Filed 6/28/18; pub. & mod. order (see end of opn.)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                                 DIVISION SIX


LANDWATCH SAN LUIS                                 2d Civil No. B281823
OBISPO COUNTY,                                 (Super. Ct. No. 14CVP-0258)
                                                 (San Luis Obispo County)
     Plaintiff and Appellant,

v.

CAMBRIA COMMUNITY
SERVICES DISTRICT,

     Defendant and Respondent.


      A nonprofit organization petitioned for a writ of
administrative mandate against a public agency. The
organization elected to prepare the administrative record. But
because of delays, the agency prepared the record. The agency
prevailed and moved for costs that included the costs of preparing
the administrative record and an appendix. The trial court found
the agency acted properly in preparing the record and appendix.
The organization appeals the costs awarded to the agency. We
affirm.
                                 FACTS
       The Cambria Community Services District (District)
approved an emergency water supply project on January 30,
2014. The resolution approving the project included a resolution
that the project is exempt from the California Environmental
Quality Act (CEQA). The District issued a notice of exemption on
September 9, 2014.
       On October 14, 2014, LandWatch San Luis Obispo County
(LandWatch) filed a petition for writ of administrative mandate.
The petition alleged that the District in approving the project
failed to comply with CEQA. (Pub. Res. Code, § 21000 et seq.)1
LandWatch elected to prepare the administrative record subject
to the District’s certification of its accuracy. (Id., § 21167.6, subd.
(b)(2).)
       On October 10, 2014, in anticipation of the need to prepare
an administrative record, LandWatch sent the District a request
pursuant to the California Public Records Act. The request was
for all public documents relating to the approval of the project
and the Notice of Exemption. The District responded with
documents in November 2014.
       In December 2014, the District notified LandWatch it had
additional documents that would be mailed upon the payment of
$34.80 in costs. LandWatch did not request the additional
documents until March 2015. The District had to re-gather the
documents. It produced them in April 2015.
       It was not until August 2015 that LandWatch presented a
draft administrative record index to the District. In the
meantime, due to the pending lawsuit, the County of San Luis

      1All statutory references are to the Public Resources Code
unless otherwise stated.




                                  2.
Obispo was refusing to release $4.3 million in grant funds
awarded for the project. The delay in resolving the lawsuit was
putting the District in financial distress.
       On August 19, 2015, the District wrote to LandWatch that
the draft index was both overinclusive and underinclusive. The
index was underinclusive in that it failed to include the January
30, 2014, resolution approving the project. The District claimed
the index was overinclusive because it included documents
created after the January 30, 2014, approval date. Review of the
project approval is limited to information the District had on the
January 30, 2014, date of approval. The letter ended by stating
that in order to expedite the process of preparing the record, the
District prepared a new index and was proceeding with certifying
the record immediately. The District certified the record the
same day.
       LandWatch brought a motion for an order to include
documents in the administrative record beyond January 30, 2014.
On December 3, 2015, the trial court ruled:
       “Despite Landwatch’s election to prepare the
administrative record itself, the District, because of time delays,
took it upon itself to prepare and certify the administrative
record which includes all documents up until January 30, 2014,
when the District contends that it approved the Project and
determined it was exempt from CEQA. Pursuant to Public
Resources Code § 21167.6(b), the District as the lead agency is
ultimately responsible for certifying the accuracy of the
administrative record such that there is no impropriety in the
District taking the initiative to complete preparation of the
record. [¶] . . .




                                3.
       “[T]he Court orders that the supplemental records and
documents requested by Landwatch shall be certified by the
District and included in a separate appendix to the previously
certified administrative record.”
       The District waited for three weeks for LandWatch to
provide it with the documents LandWatch wanted certified for
the appendix. Finally, on February 5, 2016, the District wrote
LandWatch demanding that the documents be produced
immediately. The letter warned that if LandWatch did not
produce the documents by February 10, 2016, the District would
prepare the supplemental appendix itself. The reason for the
urgency was that trial was set for March 23, 2016, and the
parties needed time for briefing.
       When on February 10, 2016, the District had not heard
from LandWatch, the District began preparing the supplemental
appendix on its own. The District completed the process on
February 17, 2016, and gave it to its clerk to review and certify.
       The District did not hear from LandWatch until February
19, 2016, when it received an email stating for the first time that
LandWatch was working on its own version of the appendix.
       At this point the District was unwilling to start over.
LandWatch brought a motion asking the court to reject the
appendix certified by the District and order LandWatch’s
appendix certified instead. The trial court denied the motion
finding that the District complied with the court’s prior ruling.
       Ultimately the trial court denied LandWatch’s petition for
administrative mandate. The court found the project was
approved on January 30, 2014, and that the project was exempt
from CEQA.




                                 4.
       The District filed a memorandum of costs, seeking
$38,836.54, including $4,299.01 for preparation of the certified
administrative record and $26,922.46 for preparation of the
record appendix. LandWatch filed a motion to tax costs. The
court awarded the District a total of $21,160.46.
       In awarding the costs, the trial court stated: “Landwatch
believes the District should not recover preparation costs for the
certified administrative record because under Public Resources
Code § 21167.6(b), Landwatch elected to be responsible for the
record. However, there were delays in completing the record and
the Court found that the District properly took over the process
and produced a certified administrative record.”
       On appeal, LandWatch challenges $18,230.35 attributable
to the District’s preparation of the administrative record and
appendix.
                            DISCUSSION
                                   I
       LandWatch contends the trial court improperly awarded
the District costs for preparing the administrative record.
       LandWatch relies on section 21167.6, subdivision (b)(2),
which provides: “The plaintiff or petitioner may elect to prepare
the record of proceedings . . . subject to certification of its
accuracy by the public agency, within the time limit specified in
this subdivision.”
       LandWatch argues it gave timely notice of its election to
prepare the record. But it ignores the requirement that it
prepare the record “within the time limit specified in this
subdivision.” That time limit is 60 days from the date of the
notice. (§ 21167.6, subd. (b)(1).)




                                5.
       LandWatch served the notice of its election to prepare the
record on October 14, 2014. LandWatch did not even produce a
draft administrative record index until August 2015. Finally, on
February 5, 2016, the District wrote LandWatch demanding the
documents LandWatch wanted certified. The District warned
that if LandWatch did not produce the documents by February
10, 2016, the District would prepare the documents itself.
LandWatch did not reply until February 19, and the reply was
that LandWatch was working on it. By then the District had
already certified the documents it prepared.
       LandWatch attempts to shift the blame for the delay onto
the District by stating the evidence in a light most favorable to
itself. But that is not how we view the evidence. In viewing the
evidence, we look only to the evidence supporting the prevailing
party. (GHK Associates v. Mayer Group, Inc. (1990) 224
Cal.App.3d 856, 872.) We discard evidence unfavorable to the
prevailing party as not having sufficient verity to be accepted by
the trier of fact. (Ibid.) Where the trier of fact has drawn
reasonable inferences from the evidence, we have no power to
draw different inferences, even though different inferences may
also be reasonable. (9 Witkin, Cal. Procedure (5th ed. 2008)
Appeal, § 376, pp. 434-435.) The trier of fact is not required to
believe even uncontradicted testimony. (Sprague v. Equifax, Inc.
(1985) 166 Cal.App.3d 1012, 1028.) Here the trial court expressly
found that the District acted properly in preparing the record.
Implicit in the finding is that LandWatch unreasonably delayed.
LandWatch’s right to prepare the record is subject to a 60-day
limitation. Having unreasonably delayed, it forfeited that right.
       In Coalition for Adequate Review v. City and County of San
Francisco (2014) 229 Cal.App.4th 1043 (Coalition), petitioners for




                                6.
a writ of administrative mandate elected to prepare the
administrative record. Petitioners presented an incomplete
record to the agency. Unable to obtain the petitioners’
cooperation to supplement the record, the agency obtained by
motion an order allowing the supplementation. When the trial
court denied the writ, the agency filed a memorandum of costs
that included costs for preparing the supplemental record. The
trial court denied the agency those costs on the ground that the
petitioners elected to prepare the record under section 21167.6,
subdivision (b)(2). The Court of Appeal reversed stating: “[T]he
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 period for record
certification set forth in the first sentence of section 21167.6,
subdivision (b)(1). (§ 21167.6, subd. (b)(2).) Thus, the two
subdivisions are interrelated. 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, . . . 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.” (Coalition, at p. 1055.)
       LandWatch distinguishes Coalition on the grounds that
there the agency did not prepare the entire record and obtained
permission from the trial court before preparing the
supplemental record. Every case has its unique facts, but the




                                 7.
point is that under the appropriate circumstances the trial court
has discretion to award the agency costs for preparing the record
notwithstanding the petitioner’s election under section 21167.6,
subdivision (b)(2).
       That is what the trial court did here and it was well within
its discretion. The District has the right to a timely record.
                                  II
       LandWatch contends the trial court erred in awarding the
District costs for preparing the separate appendix.
       The separate appendix consists of documents created after
the January 30, 2014, approval of the project by the District.
While the administrative record was being prepared, LandWatch
insisted such documents are properly part of the administrative
record. It obtained an order from the trial court to prepare the
separate appendix over the District’s objection that the
documents are not properly part of the record. Now that costs
are being assessed against LandWatch, it concedes that the
District was right all along. Documents in the separate appendix
are not properly part of the administrative record. LandWatch
argues that because the District asserted in the trial court that
the documents in the appendix were not properly part of the
administrative record, it will not now be heard to say otherwise.
Thus, in LandWatch’s view, it is the District that must absorb
the cost of preparing documents ordered by the trial court on
LandWatch’s erroneous insistence and over the District’s proper
objection.
       The trial court ordered the separate appendix prepared on
LandWatch’s assertion that documents after January 30, 2014,
were properly part of the administrative record. For LandWatch




                                8.
to now assert that the appendix is not part of the record to escape
the costs it created is fanciful, if not perverse.
                                    III
       LandWatch contends the trial court did not perform its
duty to show that the separate appendix costs were reasonable
and reasonably necessary.
       Whether a cost item is reasonably necessary and whether
the costs awarded are reasonable are reviewed for abuse of
discretion. (Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006)
145 Cal.App.4th 765, 774; Coalition, supra, 229 Cal.App.4th at
p. 1058.)
       Here the District requested $4,299.01 for preparation of the
administrative record and $20,059.17 for preparation of the
appendix. The trial court found that $4,299.01 for the
administrative record is reasonable. The court found that the
amount claimed for preparation of the appendix is “on the high
side” in that preparation of the record includes efforts
attributable to the appendix. The court stated, “While the
District contends these higher costs were caused by Landwatch[,]
the District most likely has some culpability.” The court reduced
the costs of preparing the appendix by 50 percent ($10,029.58) for
a total award of $14,328.59.
       The District spent 23.1 hours preparing the administrative
record and 103.4 hours preparing the appendix for a total of 126.5
hours. LandWatch claims it spent “hundreds of hours” on its own
version of the record.
       The administrative record consists of 422 pages and the
appendix consists of 7,683 pages for a total of 8,105 pages. That
amounts to an award of $1.77 per page. Not only is the trial




                                9.
court’s cost award reasonable, but it is on the low side of
reasonable.
       LandWatch complains that instead of inquiring into the
details of the District’s cost bill, the trial court simply “split[] the
baby” by reducing the District’s cost claim for the appendix by 50
percent.
       But given that LandWatch erroneously insisted on the
appendix, the trial court would have been well within its
discretion to give the District the total amount it claimed.
Instead, the court reduced the amount by 50 percent based on the
finding that the District “most likely has some culpability” for the
high costs. “[M]ost likely has some culpability” is a slender reed
on which to base a substantial discount. LandWatch achieved a
significant reduction in its costs.
                                    IV
       LandWatch contends the trial court erred in awarding the
District $1,032 in fees to CourtCall for 12 telephonic
appearances.
       An item not specifically allowable as costs under Code of
Civil Procedure section 1033.5, subdivision (a), and not
specifically prohibited under subdivision (b), may be allowed as
costs at the discretion of the trial court if reasonably necessary to
the conduct of the litigation. (Citizens for Responsible
Development v. City of West Hollywood (1995) 39 Cal.App.4th
490, 506.)
       LandWatch argues Code of Civil Procedure section 1033.5,
subdivision (b)(3) expressly disallows telephone charges. But
CourtCall is not a telephone charge. It is a means by which a
party can make a court appearance without being physically
present in court.




                                  10.
       LandWatch argues that District’s counsel is a 10-minute
walk from the courthouse. But the District’s counsel who
appeared by CourtCall was in Orange County. The trial court did
not abuse its discretion.
       LandWatch also complains about $695 in copying costs. It
claims it could have obtained copying for less. But LandWatch
cites no authority for the proposition that the reasonable cost is
the very lowest.
       LandWatch complains that $1,708 to transcribe the
January 30, 2014, meeting should not be allowed. In fact, the
trial court awarded only $715 in transcription costs. That is the
amount LandWatch argued should be awarded.
       LandWatch cites Code of Civil Procedure section 1094.5,
subdivision (a) for the proposition that where a transcript is
necessary to a proper review for the administrative proceedings,
the cost shall be borne by the respondent. But that only applies
where the respondent is proceeding under Government Code
section 68630, providing for a waiver of fees. LandWatch did not
proceed under Government Code section 68630. Instead, Code of
Civil Procedure section 1094.5 provides, “Except when otherwise
prescribed by statute, the cost of preparing the record shall be
borne by the petitioner.” LandWatch cites no applicable
statutory exception.
       The judgment (order) is affirmed. Costs are awarded to
respondent.



                                     GILBERT, P. J.
We concur:
               PERREN, J.            TANGEMAN, J.




                               11.
                   Ginger E. Garrett, Judge

           Superior Court County of San Luis Obispo

                ______________________________



      Environmental Law Clinic, Mills Legal Clinic at Stanford
Law School, Deborah A. Sivas; Cynthia Hawley for Plaintiff and
Appellant.
      Rutan & Tucker, LLP, Robert S. Bower, John A. Ramirez,
Peter J. Howell; Carmel & Naccasha, LLP, Timothy J. Carmel,
Michael M. McMahon for Defendant and Respondent.




                              12.
Filed 7/27/18
                 CERTIFIED FOR PUBLICATION



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                  SECOND APPELLATE DISTRICT

                            DIVISION SIX


LANDWATCH SAN LUIS                         2d Civil No. B281823
OBISPO COUNTY,                         (Super. Ct. No. 14CVP-0258)
                                         (San Luis Obispo County)
     Plaintiff and Appellant,
                                       ORDER MODIFYING
v.                                 OPINION AND CERTIFYING
                                   OPINION FOR PUBLICATION
CAMBRIA COMMUNITY                       [NO CHANGE IN
SERVICES DISTRICT,                        JUDGMENT]

     Defendant and Respondent.


THE COURT:
It is ordered that the opinion filed herein on June 28, 2018, be
modified as follows:
1. On page 1, the first three sentences are changed to read:
     A nonprofit organization petitioned for a writ of
     administrative mandate against a public agency, claiming
     that the agency violated provisions of the California
     Environmental Quality Act (CEQA). The organization
     elected to prepare the administrative record. But because
     of unreasonable delays, the agency prepared the record.




                                 13.
2. On page 2, first paragraph, “the California Environmental
Quality Act (CEQA)” is changed to “CEQA.”
3. On page 2, the third paragraph is changed to read:
    In anticipation of the need to prepare an administrative
    record, LandWatch sent the District a request pursuant to
    the California Public Records Act for all public documents
    relating to the approval of the project and the Notice of
    Exemption. In response, the District supplied all the
    documents in November 2014.
4. On page 2, fourth paragraph, second line in first sentence, the
words “should be mailed” are changed to “it would mail.”
5. On page 3, first line at top of page, the words “was refusing”
are changed to “refused.”
6. On page 3, first full paragraph, the second and third sentences
are changed to read:
    The index was underinclusive because it failed to include
    the January 30, 2014, resolution approving the project.
    The index was overinclusive because it included
    documents created after the January 30, 2014, approval
    date.
7. On page 3, first line of second full paragraph, the words
“brought a motion” are changed to “moved.”
8. On page 4, first line of second paragraph, the words “waited
for three weeks” are changed to “waited three weeks.”
9. On page 4, the last sentence in the second paragraph is
changed to read: “The urgency behind the request was that trial
was set for March 23, 2016, and the parties needed time for
briefing.”
10. On page 4, second line of the fifth paragraph, the words “a
motion asking the court” are changed to “a motion requesting the
court.”
11. On page 6, second line in first paragraph, the words “did not
even produce” are changed to “failed to produce.”




                               14.
12. On page 6, the penultimate sentence in the first paragraph is
changed to read: “LandWatch did not reply until February 19,
and its reply was that it was working on it.”
13. The paragraph commencing at the bottom of page 7 and
ending at the top of page 8 and the first full paragraph on page 8
are modified to read as follows (which will result in one
paragraph, not two):
    LandWatch attempts to distinguish Coalition because
    there the agency did not prepare the entire record and
    obtained permission from the trial court before preparing
    the supplemental record. Every case has its unique facts,
    and the so-called “distinction” here is inconsequential.
    Under the appropriate circumstances, the trial court has
    discretion to award the agency costs for preparing the
    record notwithstanding the petitioner’s election under
    section 21167.6, subdivision (b)(2). That is what the trial
    court did here and it was well within its discretion. The
    District has the right to a timely record.
14. On page 10, penultimate sentence in second full paragraph,
the sentence is changed to read:
    “[M]ost likely has some culpability” is a slender reed on
    which to base a further discount.
15. On page 11, the last line in the first paragraph (“The trial
court did not abuse its discretion”) is deleted.

There is no change in judgment.

The opinion in the above-entitled matter filed on June 28, 2018,
was not certified for publication in the Official Reports. For good
cause it now appears that the opinion should be published in the
Official Reports and it is so ordered.




                                15.
