The Second District Court of Appeal has held that an agency is entitled to reasonable record preparation costs when it had to take over record preparation after a petitioner that had elected to prepare the record did not produce a record in a timely fashion. [Landwatch San Luis Obispo County v. Cambria Community Services District, ___Cal.App.5th___, Case No. B281823 (2nd Dist. July 27, 2018). ]

Factual Background

The Cambria Community Services District (District) approved an emergency water supply project on January 30, 2014 and found that the project was exempt from the California Environmental Quality Act (CEQA).

LandWatch San Luis Obispo County (LandWatch) filed a petition for writ of administrative mandate on October 14, 2014, alleging that the District failed to comply with CEQA, and elected to prepare the administrative record subject to the District’s certification of its accuracy. Immediately prior to filing its petition, LandWatch, filed a Public Records Act request for all public documents relating to the approval of the project and the Notice of Exemption. The District responded with documents in November 2014.

LandWatch did not produce a draft administrative record until August 2015. Because of the pending litigation, the County of San Luis Obispo refused to release $4.3 million in grant funds for the project.

On August 19, 2015, the District wrote to LandWatch that the draft index failed to include the January 30, 2014, resolution approving the project, and that the index was overinclusive because it included documents created after the January 30, 2014, approval date. The District stated that in order to expedite the process of preparing the record, it had prepared a new index. The District certified the record the same day.

LandWatch brought a motion for an order to include documents in the administrative record beyond January 30, 2014. On December 3, 2015, the trial court ruled that the District was within its rights to complete the administrative record, but ordered the District to include the supplemental records LandWatch requested.

The District attempted to obtain an index for the supplemental records from LandWatch but did not hear from LandWatch until February 19, 2016, just over a month before the scheduled March 23, 216 trial. By that point the District had certified the supplemental appendix. The trial court denied LandWatch’s motion seeking to reject the District appendix, and ultimately denied LandWatch’s petition for writ of mandate.

The District filed a memorandum of costs, seeking $38,836.54 for record preparation. LandWatch filed a motion to tax costs, and the trial court awarded the District $21,160.46. LandWatch appealed the award of costs.

Legal Background

CEQA § 21167.6(b)(2) provides that a petitioner may elect to prepare the administrative record, “subject to certification of its accuracy by the public agency, within the time limit specified in this subdivision.” Section 21167(b)(1) specifies a time limit of 60 days from the date of a record preparation request.

Courts of Appeal review trial court evidentiary determinations by looking only to evidence supporting the prevailing party. GHK Associates v. Mayer Group, Inc.,224 Cal.App.3d 856 , 872 (1990).

The Court of Appeal’s Decision

The court first addressed LandWatch’s claim that under CEQA it had unfettered authority to prepare the administrative record as long as it gave timely notice of its election to do so. The court stated that LandWatch “ignores the requirement that it prepare the record “within the [60 day] time limit specified in this subdivision.”” Slip Op. at p. 5, citing Pub. Res. Code § 21167.6(b)(1).

The court next rejected LandWatch’s attempt to “shift the blame for the delay onto the District” because LandWatch ignored evidence the trial court relied upon to find for the District. The court held that it was required to look only to the evidence supporting the prevailing party, and that:

• . . .[w]here the trier of fact has drawn reasonable inferences from the evidence, we have no power to draw different inferences, even though different inferences may also be reasonable. Slip Op. at p. 6. The trial court found that the District acted reasonably in preparing the record, and nothing indicated this determination was unsupported.

The court then addressed whether CEQA provides that an agency may obtain record preparation costs if a petitioner elected to prepare the record, holding that an agency may recover such costs. The court rejected LandWatch’s argument that a reported case on the issue, Coalition for Adequate Review v. City and County of San Francisco,229 Cal.App.4th 1043 (2014), permitted the award of such costs only if the agency obtained trial court permission prior to preparing the record, holding that simply because those were the facts of the Coalitioncase did not mean this was the blanket rule for all record preparation cases.

Finally, the court held that the trial court’s cost award was reasonable, and likely low in light of the effort the District expended in the face of LandWatch’s dereliction. In particular, the court found it “fanciful, if not perverse” that LandWatch argued that the District should not recover costs for preparation of the supplemental appendix because such documents post-decisional documents should have been excluded from the administrative record, despite the fact that LandWatch demanded their inclusion.

Conclusion and Implications

This case is significant because it makes it clear that if an agency takes control of record preparation when a petitioner will not timely produce a record for certification, the agency is entitled to the reasonable costs of record preparation. The court’s decision is available online at: http://www.courts.ca.gov/opinions/documents/B281823.PDF

(Alex DeGood)