Oakland, CA (Originally published, Nov. 6, 2014) I’ve been thinking recently about a decision issued by the Fourth District Court of Appeals on September 29, 2014. The issues considered in the published portions of Otay Ranch v. County of San Diego, 230 Cal. App. 4th 60 (4th Dist. Sept. 29, 2014) are hardly earth shattering. Yet, the court’s decision to uphold an allowance of $30,435 in attorney and paralegal fees relating to the preparation of the record after the petitioner voluntarily dismissed the case caught my eye.

While it’s no surprise that the trial court allowed some costs after the voluntary dismissal, the affirmance of the award of attorney and paralegal fees was unexpected; typically costs do not include fees. Code Civ. Pro. ¶ 1033.5(c)(5).

After taking a closer look at the case, I am not at all convinced that the Fourth District’s ruling was correct. As explained below, I believe the case is problematic because:

The allowance of fees as costs appears limited to CEQA cases and at the time the record had been prepared in Otay Ranch, the CEQA cause of action had been voluntarily dismissed;
Even assuming fees might otherwise be costs, the Fourth District cited no cases allowing fees; and
The Fourth District’s holding disincentives local agencies from adopting on-line or other tools that reduce or eliminate the costs of record preparation.
Each reason is addressed in turn:

Allowance for fees for record preparation is limited to CEQA cases. In Otay Ranch, the former owner of a shooting range in Chula Vista brought a writ challenging the County of San Diego’s adoption of a Remedial Action Plan and Final Mitigation Negative Declaration. The petition asserted two causes of action – that the County failed to comply with the California Environmental Quality Act and for violation of Health and Safety Code section 25356.1 in preparation of the RAP.

There are differences between a petition for writ of mandate brought under CEQA and petitions arising from other laws. For CEQA causes of action, a statute expressly provides that the parties “shall pay any reasonable costs or fees imposed for the preparation of the record of proceedings . . .” Pub. Res. Code § 21167.6(b)(1).

For other mandamus actions, however there is no express general provision allowing the recovery of “fees” by the local agency for preparation of the record. Code Civ. Pro. § 1094.5. The administrative mandate statute refers rather only to the obligation of the petitioner to pay the costs related to the preparation of the record. Code Civ. Pro. § 1094.5(a). Similarly, a local agency “may recover from the petitioner its actual costs for transcribing or otherwise preparing the record.” Code Civ. Pro. § 1094.6(c).

The absence of an express provision regarding fees in the above statutes speaks volumes because the Legislature is aware of the difference. The Code of Civil Procedure for example carefully distinguishes between costs and fees. One of these distinctions is that costs ordinarily exclude fees. Code Civ. Pro. ¶ 1033.5(b)(1) (expert fees are not awardable as costs except under special circumstances) and (c)(5) (attorney’s fees awardable as costs only where “a statute of this state refers to an award of ‘costs and fees’”). Moreover, a party seeking attorney’s fees outside of county fee schedules generally must file a fee motion rather than to submit a memorandum of costs. Code Civ. Pro. ¶ 1033.5(c)(5).

Perhaps as a counterbalance to the risk of a large award of fees for record preparation, CEQA permits the petitioner to prepare its own transcript. Code Civ. Pro. § 1094.6. However, in a way that is consistent with the idea that petitioners face little risk for the local agency’s fees, petitioners lack the right to prepare the record when seeking writs under other statutes. Code Civ. Pro. § 1094.6(c) (the local agency “shall” prepare the record).

These differences matter in the Otay Ranch case because the petitioner voluntarily dismissed its CEQA claim before any party had prepared the record. The only claim remaining when the record was prepared was the petitioner’s cause of action for violation of the Health and Safety Code (which it later dismissed as well). The court nowhere explains why the language in CEQA relating to fees should apply to the only remaining claim, the Health and Safety Code claim.

It is noteworthy too that the mandate action for violation of the Health and Safety Code is for ordinary mandamus rather than administrative mandamus. H. & S. Code § 25356.1(g)(1). This means that the cost language in Code of Civil Procedure section 1094.5, which is the administrative mandate statute, does not apply to it.

Yet, in affirming the award of costs, the Fourth District first looked to the language of the Public Resources Code section 21167.6(b)(1) and Code of Civil Procedure sections 1094.5 and 1094.6. As explained above, only the latter code section has any applicability to the case and that latter section only refers to costs for the preparation of the record. See Code Civ. Pro. § 1094.6.

Moreover, the cases relied upon by the court in the Otay Ranch were CEQA cases. In other words, as CEQA cases, they do not support the proposition that petitioners asserting non-CEQA cases might be liable for any fees, let alone attorney’s fees for preparation of the record.

The court cited not cases that upheld the award of attorney’s fees. Even assuming the decision is otherwise sound, Otay Ranch cited no cases that upheld a trial court’s allowance of attorney’s fees as costs related to the preparation of the record.

The Fourth District’s holding disincentives local agencies from adopting on-line or other tools that reduce or eliminate the costs of record preparation. The right of people to seek review of local government and agency action through mandamus is an important one. Indeed, it is often the only mechanism people have to challenge unlawful government action. This is true at the state level. It also true at the federal level where exhaustion of administrative remedies is typically required before civil rights actions can be asserted.

While people often have only one route to a successful challenge of government action, that route is often expensive as it is. It requires retention of specialized legal counsel at specialist rates. It requires the advancing of all costs, including in most counties court reporter costs, jury fees and the like.

Courts should be mindful of the extraordinary expense faced by litigants as it is and, if there are good reasons for one side to assume a particular expense, court should it least be mindful of it in allowing costs.

In Otay Ranch, the County of San Diego successfully argued that, because of the complicated nature of the record, it required specialized skill for record preparation which it did not have in house. This argument was also an argument advanced in other cases cited by the Fourth District.

Yet, if you think about it, cities maintain records as a matter of course. While it can be complicated, it should not be for the most part. Local agencies are already well versed in the maintenance of records for all public hearings. Many agencies maintain software that maintains the prepared records. It should not be difficult for them to handle the task and, if it is, they should not be rewarded.

John Claassen practices civil litigation from the offices of Claassen, P.C. in Oakland, California. For more information about the firm, please click here. While this blog entry is published for informational purposes, portions of this blog post may constitute “communications” within the meaning of California Rule of Professional Conduct 1-400. Thus, as a possible “Advertisement” it is not intended to constitute legal advice. Similarly, no statement made in this blog post is intended as a guarantee, warranty, or promise about the outcome of any litigation matter taken on by the firm. This Advertisement is not intended for any matter that would require the rendition of legal services outside of the State of California or under the laws of any jurisdiction outside of the State of California. Copyright 2014-15. All rights reserved.

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