229 Cal. App. 4th 1043
Cal. Ct. App.2014Background
- Petitioners (Coalition for Adequate Review et al.) elected under Pub. Resources Code § 21167.6(b)(2) to prepare the administrative record in their CEQA challenge to San Francisco land-use actions; they delivered a 30-volume record (8,306 pages).
- The City produced many more documents (≈26,000 pages) and later moved to supplement the record with ~4,809 additional pages it asserted were required by § 21167.6(e); the trial court granted supplementation in part.
- After the trial court denied the writ on the merits in favor of the City, the City sought $64,144 in record-preparation and related costs (copying, paralegal and staff time, couriers, etc.).
- Petitioners moved to tax costs, arguing their election to prepare the record barred the City from recovering any record-preparation costs and that many claimed costs were unreasonable or unnecessary.
- The trial court granted the motion to tax and denied all costs, reasoning (1) petitioners had elected to prepare the record so the City could not recover, and (2) a large award would chill public CEQA challenges.
- The Court of Appeal reversed in part: it held that a petitioner’s election to prepare the record does not automatically bar agency recovery of reasonable supplemental record-preparation costs when the agency must ensure a statutorily complete record; remanded for reasonableness determinations as to specific items.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a petitioner’s election under § 21167.6(b)(2) precludes an agency from recovering record-preparation costs | Election to prepare record bars any agency recovery of record-prep costs | § 21167.6 does not bar recovery; agency may incur costs to supplement an incomplete record to meet statutory requirements | A petitioner’s election does not ipso facto bar recovery; agency may recover reasonable costs to prepare a statutorily complete supplemental record |
| Whether the trial court may deny costs based on a generalized ‘‘chill’’ public-policy concern | Large awards would chill public CEQA litigation; deny costs | CEQA and CCP 1094.5 permit prevailing party recovery; statute assigns record-prep costs to parties | Court rejected chill rationale; statutory scheme contemplates party payment and allows agency recovery when appropriate |
| Whether certain claimed costs (paralegal/review time) are recoverable as record-preparation costs | Paralegal/staff time largely necessary and recoverable | Labor for reviewing petitioner-prepared record for completeness is routine and not necessarily recoverable | Labor reasonably necessary to compile/assemble is recoverable; time spent merely reviewing petitioner-prepared record for completeness may not be recoverable and must be segregated and reviewed on remand |
| Recoverability of specific cost categories (e.g., document retrieval, excerpts, courier, postage) | All claimed items were necessary to prepare and present the record | Some items (postage/express) are nonrecoverable by statute; others are discretionary and require reasonableness review | Postage/express delivery disallowed; messenger, excerpts, copies, retrieval costs may be recoverable but trial court must assess reasonableness on remand |
Key Cases Cited
- St. Vincent’s School for Boys, Catholic Charities CYO v. City of San Rafael, 161 Cal.App.4th 989 (discussing recovery where petitioner’s discovery demands caused substantial agency costs)
- Hayward Area Planning Assn. v. City of Hayward, 128 Cal.App.4th 176 (cost-containment purpose of § 21167.6 and limits on agency recovery)
- Black Historical Society v. City of San Diego, 134 Cal.App.4th 670 (parties, not taxpayers, should bear record-preparation costs)
- River Valley Preservation Project v. Metropolitan Transit Development Bd., 37 Cal.App.4th 154 (agency recovery of labor costs to compile record)
- Madera Oversight Coalition, Inc. v. County of Madera, 199 Cal.App.4th 48 (distinguishing administrative record and appellate record; trial-court control of record disputes)
- Wagner Farms, Inc. v. Modesto Irrigation Dist., 145 Cal.App.4th 765 (distinguishing recovery rules between administrative and ordinary mandamus and scope of recoverable preparatory costs)
- San Diego Citizenry Group v. County of San Diego, 219 Cal.App.4th 1 (affirming agency recovery of record-preparation costs and that petitioners may be ordered to pay before merits)
- California Oak Foundation v. Regents of the University of California, 188 Cal.App.4th 227 (upholding labor costs for compiling large administrative records)
- Citizens for Quality Growth v. City of Mount Shasta, 198 Cal.App.3d 433 (agency recovery of record-preparation costs and remand to determine reasonableness)