In The Otay Ranch, L.P. v. County of San Diego (Flat Rock Land Co., L.L.C.), published September 29, 2014, the Fourth District Court of Appeal, Division 1, affirmed an award to the respondent county of costs -- including the fees of outside counsel and its paralegals -- for preparing an administrative record for the petitioner's CEQA-related petition for writ of mandate. The petitioner agreed to prepare the administrative record, but failed to do so for months. The county then offered to prepare the record, and asserted that the petitioner would be responsible for paying the costs of preparation. The petitioner did not object. Because the county department responsible for maintaining the files did not have the manpower or resources to prepare the record, the outside law firm representing it in the litigation prepared the record. The complexity and scope of the 18,000 page record required the attorney's personal involvement. One day after it was filed and served, the petition was dismissed. The trial court concluded that attorney and paralegal fees for preparing the record were part of the cost awardable to the county for the record's preparation.
The appellate court ruled that the trial court acted within its discretion. Code of Civil Procedure section 1094.5 provides that the cost of preparing the record shall be borne by the petitioner, and that if borne by the prevailing party, the expense is taxable as costs. Section 1094.6 provides that the agency may recover from the petitioner its actual costs for preparing the record. In petitions alleging CEQA violations, Public Resources Code section 21167.6 requires payment of any reasonable costs or fees imposed for preparation of the record in conformance with any law. The trial court properly determined that the attorney and paralegal fees were part of the reasonable and necessary costs the petitioner had to pay, and not an impermissible award of attorney fees.