By Cori Badgley
In CEQA litigation, a petitioner may elect to create the administrative record or request that the respondent local agency assemble the record. When the local agency prepares the record, the petitioner pays for the costs of preparation. Petitioners sometimes elect to prepare the record in an effort to reduce costs. In St. Vincent’s School for Boys, Catholic Charities CYO v. City of San Rafael (2008) 160 Cal.App.4th 1426, the appellate court struggled with the question:
does section 21167.6 [of the Public Resources Code] preclude an award of costs in favor of the prevailing [lead agency] if the plaintiff elects to prepare the record pursuant to section 21167.6, subdivision (b)(1)?
The court held that “where necessary to preserve the statutory purposes of cost-containment and expediting CEQA litigation,” a prevailing party that did not prepare the record may be awarded reasonable costs associated with the preparation. The court concluded that the petitioner in this case, St. Vincent’s School for Boys (“St. Vincent’s”), had to pay the reasonable costs incurred by the City of San Rafael (“City”) in searching for and producing emails.
The costs issue centered around the interpretation of Public Resources Code section 21167.6, subdivision (b)(1), which states “[t]he parties shall pay any reasonable costs or fees imposed for preparation of the record of proceedings in conformance with any law or rule of court.” Petitioner, St. Vincent’s, argued that reasonable costs could not be awarded in this case because it elected to prepare the record under subdivision (b)(2) of Section 21167.6. Petitioner interpreted the statute to preclude recovery of reasonable costs by a prevailing party when the prevailing party had not prepared the record. The court disagreed.
The court found that the provision in Section 21167.6 “leads to the general rules applicable to the award of costs.” The general rules are “except as otherwise expressly provided by statute, the party who prevails in any action or proceeding is entitled as a matter of right to recover costs” and “in preparing the record of proceedings, the party preparing the record shall strive to do so at reasonable cost in light of the scope of the record” pursuant to Section 21167.6, subdivision (f). In its evaluation of the statute, the court relied heavily on Hayward Area Planning Association v. City of Hayward (2005) 128 Cal.App.4th 176.
The Hayward court addressed the question of whether the real party in interest in a CEQA case could recover costs associated with its preparation of the record. In that case, the local agency asked the attorney of the real party in interest to prepare the record, and at the conclusion of litigation, the real party in interest requested recovery of over $50,000.00 in costs mostly for preparation of the record. The Hayward court noted that the scheme and purpose of section 21167.6 is to control costs in various ways. That court found that the cost containment policy of section 21167.6 had been undermined by allowing the real party in interest, with no responsibility for costs linked to the local agency, to prepare the record. The court also found that the local agency’s delegation of preparation of the record undermined the statutory purpose of expediting CEQA litigation. For these reasons, the Hayward court held that “in order to preserve the statutory scheme and purpose of section 21167.6, subdivision (b), the public agency must itself incur and seek recovery of the costs.”
After thoroughly evaluating the statute as well as the existing case law, the court held that a prevailing party who does not prepare the record may still be awarded their reasonable costs for preparation in circumstances where the petitioner did not properly contain his or her costs, thereby undermining the purpose of the statute. The court went on to apply these rules to the specific facts of this case.
The City had given 2,208 documents to petitioner for preparation of the record. After searching through the documents, petitioner found that there were very few emails among the documents and submitted a Public Records Act request to the City for “all writings evidencing or reflecting communications, stored on computer hard drive or server of any City employee, relating to or in connection with St. Vincent’s property or the Silveira property.”  The substantive land use dispute in the case involved the City’s decision not to annex these two properties.
The City responded to petitioner, explaining that over nine boxes worth of emails would have to be searched for responsiveness. Additionally, the City would have to determine which of the communications were privileged. It took the City approximately four months to sort through the emails and send them to the petitioner. In spite of the City’s efforts, St. Vincent’s was not satisfied with the City’s response, claiming that the City had only produced two stacks of emails out of the nine boxes that had been searched. Petitioner sent another demand for inspection of documents to the City. After a meet-and-confer, the City produced a privilege log covering 181 documents. St. Vincent’s continued to insist that the City was not disclosing all of the responsive emails and demanded to know why the other emails had been withheld.
These facts led the court to conclude that St. Vincent’s had not acted reasonably in its preparation of the record. The court stated:
The statutory scheme for controlling the costs of record preparation have been undermined by St. Vincent’s additional, broad, unrestricted, and apparently nonessential discovery demands.
In light of the petitioner’s abuse of the record preparation process, the City was entitled to the reasonable costs incurred in searching for and producing the emails. The issue left unanswered by the court is whether the City could have recovered its costs if it had not prevailed in the case.
Cori Badgley is an associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.
 Interestingly, the court never addressed whether a Public Records Act request presented a different issue in terms of costs. Instead, the court treated the Public Records Act request as part of the process of preparation of the record under Section 21167.6.