By Katherine J. Hart
In Coalition for Adequate Review v. City and County of San Francisco (September 15, 2014, A135512) ___Cal.App.4th ___, the Court of Appeal, First Appellate District, reversed in part and remanded in part, a trial court’s denial of the City’s ability to recover costs for the record of proceedings where the Coalition failed to include all relevant documents in the record the Coalition elected to prepare, despite the trial court’s denial of the petition for writ of mandate.
In 2013, Plaintiffs and Respondents Coalition for Adequate Review challenged the City and County of San Francisco’s (City) approvals of various projects under CEQA. The Coalition’s petition for writ of mandate was denied. Accordingly, the City filed a memorandum of costs for $64,144 to recover its costs of production (e.g., copying, binding, and page numbering) of the supplemental record it prepared, the costs the Coalition charged the City for a copy of the record prepared by the Coalition, paralegal and planning staff time in reviewing the record for completeness and for preparing the supplemental record, and professional courier costs. The Coalition filed a motion to tax costs – or challenge to the City’s motion to recover its costs, which the trial court granted. The City appealed.
The court of appeal reversed the trial court’s denial of the City’s request for cost recovery on the supplemental record, and remanded to the trial court the issue of what other costs would be recoverable by the City. In reversing in part and remanding in part the trial court’s grant of the Coalition’s motion to tax, the appellate court noted that the cost provision in Public Resources Code section 21167.6(b)(2) places the costs that an agency incurs in preparing the record of proceedings on the parties, not the public agency. Additionally, the court of appeal acknowledged that when a petitioner prepares a record, it has a duty to include all relevant documents. To the extent a supplemental record is required to be lodged by an agency to ensure the entire record is before the court, the costs for preparing the supplemental record are recoverable by the agency under section 21167.6(b)(2). Of note in this case, the City had attempted to negotiate with the Coalition about including various key documents in the record, to no avail. As a result, City filed a motion for leave to supplement the record of proceedings, which the Coalition opposed. The City’s motion was granted and the City prepared and lodged a supplemental record with the trial court.
In an effort to guide the trial court on remand, the appellate court reviewed the law on what costs are recoverable by the agency when a petitioner prepares the record. The court said the City may claim “reasonable labor costs required to prepare the supplemental record.” However, for the first time in a published opinion, the appellate court refused to concede that costs to review a petitioner-prepared record of proceedings for completeness in connection with certification were recoverable, reasoning that such a review is a “chore public agencies face in every case … and if an agency could always claim a sizeable amount for review ‘for completeness’ or ‘certification’ that would defeat the Legislature’s aim of providing for lower-cost record preparation alternatives.” In explaining its decision, the appellate court noted that an agency’s review of a record for completeness “can easily blur into review for strategy, implicating the kind of attorney fee award neither authorized nor sought here.” In short, the court of appeal did not want to circumvent the provisions of 21167.6 related to reducing petitioners’ costs of bringing a CEQA action or allow for the recovery of attorney’s fees by an agency where none are awardable under the statute in the first place. On remand, the appellate court ordered the trial court to distinguish between the City’s claim for paralegal costs on preparing the supplemental record versus paralegal costs regarding review of the record for completeness.
As to other costs, the court of appeal held that messenger costs related to transferring and retrieving documents from different departments in an effort to prepare the supplemental record were recoverable. It also held that copying and binding costs of excerpts of the supplemental record were recoverable by the City if the trial court determines that they were reasonably helpful to aid the trier of fact. As to the copy of the record prepared for the City by the Petitioners, the City could recover those costs if the trial court determined that the City was reasonably entitled to the additional copy. On the other hand, the court held that postage and express delivery costs are expressly disallowed under Code of Civil Procedure section 1033.5(b). Messenger fees, however, may be allowable at the trial court’s discretion.
This case is of first impression insofar as the court ruled that an agency may not recover its costs for reviewing a petitioner-prepared record for completeness and/or certification. Additionally, this case highlights the extensive discretion trial courts are given when determining questions of fact as to whether a cost item was reasonably necessary to the litigation, and thus, is recoverable by the agency.
Katherine J. Hart is Senior Counsel at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or 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.