Wagner Farms, Inc. v. Modesto Irrigation District (Dec.6, 2006, F049966) __ Cal.App.4th __ http://www.courtinfo.ca.gov/opinions/

By Maria Pracher

In this case, the appellate court reversed an award of costs in favor of the Modesto Irrigation District (the District) granted by the trial court after the plaintiff’s petition for a writ of mandate was denied.  The court found the District had failed to provide sufficient justification for the "unusually high" cost per page for preparing the record and to adequately document the time legitimately charged for assembling the record of the proceedings.

Petitioners challenged the adequacy of the District’s EIR for the construction of high voltage electricity transmission lines.  Petitioners requested the District prepare the record.  The District’s memorandum of costs for the record claimed $33,422.24 for staff and consultant time in preparing the record and for copying and binding the record.  After reviewing the relevant case law and provisions of the California Environmental Quality Act (CEQA, Pub. Res. Code § 21167.6) and the provisions governing traditional mandamus (Code of Civ. Pro. § § 1032, 1033 and 1033.5), the court found that the prevailing party in a CEQA proceeding involving traditional mandamus may recover as costs the amounts it reasonably and necessarily incurred in preparing the record.

The District argued its costs were reasonable and necessary given the 18-volume record and the costs allowed in River Valley Preservation Project v. Metropolitan Transit Development Bd. (1995) 37 Cal. App.4th 151 of $10,000 for a 6-volume record . The court, however, compared the per page cost of the District’s record with the per page cost of records in other cases.  The record consisted of 4,107 pages.  Using the total cost of the record, $33,422.24, the court determined the District’s claim equated to $8.14 per page.  This amount compared unfavorably to three published cases with costs per page of $2.55, 90 cents, and $2.61 and three unpublished cases with costs per page of 47 cents, $1.25, and $2.00.  Consequently, the court found the costs in this case to be disproportionately high in comparison to other cases and rejected the District’s per record volume argument.

The court examined the justification for the number of copies of the record, the costs per page, and the labor costs to assemble and organize the record.  With respect to copies of the record for the District’s outside counsel and environmental consultant, the court upheld the trial court’s determination that these copies were "reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation."  In light of the invoice from the copying service, the number of oversized maps in the record, and the absence of any evidence that the copying could have been done for less, the court also upheld the trial court’s determination that the District should be awarded the full copying costs.

The District, however, failed to present adequate evidence to support the reasonableness and necessity for its labor costs.  The court concluded the labor costs were excessive, because the District had included items in the record that were produced after the project approval.  The District presented no evidence to distinguish between time spent on items properly in the record and those items produced after project approval, which were not properly in the record.  The court further found permissible the District’s delegation of preparation of the record to its environmental consultant.

Petitioners brought this challenge as a traditional mandamus action pursuant to Code of Civil Procedure section 1085 and Public Resources Code section 21168.5.  The court emphasized that its holding was based on the rules governing administrative record costs in traditional mandamus cases, not administrative mandamus cases pursuant to Code of Civil Procedure 1094.5.

For more information please contact Maria Pracher.  Maria Pracher is special counsel in the Real Estate, Land Use and Environmental Practice Group in the firm’s San Francisco Office.