Filed 7/28/16

                       CERTIFIED FOR PUBLICATION


         IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SIXTH APPELLATE DISTRICT


NO TOXIC AIR, INC.,                                H040047

        Plaintiff and Respondent,
                                                  (Santa Clara County
        v.                                         Super. Ct. No. 1-11-CV201900)

LEHIGH SOUTHWEST CEMENT
COMPANY et al.,

        Defendants and Appellants.



        The Permanent Quarry (Quarry) is a 3,510 acre surface mining operation
producing limestone and aggregate for the manufacture of cement, and is located
in an unincorporated area of Santa Clara County. The Quarry has been in
existence since 1903, and is currently owned by Lehigh Southwest Cement
Company and Hanson Permanente Cement (collectively “Lehigh”).
        At issue in this case, is the Santa Clara County Board of Supervisors’
(County) 2011 resolution finding that the Quarry’s surface mining operations are a
legal nonconforming use.
        No Toxic Air, Inc. (No Toxic Air) is a non-profit organization that
represents residents of Santa Clara County. No Toxic Air filed a petition for
peremptory writ of mandate challenging the County’s March 1, 2011 resolution
granting Lehigh legal nonconforming use status.
       The trial court denied No Toxic Air’s writ petition, affirming the County’s
resolution. No Toxic Air appealed the denial of the petition, arguing that the
County’s determination that the Quarry’s surface mining rights were vested, and
therefore eligible for legal nonconforming use status, was not supported by the
evidence in the administrative record. We affirmed the decision of the trial court
in No Toxic Air, Inc. v. Lehigh Southwest Cement Company et al. (Jul. 28, 2016,
H039547) [nonpub. opn.].
       In this appeal, Lehigh challenges the trial court’s grant in part of No Toxic
Air’s motion to tax costs associated with the preparation of the administrative
record in the mandate proceedings. Lehigh asserts that as the prevailing party in
the mandate proceedings, it is entitled to recoup costs associated with the
preparation of the administrative record, including labor costs of paralegals and
attorneys to assemble the record. We reverse the decision of the trial court.
                              STATEMENT OF FACTS
       The Quarry is located at the end of Permanente Road, which is the
continuation of Stevens Creek Road in unincorporated Santa Clara County near
the western border of the City of Cupertino. Since 1903, the Quarry has been
conducting a surface mining operation producing limestone and aggregate.
       In 1939, The Permanente Corporation (Permanente) purchased the Quarry
property, which at that time consisted of approximately 1,300 acres. In the same
year, Permanente received a use permit from the County to construct and operate a
cement factory next to the Quarry, using limestone produced from the Quarry.
This use permit remains in effect.
       From the date of the original purchase in 1939, Permanente expanded the
Quarry’s operations, opening new mining areas on the property, and acquiring
adjacent parcels. At the time of the County’s vesting determination in 2011, the
Quarry had grown to 3,510 acres consisting of 19 separate parcels.
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       In January 1948, Santa Clara County zoning ordinances went into effect
that required use permits for mining operations such as those conduced at the
Quarry. By this time, the Quarry was running large scale operations on the
property such as mineral extraction, overburden1 disposal and storage, conveyor
systems operations and material processing. During the period between 1948 and
2011 when the County made its vesting determination, Permanente did not seek a
use permit for its Quarry operations, and the County did not enforce the zoning
ordinances to require the Quarry to acquire a permit.
       In fall of 2010, Lehigh, which had become a subsequent owner of the
Quarry, applied to the County for a declaration that the mining operations at the
Quarry qualified as a legal nonconforming use. In response to the application, the
County conducted an investigation of the history of mining operations at the
Quarry. The County held a public hearing on February 8, 2011, where it
considered records supplied by County staff, and Lehigh, and heard comments
from the public. At the end of the hearing, the County concluded that the mining
activities at the Quarry qualified as a legal nonconforming use.
       The County’s decision was finalized in a resolution issued on
March 1, 2011. In determining vesting of areas of the Quarry, the County used a
mapping system that divided the land into 19 parcels. The County concluded that
vested rights to conduct surface mining operations existed as to 13 of the 19 total
parcels that make up the Quarry; the County found that there were no vested rights
as to the six parcels numbered 4, 10, 13, 18 and 19. In addition, the County found
that January 28, 1948 was the first date that the County could have required
Permanent to secure a conditional use permit under zoning ordinances in place at

       1
         Overburden in mining is the “material overlying a deposit of useful
geological materials or bedrock.” (Merriam-Webster 10th Collegiate Dict. (2001)
p. 826.)
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that time. Finally, the County also found that Permanente Road was not a public
street within the meaning of the original zoning ordinance adopted in 1937,
because the road was closed to public traffic in 1935, and surface mining
operations began on Quarry property before 1937.
       In May 2011, No Toxic Air filed a petition for a peremptory writ of
mandate pursuant to Code of Civil Procedure section 1094.5, challenging the
Board’s March 1, 2011 Resolution. The court denied the writ, and entered
judgment in favor of the County and Lehigh. On April 22, 2013, No Toxic Air
filed a Notice of Appeal.
       Following the trial court’s denial of No Toxic Air’s petition for peremptory
writ of mandate, Lehigh filed a memorandum of costs, seeking to recoup its labor
costs for using attorneys and paralegals to assemble the administrative record.
The costs did not include attorney fees for the litigation of the writ petition.
       No Toxic Air filed a motion to tax costs seeking to strike the labor costs for
Lehigh’s attorneys and paralegals. No Toxic Air argued that Lehigh’s labor costs
were impermissible attorney fees, and were not recoverable pursuant Code of Civil
Procedure section 1033.5. Lehigh asserted that the labor costs were expenses
associated with preparation of the administrative record, and as a result, were
properly recoverable under Code of Civil Procedure section 1094.5,
subdivision (a).
       The court granted No Toxic Air’s Motion to Tax Costs with respect to
Lehigh’s labor costs of its paralegal and attorneys to assemble and organize the
administrative record. The court denied the motion on all other grounds. The
court stated: “In this particular case, I think the fees were reasonable. I think they
were necessary and essential. I just couldn’t find an appellate decision that would
support me.”


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       Lehigh filed a notice of appeal following the trial court’s grant of No Toxic
Air’s motion to tax costs.
                                    DISCUSSION
       Lehigh asserts that the trial court erred in granting No Toxic Air’s motion
to tax costs to strike the attorney and paralegal expenses Lehigh incurred to
prepare the administrative record for the writ of mandate proceedings.
Code of Civil Procedure section 1094.5, subdivision (a) provides, in relevant part,
“[i]f the expense of preparing all of any part of the record has been borne by the
prevailing party, the expense shall be taxable as costs.” (Code Civ. Proc.,
§ 1094.5, subd. (a).)
       “Whether a particular cost to prepare an administrative record was
necessary and reasonable is an issue for the sound discretion of the trial court.
[Citations.] Discretion is abused only when, in its exercise, the court ‘exceeds the
bounds of reason, all of the circumstances being considered.’ [Citation.] The
appellant has the burden of establishing an abuse of discretion.” (River Valley
Preservation Project v. Metropolitan Transit Development Board (1995) 37
Cal.App.4th 154,181 (River Valley).) Where “the determination of whether costs
should be awarded is an issue of law on undisputed facts, we exercise de novo
review.” (City of Long Beach v. Stevedoring (2007) 157 Cal.App.4th 672, 678.)
       Here, the trial court specifically found that the labor costs for the attorneys
and paralegals were reasonable, and necessary for the compilation of the large
administrative record. However, the court decided not to award the fees, because
it was constrained by the lack of an appellate decision allowing such an award.
The court noted: “I want to say that as far as the attorney’s fees that were charged
for this extraordinarily large record, I don’t understand how either party could
really adequately prepare a transcript without legal—without having the attorneys
be part of that. It would not have been possible. I think it was not just necessary,
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it was essential. It is only the caution of having no appellate decision. [¶] In this
particular case, I think the fees were reasonable. I think they were necessary and
essential. I just couldn’t find an appellate decision that would support me.”
       Lehigh notes that parallel California Environmental Quality Act (CEQA)
case law supports its interpretation of Code of Civil Procedure section 1094.5,
subdivision (a) allowing the recovery of costs associated with the production of
the administrative record. Specifically, Lehigh notes that under the CEQA
provision found in Public Resources Code section 21167.6, subdivision (b)(1),
courts awarded labor costs to the prevailing party in an administrative action (see,
e.g., River Valley, supra, 37 Cal.App.4th 154, 181; [allowing recovery of labor
costs of paralegal and engineer to prepare an administrative record]; see also
California Oak Foundation v, Regents of University of California (2010) 188
Cal.App.4th 227, 294-295 [implying that the labor costs of attorneys may also be
recoverable]; Wagner Farms, Inc. v. Modesto Irr. Dist. (2006) 145 Cal.App.4th
765, 778-779 [discussing the cost of labor to assemble and organize the record of
proceedings as costs].)
       Since the filing of the briefs in this case, the Fourth District Court of
Appeal definitively ruled on the issue of the recovery of the labor costs of
attorneys and paralegals in the creation of the administrative record in Otay
Ranch, L.P. v. Count of San Diego (2014) 230 Cal.App.4th 60 (Otay Ranch). In
Otay Ranch, the county undertook to prepare the administrative record in a CEQA
action. Initially, it sought the help of experienced paralegals, document clerks and
an electronic record vendor to complete the task. However, as the project
progressed, the county found that the complexity of the documents necessitated
the assistance of attorneys to review and organize the final complete record. (Id.
at p. 65)


                                           6
       At the conclusion of the case, the county submitted a memorandum of costs
requesting reimbursement of the labor costs for attorneys and paralegals to prepare
the administrative record. Otay Ranch filed a motion to tax costs as to the attorney
and paralegal expenses, arguing that these were attorney fees not authorized by
contract, statute or other law. The trial court denied the motion to tax costs,
finding that the labor costs were reasonably incurred for the production of the
record, and that because labor costs are otherwise recoverable, the same result
should apply to costs for attorneys. The Court of Appeal affirmed the trial court,
stating: “[W]e see no reason to differentiate between those actual labor costs and
actual labor costs for agency staff and document clerks to prepare an
administrative record. Nor do we see a reason to differentiate between labor costs
incurred by individuals directly employed by a public agency and those incurred
by individuals employed by a private law firm retained by the agency, so long as
the trial court determines, as it did here, the labor costs were reasonably and
necessarily incurred for preparation of the administrative record. To hold
otherwise would undermine the statutory policy of shifting the costs and expenses
of preparing an administrative record away from the public and to the private
individual or entity bringing the lawsuit. (Code Civ. Proc., §§ 1094.5, subd. (a),
1094.6, subd. (c); see River Valley, supra, 37 Cal.App.4th at p. 182.).” (Otay
Ranch, (supra) 230 Cal.App.4th at 70-71.)
       Although Otay Ranch is a CEQA action, the rationale for the recovery of
attorney labor costs is equally applicable to the present case. Here, Lehigh argues,
as did Otay Ranch, that the costs associated with attorney labor are not recoverable
because they are attorney fees not covered by contract, statute or other law.
However, the labor costs for attorneys and paralegals should be considered the
same as other labor costs incurred to create the administrative record. Moreover,


                                          7
here, the trial court found that the attorney and paralegal labor costs were
reasonable and appropriate for the complexity and size of the record.
       Here, the trial court granted No Toxic Air’s motion to tax costs only
because it found that there was no appellate authority allowing the recovery of
attorney labor costs. Following the rationale of Otay Ranch, we hold that labor
costs for attorneys and paralegals to prepare the administrative record are
recoverable as expenses under Code Civil Procedure, section 1094.5, subd. (a).
                                    DISPOSITION
       We reverse the order of the trial court granting No Toxic Air’s motion to
tax costs.
       Costs are awarded to Lehigh.




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      ______________________________________
                                                   RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           ELIA, J.




No Toxic Air, Inc. v. Lehigh Southwest Cement Company et al.
H040047



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Trial Court:                              Santa Clara County Superior Court
                                          Superior Court No.: 1-11-CV201900


Trial Judge:                              The Honorable Diane Ritchie




Attorneys for Defendants and              Harrison, Temblador, Hungerford &
Appellants Lehigh Southwest               Johnson
Cement et al.:
                                          Mark D. Harrison
                                          Sean K. Hungerford
                                          Adam K. Guernsey




Attorneys for Plaintiff and Respondent    Law Offices of Stuart M. Flashman,
No ToxicAir, Inc.:
                                          Stuart M. Flashman




No Toxic Air, Inc. v. Lehigh Southwest Cement et al.
H040047




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