No Toxic Air, Inc. v Lehigh Southwest Cement Co. ( 2016) 1 Cal.App.5th 1136

By William W. Abbott

If required due to the complexity of the matter, a prevailing party may be able to recover reasonable legal and paralegal costs incurred in preparing an administrative record required by an action in administrative mandamus.

Project opponents unsuccessfully challenged in court a vested rights determination made by Santa Clara County pertaining to a long time mining operation.  At issue was a mine begun in 1903 and had been an ongoing concern ever since, expanding in terms of physical scope and mine related activities through the years.  In 2010, the then owner sought a determination of vested rights from the County.   The County made the vested rights determination and was unsuccessfully challenged in court. The real party in interest filed a cost bill which included the attorney and paralegal costs associated with assembling the administrative record.  The unsuccessful plaintiffs moved to tax costs.  The trial court determined that the costs were reasonably incurred and appropriate for the complexity of the case, but granted the motion to tax for lack of authority to allow those costs. The real party in interest appealed. 

Code of Civil Procedure section 1094.5 provides in part “if the expense of preparing all or any part of the record has been borne by the prevailing party, the expense shall be taxable as costs.”  Looking to CEQA cases for guidance on this question, the appellate court concluded once the trial court determined the appropriateness and need for the attorney and paralegal work to prepare the record, that the motion to tax costs should have been denied and reversed.

William W. Abbott is a partner 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.