposes, including the cost of special computer services and programming (e.g., the Windows Movie Maker software) used to extract exempt material from these recordings in order to produce a copy thereof to the Guild. We thus remand to the trial court to conduct a further evidentiary hearing with respect to precisely which costs, among those billed to the Guild, the City is entitled to recover under this provision.

There is no change in the judgment.

Respondent's petition for rehearing is denied.

^1. Footnote 1 remains in place at the end of the first sentence of the opinion, unchanged.