by Elias E. Guzman

In a San Diego court, a petitioner recently argued that it failed to file its opening brief because the City held the administrative record for “ransom.” Yes, ransom. Well, in the world of administrative writ actions, there are two absolutes regarding the preparation of the administrative record. Someone has to prepare it and someone has to pay for it.

In Black Historical Society v. San Diego (2005) 134 Cal.App.4th 670, petitioner Black Historical Society (“Society”) challenged the City of San Diego’s issuance of a development permit to Wakeland Housing and Development (“Wakeland”) for alleged CEQA and City code violations. Wakeland sought to construct low-income apartments in an area that, in part, had been declared a local historic resource site. The underlying CEQA dispute was never at issue on appeal, as Society failed to obtain to pay for and receive the administrative record. This prevented Society from argument its substantive challenges to the court. The issue in this case was limited to whether a party has to pay for an administrative record in advance of receiving it. This court said yes, you must pay for it in advance.

After filing its action, Society requested that the City prepare the record and indicated it would pursue a waiver of such costs. It never followed through on the waiver and, in fact, the court ordered Society to bear the costs of preparing the record. The City certified the record and Society was ordered to file its opening brief within 30 days after it was released. When Society failed to file its opening brief, City brought an ex-parte motion to dismiss for failure to prosecute the action. In opposition to City’s ex parte motion, Society argued that the City held its record ransom for full payment. Interestingly, Society did not dispute that the cost of preparing the record should be awarded to the prevailing party, or, that it would pay for such costs when it can, provided it received the record first. The court granted City’s motion.

The appellate court held, in part, that the “taxpayers should not have to bear the costs of preparing the administrative record in a lawsuit brought by a private individual or entity.” The law recognizes as much. (See Code Civ. Proc., § 1094.5(a), 1094.6(c), Pub. Resources Code, § 21167.6(b)(1).) Thus, although a petitioner can request a waiver of costs related to litigation, it must make its case for such. If a party fails to demonstrate a need, it is unavailing to argue that it failed to file its opening brief due to a lack of resources to pay for the administrative record. Accordingly, absent a court ruling otherwise based on evidence of need, a party is not entitled to the administrative record in advance of payment for it.

Elias E. Guzman 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.