In a partially published opinion in Otay Ranch, L.P. v. County of San Diego, 2014 Cal. App. LEXIS 875, the California Court of Appeal for the Fourth District affirmed the trial court’s decision to allow San Diego County to recover the reasonable costs charged by outside counsel to prepare the administrative record for a mandamus proceeding.

The petitioners alleged the county violated the California Environmental Quality Act (CEQA) and the Health and Safety Code by approving a remediation plan for a skeet shooting range in Chula Vista, relying on a mitigated negative declaration.

The petitioners initially prepared the administrative record themselves, but when the petitioners produced a substantially deficient record, the county elected to take over record preparation. The petitioners did not object and did not challenge its obligation to pay the record costs. The county subsequently retained outside counsel to assist in preparing the 18,000-page administrative record. The day after the complete record was served on the petitioners, they dismissed the entire action.

The trial court thereafter awarded the county $37,528.14 in costs for preparing the record, which included $30,435 for attorney and paralegal time spent preparing the record, and $7,093.14 in copies and other associated costs to produce the document.  The petitioners did not challenge the cost of copies and production, but contended the amounts charged for attorney and paralegal time amounted to an award of attorney fees impermissible under CEQA or the Health and Safety Code. The court stated that Public Resources Code section 21167.6 requires payment of any reasonable costs or fees associated with preparing the record, and petitioners had the burden of establishing the trial court abused its discretion and “exceeded the bounds of reason” in determining whether the cost was reasonable and necessary.

The court held that, due to the complexity and history of the project, it was not unreasonable for the county to retain outside counsel to assist in preparing the administrative record. The costs of preparing the record were not improper attorney’s fees just because a law firm provided the labor. Petitioners are required to pay the “actual costs” and because the county did not have the resources or experienced personnel to prepare the record, it was not unreasonable for the county to retain lawyers and paralegals with the “specialized knowledge” to assist.

KEY POINT

Preparation of the administrative record in a mandamus action can require specialized knowledge given the complex nature of CEQA litigation. Accordingly, a trial court has discretion to allow recovery of attorney and paralegal labor as part of the actual costs of preparing the administrative record when the costs are reasonably necessary.