Costs: Costs Denial Based On Supplemental Record Expenses In CEQA Case By City Reversed

 

No “Chill” Seen As Realistic In This Case, With Appellate Court Giving Some Direction on Cost Line Items.

     Coalition for Adequate Review v. City and County of San Francisco, Case No. A135512 (1^st Dist., Div. 1 Sept. 15, 2014) (published) is must reading for litigants in CEQA record preparation cases, especially when in comes to costs reimbursement at the end of the litigation.

     After a trial court granted City’s motion to supplement the CEQA record, City prevailed and then filed a costs memo seeking $64,144 largely for expenses incurred in preparing a supplemental record of the proceedings. The lower court granted a motion to tax costs and denied all requested costs to City, resulting in an appeal and reversal in City’s favor.

     Simply because losing CEQA petitioner elected to prepare the record does not mean a public agency cannot recover supplemental record preparation costs, especially when the preparation costs were incurred to ensure a statutory complete record was presented for lower court review. That was the situation here, meaning City should have been entitled to some amount of costs for supplemental record preparation. In addressing the CEQA petitioner’s argument that such an end result would “chill” CEQA challenges, the appellate court simply answered that Public Resources Code section 21168, by referencing Code of Civil Procedure section 1094.5, expressly allows for the CEQA prevailing party in an administrative mandamus proceeding to recover record preparation costs.

     That brought the reviewing court to specific costs items, upon which it provided further guidance on remand given its reversal of the costs denial. The bulk of claimed costs--$50,000 for paralegal time—had to be reviewed to apportion out costs reviewing the “completeness” of record preparation (not recoverable) versus true costs to prepare the supplemental record (recoverable). Messenger costs for transporting materials to the City likely were recoverable. Time spent to locate documents provided to CEQA petitioner was denied as costs because petitioner made the demand at the outset so as to derail any legitimate costs claim. Costs for the City’s “excerpts of record” seemed to qualify as an exhibit photocopy outlays allowable under CCP § 1033.5(a)(13). City’s costs for a copy of the record prepared by petitioner had to be reconsidered because it is a discretionary cost item if “reasonably necessary.” Finally, overnight service costs had to be reexamined because postage/express delivery costs are not allowable under CCP § 1033.5(b), while messenger fees may be discretionarily allowed under CCP § 1033.5(c)(4).