COALITION FOR ADEQUATE REVIEW et al., Plaintiffs and Respondents, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Appellant.
No. A135512
First Dist., Div. One.
Sept. 15, 2014.
229 Cal. App. 4th 1043
COUNSEL
No appearance for Plaintiff and Respondent Alliance for Comprehensive Planning.
Mary Miles; Law Office of Alexander Henson and Alexander T. Henson for Plaintiff and Respondent Coalition for Adequate Review.
OPINION
BANKE, J.-
I. INTRODUCTION
The City and County of San Francisco (City) prevailed in this California Environmental Quality Act (CEQA;
II. FACTUAL AND PROCEDURAL BACKGROUND
In our prior opinion affirming the denial of petitioners’ writ petition on the merits (Coalition for Adequate Review v. City and County of San Francisco (June 25, 2013, A131487) [nonpub. opn.]), we discussed at length the land use plans, rezoning, and projects around Octavia and Market Streets at issue
Initial Record Preparation
Petitioners chose to prepare the record of proceedings themselves, as permitted by CEQA‘s record preparation statute, specifically,
Two weeks later, on September 12, 2008, the City certified the record petitioners had prepared, but only in part, stating it was incomplete. It appeared to the City that petitioners had omitted documents statutorily required to be in the record under
The City then made several attempts to add materials to the record-both through ex parte applications and by negotiations with petitioners. During negotiations, the City proposed augmenting the record when it filed its opposition to the writ petition in order to avoid including unnecessary materials.
As part of a November 19, 2008, case management statement, the City attached an index of its proposed additions to the record, totaling 4,809 pages in 12 volumes. A month later, on December 12, 2008, the City formally moved to supplement the record of the proceedings with these 12 volumes.
Petitioners opposed the motion. They argued they were in control of the record, and the City had no right to make additions. They also asserted the City sought to add irrelevant and duplicative materials, and the proposed supplement was a ploy to raise costs. Petitioners denied having excluded from the record any materials that supported the City‘s approval of the project.
On May 12, 2009, the trial court (Judge Feinstein) granted the City‘s motion to supplement the record, finding petitioners had omitted materials statutorily required to be in the record under
Document Requests
In addition to the supplemental record dispute, the parties also sparred over whether certain document requests petitioners made at the outset of the litigation were overbroad and burdensome. Petitioners, for instance, requested production of ”[a]ll files relating to all projects, including all proposed developments, public works and building projects and building permits of any kind that are either within the pipeline or not within the pipeline but within the Market-Octavia project area....” (Boldface omitted.) The City viewed these requests as creating busywork unrelated to the writ petition. Petitioners viewed them as essential to their writ petition, and even without regard to the pending litigation, legitimate under the California Public Record Act (
Ultimately, the trial court (Judge Sullivan) denied the petition for writ of mandate on the merits. In so doing, the court adopted a lengthy proposed statement of decision prepared by the City. The statement largely cited to the record prepared by petitioners, but made a few citations to the supplemental record.
The City then filed a memorandum of costs, seeking $64,144 for “administrative record, professional messenger, and service.” This included $3,231.62 for production (copying, binding, and page numbering) of the supplemental record; $383.32 for production (copying and binding) of a four-volume “excerpts of record“; $804.34 petitioners had charged the City for a copy of the record they prepared; $50,191.50 for paralegal time; $8,053.14 for City planning department time; and $1,480.36 for professional couriers.
Petitioners moved to tax costs. They maintained
Following a hearing, the trial court (Judge Sullivan) issued an order granting the motion to tax and denying all costs. The court concluded petitioners were “not liable” for costs “under . . . section 21167.6(b)(2),” reasoning the City, not petitioners, had sought to supplement the record and therefore the City should bear the cost of supplementation. Ancillary to this conclusion, the court concluded petitioners’ discovery requests were not “extraordinary” and not the “but for” cause of the City‘s claimed costs. The court further concluded a cost award as large as the City sought would “certainly chill any desire by members of the general public to seek court review of important civic undertakings,” observing petitioners had made neither a frivolous nor bad faith challenge to an “important” project. The City timely appealed.
III. DISCUSSION
A. Standard of Review
The standard of review applicable to a cost order depends on the issue raised on appeal. When the question is whether a claimed cost comes within
B. CEQA‘s Record Preparation Statute (§ 21167.6)
Additional specifics with respect to the handling of the record are set forth in
Thus, CEQA‘s record preparation cost provision, in particular, appears at the end of the subdivision that begins by spelling out an agency‘s 60-day certification obligation upon being served with a request to prepare the record (
This does not mean a public agency can charge a petitioner or party whatever it wants for preparing the record.
With this overview of CEQA‘s record preparation statute, we turn to the principal issue on appeal-whether petitioners’ election to prepare the record
C. A Petitioner‘s Election to Prepare the Record Does Not Preclude a Public Agency from Recovering Supplemental Record Preparation Costs When Incurred to Ensure a Statutorily Complete Record
Petitioners maintain the whole point of CEQA‘s alternative record preparation provisions is to avoid agency preparation costs, and, therefore, their election to prepare the record under
In St. Vincent‘s School, the plaintiff also chose to prepare the record. (St. Vincent‘s School, supra, 161 Cal.App.4th at p. 1014.) To enable it to do so, the city was required to locate 2,208 documents, totaling more than 58,000 pages, which ultimately took up more than 20 boxes. (Id. at p. 1017.) Noting few e-mails were included, the plaintiff filed a California Public Records Act (
The Court of Appeal affirmed. It first addressed and rejected the same argument petitioners make here-that because the plaintiff chose to prepare the record under
We agree with St. Vincent‘s School that the fact a petitioner elects to prepare the record under
The trial court appears to have read St. Vincent‘s School as identifying the only circumstance in which an agency can recoup record preparation costs as being where the petitioner has chosen to prepare the record under
There is no question the alternative record preparation procedures authorized by
But just as a record prepared by an agency at the request of a petitioner under
CEQA is clear about what the record must contain-it “shall include,” at a minimum, the documents enumerated in
We see no reason why parties cannot agree to a smaller (and thus less expensive) record if it will provide the court with all the materials relevant to the issue(s) raised by the petitioner. (See
However, where no such agreement is reached, a public agency is not required to put itself at risk of a statutorily incomplete record. (See County of Orange v. Superior Court (2003) 113 Cal.App.4th 1, 13 [6 Cal.Rptr.3d 286] [“when it comes to the administrative record in a CEQA case, any reduction in its contents is presumptively prejudicial to project proponents,” as it is they “who will be saddled with the task of pointing to things in the record to refute asserted inadequacies in the EIR” (italics omitted)]; Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 373 [1 Cal.Rptr.3d 726] [“The consequences of providing a record to the courts that does not evidence the agency‘s compliance with CEQA is severe-reversal of project approval.“]; Madera, supra, 199 Cal.App.4th at p. 75; Friends of Lagoon Valley v. City of Vacaville (2007) 154 Cal.App.4th 807, 834 [65 Cal.Rptr.3d 251] [“Because it risked reversal of the Project‘s approval if the record lacked supporting evidence, Triad properly took pains to ensure the court was provided with a complete record of all relevant proceedings.“].)
Here, the City offered to defer supplementation of the record until it filed its opposition to the writ petition, since only then would it know with
Moreover, the City did not unilaterally prepare a supplemental record. Rather, it filed a motion for leave to do so, identifying the documents it intended to include. Petitioners filed opposition, making some of the same arguments they have made in opposition to the City‘s claimed record preparation costs. The trial court granted the City‘s motion, but not entirely, excluding from the supplemental record documents that essentially duplicated documents already included in the record petitioners had prepared. As to the documents the trial court allowed, it expressly found they were statutorily required to be in the record under
Under these circumstances, we have no trouble concluding the City was effectively put to the task of preparing a statutorily complete record and, therefore, may recover its reasonable costs of preparing the supplemental record.5
The trial court also denied record preparation costs on the ground a sizeable cost award “would certainly chill any desire by members of the general public to seek court review of important civic undertakings.” The
We thus conclude the trial court erred in its interpretation of CEQA‘s record preparation statute and reverse that portion of the order denying supplemental record preparation costs to the City, and remand for further proceedings.
D. Specific Cost Items
In addition to insisting their election to prepare the record under
In addition to the costs of copying, binding, and page numbering the supplemental record, the City seeks approximately $50,000 for over 300 hours of paralegal time (at a rate of between $159 to $165 per hour) in connection with preparing the supplemental record. The City submitted billing records showing time spent reviewing the record prepared by petitioners for certification, reviewing other materials for inclusion in a supplemental record, organizing those documents, preparing an index, working with vendors on the supplemental record, and meeting with attorneys.
The City may claim reimbursement for reasonable labor costs required to prepare the supplemental record. (See California Oak Foundation, supra, 188 Cal.App.4th at pp. 293-295 [affirming $46,563 in costs for “labor in compiling the record,” including paralegal time; university personnel “retrieved, reviewed, organized, and indexed over 40,000 pages of documents“]; River Valley, supra, 37 Cal.App.4th at pp. 181-182 [affirming costs for time spent by assistant transportation engineer and paralegal reviewing and compiling documents].)
However, we have been cited no authority, nor are we aware of any, indicating labor costs to review a petitioner-prepared record of proceedings “for completeness” in connection with certification pursuant to
Because the trial court denied record preparation costs entirely, it did not review the City‘s claimed paralegal costs to determine which of these costs
Costs to Retrieve Documents to Prepare Record
The City also seeks approximately $392 for messenger costs for transporting record materials between the City‘s planning department and city hall. To the extent these retrieval costs were incurred, as the City asserts, in compiling the supplemental record, we discern no material difference between these costs and other labor costs of assembling the record, and they are recoverable. (See California Oak Foundation, supra, 188 Cal.App.4th at p. 294 [affirming costs for retrieving documents “located in many different departments throughout campus“].) But because the trial court denied costs entirely, it also did not review the reasonableness of the City‘s claimed retrieval costs. On remand, the trial court will need to make this determination. (See Wagner Farms, supra, 145 Cal.App.4th at p. 779.)
Planning Department Labor Costs to Locate Documents Provided to Petitioners
The City additionally seeks $8,053.12 for staff time spent responding to petitioners’ request for “[a]ll files relating to all projects . . . within the Market-Octavia project area.” The City maintains this document request was not reasonably related to petitioners’ efforts to prepare the record themselves, under
The trial court found, however, petitioners’ document request did not approach the egregious abuse that occurred in St. Vincent‘s School, thus implicitly finding petitioners did not “abandon[ their] statutory duty to contain costs.” (St. Vincent‘s School, supra, 161 Cal.App.4th at p. 1018.) The court‘s determination in this regard is adequately supported by the record. In St. Vincent‘s School, after the city produced 20 boxes of material, the petitioner subjected the city “to a costly and lengthy process of trawling through its entire computer system“-“not because it had identified any ‘gaps’ in the voluminous planning documents” the city had produced, but
Production of “Excerpts of Record”
The City seeks $382.32 for copying and binding a four-volume “Excerpts of Record.” The excerpts were copies of selected materials in the record of proceedings, and were proffered as an aid to the trial court. We conclude an “excerpt of record” in a mandamus action can qualify as a photocopy of an exhibit under
Since the trial court denied costs entirely, it did not review the City‘s claimed costs of preparing the “Excerpts of Record” and, thus, did not make any determination as to its helpfulness to the court or reasonableness under
City‘s Copy of Record Prepared by Petitioners
The city also seeks $804.35 it paid petitioners for a copy of the record petitioners prepared and submitted to the City. Petitioners state that after they
Overnight Service Costs
The City additionally seeks approximately $1,090 for express delivery, postage costs, and messenger costs for court filings. Postage and express delivery costs are expressly disallowed as costs under
Since the trial court denied costs entirely, it did not review the City‘s claimed messenger costs for court filings. On remand, the court will need to consider this cost item and exercise its discretion.
DISPOSITION
The order granting petitioners’ motion to tax costs is affirmed to the extent it denied the City‘s claimed costs for responding to petitioners’ document request, and for postage and express delivery. In all other respects the order is reversed and the matter remanded for further proceedings consistent with this opinion. The parties shall bear their own costs on appeal.
Margulies, Acting P. J., and Dondero, J., concurred.
A petition for a rehearing was denied October 15, 2014, and the opinion was modified to read as printed above. Respondents’ petition for review by the Supreme Court was denied January 14, 2015, S222204.