1

Filed 9/15/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

COALITION FOR ADEQUATE REVIEW 

et al.,

Plaintiffs and Respondents,

v.

CITY AND COUNTY OF SAN 

FRANCISCO,

Defendant and Appellant.

 A135512

 (San Francisco City & County

 Super. Ct. No. CPF-08-508038)

I. INTRODUCTION

The City and County of San Francisco (City) prevailed in this California 

Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.)

1 writ 

proceeding brought by the Coalition for Adequate Review and Alliance for 

Comprehensive Planning (collectively, petitioners). After securing judgment, the City 

filed a memorandum of costs totaling $64,144, largely for costs incurred in preparing a 

supplemental record of the proceedings. Petitioners filed a motion to tax. The trial court 

granted the motion and denied all costs. The court’s reasoning was two-fold: First, it 

relied on the fact petitioners had elected to prepare the record, themselves, as allowed by 

CEQA’s record preparation statute (§ 21167.6, subd. (b)(2)). Second, it feared sizeable 

cost awards would have a chilling effect on lawsuits challenging important public 

projects. Neither rationale is a legally permissible basis for denying record preparation 

costs to the City. We therefore reverse in part and remand for further proceedings.

 

1

 All further statutory references are to the Public Resources Code unless 

otherwise indicated.
2

II. FACTUAL AND PROCEDURAL BACKGROUND

In our prior opinion affirming the denial of petitioners’ writ petition on the merits

(Coalition for Adequate Review v. City and County of San Francisco (June 25, 2013, 

A131487) [nonpub. opn.]), we discussed at length the land use plans, rezoning, and 

projects around Octavia and Market streets at issue in this case. We need set forth here 

only the facts relevant to the City’s appeal from the order granting petitioners’ motion to 

tax costs.

Initial Record Preparation

Petitioners chose to prepare the record of proceedings, themselves, as permitted by 

CEQA’s record preparation statute, specifically, section 21167.6, subdivision (b)(2). The 

City maintains it thereupon made available some 26,000 pages of material to facilitate 

petitioners’ preparation of the record. Petitioners contend the City, in fact, obstructed and 

delayed access to these documents and made the process of copying unduly cumbersome 

and expensive. Petitioners also contend that at 4 p.m. the day before they were, by 

agreement, to present the record to the City for its review and certification, the City 

suddenly notified them of an additional 3,000 pages of material and a CD of unknown 

volume, and claimed it was going to prepare a supplemental record containing these 

items. The City did not produce this material to petitioners until a few weeks later. 

Nevertheless, on August 28, 2008, the agreed-upon date, petitioners presented the City 

with a 30-volume record, totaling 8,306 pages in length.

Two weeks later, on September 12, 2008, the City certified the record petitioners

had prepared, but only in part, stating it was incomplete. It appeared to the City that

petitioners had omitted documents statutorily required to be in the record under 

section 21167.6, subdivision (e), and which the City had, at least at some point, made 

available to petitioners. The City therefore notified petitioners it reserved the right to 

seek inclusion of any of the additional 21,000-plus pages of material it had produced to 

petitioners which were not already in the record. 

The City then made several attempts to add materials to the record—both through

ex parte applications and by negotiations with petitioners. During negotiations, the City 
3

proposed augmenting the record when it filed its opposition to the writ petition in order to 

avoid including unnecessary materials. 

As part of a November 19, 2008, case management statement, the City attached an 

index of its proposed additions to the record, totaling 4,809 pages in 12 volumes. A 

month later, on December 12, 2008, the City formally moved to supplement the record of 

the proceedings with these 12 volumes. 

Petitioners opposed the motion. They argued they were in control of the record,

and the City had no right to make additions. They also asserted the City sought to add 

irrelevant and duplicative materials, and the proposed supplement was a ploy to raise 

costs. Petitioners denied having excluded from the record any materials that supported

the City’s approval of the project. 

The City disputed petitioners’ contentions about the proposed supplemental 

record, except for 10 documents which it acknowledged were duplicates or near 

duplicates of materials already in the record prepared by petitioners. The City also 

maintained it timely produced most of the required documents, except for certain studies 

cited in the EIR, which it made available to petitioners after learning of the omission. 

On May 12, 2009, the trial court (Judge Feinstein) granted the City’s motion to 

supplement the record, finding petitioners had omitted materials statutorily required to be 

in the record under section 21167.6, subdivision (e). It disallowed, however, the 10

concededly duplicative documents (approximately 250 pages of the 4,809-page proposed 

supplement). The court also expressly rejected petitioners’ assertion that the City’s 

efforts to supplement the record violated its statutory duty to control record preparation 

costs, set forth in section 21167.7, subdivision (f). The court noted in this regard 

petitioners had rejected the City’s proposal to file a supplemental record when it filed its 

opposition to the writ petition and, instead, had insisted the record be fixed before 

briefing on the merits. The court also ruled “[w]ithout prejudice to the City’s ability to 

seek cost recovery at the conclusion of this litigation, as appropriate, Petitioners shall pay 

to the City the reproduction costs associated with Petitioners’ copy and the court’s copy 

of the City’s Supplement.” Petitioners moved for rehearing, arguing the immediate order 
4

to pay for reproduction costs was improper. In August 2009, the court denied rehearing, 

concluding the issue of interim reproduction costs had been briefed and properly 

determined.

2

 

Document Requests

In addition to the supplemental record dispute, the parties also sparred over 

whether certain document requests petitioners made at the outset of the litigation were 

overbroad and burdensome. Petitioners, for instance, requested production of “[a]ll files 

relating to all projects, including all proposed developments, public works and building 

projects and building permits of any kind that are either within the pipeline or not within 

the pipeline but within the Market-Octavia project area . . . .” (Emphasis omitted.) The 

City viewed these requests as creating busywork unrelated to the writ petition. 

Petitioners viewed them as essential to their writ petition, and even without regard to the 

pending litigation, legitimate under the State’s Public Record Act (Gov. Code, § 6250 et 

seq.) and City’s Sunshine Ordinance. 

Merits Hearing and Cost Proceedings

Ultimately, the trial court (Judge Sullivan) denied the petition for writ of mandate

on the merits. In so doing, the court adopted a lengthy proposed statement of decision 

prepared by the City. The statement largely cited to the record prepared by petitioners, 

but made a few citations to the supplemental record. 

The City then filed a memorandum of costs, seeking $64,144 for “administrative 

record, professional messenger, and service.” This included $3,231.62 for production 

(copying, binding, and page numbering) of the supplemental record; $383.32 for 

production (copying and binding) of a four-volume “excerpts of record;” $804.34 the 

petitioners had charged the City for a copy of the record they prepared; $50,191.50 for 

paralegal time; $8,053.14 for City Planning Department time; and $1,480.36 for 

professional couriers. 

 

2

The City therefore made a demand for $1,764.80 in copying costs. Whether this 

was paid at the time, or whether it was included in the record preparation costs the City 

later claimed in its memorandum of costs, is unclear. 
5

Petitioners moved to tax costs. They maintained section 21167.6, subdivision 

(b)(2)—pursuant to which petitioners had prepared the record—precluded the recovery of 

any record preparation costs by the City. They also specifically objected to the City’s 

claimed costs related to the excerpts of record, paralegal and staff costs, and courier fees, 

and additionally claimed that, even if allowable, all the costs were unnecessary and 

unreasonable. In the latter regard, petitioners maintained the supplemental record played 

no meaningful role in the resolution of the writ petition. The City opposed the motion on 

all grounds. 

Following a hearing, the trial court (Judge Sullivan) issued an order granting the 

motion to tax and denying all costs. The court concluded petitioners were “not liable” for 

costs “under . . . section 21167.6(b)(2),” reasoning the City, not petitioners, sought to 

supplement the record and therefore the City should bear the cost of supplementation. 

Ancillary to this conclusion, the court concluded petitioners’ discovery requests were not 

“extraordinary” and not the “but for” cause of the City’s claimed costs. The court further 

concluded a cost award as large as the City sought would “certainly chill any desire by 

members of the general public to seek court review of important civic undertakings,”

observing petitioners had made neither a frivolous nor bad faith challenge to an 

“important” project. The City timely appealed.

III. DISCUSSION

A. Standard of Review

The standard of review applicable to a cost order depends on the issue raised on 

appeal. When the question is whether a claimed cost comes within the general cost 

statutes and is recoverable at all, the question is one of statutory interpretation, subject to 

de novo review. (Baker-Hoey v. Lockheed Martin Corp. (2003) 111 Cal.App.4th 592, 

597 [3 Cal.Rptr.3d 593].) Similarly, the interpretation of CEQA’s record preparation 

provisions set forth in Public Resources Code section 21167.6, subdivisions (a)–(f), 

presents a question of law subject to de novo review. (Hayward Area Planning Assn. v. 

City of Hayward (2005) 128 Cal.App.4th 176, 182 [26 Cal.Rptr.3d 783] (Hayward Area 

Planning).) Whether a cost item was reasonably necessary to the litigation, however, 
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“ ‘ “presents a question of fact for the trial court and its decision is reviewed for abuse of 

discretion.” ’ ” (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 71

[100 Cal.Rptr.3d 152] (Gorman), quoting Ladas v. California State Auto. Assn. (1993) 

19 Cal.App.4th 761, 774 [23 Cal.Rptr.2d 810].) Similarly, “ ‘[w]hether a particular cost 

to prepare an administrative record was necessary and reasonable is an issue for the 

sound discretion of the trial court.’ ” (California Oak Foundation v. Regents of the 

University of California (2010) 188 Cal.App.4th 227, 293–294 [115 Cal.Rptr.3d 631] 

(California Oak Foundation), quoting River Valley Preservation Project v. Metropolitan 

Transit Development Bd. (1995) 37 Cal.App.4th 154, 181 [43 Cal.Rptr.2d 501] (River 

Valley).) 

B. CEQA’s Record Preparation Statute (§ 21167.6) 

Public Resources Code section 21167.6 is one of several statutes spelling out the 

procedures for challenging a CEQA determination. (See Pub. Resources Code, §§ 21167 

et seq.) The statute applies to any CEQA challenge, whether brought as a traditional 

mandamus proceeding under Code of Civil Procedure section 1085 (Pub. Resources

Code, § 21168.5) or as an administrative mandamus proceeding under Code of Civil 

Procedure section 1094.5 (Pub. Resources Code, § 21168). It addresses both the 

preparation of the “record of proceedings” upon the commencement of an action (Pub. 

Resources Code, § 21167.6, subds. (a)–(f)) and the preparation of the “clerk’s transcript

on appeal” if an appeal is taken from the judgment in such an action (id., subd. (g)). (See 

Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48, 61,

fn. 4 [131 Cal.Rptr.3d 626] (Madera Oversight Coalition) [“[c]are must be taken to 

distinguish the administrative record (i.e., the ‘record of proceedings’) from the record on 

appeal”], disapproved on other grounds by Neighbors for Smart Rail v. Exposition Metro 

Line Construction Authority (2013) 57 Cal.4th 439, 457 [160 Cal.Rptr.3d 1, 304 P.3d 

499].) We are concerned here with the preparation of the record of proceedings.3

 

3

 The “record of proceedings” is often referred to as the “administrative record,” 

regardless of whether the challenge is brought as a traditional or administrative 

mandamus action. (Madera Oversight Coalition, supra, 199 Cal.App.4th at p. 61, fn. 4.)
7

Section 21167.6 provides flexibility as to how the record of proceedings is 

prepared. The traditional procedure is set forth in subdivision (a), which provides in 

pertinent part: “At the time the action or proceeding is filed, the plaintiff or petitioner 

shall file a request that the respondent public agency prepare the record of proceedings

. . . . The request, together with the complaint or petition, shall be served personally upon 

the public agency not later than 10 business days from the date that the action or 

proceeding was filed.” (§ 21167.6, subd. (a).) The statute also provides for other record 

preparation options to help reduce record preparation costs. Subdivision (b)(2), thus, 

provides: “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.” (§ 21167.6, subd. (b)(2); see generally St. Vincent’s 

School for Boys, Catholic Charities CYO v. City of San Rafael (2008) 161 Cal.App.4th

989, 1013–1014 [75 Cal.Rptr.3d 213] (St. Vincent’s School).) 

Additional specifics with respect to the handling of the record are set forth in 

subdivision (b)(1). It provides: “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. Upon certification, the public agency 

shall lodge a copy of the record of proceedings with the court and shall serve on the 

parties notice that the record of proceedings has been certified and lodged with the court. 

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).) Subdivision (c), in turn, provides the 60-day period for certification may be 

extended by stipulation of the parties or by court order. (Id., subd. (c).)

Thus, CEQA’s record preparation cost provision, in particular, appears at the end 

of the subdivision that begins by spelling out an agency’s 60-day certification obligation 

upon being served with a request to prepare the record (§ 21167.6, subd. (a)) or upon 

being provided with a record prepared by the petitioner or party or by some other, agreedto means (id., subd. (b)(2)). The cost provision, by its plain terms, places the costs an 
8

agency incurs in preparing the record on the parties, not the public agency. (Ibid.; see 

Black Historical Society v. City of San Diego (2005) 134 Cal.App.4th 670, 677–678 

[36 Cal.Rptr.3d 378] (Black Historical Society).) The rationale for doing so is that 

“ ‘taxpayers . . . should not have to bear the cost of preparing the administrative record in 

a lawsuit brought by a private individual or entity.’ ”

4

 (Black Historical Society, supra,

134 Cal.App.4th at p. 677, quoting River Valley, supra, 37 Cal.App.4th at p. 182.) 

Accordingly, a petitioner can be ordered to pay for a requested record during the 

early stages of the litigation, before the merits of the case are ever heard. (See, e.g., San 

Diego Citizenry Group v. County of San Diego (2013) 219 Cal.App.4th 1, 10 

[161 Cal.Rptr.3d 447] (San Diego Citizenry) [prior to merits hearing, the county “moved 

for an order determining and directing payment of” record preparation costs; court issued 

single ruling both denying relief on the merits and ordering reimbursement of record 

preparation costs]; Black Historical Society, supra, 134 Cal.App.4th at pp. 673, 677–678 

[when petitioner failed to pay agency’s record preparation costs after agency’s request 

that it do so, followed by a court order that it do so, trial court did not abuse its discretion 

in dismissing case for lack of prosecution].) Indeed, a public agency can refuse to release 

a record it has been asked to prepare until the petitioner making the request has paid the 

agency’s preparation costs. (Black Historical Society, at pp. 674, 677–678.) 

This does not mean a public agency can charge a petitioner or party whatever it 

wants for preparing the record. Section 21167.6, subdivision (f), mandates the “party 

preparing the record shall strive to do so at reasonable cost in light of the scope of the 

record.” (§ 21167.6, subd. (f); see generally St. Vincent’s School, supra, 161 Cal.App.4th

at pp. 1014–1019 [discussing the “cost-containment policy embodied in 

 

4

 In fact, in one of the earliest cases discussing an agency’s recoupment of record 

preparation costs under section 21167.6, the Court of Appeal affirmed the agency’s 

recovery of such costs and the denial of the petitioner’s motion to tax, even though the 

appellate court reversed the decision on the merits that had been in favor of the agency. 

The trial court had not, however, examined the reasonableness of the agency’s claimed 

costs and was directed to do so on remand. (Citizens for Quality Growth v. City of Mount 

Shasta (1988) 198 Cal.App.3d 433, 447–448 [243 Cal.Rptr. 727] (Citizens for Quality 

Growth).) 
9

section 21167.6”].) A petitioner can also, by interim motion, challenge an agency’s 

record preparation charge as excessive or unreasonable. (See, e.g., River Valley, supra, 

37 Cal.App.4th at pp. 164, 180–182 [during initial stages of the litigation, petitioner filed 

“motion to determine the costs of preparing the administrative record”].) Similarly, a 

petitioner can, by interim motion, challenge a record prepared by a public agency as 

being incomplete or as including documents not properly part of the record. (See, e.g., 

Citizens for Ceres v. Superior Court (2013) 217 Cal.App.4th 889, 900–901 [during early 

stages of litigation, petitioner filed objection to certified record claiming city’s exclusion 

of documents on attorney-client and work product grounds was erroneous; appellate court 

granted interlocutory writ review of trial court’s interim order and granted writ relief in 

part]; Madera Oversight Coalition, supra, 199 Cal.App.4th at pp. 63–66 [case 

management order specified record disputes were to be raised no later than merits 

briefing; petitioners then filed multiple requests that certified record be augmented, which 

trial court ruled on at same time it ruled on merits].)

With this overview of CEQA’s record preparation statute, we turn to the principal 

issue on appeal—whether petitioners’ election to prepare the record, themselves, under 

section 21167.6, subdivision (b)(2), precludes an award of record preparation costs to the 

City. 

C. A Petitioner’s Election to Prepare the Record Does Not Preclude a Public Agency 

From Recovering Supplemental Record Preparation Costs When Incurred to Ensure a 

Statutorily Complete Record

Petitioners maintain the whole point of CEQA’s alternative record preparation 

provisions is to avoid agency preparation costs, and, therefore, their election to prepare 

the record under section 21167.6, subdivision (b)(2), precludes any award of such costs to

the City. The trial court appears to have taken a more nuanced approach and concluded a 

petitioner’s election under subdivision (b)(2) precludes an agency from recovering record 

preparation costs except in “extraordinary” circumstances like those in St. Vincent’s

School. 

In St. Vincent’s School, the plaintiff also chose to prepare the record. (St. 

Vincent’s School, supra, 161Cal.App.4th at p. 1014.) To enable it to do so, the city was 
10

required to locate 2,208 documents, totaling more than 58,000 pages, which ultimately 

took up more than 20 boxes. (Id. at p. 1017.) Noting few e-mails were included, the 

plaintiff filed a Public Records Act (Gov. Code, § 6250 et seq.) request asking the city for 

“all writings evidencing or reflecting communications, stored on [any city] computer hard 

drive or server” relating to the property in question. (St. Vincent’s School, at p. 1017.) 

This required the city to review nine more boxes of materials. (Ibid.) After the city 

provided copies of all responsive, nonprivileged documents, the petitioner made yet 

another demand to inspect documents. (Id. at pp. 1017–1018.) Before this last set of 

demands was resolved, the plaintiff filed its merits brief in support of its writ petition. 

(Id. at p. 1018.) After the city prevailed on the merits, it sought and was awarded 

$26,362.50 in costs incurred in searching its computer files. (Id. at p. 1013.)

The Court of Appeal affirmed. It first addressed and rejected the same argument 

the plaintiffs make here—that because the plaintiff chose to prepare the record under 

subdivision (b)(2), the city was foreclosed from recovering any record preparation costs. 

(St. Vincent’s School, supra, 161 Cal.App.4th at pp. 1014–1019.) The court pointed out 

the city was not seeking to recover “the entire cost for preparation.” (Id. at p. 1014.) It 

further concluded disallowing the city’s costs would undermine the cost-containment 

policies embodied in section 21167.6, subdivision (f), and reward the petitioner for 

abusive document demands. (St. Vincent’s School, at pp. 1018–1019.) “St. Vincent’s 

actions, which caused the City to expend considerable time and resources in responding 

to its discovery demands, reflect a complete abandonment of its statutory responsibility to 

‘strive to [prepare the record] at reasonable cost.’ ” (Id. at p. 1019.) The appellate court 

thus concluded “section 21167.6 does not preclude an award of costs in favor of the 

City.” (Ibid.) It also concluded the trial court had not abused its discretion as to the 

amount awarded. (Ibid.) 

We agree with St. Vincent’s School that the fact a petitioner elects to prepare the 

record under section 21167.6, subdivision (b)(2), does not ipso facto bar the recovery of 

record preparation costs by a public agency. Subdivision (b)(2) contains no such 

prohibition. Moreover, that subdivision expressly refers to and incorporates the 60-day 
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period for record certification set forth in the first sentence of subdivision (b)(1). 

(§ 21167.6, subd. (b)(2).) Thus, the two subdivisions are inter-related. The record 

preparation cost provision—specifying the parties, not the public agency, are to pay for 

the record—is, as we have discussed, set forth in the third and final sentence of 

subdivision (b)(1) and, significantly, does not refer to any particular means by which the 

record is prepared. (Id., subd. (b)(1).) Finally, as St. Vincent’s School recognized, the 

fact a petitioner makes an election to proceed under subdivision (b)(2), does not mean the 

agency will never, under any circumstances, incur record preparation costs. 

The trial court appears to have read St. Vincent’s School as identifying the only 

circumstance in which an agency can recoup record preparation costs where the petitioner 

has chosen to prepare the record under subdivision (b)(2), i.e., where the petitioner has 

made “extraordinary” production demands purportedly in connection with its preparation

of the record. The appellate court did not suggest, however, it was doing anything other 

than addressing the particular circumstances before it. We therefore do not read St. 

Vincent’s School as drawing the bounds of an agency’s recovery of record preparation 

costs where the petitioner has opted to prepare the record under subdivision (b)(2). 

There is no question the alternative record preparation procedures authorized by 

section 21167.6, subdivision (b)(2), are intended to reduce record preparation costs. (See 

generally Hayward Area Planning, supra, 128 Cal.App.4th at pp. 183–184 [discussing 

cost control provisions of § 21167.6].) 

But just as a record prepared by an agency at the request of a petitioner under 

subdivision (a) must be complete, so, too, must a record prepared by alternative means 

under subdivision (b)(2). (See § 21167.6, subd. (e); see Madera Oversight Coalition, 

supra, 199 Cal.App.4th at p. 62 [“[r]egardless of which [record preparation] method is 

chosen, the administrative record is ‘subject to certification of its accuracy by the public 

agency’ ” quoting § 21167.6, subd. (b)(2)].) When a record prepared under 

subdivision (b)(2) is incomplete, and an agency is put to the task of supplementation to 

ensure completeness, the language of the statute allows, and the purpose of the record 
12

preparation cost provision to protect public monies counsels, that the agency recoup the 

costs of preparing the supplemental record.

CEQA is clear about what the record must contain—it “shall include,” at a 

minimum, the documents enumerated in section 21167.6, subdivision (e). (See San 

Diego Citizenry, supra, 219 Cal.App.4th at pp. 26–27 [subdivision (e) specifies the 

materials “required” to be in the record].) This “language is mandatory—all items 

described in any of the enumerated categories shall be included in the administrative 

record.” (Madera, supra, 199 Cal.App.4th at p. 63; see also Eureka Citizens for 

Responsible Government v. City of Eureka (2007) 147 Cal.App.4th 357, 366 

[54 Cal.Rptr.3d 485] [“content of administrative records in CEQA proceedings is 

governed by . . . section 21167.6, subdivision (e)”].) 

We see no reason why parties cannot agree to a smaller (and thus less expensive)

record if it will provide the court with all the materials relevant to the issue(s) raised by 

the petitioner. (See § 21167.6, subds. (b)(2) [“the parties may agree to an alternative 

method of preparation of the record of proceedings”], (f) [“party preparing the record 

shall strive to do so at reasonable cost in light of the scope of the record”]; 2 Kostka & 

Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2014) § 23.73, 

p. 23-86 [“parties should consider stipulating to exclude extraneous documents from the 

record”].) 

However, where no such agreement is reached, a public agency is not required to 

put itself at risk of a statutorily incomplete record. (See County of Orange v. Superior 

Court (2003) 113 Cal.App.4th 1, 13 [6 Cal.Rptr.3d 286] [“when it comes to the 

administrative record in a CEQA case, any reduction in its contents is presumptively 

prejudicial to project proponents,” as it is they “who will be saddled with the task of 

pointing to things in the record to refute asserted inadequacies in the EIR”], italics 

omitted; Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 373

[1 Cal.Rptr.3d 726] [“The consequences of providing a record to the courts that does not 

evidence the agency’s compliance with CEQA is severe—reversal of project approval.”]; 

Madera, supra, 199 Cal.App.4th at p. 75; Friends of Lagoon Valley v. City of Vacaville
13

(2007) 154 Cal.App.4th 807, 834 [65 Cal.Rptr.3d 251] [“Because it risked reversal of the 

Project’s approval if the record lacked supporting evidence, Triad properly took pains to 

ensure the court was provided with a complete record of all relevant proceedings.”].)

Here, the City offered to defer supplementation of the record until it filed its 

opposition to the writ petition, since only then would it know with certainty what 

additional materials, if any, were pertinent to its defense of the project approval. 

Petitioners, however, rejected this suggestion and, instead, insisted the record be fixed 

before they filed their opening merits brief. 

Moreover, the City did not unilaterally prepare a supplemental record. Rather, it 

filed a motion for leave to do so, identifying the documents it intended to include. 

Petitioners filed opposition, making some of the same arguments they have made in 

opposition to the City’s claimed record preparation costs. The trial court granted the 

City’s motion, but not entirely, excluding from the supplemental record documents that 

essentially duplicated documents already included in the record petitioners had prepared. 

As to the documents the trial court allowed, it expressly found they were statutorily 

required to be in the record under section 21167.6, subdivision (e). The court also 

expressly found the City’s preparation of a supplemental record to include these 

documents did not violate the City’s obligation under subdivision (f) to minimize record 

preparation costs. In our prior opinion we affirmed the court’s supplementation order, 

including on the ground petitioners failed to carry their burden on appeal to demonstrate 

error. (Coalition for Adequate Review v. City and County of San Francisco, supra, 

A131487.) 

Under these circumstances, we have no trouble concluding the City was 

effectively put to the task of preparing a statutorily complete record and, therefore, may 

recover its reasonable costs of preparing the supplemental record.

5

 

5

 At oral argument, petitioners argued that, in light of their election to prepare the 

record under subdivision (b)(2), the City improperly moved to prepare a supplemental 

record and, instead, should have moved for an order directing petitioners to prepare the 

desired supplement. Petitioners never made this assertion in the trial court. While they 
14

The trial court also denied record preparation costs on the ground a sizeable cost 

award “would certainly chill any desire by members of the general public to seek court 

review of important civic undertakings.” The court’s “chill” analysis would pertain to 

any CEQA challenge, whether brought as a traditional or administrative mandamus case, 

since both are employed to challenge “important” civic projects. Yet, Public Resources 

Code section 21168, by referencing Code of Civil Procedure section 1094.5, expressly 

provides for the prevailing party in a CEQA administrative mandamus proceeding to 

recover the costs of record preparation. (See Wagner Farms, Inc. v. Modesto Irrigation 

Dist. (2006) 145 Cal.App.4th 765, 772–773 [52 Cal.Rptr.3d 683] (Wagner Farms) 

[discussing fact Code of Civil Procedure section 1094.5, pertaining to administrative 

mandamus, expressly provides for the prevailing party to recover record preparation 

costs, but section 1085, pertaining to ordinary mandamus, does not].) Thus, CEQA, 

itself, refutes a general “chill” rationale to deny record preparation costs to a public 

agency. (See also San Diego Citizenry, supra, 219 Cal.App.4th at p. 11 [affirming 

agency’s request for record preparation costs and quoting trial court’s observation that 

“ ‘[g]roups like petitioner are free to exercise their petition rights, but as has been often 

said in other contexts, freedom is not free’ ”].) Furthermore, as we have discussed, 

section 21167.6, subdivision (b)(1), expressly provides that the parties, not the public 

agency, are to pay record preparation costs. This statutory obligation implements a 

 

opposed the City’s motion to file a supplemental record on numerous grounds, they never 

argued the City was asking for inappropriate relief and never claimed, if the trial court 

was inclined to allow a supplemental record, they should be the ones to prepare it. Nor 

do either of the cases petitioners cited at oral argument—Madera Oversight Coalition,

supra, 199 Cal.App.4th 48, and Leavitt v. County of Madera (2004) 123 Cal.App.4th 

1502 [22 Cal.Rptr.3d 101] (Leavitt)—suggest the City should have sought an order 

directing petitioners to prepare the supplemental record. As we have discussed, Madera 

Oversight Coalition generally discusses the trial court’s power to resolve record disputes. 

(Madera Oversight Coalition, supra, 199 Cal.App.4th at pp. 63–64.) Leavitt recognizes a 

trial court can impose terminating sanctions when a petitioner undertakes but fails to 

complete the record preparation process, but only if “given an opportunity to comply.” 

(Leavitt, supra, 123 Cal.App.4th at p. 1526.) Neither case even suggests a public agency 

cannot, itself, take action to ensure a statutorily complete record where, as here, the 

petitioner disputes the agency’s assessment that the record is incomplete. 
15

different, but equally important policy—that public monies should not be used to fund 

CEQA challenges brought by private parties. (See Black Historical Society, supra, 

134 Cal.App.4th at p. 677; River Valley, supra, 37 Cal.App.4th at p. 182.) This policy is 

all the more compelling where, as here, a private party loses its CEQA challenge on the 

merits. 

We thus conclude the trial court erred in its interpretation of CEQA’s record 

preparation statute and reverse that portion of the order denying supplemental record 

preparation costs to the City, and remand for further proceedings. 

D. Specific Cost Items

In addition to insisting their election to prepare the record under section 21167.6, 

subdivision (b)(2), constituted a bar to the City’s recovery of supplemental record 

preparation costs, petitioners also challenged the reasonableness of the City’s claimed 

costs. Because the trial court denied costs entirely, it did not consider the reasonableness 

of the City’s claimed costs. On remand, it must exercise its discretion in this regard.

(See Wagner Farms, supra, 145 Cal.App.4th at pp. 772–773; Citizens for Quality 

Growth, supra, 198 Cal.App.3d at p. 448.) To provide further guidance on remand, we 

turn to specific cost items sought by the City.6

Paralegal Costs Related to Supplemental Record

In addition to the costs of copying, binding, and page numbering the supplemental 

record, the City seeks approximately $50,000 for over 300 hours of paralegal time (at a 

rate of between $159 to $165 per hour) in connection with preparing the supplemental 

record. The City submitted billing records showing time spent reviewing the record 

prepared by petitioners for certification, reviewing other materials for inclusion in a 

supplemental record, organizing those documents, preparing an index, working with 

vendors on the supplemental record, and meeting with attorneys. 

 

6

 Petitioners may not, on remand, challenge the reasonableness of the contents of 

the supplemental record and contend any of the documents need not have been included. 

As we have discussed, the trial court long ago determined the materials included in the 

supplemental record were statutorily required under section 21167.6, subdivision (e), and 

that determination has been affirmed on appeal. 
16

The City may claim reimbursement for reasonable labor costs required to prepare 

the supplemental record. (See California Oak Foundation, supra, 188 Cal.App.4th at 

pp. 293–295 [affirming $46,563 in costs for “labor in compiling the record,” including 

paralegal time; university personnel “retrieved, reviewed, organized, and indexed over 

40,000 pages of documents”]; River Valley, supra, 37 Cal.App.4th at pp. 181–182 

[affirming costs for time spent by assistant transportation engineer and paralegal 

reviewing and compiling documents].) 

However, we have been cited no authority, nor are we aware of any, indicating 

labor costs to review a petitioner-prepared record of proceedings “for completeness” in 

connection with certification pursuant to section 21167.6, subdivision (b)(1), are 

recoverable record preparation costs. This sort of review is a chore public agencies face 

in every case in which the petitioner elects to prepare the record under subdivision (b)(2), 

and if an agency could always claim a sizeable amount for review “for completeness” or 

“certification,” that would defeat the Legislature’s aim of providing for lower-cost record 

preparation alternatives. (§ 21167.6, subds. (b)(2), (f); cf. Hayward Area Planning, 

supra, 128 Cal.App.4th at pp. 183–186 [denying city’s claimed record preparation costs 

because delegating preparation to real party in interest “undermined the statutory scheme 

for controlling the costs of record preparation”].) Additionally, record review “for 

completeness” can easily blur into review for strategy, implicating the kind of attorney 

fee award neither authorized nor sought here. (See Wagner Farms, supra,

145 Cal.App.4th at p. 779 [drawing distinction between time agency employees spent 

that was “necessary for preparation” of record and time “that went beyond that merely 

related to prepar[ation],” such as preparing the agency’s own case].) 

Because the trial court denied record preparation costs entirely, it did not review 

the City’s claimed paralegal costs to determine which of these costs were for work 

reasonably required to prepare the supplemental record (e.g., locating, copying, indexing, 

and assembling documents) and are recoverable, and which were for review of the record 

petitioners prepared “for completeness” and are not recoverable. On remand, the trial 

court will need to make this determination. (See Wagner, supra, 145 Cal.App.4th at 
17

p. 779 [where claimed labor costs could not be segregated between time attributable to 

preparing record and other tasks, matter was remanded for further proceedings].) 

Costs to Retrieve Documents to Prepare Record 

The City also seeks approximately $392 for messenger costs for transporting 

record materials between the City’s planning department and City Hall. To the extent 

these retrieval costs were incurred, as the City asserts, in compiling the supplemental 

record, we discern no material difference between these costs and other labor costs of 

assembling the record, and they are recoverable. (See California Oak Foundation, 

supra,188 Cal.App.4th at pp. 294–295 [affirming costs for retrieving documents “located 

in many departments throughout the campus”].) But because the trial court denied costs 

entirely, it also did not review the reasonableness of the City’s claimed retrieval costs. 

On remand, the trial court will need to make this determination. (See Wagner, supra,

145 Cal.App.4th at p. 779.) 

Planning Department Labor Costs to Locate Documents Provided to Petitioners

The City additionally seeks $8,053.12 for staff time spent responding to 

petitioners’ request for “all files relating to all projects . . . within the Market-Octavia 

project area.” The City maintains this document request was not reasonably related to 

petitioners’ efforts to prepare the record, themselves, under section 21167.6, subdivision

(b)(2), petitioners therefore violated their statutory obligation under subdivision (f) to 

limit record preparation costs, and the City should, accordingly, recover its production 

costs under St. Vincent’s School. 

The trial court found, however, petitioners’ document request did not approach the 

egregious abuse that occurred in St. Vincent’s School, thus implicitly finding petitioners 

did not “abandon[ their] statutory duty to contain costs.” (See St. Vincent’s School, 

supra, 161 Cal.App.4th at p. 1018.) The court’s determination in this regard is 

adequately supported by the record. In St. Vincent’s School, after the city produced 20 

boxes of material, the petitioner subjected the city “to a costly and lengthy process of 

trawling through its entire computer system”—“not because it had identified any ‘gaps’ 

in the voluminous planning documents” the city had produced, but because it was “not 
18

satisfied with the number of emails” in the 20 boxes. (Id. at p. 1018.) Even after the city 

combed its computer systems, the petitioner remained dissatisfied because the few 

additional e-mails the city produced were almost entirely nonsubstantive and duplicative. 

(Ibid.) So, the petitioner made yet a further demand. At the same time, it was able to file 

the record and its merits brief, without ever receiving the supposed trove of e-mails it 

maintained must exist. (Id. at pp. 1017–1018.) Here, in contrast, petitioners made their

document request at the outset of the litigation, during the time they were gathering 

together materials to prepare the record. The trial court reasonably distinguished St. 

Vincent’s School and did not abuse its discretion in denying the City’s document 

production costs claimed pursuant to the reasoning of that case.7

Production of “Excerpts of Record”

The City seeks $382.32 for copying and binding a four-volume “Excerpts of 

Record.” The excerpts were copies of selected materials in the record of proceedings, 

and were proffered as an aide to the trial court. We conclude an “excerpt of record” in a 

mandamus action can qualify as a photocopy of an exhibit under Code of Civil Procedure 

section 1033.5, subdivision (a)(13) (allowing costs of “[m]odels and blowups of exhibits” 

and “photocopies of exhibits” if “they were reasonably helpful to aid the trier of fact”), 

since it can serve the same purpose—to direct the trial court’s attention to material the 

party maintains is especially relevant. (See Chaaban v. Wet Seal, Inc. (2012) 

203 Cal.App.4th 49, 59 [136 Cal.Rptr.3d 607] [while “evidence was presented to the jury 

through audiovisual equipment,” party objecting to exhibit costs “overlook[ed] the fact 

that counsel (for both sides), the witnesses, and the judge all used paper exhibits, in trial 

binders” without which “it would have been even more difficult to conduct this trial than 

it already was”].) 

 

7

 We therefore need not, and do not, consider petitioners’ alternative argument 

that the City cannot recover its production costs because petitioners sought these 

documents under the Public Records Act, under which a governmental entity is not 

entitled to recover production costs. 
19

Since the trial court denied costs entirely, it did not review the City’s claimed 

costs of preparing the “Excerpts of Record” and, thus, did not make any determination as 

to its helpfulness to the court or reasonableness under Code of Civil Procedure 

section 1033.5, subdivisions (a)(13). On remand, the trial court will need to make this 

determination. 

City’s Copy of Record Prepared by Petitioners

The city also seeks $804.35 it paid petitioners for a copy of the record petitioners 

prepared and submitted to the City. Petitioners state that after they provided the City 

with their record for certification and submission to the trial court, the City asked to keep 

it. Petitioners agreed, but charged the City the cost of making another copy for the court. 

Code of Civil Procedure section 1033.5, subdivision (c)(4), allows cost items not 

listed in subdivision (a) “in the court’s discretion”. (Code Civ. Proc., § 1033.5, subd. 

(c)(4).) Since the trial court denied costs entirely, it did not review the City’s claimed 

cost of procuring a copy of the record prepared by petitioners. On remand, the court will 

need to consider the City’s claim and exercise its discretion. (See Wagner Farmers, 

supra, 145 Cal.App.4th at pp. 776–777 [affirming trial court’s exercise of its discretion in 

allowing as “reasonably necessary,” agency’s costs of preparing five copies of record, 

including copies for itself, its outside counsel and its environmental consultant].) 

Overnight Service Costs

The City additionally seeks approximately $1,090 for express delivery, postage 

costs, and messenger costs for court filings. Postage and express delivery costs are 

expressly disallowed as costs under Code of Civil Procedure section 1033.5, subdivision 

(b). (Gorman, supra, 178 Cal.App.4th at p. 75.) “Messenger fees,” though “not 

expressly authorized by statute . . . may be allowed in the discretion of the court” under 

Code of Civil Procedure section 1033.5, subdivision (c)(4). (See Foothill-De Anza 

Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 30 [69 Cal.Rptr.3d 678]

[costs of messenger court filings].) 
20

Since the trial court denied costs entirely, it did not review the City’s claimed 

messenger costs for court filings. On remand, the court will need to consider this cost 

item and exercise its discretion.

DISPOSITION

The order granting petitioners’ motion to tax costs is affirmed to the extent it 

denied the City’s claimed costs for responding to petitioners’ document request, and for 

postage and express delivery. In all other respects the order is reversed and the matter 

remanded for further proceedings consistent with this opinion. The parties shall bear 

their own costs on appeal. 
21

_________________________

Banke, J.

We concur:

_________________________

Margulies, Acting P. J.

_________________________

Dondero, J.

A135512, Coalition for Adequate Review v. City and County of San Francisco
22

Trial Judge: Honorable Donald J. Sullivan

Trial Court: San Francisco City & County Superior Court

Mary Miles and Law Office of Alexander Henson and Alexander T. Henson for the 

Plaintiff and Respondent.

Dennis J. Herrera, City Attorney, Kristen A. Jensen, Susan Cleveland-Knowles and 

Andrea Ruiz-Esquide, Deputy City Attorneys for Defendant and Appellant.