COURT OF APPEAL, FIRST APPELLATE
McInerney & Dillon and Jewell J. Hargleroad for
Plaintiffs and Appellants
Sheppard, Mullin, Richter & Hampton, Philip F.
Atkins-Pattenson and Kristen A. Jensen for Real Party in Interest and
No appearance for Defendants and Respondents.
brought a CEQA action against the City of
Factual & Procedural Background
Plaintiffs asked the City and School District, defendants and respondents in the trial court (referred to herein as Defendants),[ii] to prepare the administrative record pursuant to section 21167.6, subdivision (a), but reserved the right to prepare the record themselves or make other arrangements after receiving Defendants’ cost estimate. Defendants notified Plaintiffs that the record would consist of at least 5,000 pages of material from the City and 4,000 pages from the School District; that if Plaintiffs prepared the record themselves, they would be charged ten cents a page for copying; and that if Defendants prepared the record, the cost would be ten cents a page for basic copying, plus charges for binding, transcription of hearings, copying of oversized materials, and labor “as reasonably necessary . . . for collection, organization, Bates stamping and indexing of the record.” Based on those representations, Plaintiffs elected to have Defendants prepare the record.
Defendants requested that the law firm representing
February 2003, Plaintiffs dismissed their claims against the
did not file a cost bill, but
Plaintiffs moved to tax costs on three grounds: (1) the costs of the transcripts and the administrative record were not properly awarded to Hayward 1900, because preparation of the administrative record was the responsibility of the City, not Hayward 1900; (2) the paralegal fees and expenses and the cost of numbering and duplicating the record were unnecessary and unreasonable; and (3) the cost bill included the costs of preparing the School District record, which the District had waived.
The trial court found there was “no specific authority for the proposition that it was unlawful for [Defendants] to assign the task of record preparation to real parties in interest. . . . Nonetheless, this Court does find that failure to notify [Plaintiffs] of the assignment violated the spirit of the Public Resources Code regarding preparation of the record. . . . Public Resources Code section 21167.6 reflects the intention of the legislature to provide [Plaintiffs] the opportunity to mitigate costs by undertaking the record preparation on their own. By not fully disclosing the circumstances under which [Defendants] determined to prepare the record, [Plaintiffs] were deprived of an important opportunity created to preserve meaningful challenge by the public under CEQA.”
The court held that the proper measure of reasonableness for the cost bill was the costs that would have been incurred had Defendants prepared the record themselves. The court found credible Defendants’ claim that they did not have the time or resources to compile the records within CEQA timelines using their own personnel. The court found it reasonable that Defendants chose to meet the standard CEQA deadlines rather than seeking an extension of time, even though that choice increased the cost of preparing the record. Further, the court concluded that a public agency that reasonably uses outside assistance may recover the costs of that outside assistance, including labor costs.
the court found that Defendants made no effort to minimize costs after
delegating preparation of the record to
Hayward Area Planning Association and Hayward Hills Property Owners Association
filed notices of appeal from the
Plaintiffs frame the issue on appeal as a question of statutory construction: does section 21167.6 authorize the court to award the costs of preparing a CEQA administrative record to a real party in interest absent Plaintiffs’ consent?
I. Request for Judicial Notice
preliminary matter, we deny plaintiffs’ request for judicial notice of a
settlement agreement between
II. Statutory Construction of Section 21167.6, Subdivision (b)(1)
Statutory construction is a question of law we decide de novo. (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699.) Our primary objective in interpreting a statute is to determine and give effect to the underlying legislative intent. (Code Civ. Proc., § 1859.) Intent is determined foremost by the plain meaning of the statutory language. If the language is clear and unambiguous, there is no need for judicial construction. When the language is reasonably susceptible of more than one meaning, it is proper to examine a variety of extrinsic aids, including the scheme and purpose of the legislation. (See Hughes v. Board of Architectural Examiners (1998) 17 Cal.4th 763, 775-776.)
Section 21167.6 provides that in proceedings to review the acts of public entities for noncompliance with CEQA the following procedures shall be followed: “(a) At the time that the action or proceeding is filed, the plaintiff or petitioner shall file a request that the respondent public agency prepare the record of proceedings relating to the subject of the action or proceeding. . . . [¶] (b)(1) The public agency shall prepare and certify the record of proceedings not later than 60 days from the date that the request specified in subdivision (a) was served upon the public agency. . . . The parties shall pay any reasonable costs or fees imposed for the preparation of the record of proceedings in conformance with any law or rule of court. [¶] (2) The plaintiff or petitioner may elect to prepare the record of proceedings or the parties may agree to an alternative method of preparation of the record of proceedings, subject to certification of its accuracy by the public agency, within the time limit specified in this subdivision. . . . [¶] (f) In preparing the record of proceedings, the party preparing the record shall strive to do so at reasonable cost in light of the scope of the record.” (Emphasis added.)
Section 21167.6 authorizes only three ways to prepare a CEQA record, none of which were followed in this case. The three alternatives are (1) that the public agency prepare and certify the record; (2) that the petitioner prepare the record, subject to certification by the public agency; or (3) that the parties agree to an alternative method of preparing the record, subject to certification by the public agency. The City’s delegation of the task to the real party in interest without obtaining the consent of plaintiffs was inconsistent with this statutory scheme.
trial court noted, the statute does not explicitly bar a real party in interest
from recovering the costs of preparing the record. The statute provides, “The parties shall pay
any reasonable costs or fees imposed for the preparation of the record of
proceedings in conformance with any law or rule of court.” (§ 21167.6, subd. (b)(1).) The statute identifies who shall pay costs
(“the parties”), but does not identify who may receive such payment. Because the provision appears in subdivision
(b)(1), which authorizes the public agency to prepare the record, it can be
construed to permit only the public agency to claim those costs. On the other hand, as
confronted with ambiguous statutory language, we construe it in a manner
consistent with the statutory scheme and purpose. Here, as the trial court correctly observed,
the three-part scheme for preparing the record advances the legislative purpose
of enabling the petitioner to minimize the cost of record preparation. When the record is prepared under section
21167.6, subdivision (b)(2), either the petitioner directly controls the costs
by its personal assumption of the task or it indirectly controls the costs by
consenting to an alternative arrangement.
When the agency prepares the record under section 21167.6, subdivision
(b)(1), costs are controlled in three ways.
First, as occurred in this case, the petitioner may request an initial
cost estimate to inform its decision whether to prepare the record itself. That cost estimate serves as a restraint on
the agency’s ultimate recovery of costs.
Second, the agency has a duty to act in the public interest and it is
accountable to its constituents for the use of public funds. Had the City here, for example, contracted
In the circumstances of this case, the cost restraints inherent in section 21167.6, subdivision (b)(1) did not operate according to the Legislature’s design because the real party in interest rather than the City sought recovery of the costs. We note that rather than simply seeking or accepting the assistance of the real party in interest in preparing the record, which is not uncommon (Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 373, citing 2 Kosta & Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2003) § 23.67, p. 987), the City effectively delegated the task to Hayward 1900.[vii] Although courts have allowed public agencies to collect the labor costs of outside assistance when they prepare the record under section 21167.6, subdivision (b)(1), no court has condoned the unilateral delegation of the task to a party with an interest in the litigation. In River Valley Preservation Project v. Metropolitan Transit Development Board (1995) 37 Cal.App.4th 154, the court held that a public agency may seek reimbursement for the labor costs of its own skilled employees who help prepare a record, assuming those costs are both necessary and reasonable. (Id. at pp. 181-182.) In Citizens for Quality Growth v. City of Mount Shasta (1988) 198 Cal.App.3d 433, the court impliedly approved a public agency’s use of its own private law firm to prepare the record, subject to review for reasonableness. (Id. at pp. 447-448.) In neither of those cases did the public agency assign the task of preparing the record to a party with a private interest in the litigation.
delegation of the task to
delegation of the task to
court sought a reasonable and pragmatic result by allowing
III. Attorney Fees and Costs
seek an award of attorney fees on appeal.
They make a strained argument that
[i] All statutory references are to the Public Resources Code unless otherwise indicated.
City and the
[iii] Plaintiffs dismissed their appeal of the judgment on the merits.
[iv] Plaintiffs did not object to the $228 filing fee in the cost bill.
[v] Greenbelt Alliance also appealed this order, but its appeal was later dismissed at its own request.
[viii] The trial court found “[t]he evidence presented with this motion does not reflect that the respondents here [City] gave any consideration to minimizing costs before or after assigning the task of record preparation to the real parties in interest.” (Emphasis added.)