By Kate J. Hart

California’s Fifth Appellate District recently decided the case of Wagner Farms, Inc. v. Modesto Irrigation District (December 6, 2006) 2006 Cal.App.Lexis 1923, which involves the awarding of costs for preparation of the record of proceeding (“ROP”) arising out of a CEQA suit. Plaintiffs filed the suit against the Modesto Irrigation District (“MID”), and requested that MID prepare the ROP. MID won in both the superior court and appellate court. MID then filed a memorandum of costs totaling $34,077.95 for preparing and filing the ROP. (All but $3,680 for copying costs went to the consultants’ preparation of the ROP.) Plaintiffs filed a motion to tax costs. As argued in Hayward Area Planning Assn. v. City of Hayward (2006) 128 Cal.App.4th 176 (see previous Abbott & Kindermann Land Use Law Blog article), the plaintiffs claimed that 1) MID impermissibly delegated the preparation of the ROP to its consultants; 2) the amounts requested for the preparation of the ROP were not adequately supported by the record; and 3) the amounts spent were not necessary or reasonable. MID provided only a declaration by counsel in support of its opposition to plaintiffs’ motion. On appeal, the appellate court first analyzed which cost recovery statutes applied to the issue. The court of appeals held that “Based on the provisions of [Public Resources Code] section 21167.6, the provisions of the Code of Civil Procedure [sections 1032, 1033 and 1033.5] concerning the award of costs to the prevailing party in a CEQA proceeding involving traditional mandamus may recover as costs the amount it reasonably and necessarily incurred in preparing the ROP.”

The court of appeals also held that MID’s costs for copying and binding five copies (totaling $3,680.80 or 17 cents per page) was reasonable since the determination of whether the number of copies prepared was reasonable was well within the trial court’s discretion. Additionally, the cost of copying was adequately supported by the invoice from the copy company and plaintiffs failed to provide any evidence indicating the same job could have been done for less.

Finally, the court of appeals held that MID’s costs of labor to assemble and organize the record were not “reasonable and necessary”. The court compared costs on a per page basis (as opposed to a cost-per-volume approach proposed by MID) in other CEQA law suits. The court ascertained that MID was requesting approximately $8.14 per page and further, that this amount was disproportionate to the awards in other CEQA cases. Because the cost of preparation was put in issue, MID had the burden of proving cost of preparation was reasonably necessary to the litigation, which it did not do. Furthermore, the record revealed that certain documents in the ROP were created after the project was approved and after plaintiff had filed their petition. Thus, the documents should not have been considered part of the ROP and the costs of preparing such documents could not have been reasonable and necessary to the ROP.

The appellate court reversed the denial of the motion to tax costs and remanded the matter to the superior court to ascertain what time was appropriately attributed to the preparation of the ROP and what time was not.

With respect to whether the preparation of the ROP was properly delegated by MID, the court concluded that the delegation was proper as MID was the developer of the project.

Kate J. Hart 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, LLP 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.